Decisions

CAT File No. W-1177-41
MoT File No. SAP-6504-C6367-27033

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

West Wind Airspray Ltd., Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Air Regulations, C.R.C. 1978, c. 2, s. 803(b)

Competent person at the controls


Review Determination
Fred W.R. Clarke


Decision: May 22, 1996

I find that by his own admission Mr. Peter Hansen (West Wind Airspray Ltd.) did contravene paragraph 803(b) of the Air Regulations on both counts. I confirm the Minister's decision to assess a monetary penalty of $250.00 for each count. Said penalty for a total of $500.00 shall be made payable to the Receiver General for Canada and forwarded to the Civil Aviation Tribunal within fifteen days of receipt of this determination.

The Review Hearing on the above matter was held Wednesday, May 8, 1996 at 10:00 hours at Canada Place, in the city of Edmonton, Alberta.

BACKGROUND

The Notice of Assessment of Monetary Penalty reads in part as follows:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Section 803(b) of the Air Regulations:

Count #1: $250.00: At or near Lethbridge, Alberta on or about the 3rd of August 1995 at approximately 1915 hours UTC, you did leave the engine of Ayres S-2R aircraft, Canadian registration C-GTUZ running when the pilot's seat was not occupied by a person competent to control the aircraft.

Count #2: $250.00: At or near Lethbridge, Alberta on or about the 4th of August 1995 at approximately 1550 hours UTC, you did leave the engine of Ayers S-2R aircraft, Canadian registration C-GTUZ running when the pilot's seat was not occupied by a person competent to control the aircraft.

West Wind Airspray Ltd. failed to pay the monetary penalty totalling $500.00 which was due December 4, 1995.

THE LAW

Paragraph 803(b) of the Air Regulations reads as follows:

803. The engine or engines or any aircraft shall not be

(a) started unless the pilot's seat is occupied by a person competent to control the aircraft or unless the aircraft is prevented from moving forward; or

(b) left running unless the pilot's seat is occupied by a person competent to control the aircraft.

EVIDENCE

The Hearing Officer read all of the above into the record and was prepared to proceed with the Review Hearing when Richard Covlin, counsel for West Wind Airspray Ltd. announced that his client wished to admit to committing the two offences.

After discussion with both sides it was decided to proceed with Mr. Covlin calling Mr. Peter Hansen, President of West Wind Airspray Ltd. to give sworn testimony covering the violations. The thrust of this testimony was about the outdated paragraph 803(b) of the Air Regulations, the fact that most, if not all of the spray operators followed the same procedure, and it was common practice in the air spray industry to leave their engines running during warm up while they proceeded to do other things. This was especially true in the case of the Ayers S-2R aircraft due to the lengthy time required to warm up the radial engine. He stated that the area around his hangar was secure at the time. The parking brake was on, RPM was approximately 500 to 700, and there were no people in the area. He was not sure if he had installed chocks but stated that the parking brakes were on.

During a brief cross-examination, Mr. Ribout pointed out that section 803 does not offer an exemption to allow for warm up.

CONCLUSION

In waiting until the hearing to admit to committing the two offences it is evident that Mr. Hansen wished to make a statement through Mr. Covlin. This statement was to point out the outdated reasoning behind paragraphs 803(a) and (b) of the Air Regulations.

In their evidence they pointed out that both the Alberta Aerial Applicators Association and the Canadian Aerial Applicators Association have been lobbying hard against the enforcement of paragraph 803(b). Mr. Covlin said that the new Canadian Aviation Regulations (CARS) could possibly contain amendments to paragraph 803(b) which may allow operators to warm up their aircraft under certain conditions. Mr. Covlin suggested that paragraph 803(a) was much more dangerous than paragraph 803(b) given that modern aircraft equipped with parking brakes posed much less a problem than was present in the old prop start days.

Mr. Covlin suggested that a reduction in the monetary penalty for each violation would be in keeping with the proposed regulation changes expected when the new CARS are officially released.

Mr. Ribout commented briefly on the proposed CARS and suggested that the importance of paragraph 803(b) may prove to be quite different than what Messrs. Hansen and Covlin were expecting. He suggested that an increase from one thousand dollars maximum to five thousand dollars maximum for violations of paragraph 803(b) for a corporation might be a reality.

The fact that the Respondent admitted to committing the two offences makes that part of my decision very easy. I heard the suggestion from Mr. Covlin to reduce the penalty. I also heard Mr. Ribout's reasons why that should not take place.

There are many segments of the aviation industry that disagree with some part of the current regulations. Messrs. Covlin and Hansen have voiced their displeasure as to how paragraph 803(b) affects their segment. Some of these areas might well be revised under the new CARS.

Current regulations call for a maximum fine of $1,000 for a first offence by a corporation under paragraph 803(b). The recommended minimum fine is $250.00. This minimum was called for in this case, and I see no reason to change that minimum.

DETERMINATION

I find that by Mr. Hansen's own admission West Wind Airspray Ltd. did contravene paragraph 803(b) of the Air Regulations on both counts. I confirm the Minister's decision to assess a monetary penalty of $250.00 for each count.

Fred W.R. Clarke
Member
Civil Aviation Tribunal