Decisions

CAT File No. W-1258-37
MoT File No. SAP-6504-Z-27823

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Kendy's Entreprises Ltd., Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss 7.7, 8.4(1)
Airspace Structure, Classification and Use Regulations, SOR/93-458, s. 7(1)

Vicarious Liability, Flight In Class F Airspace


Review Determination
Robert J. MacPherson


Decision: October 17, 1996

I find the aircraft C-GPMQ was below 17,000 feet ASL and 2 km inside CYR 203. I find the registered owner of the aircraft, Kendy's Enterprises Ltd., is liable for this offence under subsection 8.4(1) of the Aeronautics Act. The assessment of a monetary penalty of $500.00 is upheld. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within fifteen days of service of this determination.

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

THE ALLEGATION

NOTICE OF ASSESSMENT OF MONETARY PENALTY

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

On or about September 6, 1995, at or near Wainwright, in the Province of Alberta, you, as registered owner, operated aircraft Cessna C414, Canadian registration marks C-GPMQ, within the Restricted Class F Airspace of Canadian Forces Base Wainwright when you were not authorized to do so by Base Operations Camp Wainwright, thereby contravening Section 7(1) of the Airspace Classification, Structure and Use Regulations.

PREAMBLE

A Cessna 414, registered as C-GPMQ, was approaching to land in Wainwright, Alberta, (CYWV) on September 6, 1995. The aircraft was observed by members of the Canadian Armed Forces, over the military base designated as CYR 203. CYR 203 is designated as Class F restricted airspace, requiring prior permission to overfly such airspace.

THE LAW

Section 7 of the Airspace Structure, Classification and Use Regulations reads:

7. (1) No person shall operate an aircraft in Class F Special Use Restricted airspace unless authorized to do so by the person specified for that purpose in the Designated Airspace Handbook.

(2) For the purposes of subsection (1), a person specified in the Designated Airspace Handbook may authorize the operation of an aircraft where activities on the ground or in the airspace are not hazardous to aircraft operating in that airspace and access by aircraft to that airspace does not jeopardize national security interests.

DESIGNATED AIRSPACE HANDBOOK
SEE APPENDIX "A"

THE EVIDENCE

Mr. R. (Rick) McFarlane of Transport Canada, Civil Aviation Enforcement was sworn and testified as to the following exhibits:

M-9 ENROUTE Low altitude map depicting the location of CYR 203.

M-10 Excerpts from the Designated Airspace Handbook effective 20 July 1995.

M-11 Airspace Structure, Classification and Use Regulations, subsections 7(1) and (2).

M-12 Lloydminster Flight Service Station report.

M-19 Section 8.4 of the Aeronautics Act.

There were other exhibits tendered and accepted that related to the ownership of the aircraft and the related correspondence from Transport Canada.

The witness Sergeant Andrew Wright was in the range control office when he heard an aircraft very low and noisy. He went outside, retrieved his binoculars from his vehicle and observed the aircraft. The aircraft was 1 km south and west of his location over a fuel depot, a landmark with which he is familiar. The wheels of the aircraft were down. The aircraft was flying slowly. He identified the call letters of the aircraft as C-GPMQ.

The fuel depot is approximately 1½ km inside CYR 203. The range control office is approximately 2 km from the end of Runway 11 at YVW (Wainwright, Alberta).

Mr. Kenny Christiansen testified he was co-pilot of the flight involved. His cousin Tim Christiansen was flying the aircraft. They approached YVW on a right base for Runway 11. Mr. Christiansen testified they were aware of the military base (CYR 203). There was nothing on the ground by which to determine where the base is located. Tim Christiansen was flying the aircraft with the owner's (Kendy's Enterprises) consent.

DISCUSSION OF THE EVIDENCE

There are two items to be dealt with.

1) Can the owner of the aircraft be proceeded against?

2) Was the aircraft over CYR 203 at less than 17,000 feet ASL (above sea level) ?

Can the owner of an aircraft be proceeded against?

Subsection 8.4(1) of the Aeronautics Act.

The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor. (Emphasis added)

The evidence shows Kendy's Enterprises Ltd. to be the owner of the aircraft. Mr. Kenny Christiansen, the owner of Kendy's, testified his cousin Tim Christiansen was flying the aircraft with his consent. In fact the owner of Kendy's was in the right front seat of the aircraft during the flight in question.

I therefore find the aircraft was not in the possession of a person other than the owner, and the aircraft was operated with the owner's consent.

The allegation can proceed against the owner of the aircraft C-GPMQ, Kendy's Enterprises Ltd.

Was the aircraft over CYR 203 below 17,000 feet ASL?

CYR 203 is identified as Camp Wainwright, Alberta and is so designated on all aviation maps and publications. The designated altitude and time restrictions are to 17,000 feet ASL, continuous.

Sgt. Wright, the range control Non-commissioned Officer (NCO), at Camp Wainwright, Alberta, was in the Range Control Office at approximately 12:30 hours on September 6, 1995. He observed a light aircraft, twin engine, call letters C-GPMQ, beige in color, overfly Department of National Defence property West to East, and South of the range control office. The aircraft was at a low altitude. The aircraft was "low and slow enough to land"; the wheels were down. Three other Department of National Defence personnel observed the overflight (Exhibit M-20).

The aircraft at the time was in a landing configuration, Low, Slow, wheels down. I find the aircraft was under 17,000 feet ASL.

The range control officer, Sgt. Wright, was quite precise with regards to the shape (light twin engine aircraft), color (beige), call letters (C-GPMQ), speed, distance, direction and configuration (wheels down).

From his position at the range control office he was looking South and West and observed the aircraft over a fuel supply area which is known to him and marked on the map (Exhibit M-21).

The positive identification of the aircraft indicates it was very close to Sgt. Wright. The fuel supply area is 2 km inside the eastern border of CYR 203. The fuel depot is 1 to 1½ km from the range control office.

DETERMINATION

I find the aircraft C-GPMQ was below 17,000 feet ASL and 2 km inside CYR 203.

I find the registered owner of the aircraft, Kendy's Enterprises Ltd., is liable for this offence under subsection 8.4(1) of the Aeronautics Act.

The assessment of a monetary penalty of $500.00 is upheld.

The Tribunal thanks Mr. Stuffco and Transport Canada for their clear and precise presentations in this matter.

Robert MacPherson
Member
Civil Aviation Tribunal