Decisions

CAT File No. W-1271-02
MoT File No. SAP-6504-P309088-26919

CIVIL AVIATION TRIBUNAL

BETWEEN:

Richard Thomas McGlone, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., c. A-2, s. 6.9
Aircraft Marking and Registration Regulations (Air Regulations, Series II, No. 2), s. 17(2)

Registration Certificate, Ultra-Light Aircraft


Review Determination
Robert J. MacPherson


Decision: August 29, 1996

The Minister's allegation is dismissed. This Tribunal finds the launch weight of C-IECR to be as stated by Mr. McGlone. The weight of the chemicals in the tank falls within previously accepted standards by Transport Canada. The seven-day suspension is hereby cancelled.

The Review Hearing on the above matter was held Wednesday, August 21, 1996 at Canada Place, in the city of Edmonton, Alberta.

PREAMBLE

The suspension of Mr. McGlone's commercial pilot licence involves the alleged operation of an ultra-light aircraft in an overweight condition. The Minister contends that the operation of an ultra-light aircraft that exceeds its "launch weight" automatically cancels the registration of the aircraft.

Mr. McGlone has been using the same type of aircraft for crop spraying operations for approximately ten years.

The ultra-light aircraft is purchased as a kit, assembled by the owner or his designate, outfitted with an engine and registered as an ultra-light aircraft.

THE SUSPENSION

By double-registered letter dated April 16, 1996, Richard Thomas McGlone was advised of a "Notice of Suspension" as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

SEE APPENDIX 'A'

Note: Original Appendix "A" was amended by letter dated July 11, 1996 and reads as follows:

Air Regulations Series II, No. 2, Section 17(2), in that you did between the 20th day of June 1995 and the 24th day of June 1995, at or near Pibroch, Alberta, operate ultra-light aircraft Beaver RX 550, bearing Canadian registration marks C-IECR when the registration for the aircraft was cancelled pursuant to Air Regulation Series II, No. 2, Section 42, specifically because the installation of spray equipment and spray chemicals caused the aircraft to be unqualified as to launch weight for registration as an ultra-light aeroplane.

Mr. McGlone received a suspension of seven (7) days of his Commercial Pilot Licence C-309088.

THE LAW

Subsection 17(2) of the Air Regulations, Series II, No. 2 reads as follows:

(2) Except as otherwise authorized pursuant to subsection (3) or (4) or 36(3), no person shall operate an aircraft in Canada unless it is registered in Canada, in a contracting state or in a foreign state that has an agreement in force with Canada that allows an aircraft that is registered in that foreign state to be operated in Canada.

Section 42 of the Air Regulations, Series II, No. 2 reads as follows:

42. Where an aircraft that is registered as an ultra-light aeroplane no longer qualifies as an ultra-light aeroplane, its registration is cancelled.

Air Regulations, Series II, No. 2 definition:

"ultra-light aeroplane" means an ultra-light aeroplane as defined in subsection 101(1) of the Air Regulations

Subsection 101(1) of the Air Regulations:

"ultra-light aeroplane" means an ultra-light single place aeroplane and an ultra-light two place instructional aeroplane

"ultra-light two place instructional aeroplane" means a power-driven heavier-than-air aircraft, designed to carry not more than two persons, having a launch weight not exceeding 195 kg, and a wing area, expressed in square metres, of not less than 10 square metres and a wing loading of not greater than 25 kg/m2 calculated using the launch weight plus the occupant weight of 80 kg per person

"launch weight" means the total weight of a hang glider or an ultra-light aeroplane when it is ready for flight including any equipment, instruments and the maximum quantity of fuel and oil that it is designed to carry, but does not include

(a) the weight of any float equipment to a maximum weight of 34 kg,

(b) the weight of the occupant, or

(c) the weight of any ballistic parachute installation

THE EVIDENCE

Through personal testimony and exhibits produced, the following facts are accepted by this Tribunal.

(1) The ultra-light aircraft referred to is registered as C-IECR, a Beaver RX 550.

(2) C-IECR is registered to Richard T. McGlone (B G Farm & Flight Center).

(3) During the period June 20–24, 1995, Richard McGlone was piloting C-IECR at or near Pibroch Colony near Westlock, Alberta.

(4) Richard T. McGlone assembled and registered C-IECR in 1993.

(5) The launch weight on the application for registration is stated as 192 kg.

Ultra-light aircraft are registered with a "launch weight". The launch weight is to include "any equipment, instruments and the maximum quantity of fuel and oil that it is designed to carry". (Emphasis added)

The weight does not include floats (if so equipped), the occupant, or a parachute.

The case to be proven therefore is whether or not the spray equipment was part of the launch weight and, if so, did the weight of such equipment put the aircraft C-IECR over its launch weight on the days in question?

Matt Allison, by affidavit, estimated the weight of the spray gear as 20 lbs. or 9 kg (Exhibit M-7).

James Smith, by affidavit, estimated the weight of the spray gear at 20 kg (Exhibit M-8).

The Tribunal heard testimony from Inspector Pollock estimating the weight of the spray gear at 11 kg.

The manufacturer of the Beaver RX 550 is no longer in business. Mr. McGlone testified the manufacturer did not supply the weight of a completed aircraft. The aircraft are assembled by the purchaser, in this case Mr. McGlone.

Mr. McGlone has assembled ten to twelve RX 550 aircraft over the last ten years (estimate). He testified all aircraft registered by him after 1991 had spray gear included in the launch weight.

Mr. McGlone testified he registered C-IECR close to the 195-kg maximum launch weight allowed for ultra-light aircraft without weighing it.

Mr. McGlone, under cross-examination, said he did weigh the aircraft at a roadside scale. He was not precise as to the actual weight of the aircraft, pilot, passenger or other factors (fuel, oil, etc.) and kept no record of the event.

CONCLUSIONS

The onus is on the owner of an ultra-light aircraft to apply for a Certificate of Registration, stating the launch weight of the aircraft.

The Certificate of Registration is issued based on the information supplied by the Applicant.

The Certificate of Registration was issued June 27, 1994.

The manufacturer of the RX 550 does not supply a weight of the kit.

The Tribunal has no actual weight of the spray gear (three opinions: McGlone, Smith, Allison).

In any event, Transport Canada contends the spray gear was installed after the Certificate of Registration was issued.

Mr. McGlone testified the 192-kg launch weight included spray gear.

No one has weighed the aircraft to determine the actual launch weight of C-IECR with the spray gear installed.

The Tribunal has no evidence or testimony before it to show the spray gear was not part of the launch weight as specified by Mr. McGlone on the application for the Certificate of Registration.

I therefore accept Mr. McGlone's testimony that the spray gear in itself was part of the launch weight of C-IECR.

The other question to be resolved is the matter of the 40 litres of chemical stated to be on board C-IECR in the June 20–24, 1995 period.

Was the launch weight compromised by the weight of the chemicals in the tank located in the passenger seat?

The aircraft in question could have floats attached, to a maximum weight of 34 kg, or a passenger, to a maximum weight of 80 kg.

Assuming the weight of chemicals and water at 8 lbs. per gallon or 1 kg per litre, the additional weight would be 40 kg (40-litre tank).

If a passenger were in the seat where the tank was located, an 80-kg passenger weight is acceptable (Definition of an ultra-light two place instructional aeroplane).

The issue appears to be one of safety. If an 80-kg passenger does not compromise the safe flight of the aircraft, could one conclude that 40 kg of chemicals does? I think not.

The evidence and testimony clearly show these aircraft have been used in crop spraying operations for years. Transport Canada has authorized crop spraying "within 25 miles" and therefore has accepted the fact that the tank will be filled with chemicals.

DETERMINATION

This Tribunal finds the launch weight of C-IECR to be as stated by Mr. McGlone.

This Tribunal finds the weight of the chemicals in the tank to fall within previously accepted standards by Transport Canada.

The allegation is dismissed.

I should like to thank the parties involved for their clear and precise presentations.

Robert MacPherson
Member
Civil Aviation Tribunal