Decisions

CAT File No. W-1302-33
MoT File No. SAP-6504-P-125980-27788

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Jerry Mervin Wolsky, Respondent

LEGISLATION:
Aeronautical Information Publication, RAC 4.4.8
Aeronautics Act, S.C., c.A-2, s.7.7, 7.9, 8, 8.5
Airspace, Structure, Classification & Use, s. 3(1), 5(1), 12(1)

VFR Flight in Class C Airspace, Radio Failure as a Defence, Due Diligence, Dissent


Review Determination
Robert J. MacPherson


Decision: February 6, 1997

I find, both on the evidence and the admission of Mr. Wolsky, that the Minister's allegation is sustained. The penalty is increased from $100.00 to $200.00. This amount, made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal, must be received within fifteen days of service of this determination.

A Review Hearing on the above matter was held Tuesday, February 4, 1997, at 10:00 hours, at the Federal Court of Canada, in the city of Calgary, Alberta.

BACKGROUND

By registered letter dated June 3, 1996, Jerry Mervin Wolsky was issued a Notice of Assessment of Monetary Penalty.

The Notice reads 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):

Airspace Structure, Classification and Use Regulations, Section 12, Subsection 1: in that you did, on or about 19 January 1996, at or near Calgary, Alberta, operated aircraft Cessna 310, Canadian registration C-FWMN, in VFR flight into Class C airspace, specifically the Calgary International Airport Class C airspace as described in the Designated Airspace Handbook, without receiving a clearance to enter the airspace from the Calgary Air Traffic Control Unit.

Mr. Wolsky picked up a Cessna 310 aircraft, in southern Florida USA, for his employer Executive Airlines. His job was to ferry the aircraft from Florida to Calgary, Alberta. One hour into the flight, the number one radio ceased to function. A two-day stop was necessary in Abilene, Kansas to repair the aircraft heater. In Sheridan, Wyoming the right hand throttle cable was frozen and required servicing. At Sheridan a flight plan to Calgary was filed by the pilot Wolsky. The flight plan was never opened. The flight arrived in Calgary with no radio transmitter operational, and entered the Calgary International Airport Class C controlled airspace without prior authorization.

THE LAW

The Airspace Structure, Classification and Use Regulations:

Airspace Structure

3. (1) Controlled airspace shall consist of the following types of airspace:

(b) control zones;

(...)

(3) The horizontal and vertical limits of any airspace of a type referred to in subsection (1) or (2) shall be as specified in the Designated Airspace Handbook.

(...)

Airspace Classification

5. (1) The class of any controlled airspace of a type referred to in subsection 3(1) shall be one of the following, as specified in the Designated Airspace Handbook:

(...)

(c) Class C;

(...)

VFR Flight in Class C Airspace

12. (1) Subject to subsection (2), no person operating a VFR aircraft shall enter Class C airspace unless the person receives a clearance to enter from the appropriate air traffic control unit before entering the airspace.

(2) The pilot-in-command of a VFR aircraft that is not equipped with radiocommunication equipment capable of two-way communication with the appropriate air traffic control unit may, during daylight in VMC, enter Class C airspace if the pilot-in-command receives authorization to enter from the appropriate air traffic control unit before entering the airspace.

The Designated Airspace Handbook:

4.2.3 CONTROL ZONES

Class C

(...)

Calgary Intl., Alta. — 6600' ASL (3000' AAE) ... a circle of 7 miles radius centred on the Calgary Intl., Alta. airport ...

EVIDENCE

Transport Canada called one witness, Regulatory Inspector Kevin German. Exhibits were introduced and identified showing that proper notice had been given to Mr. Wolsky, that the aircraft C-FWMN was owned by Executive Airlines Flight Training, and was flown by the Respondent Wolsky during the flight in question.

On January 22, 1996, by letter (Exhibit M-3), Mr. Gordon Lowe, General Manager of the Calgary ATC Facility, advised Rick McFarlane of Transport Canada, of an unauthorized entry into the Calgary International Airport Class C restricted airspace on January 19, 1996. The Aircraft was identified as a Cessna 310, registration C-FWMN.

Inspector German requested and received from the Calgary ATC, a copy of the ATC log for the evening of January 19, 1996. The log (Exhibit M-4) states at 0120z "Nordo aircraft squawking 7600 inbound. A/C not responding to light gun signals."

Mr. Lowe's letter sums up the incident as follows:

On the evening of January 19th an unknown target was observed 50 miles southeast of Calgary heading towards the airport squawking code 7600 (radio failure).

Weather at the time was CAVOK winds calm, runway 34 and 28 were active.

Blind transmissions were issued with instructions for identification turns etc. to no avail. The aircraft proceeded to set-up for a landing on runway 25. Other IFR traffic was vectored well out of the way. The aircraft landed runway 25 (light signal issued by tower) and came to a halt at the intersection of runway 34 dripping pools of fluid (gas/oil). This resulted in unserviceable status for runway 34 and 25 a reduction in TMU arrival rate from 46 to 28 with runway 28 the sole active. This status lasted for about 30 minutes until the aircraft could be removed and the liquids absorbed by dry chemicals. Some delays resulted to other Users.

The pilot later called the tower supervisor stating that he had filed a flight plan with RONLY in remarks along with ADCUS.

The flight plan was not received. Had this aircraft decided to land on runway 28 and stopped at the intersection of 34, the impact would have been much different.

Two points need to be addressed. First the missing flight plan. Secondly RONLY remarks do not qualify for automatic entry into class 'C' airspace. CFWMN/C-310 was the aircraft in question, apparently originating from somewhere in Florida arriving here January 19th 2000 MST (January 20th 0300 Z).

Exhibit M-5 showed the official sunset for the date in question to be 0005Z.

Mr. Wolsky took the stand and was sworn. Mr. Wolsky then proceeded to read from (Exhibit D-8) a paper entitled "Recollection of Events: C-FWMN C-310 Flight". Mr. Wolsky related the problems relating to the aircraft during the flight from Florida. Mr. Wolsky filed a flight plan in Sheridan Wyoming, for the last leg of his flight from Sheridan to Calgary.

Inspector German contacted the Casper FSS and confirmed the flight plan had been filed. The flight plan has to be opened by the pilot after the aircraft is airborne. This was not done, and the flight plan was discarded.

DISCUSSION

The evidence shows the flight, originating in Florida, encountered numerous radio and mechanical problems en route to Canada.

Mr. Wolsky testified he is a very experienced pilot, with world wide experience in the delivery of aircraft. Mr. Wolsky holds an Airline Transport licence, and an Instrument Rating. Mr. Wolsky testified under cross-examination he is very familiar with the Calgary Terminal Control area, and fully aware of the Class C airspace contained therein. Mr. Wolsky is aware of the flight rules in the USA.

Problems were anticipated with the number 2 radio by Mr. Wolsky in Sheridan Wyoming. He received no reply to his transmissions on arrival. He assumed no one was listening. When he filed his flight plan he indicated RONLY (Receive Only) on the flight plan. No copy of a flight plan was put into evidence.

The USA flight rules state the pilot must open his flight plan after take-off. Mr. Wolsky says he broadcast his take-off on the appropriate frequency, but received no reply.

The flight plan was never opened. Flight plans are discarded if not opened by the pilot after take-off. The flight arrived in Canadian territory without a flight plan or any other prior notification.

CONCLUSION

It is clearly the responsibility of the pilot-in-command of an aircraft involved in an International flight such as this to ensure a flight plan is in place.

The flight from Sheridan to Calgary was initiated without confirmation of a flight plan being opened. Messages were transmitted, and replies were not received. The flight was continued to the Calgary control zone with this knowledge.

Class C airspace at the Calgary airport was entered by Cessna 310 C-FWMN piloted by Jerry Wolsky without prior permission or authorization to do so. The transponder code 7600 (radio failure) does not constitute authority to enter Class C airspace. The pilot had the opportunity to make other arrangements in Sheridan; however, he elected to continue the flight to Calgary.

The emergency circumstances surrounding the subsequent landing do not change the fact that the pilot was landing at Calgary, with or without an emergency.

The VFR flight landed after sunset, another violation of the VFR flight permit issued to the flight in question. It appears the pilot was going to land the aircraft at Calgary that evening regardless of the circumstances or the consequences.

DETERMINATION

I find, both on the evidence and the admission of Mr. Wolsky, that the Minister's allegation is sustained. The penalty is increased from $100.00 to $200.00.

Robert J. MacPherson
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Faye H. Smith, Ken Clarke


Decision: June 19, 1997

The Appeal is dismissed. We determine that Captain Wolsky did contravene subsection 12(1) of the Regulations as alleged in the Notice of Assessment of Monetary Penalty and impose a penalty of $100 as originally assessed. This amount, made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal, must be received within fifteen days of service of this determination.

An Appeal Hearing on the above matter was held before three designated Tribunal Members on Thursday, May 8, 1997 at 10:00 hours at the Federal Court of Canada, in the city of Calgary, Alberta.

BACKGROUND

Pursuant to a Notice of Appeal Hearing dated March 20, 1997, an appeal hearing before the Civil Aviation Tribunal was held on Thursday, May 8, 1997, at 10:00 a.m. at the Federal Court of Canada premises in the city of Calgary, Alberta.

This hearing was convened pursuant to a request by Captain Wolsky for appeal of the determination rendered by Mr. Robert MacPherson on February 6, 1997. That determination confirmed the Minister's decision to assess a monetary penalty for the alleged breach of the Airspace Structure, Classification and Use Regulations and further increased the amount from $100 to $200.

THE FACTS

The facts of this case are simple and undisputed: On behalf of his employer, Executive Airlines, Captain Wolsky, on or about January 19, 1996, ferried a Cessna C 310 aircraft, Canadian registration C-FWMN from Sarasota, Florida to Calgary International Airport, in Alberta. En route, Captain Wolsky and his passenger Mr. Taves experienced delays in Abilene Kansas and in Sheridan Wyoming due to mechanical difficulties. Prior to departure on the last leg of the flight from Sheridan, Wyoming to Calgary, Captain Wolsky filed a flight plan by telephone indicating the possibility of no radio (NORDO) in the remarks section of the plan. Subsequently the flight arrived at Calgary International Airport entering Class C controlled airspace, as described in the Designated Airspace Handbook, without prior authorization, and without any prior communication as the Appellant had no functional radio transmitter, and the flight plan had never been opened.

THE LAW

Subsection 12(1) of the Airspace Structure, Classification and Use Regulations states:

12. (1) Subject to subsection (2), no person operating a VFR aircraft shall enter Class C airspace unless the person receives a clearance to enter from the appropriate air traffic control unit before entering the airspace.

Subsection (2) states in part:

... during daylight in VMC, enter Class C airspace if the pilot-in-command receives authorization to enter from the appropriate air traffic control unit before entering the airspace.

Section 8.5 of the Aeronautics Act reads:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

THE ISSUE

The issue to be decided at this Appeal is whether the breach of subsection 12(1) of the said Regulations as alleged was justified by Captain Wolsky, thereby affording him a defence of due diligence. In other words, did Captain Wolsky exercise all due diligence to prevent the contravention by doing everything that a reasonable pilot would have done in the circumstances?

NOTICE OF APPEAL

In a request for appeal filed on February 20, 1997 the Appellant countered the conclusions reached by the Tribunal Member at review as follows:

I Did not Ensure that my flight plan is open. – This I Did Do Prior to Departure!

THE ARGUMENTS

We will consider the grounds of appeal in the order presented:

1) OPENING OF FLIGHT PLAN

It was the evidence of Captain Wolsky relating to the flight plan that: "An ADCUS[1] flight plan was filed in the lobby of the FBO (fixed base operator) where a wall mounted direct telephone line connected me to Casper FSS (flight service station)." He indicated that since the temperature had dropped significantly, between central Kansas and northern Wyoming, and the Comm radio had performed poorly, he had stated in the remarks section on the flight plan that they were two Canadian citizens with a direct – Global Positioning System (GPS) flight destined for Calgary International Airport requiring customs upon arrival. Total flight time of 3:10 hours was indicated. He stated to the FSS specialist that, since he was not in contact with the FSS frequency in the Sheridan area and he had tried Universal Communications (UNICOM) as well to no avail, he thought that there was a probability of a deteriorating condition of the remaining # 2 Comm radio due to the colder temperature inside the cabin of the C 310. In the light of this, Captain Wolsky advised the FSS specialist that some mention should be made of this fact in the remarks section of the flight plan. The FSS specialist advised that he would use the word "possible NORDO" with which Captain Wolsky concurred since that was his assessment of the situation.

The evidence of Captain Wolsky was confirmed in these respects by his passenger Mr. Taves who stated that he was present when Captain Wolsky spoke on the telephone to an FSS specialist asking that the flight plan be opened automatically some ten minutes following their conversation. He confirmed that this request was made as the Captain had experienced radio problems on his approach to Sheridan when he had transmitted but had not been responded to. He further advised the FSS specialist to advise Calgary in the flight plan that, if the aircraft could not transmit into Calgary, Captain Wolsky would alert Calgary via the transponder code 7700 and 7600.

The investigating inspector produced a memorandum from Calgary air traffic control (ATC) which indicated that the pilot called the tower after landing, stating that he had filed a flight plan with receiver only in the remarks as well as "ADCUS" which is to advise customs. The flight plan was missing. Additionally the memo from ATC indicated that receiver only remarks or "RONLY" do not qualify for automatic entry into Class C airspace.

Apparently, Captain Wolsky broadcast his take-off on the appropriate frequency but received no reply. Accordingly, the flight plan was discarded when it was not opened after take-off. We concur with the conclusion reached by the Tribunal Member at review that it is clearly the responsibility of the pilot-in-command of an aircraft involved in an international flight such as this to ensure a flight plan is in place.

2) ENTERING CLASS C AIRSPACE WITHOUT AUTHORITY TO DO SO

Captain Wolsky submits that he has the authority granted in the A.I.P. Canada (Aeronautical Information Publication) under RAC 4.4.8, in the event of a NORDO or RONLY, to complete the flight, and the situation of January 19, 1996 with C-310 C-FWMN was conducted as per those provisions.

To this end the Captain submits that section 4.4.8 relating to Communications Failure – VFR, found in the A.I.P. Canada publication page RAC 4-12 would apply on the facts of this case.

That section reads as follows:

(a) Should communications failure occur while operating VFR in Class B or C airspace continue to fly in VFR weather conditions and land at the nearest suitable aerodrome. It is recommended also that:

(i) the pilot comply with the established NORDO arrival procedure outlined in RAC 4.4.5;

(ii) if transponder equipped, select Code 7600;

(iii) maintain a listening watch on appropriate frequencies for control messages or further clearance and acknowledge receipt of any such messages by any means available, including selective use of the NORMAL/STANDBY function of the transponder; and

(iv) attempt to contact any ATC facility or another aircraft and advise them of the difficulty and request they relay information to the ATC facility with whom communication is intended.

(b) Should the communications failure occur while operating outside of Class C airspace precluding the pilot from obtaining the appropriate clearance to enter Class B or C airspace, and if no nearby suitable aerodrome is available, the pilot shall enter the Class C airspace, continue under VFR, and carry out the procedures listed in (a). (underlining mine)

In the procedures set out in the A.I.P. Canada for entrance of Class C airspace when NORDO or RONLY conditions apply, the first step is to contact the tower for authorization. The filing of a flight plan does not meet this requirement. The fact that the aircraft approached Calgary with the landing light on would indicate that not all other NORDO procedures, as set out in the A.I.P. Canada, were followed.

Captain Wolsky, in his submissions, urges that Springbank and Airdrie airports were considered but were ruled out of operational contention as "suitable airport(s)" because his flight path to Springbank would take him across the city's built-up area with one engine inoperative. Both Springbank and Airdrie airports were too short for landing, considering he had a left engine failed, the propeller was not feathered, and the right engine throttle lever was frozen stuck at the cruise power setting.

Springbank and Airdrie are both inside the arc of Class C controlled airspace at Calgary International Airport. If the series of mechanical failures constituting the emergency had occurred prior to entering the Class C controlled airspace, then we would agree with the argument advanced by Captain Wolsky. However the communication failure occurred outside the Class C airspace, and he had alternates which would have been suitable for landing, all of which are discussed under (3) below.

It was established to the satisfaction of the Tribunal from the cross-examination of Captain Wolsky that the rejection of alternatives was based solely on the fact that a customs facility was not available at these airports, and the Captain was determined to go to Calgary. It is our view that the term "suitable aerodrome" contemplates the physical characteristics of the aerodrome for the landing of the aircraft. We do not believe that unavailability of customs renders the aerodrome unsuitable in such circumstances. We therefore find that paragraph 4.4.8(b) does not operate to absolve the pilot-in-command on the facts of this case.

3) POSSIBILITY OF ALTERNATE ARRANGEMENTS AT SHERIDAN

The Appellant contends that he was not fully aware of the state and extent of the radio problem for long range transmission purposes, and thus felt that no further action (such as calling Calgary ATC) was warranted or necessary.

At page 48 of the transcript of the record, Captain Wolsky confirms that the number 2 Comm radio was not performing up to spec. before his entry into Sheridan. He does further state at page 50 that at that time he really had no belief that the number 2 radio was, in fact, inoperative in its entirety.

From Sheridan, Captain Wolsky called his employer at Executive Airlines to advise of the anticipated arrival time. There had been no attempt by Captain Wolsky to contact Calgary ATC prior to departure from Sheridan to get a clearance into Class C airspace. Furthermore, at page 22 of the transcript, it was the evidence of Inspector German that, had they attempted to do so, and advised them that they would be arriving after sundown, after official grounding time, they would not have been able to get such a clearance. No clearance was sought or given.

It is not unreasonable to suggest that the proper course would have been to contact the Calgary tower from Sheridan. Contacting Calgary ATC was part of the procedures set out in the A.I.P. Canada in the event of a NORDO or an RONLY situation. We are motivated in this belief by the fact that the Captain filed a flight plan with the NORDO or RONLY remark. He would not have made this remark if he did not have suspicion regarding his number 2 Comm radio, and he cannot now assert that he had no real belief that the radio would fail in its entirety.

4) INTENTION TO LAND AT CALGARY WITH OR WITHOUT AN EMERGENCY

It was argued by Captain Wolsky that: "The Select of Calgary was the intended arrival airport as it was home base, it was an International Airport-of Entry, and once the flight emergencies compounded, it became more likely that the longer Calgary runway(s) was our most suitable option."

In the transcript at page 45 Captain Wolsky states that:

... In hindsight, a landing could have been made at Lethbridge but we were not destined for that airport. Broker customs clearance for the aircraft had been arranged and the final destination and home base was preferred to be Calgary.

So there was a propensity to move towards Calgary and not any other location. So that was also a factor that contributed to my judgmental situation.

... I take responsibility for the flight, as I am the captain, and I attest to the suitability of the aircraft to complete the intended flight from Sarasota to Calgary under the flight permit provisions.

At pages 62 to 65 of the transcript, Captain Wolsky confirmed that he was in Class C airspace without a clearance and that his problems occurred after he entered. In answer to the question of whether he could have gone to another airport, he indicated affirmatively and said he passed Lethbridge, High River and Okotoks and headed for Calgary because customs clearance was required as it was an international flight. Finally in response to the assertion on cross-examination that: "you made that decision to enter Class C airspace without a clearance before you had an emergency?", he stated "Right."

Captain Wolsky indicated earlier in the transcript, at pages 53 to 55, that he believed he was in an emergency situation around the Chestermere Lake area. He started his descent from 6,500 feet at about 35 miles out from Calgary, and his actual height over Chestermere was probably no more than 1,000 feet above ground. In response to questioning on cross-examination, he indicated that, at that time during his descent, he was in Class C airspace and did not have clearance to be there.

It is the opinion of this Tribunal that the contravention of the Regulations took place prior to the emergency which developed. Given the prevailing circumstances at the time of landing, we would agree that it is commendable that Captain Wolsky brought the aircraft down in one piece as he stated in his submissions. We do not agree however that this is sufficient to exonerate the breach, as clearly the prevailing circumstances occurred with the full knowledge of Captain Wolsky. He knew or should have known that they would ensue, and he had ample opportunity for their prevention.

5) CONTINUED VFR FLIGHT AFTER SUNSET REGARDLESS OF CIRCUMSTANCES OR CONSEQUENCES

At the Appeal it was submitted that there were no day VFR restrictions or VFR only restrictions on the flight permit. Captain Wolsky stated that he was not aware of this as he only obtained the document in February.

The record of the tower occurrence indicated that the aircraft landed between 01200 and 01360 which would be an hour and 15 minutes to an hour and 31 minutes after official sunset which Exhibit M-5 disclosed as 0005Z for January 19, 1996.

It was the evidence of Captain Wolsky that he believed he had landed at Calgary at approximately 10 minutes prior to official sunset. His testimony was that he did not have a ferry permit to fly at night.

While this latter belief was apparently incorrect, it does go to the state of mind or belief held by Captain Wolsky at the time. Whether or not he was correct in his belief is irrelevant, as the evidence of the Inspector was to the effect that ATC would not have granted authorization to enter Class C airspace after sunset had Captain Wolsky telephoned from Sheridan to request such authorization.

CONCLUSION

On our review of the evidence, we conclude that the Minister has proved the requisite elements of the offence. We do not find that Captain Wolsky has exercised all due diligence to prevent the commission of the offence so as to avail himself of the defence in section 8.5 of the Aeronautics Act. He had concerns about his number 2 Comm radio in Sheridan and could have telephoned ATC at Calgary International Airport for authorization to enter Class C airspace from there. One is left to surmise why he did not do so. Further it is clear from the evidence that he entered Class C airspace prior to the emergencies which ensued. En route he could have chosen to land at alternates but determined to land at Calgary International Airport as it had the advantage of customs clearance, contravening the regulations in the result.

Although the matter of the penalty was not addressed at the Appeal Hearing, we would note that the Appellant does refer to its increase in his written submission. Where the alleged contravener has appeared at the review proceeding, the Tribunal Member may increase or decrease the assessed penalty as he/she deems appropriate, the authority for so doing is found in sections 7.9 and 8 of the Aeronautics Act. The Minister assessed a penalty of $100 which he deemed appropriate to the circumstances of this case. The Tribunal Member in his determination increased the penalty to $200. We believe that the increase was inappropriate in this case because the Tribunal Member gave no reasons or justification for the increase. While there is no indication that a decrease was sought by the Appellant, we think it reasonable to restore the sanction to the original assessed amount of $100.

REASONS FOR DISSENTING DETERMINATION
of Captain Ken Clarke

I dissent from the final determination made by my learned colleagues. My reasons are here described.

Prior to, and on departure from Sheridan, Mr. Wolsky attempted to operate with all due diligence. He failed to do so. I note that significant pressures were upon him. Those same difficulties however are not limited to this particular operation and are endured by many others on a regular basis.

I am satisfied Mr. Wolsky departed with the belief he would be able to communicate as necessary and had attempted to provide a back up. In his mind there was reason for the lack of response from the FSS. He incorrectly thought that he had addressed all contingencies.

Regarding the approach to Calgary, Mr. Wolsky is quoted at page 35 of the transcript: "I had broadcast my position and received no response. We continued inbound. We continued to try transmitting our arrival and had been within 20 miles whereupon I concluded that the radio would not be useful in the transmission phase." At that point there would be a limited number of airfields, and the pilot-in-command is and must remain the final authority.

Section 6.3.2.2(a) RAC of the A.I.P. Canada notes:

... it is not intended that the requirement to 'land as soon as practicable' be construed to mean 'land as soon as possible'. The pilot retains the prerogative of exercising his/her best judgement and is not required to land at an unauthorized airport, at an airport unsuitable for the type of aircraft flown, or to land only minutes short of destination.

A significant point in my understanding of Mr. Wolsky's testimony is there was no reason to land elsewhere until close to Calgary, and that was only minutes short of destination. Other available fields were discounted for a variety of plausable reasons including field length and weather. I note that landing at some of the considered airports probably would result in similar and additional allegations.

Further evidence (pages 37 and 38 of the transcript) suggests weather was also a consideration. Subsection 818(2) of the Air Regulations states:

... it is a good defence if the person charged therewith establishes that the contravention took place due to stress of weather or other unavoidable cause ...

Ice fog was not affecting the destination but was a factor in not selecting an alternate. Windscreen fogging had not been anticipated but was a concern.

The A.I.P. Canada RAC 6.3.2 Two-Way Communications Failure states:

It is impossible to provide regulations and procedures applicable to all possible situations associated with two-way communications failure. During a communications failure, when confronted by a situation not covered in the regulations, pilots are expected to exercise good judgement in whatever action they elect to take.

There is provision however in this case. It had been submitted in the Grounds of Appeal. Specifically A.I.P. Canada RAC 4.4.8(b) Communications Failure – VFR states:

Should the communications failure occur while operating outside of Class C airspace precluding the pilot from obtaining the appropriate clearance to enter Class B or C airspace, and if no nearby suitable aerodrome is available, the pilot shall enter the Class C airspace, continue under VFR, and carry out the procedures listed in (a). (Emphasis added)

I believe this includes operational suitability.

I do not approve of an uncontrolled mix of VFR and IFR traffic in Class C airspace. However, I recognize that a non-normal situation occurred, and the authority of the pilot-in-command must not be undermined. Mr. Wolsky exercised his best judgement at the time and was allowed to enter the Class C airspace by Ministerial directive. I believe that his actions were by necessity.

The Review Hearing Officer stated in his conclusion there had been a violation by landing after sunset. Examination of the Flight Authorization reveals there was no such restriction. I also draw attention to A.I.P. Canada, Facilitation (FAL), 2.3.2(b) Flights from the United States to Canada:

... ADCUS notification on flight plans will no longer be accepted, and pilots must make their own customs arrangements ...

I respectfully dissent from my colleagues' determination for the foregoing reasons. Accordingly I would allow the Appeal.

DETERMINATION

Accordingly, the Appeal is dismissed. We determine that Captain Wolsky did contravene subsection 12(1) of the Regulations as alleged in the Notice of Assessment of Monetary Penalty and impose a penalty of $100 as originally assessed.

Reasons for Majority Determination by:

Faye Smith, Chairperson

Concurred:

Allister Ogilvie, Vice-Chairperson

Dissented:

Ken Clarke, Member


[1] meaning "advise customs"