Decisions

CAT File No. W-2628-41
MoT File No. SAP-5504-46749 P/B

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Sunwest Home Aviation Ltd., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 7.7, 8.4
Canadian Aviation Regulations, s. 602.14(2)(a)(i)

Low flying, Burden of Proof, Built-up area


Review Determination
E. David Dover


Decision: March 24, 2003

Sunwest Home Aviation Ltd. did not contravene subparagraph 602.14(2)(a)(i) of the CARs and the monetary penalty of $1,250.00 is cancelled.

A review hearing on the above matter was held Tuesday, January 28, 2003 at the Federal Court of Canada in Calgary, Alberta.

No pre-hearing conferences were held between the Applicant and the Respondent.

Prior to the commencement of the hearing I decided to address the possible disqualification for bias I might have because of a previous business relationship one of my companies (Pioneer Developments Ltd.) had with Sunwest Home Aviation Ltd [hereinafter Sunwest]. For a period of two years Sunwest performed maintenance on Pioneer Developments Ltd. aircraft. This arrangement ceased on October 15, 2001 when the maintenance was transferred to a competing organization.

The Hon. J. O. Wilson in his publication "A Book for Judges" addresses this situation.

Chapter II, Part I, trials states:

Disqualification for Bias – General

Bias, or the reasonable apprehension of bias, disqualifies a judge from hearing a case.

Some usual grounds upon which a judge may be disqualified to sit on a trial or appeal are these:

A. A pecuniary interest in the outcome of the litigation.

[...]

D. A previous professional connection with the litigation or, in some cases, with the litigant.

But a judge, apparently disqualified, may sit:

[...]

G. Disclosure

[...]

In disclosing my interpretation of potential bias to both parties it was my intention to give both parties the opportunity to object on the grounds of bias. Neither party objected and the hearing commenced.

The witnesses were excused.

BACKGROUND

On April 5, 2002, a Beech 3NM aircraft, on a VFR flight from Red Deer, Alberta to Calgary International Airport was observed flying in the vicinity of Crossfield, Alberta close to a built-up area and at a perceived low altitude. This flight resulted in the following allegation.

On July 30, 2002, a monetary penalty of $1,250.00 was assessed against Sunwest, the Respondent, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport claiming that Sunwest had contravened the following provisions(s):

VICARIOUS LIABILITY – AERONAUTICS ACT 8.4(1)

OFFENCE # 1 – CARs 602.14(2)(a)(i)

On or about the 5th day of April 2002, at or near Crossfield, Alberta, you did operate an aircraft, to wit a Beech 3NM, Canadian registration C-GSWS, over the built up area of Crossfield, Alberta, at an altitude of less than 1000 feet above the highest obstacle located within a horizontal distance of 2000 feet from the aeroplane, a violation of section 602.14(2)(a)(i) of the Canadian Aviation Regulations.

THE LAW

Subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations (CARs) states:

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the even of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane,

OPENING STATEMENTS

Mr. McFarlane stated that he would call three witnesses: Robert Cote, Aaron Konschuk and Stephen Hewitt.

Mr. Hotchkiss, appearing for Sunwest, stated that he was not disputing the fact that their Beech 3NM, registration C-GSWS was in the vicinity of Crossfield, Alberta on a VFR flight from Red Deer, Alberta to Calgary International Airport on April 5, 2002.

He stated that he would call two witnesses: Mark Eberl and John Tenzer. All witnesses were sworn.

FOR THE APPLICANT — The Minister of Transport

The case presenting officer, Mr. Richard McFarlane, called Mr. Robert Cote who is employed as the fire chief at the town of Crossfield, Alberta. He testified that on April 5, 2002 he observed an antique twin-engined aircraft flying in a southeasterly direction at a low altitude. He stated that he estimated the aircraft to be 50 to 100 feet above the grain elevator, which was situated on the eastern boundary of the town. He estimated that the grain elevator was between 150 and 300 feet above the ground level.

Mr. Cote submitted Exhibit M-1 which is a map depicting the town of Crossfield, Alberta. Outlined on this exhibit is a line from the northwest to the southeast, which Mr. Cote estimated to be the track flown by the aircraft.

During cross-examination Mr. Cote stated the track of flight drawn on M-1 was an estimate only as he observed the aircraft when it was in the vicinity of the grain elevator.

Mr. McFarlane called Mr. Aaron Konschuk who is employed as a park supervisor at the town of Crossfield, Alberta. On April 5, 2002, Mr. Konschuk was attending a meeting at the town office. He heard a loud noise emanating from a low flying aircraft, which he observed in the close proximity of the UGG elevator on the east side of town. The elevator is visible from the town office, and when he referred to M-1 he estimated the flight track depicted on the map was the rough track flown by the aircraft. He estimated the aircraft cleared the elevator by 51 feet.

Cross-examination

Mr. Konschuk stated that he heard the aircraft before he observed it. He stated that it was between 50 and 150 feet over the elevator in a southeast direction of flight when it eventually turned on a westerly course.

Mr. McFarlane called Mr. Stephen Hewitt, a Transport Canada civil aviation inspector based in Edmonton, Alberta. Mr. Hewitt stated that he was the inspector assigned to the Sunwest case. He presented a number of exhibits.

Exhibit M-2: Canadian civil aircraft register for C-GSWS

Exhibit M-3: Certificate of registration of aircraft for C-GSWS

Exhibit M-4: Calgary control tower arrival – departure report for C-GSWS

Exhibit M-5: Copy of journey logbook for C-GSWS

Exhibit M-6 -1 to M-6-9: Radar report for the period 1811:29 to 1827:16 on April 5, 2002 North of Calgary with a range of 23.7 nautical miles (NM) to 13.3 NM, C-GSWS was assigned transponder code 5203.

The report shows track (by line) and altitude rounded off to the nearest 100 feet. The altitude is reported by the radar report at an atmospheric pressure of 29.92. Mr. Hewitt testified that the recorded atmospheric pressure was 30.01 so the aircraft was in fact 100-150 feet higher than reported by the radar report.

Exhibit M-7: VFR terminal area chart

Mr. Hewitt testified that the radar plot shows that C-GSWS was in the vicinity of Crossfield, Alberta at an altitude between 3,900 – 4,100 feet ASL. This would equate to an actual altitude of 4,000 – 4,200 ASL when adjusted for atmospheric pressure.

Exhibit M-8: Data supplied by the Canadian military radar located in North Bay, Ontario showing the date, time, altitude, transponder code, latitude and longitude for the period 18:14:31 to 18:28:31 on April 5, 2002 (pages not in sequence).

Mr. Hewitt stated that he obtained this report from the Canadian military and that the transponder code was assigned to C-GSWS. Mr. Hewitt advised that the last page of the report depicts the actual flight path of the aircraft as determined by the military. He testified that he was advised by the military that their radar plotting was accurate to a distance of about "a football field".

Exhibit M-9: Actual global positioning system (GPS) points in the vicinity of Crossfield taken by Mr. Hewitt. There are ten (10) in number.

Exhibit M-10: Map of Crossfield

Mr. Hewitt stated that he placed the points identified by the military on the map known as M-1 and also identified various points in Crossfield including the grain elevator. He testified that the track on this map shows a flight path to the east of the path identified on M-1.

Exhibit M-11: Voice transcript of communications with C-GSWS

Cross-examination

Mr. Hewitt stated that he used a Garmin 195 GPS and an Etrix hiking GPS to determine the coordinates he placed on his map M-10. He further stated that the weather was legal for VFR flight and that Crossfield was in uncontrolled airspace. He stated that the accuracy of the military radar was about the length of a football field.

FOR THE RESPONDENT — The Document Holder

Mr. Hotchkiss called Mr. John Tenzer who stated that he had been the chief pilot for Sunwest for two years and had accumulated approximately 15,000 flight hours. Mr. Tenzer stated that he checked the weather prior to his departure from Red Deer and his intended flight path was to be Red Deer direct to the Calgary VOR.

He was instructed by Calgary approach control to leave that flight path and proceed to Crossfield. His visibility was approximately 4 miles and when he crossed highway 1A he parallelled it southbound turning west south of the town.

He testified that he was aware of the various towers in the vicinity and he was aware of the terrain, having flown it many times. He stated that the grain elevator was on the right side of the aircraft and at no time was his flight path over the town of Crossfield.

Mr. Hotchkiss called Mr. Mark Eberl who testified that he was the managing director of Sunwest and had accumulated 14,000 flight hours.

Mr. Eberl stated that he was operating the radio communications on the flight between Red Deer and Calgary. He indicated that Calgary approach directed him to fly from his present course to direct to Katherine or to Crossfield.

He testified that they had 4-5 miles visibility and they were east of the elevator at Crossfield when they turned south. He stated that they were well clear of all the towers and continued their approach into Calgary International Airport.

Cross-examination

Mr. Eberl stated that the grain elevator was off the right wing tip of their aircraft when they passed the elevator.

Exhibit D-1: Hourly weather observations for Red Deer and Calgary International Airport for April 5, 2002

Mr. Eberl testified that the weather at Calgary for 1700Z was 800 scattered with a visibility of 4 miles with an altimeter setting of 30.06 (page 2).

As there was no further evidence the evidentiary record was closed.

FINAL ARGUMENTS

Mr. McFarlane stated that the Minister had proven on a balance of probabilities that the aircraft C-GSWS had been in the Crossfield, Alberta area and had operated below an altitude of 4,700 feet. This he stated is the required altitude the aircraft would have to maintain to be legal to clear the highest obstacles within 2,000 feet vertically in its route of flight.

Mr. Hotchkiss stated that the Minister had provided conflicting evidence concerning the route of flight over a built-up area. He also pointed to the anomalies and errors in the data provided by the Canadian military. His main objection was that he and the experienced crew considered the aircraft to be on an approach to Calgary International Airport and thus the height restrictions did not apply.

ANALYSIS

Flight over a built-up area - 602.14(2)(a)

Analysing M-1 and M-10, I find that the Minister has conflicting evidence about the flight path of C-GSWS. M-1 places the aircraft over Crossfield whereas M-10 places the aircraft east of Crossfield. The latter Exhibit (M-10) is substantiated by the Canadian Armed Forces report M-8 and transcribed in a most illegible manner by Mr. Hewitt to M-10.

Exhibit M-6 , which is the radar plot from Calgary, does not identify Crossfield and thus there is no way to substantiate where the aircraft was. I am also concerned with the unreported errors in the GPS and radar units employed for evidence as an error in the magnitude of a football field does not help me.

I find that the Minister has not proven on a balance of probabilities that the aircraft C-GSWS flew a track over a built-up area.

DETERMINATION

Sunwest Home Aviation Ltd. did not contravene subparagraph 602.14(2)(a)(i) of the CARs and the monetary penalty of $1,250.00 is cancelled.

E David Dover
Member
Civil Aviation Tribunal