Decisions

TATC File No. Q-3360-33
MoT File No. N5504-62257

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Jacques Lévesque, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433 602.86(1), 602.114, 602.121(1) and 703.39(1)


Review Determination
Suzanne Racine


Decision: January 10, 2008

Citation: Lévesque v. Canada (Minister of Transport), 2008 TATCE 3 (review)

Heard at Sept-Îles, Quebec, on November 8, 2007

Held: The Tribunal finds that the Minister of Transport did not meet its burden of proof on a balance of probabilities. The allegations are dismissed and the $3250 penalty assessed against the applicant is cancelled.

I. BACKGROUND

[1] On April 2, 2007, the Minister of Transport served a notice of assessment of monetary penalty on the applicant, Jacques Lévesque, for $3250 in accordance with section 7.7 of the Aeronautics Act, R.S.C. 1985, c. A-2 (Act). The Minister alleges that the applicant has contravened the Canadian Aviation Regulations, SOR/96-433 (CARs), as follows:

[translation]

1. On or about November 15, 2006, around 17:00 UTC, at or near Ste‑Anne‑des‑Monts, Quebec, you did operate the aircraft registered as C‑GRYE with carry-on baggage, equipment or cargo on board that were not restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence, thereby contravening section 602.86(1) of the Canadian Aviation Regulations.

Penalty: $750

2. On or about November 15, 2006, around 17:00 UTC, at or near Ste‑Anne‑des‑Monts, Quebec, you did operate the aircraft registered as C‑GRYE in VFR flight within controlled airspace, when the aircraft was not being operated with visual reference to the surface, thereby contravening section 602.114 of the Canadian Aviation Regulations.

Penalty: $1000

3. On or about November 15, 2006, around 17:00 UTC, at or near Ste‑Anne‑des‑Monts, Quebec, as pilot-in-command, you did operate the aircraft registered as C‑GRYE in IMC, while not complying with the instrument flight rules, namely that you did not have a flight plan or IFR authorization, thereby contravening section 602.121(1) of the Canadian Aviation Regulations.

Penalty: $750

4. On or about November 15, 2006, around 17:00 UTC, at or near Ste‑Anne‑des‑Monts, Quebec, as pilot-in-command of the aircraft registered as C‑GRYE, you did fail to ensure that a safety briefing was given to passengers in accordance with the Commercial Air Service Standards, thereby contravening section 703.39(1) of the Canadian Aviation Regulations.

Penalty: $750

II. LAW

[2] Section 7.7(1) of the Act states the following:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

[3] Section 602.86(1) of the CARs states the following:

602.86 (1) No person shall operate an aircraft with carry-on baggage, equipment or cargo on board, unless the carry-on baggage, equipment and cargo are

(a) stowed in a bin, compartment, rack or other location that is certified in accordance with the aircraft type certificate in respect of the stowage of carry-on baggage, equipment or cargo; or

(b) restrained so as to prevent them from shifting during movement of the aircraft on the surface and during take-off, landing and in-flight turbulence.

[4] Section 602.114 of the CARs states the following:

602.114 No person shall operate an aircraft in VFR flight within controlled airspace unless

(a) the aircraft is operated with visual reference to the surface;

(b) flight visibility is not less than three miles;

(c) the distance of the aircraft from cloud is not less than 500 feet vertically and one mile horizontally; and

(d) where the aircraft is operated within a control zone,

(i) when reported, ground visibility is not less than three miles, and

(ii) except when taking off or landing, the distance of the aircraft from the surface is not less than 500 feet.

[5] Section 602.121(1) of the CARs states the following:

602.121 (1) No pilot-in-command shall operate an aircraft in IMC in any class of airspace, except in accordance with IFR.

[6] Section 703.39(1) of the CARs states the following:

703.39 (1) The pilot-in-command shall ensure that passengers are given a safety briefing in accordance with the Commercial Air Service Standards.

III. AGREEMENT BETWEEN THE PARTIES

[7] At the outset of the hearing, the parties submitted a document to the review member, entitled "Admissions". The applicant admits that he used the aircraft registered as C‑GRYE for a flight on November 15, 2006, around 17:00 UTC, from Sainte‑Anne‑des‑Monts. He also acknowledges the following facts:

· offence under section 602.86(1) of the CARs – Mr. Lévesque was the pilot‑in‑command of this flight and admits that there were baggage, equipment and cargo on board the aircraft;

· offence under section 602.114 of the CARs – Mr. Lévesque admits that this flight took place, in part, within controlled airspace;

· offence under section 602.121(1) of the CARs – Mr. Lévesque admits that there was no recorded communication of the frequency during the entire flight; and

· offence under section 703.39(1) of the CARs – Mr. Lévesque was the pilot‑in‑command of this flight and acknowledges that the safety briefing was to comply with the Commercial Air Service Standards.

IV. EVIDENCE

A. Minister of Transport

(1) Michel Nadeau

[8] Michel Nadeau is a pilot with 17 000 flight hours on various types of aircraft. He was also designated by Transport Canada as a flight test examiner. He is the owner of Nadeau Air Service.

[9] Mr. Nadeau stated that on November 15, 2006, he was on a hunting trip to Rivière aux Saumons on Anticosti Island with friends, Yvon Bournival, Richard Bournival and Serge Paquet. An attendant at the Sainte‑Anne‑des‑Monts Airport placed the baggage on board the aircraft before the passengers boarded. On boarding the aircraft, Mr. Nadeau noticed that the baggage stowed at the back was not secured with a cargo safety net.

[10] Mr. Nadeau stated that the departure was delayed by the pilot-in-command, Mr. Lévesque, because of adverse weather conditions in Rivière aux Saumons. Later in the morning, Mr. Lévesque received confirmation that the weather conditions had improved at the destination. He decided to leave Sainte‑Anne‑des‑Monts. Mr. Nadeau openly admitted that he did not recall whether Mr. Lévesque gave a safety briefing to the passengers before take-off. Mr. Nadeau noted that there was a [translation] "small ceiling" at the time Mr. Lévesque decided to leave. According to the witness, [translation] "it was not long before the aircraft was partially in the clouds, and then completely … then we did not see anything … we were above the clouds". The pilot-in-command had to perform two approaches over the Rivière aux Saumons runway because it was not visible. Mr. Lévesque then chose to land at the Port-Menier Airport, at the other side of the island, in VFR conditions.

[11] Mr. Nadeau's written statement, obtained by Transport Canada, was filed as evidence (exhibit M-6).

[12] The cross-examination showed that Mr. Nadeau was sitting close to the middle of the aircraft, on the right side.

(2) Guy Hamel

[13] Guy Hamel is a civil aviation safety inspector with Transport Canada. He is also an airline pilot, class 1 instructor and designated flight test examiner. He was assigned to this case.

[14] Mr. Hamel stated that there was no weather station in either Sainte‑Anne‑des‑Monts or Rivière aux Saumons. To check the weather in the area, Mr. Hamel explained that he consulted Environment Canada's graphic area forecast GFACN34 for the Atlantic region (exhibit M‑1). This graph provided information on the clouds and weather in the region for November 15, 2006, at 1121Z. The witness indicated that the communities of Sainte‑Anne‑des‑Monts and Rivière aux Saumons were located in a zone defined by an orange-yellow dotted line. A square on the graph indicates the forecast for that zone. The data reads as follows:

XTNSV ½ - 2SM

- DZ FG/BR

and CIGS 2 AGL

WTN DASHED LN

which the witness translated into plain language to mean visibility of ½ to 2 statute miles in drizzle, fog and mist, with a ceiling of 2000 feet above ground level.

[15] The Minister submitted the weather reports (METARs) from the neighbouring stations (Sept-Îles, Mont-Joli, Gaspé and Natashquan), and the special reports (SPECIs) issued in cases of significant changes in the weather for November 15, 2006 (exhibit M-2). He brought our attention to the forecast at 1700Z, namely, the time of the infraction:

· the METAR from Sept-Îles at 1700Z indicates winds of 1 knot, visibility of ⅛ statute mile, drizzle, fog and vertical visibility of 100 feet (entry 9 at 3);

· the METAR from Gaspé at 1700Z indicates winds of 6 knots, visibility of 15 statute miles, broken clouds at 2000 feet and overcast sky at 4000 feet (entry 10 at 2);

· the METAR from Mont-Joli at 1700Z indicates winds of 9 knots, visibility of 15 statute miles, some clouds at 1200 feet, broken clouds at 2000 and at 10 000 feet (entry 9 at 2); and

· the METAR from Natashquan at 1700Z indicates winds of 3 knots, visibility of 2⅜ statute miles and overcast sky (OVC000). A first special report at 1714Z indicates winds of 4 knots, visibility of 2½ statute miles and overcast sky at 200 feet. A second special report at 1715Z reports winds of 3 knots, visibility of 4 statute miles and overcast sky at 200 feet (entries 1-3 at 9).

[16] The Minister submitted the terminal aerodrome forecasts (TAFs) from Sept-Îles, Gaspé, Mont‑Joli and Natashquan (exhibit M-3), dated November 15, 2006, to complete the information from the METARs:

· at 1600Z, the TAF from Sept-Îles for 1617Z forecasts visibility of ¼ statute mile, drizzle, fog, vertical visibility of 100 feet changing to rain showers around 1618Z, visibility of 3 statute miles and overcast sky at 400 feet (entry 6 at 1). The TAF at 1700Z indicates for 1739Z visibility of ⅛ statute mile, drizzle, fog, vertical visibility of 100 feet changing to rain showers around 1819Z, visibility of 3 statute miles and broken clouds at 400 feet (entry 1 at 2);

· at 1300Z, the TAF from Gaspé for 1339Z forecasts winds of 3 knots, visibility of more than 6 statute miles, some clouds at 2000 feet and broken clouds at 4000 feet. The TAF at 1420Z indicates broken clouds at 2000 feet and winds of 8 knots. The next forecast is at 2000Z (entry 1 at 2);

· the TAF from Mont-Joli for 1339Z forecasts winds of 8 knots, visibility of more than 6 statute miles, some clouds at 800 feet, scattered clouds at 2000 feet and broken clouds at 7000 feet. Around 1415Z, this TAF is replaced by the following entry: visibility of 5 statute miles, drizzle, mist, scattered clouds at 800 feet and broken clouds at 2000 feet. At 1500Z, visibility is more than 6 statute miles with broken clouds at 4000 feet. At 1502Z, the TAF forecasts broken clouds at 2000 feet. The next forecast is at 2000Z (entry 1 at 2); and

· at 1400Z, the TAF from Natashquan for 1445Z forecasts visibility of 2 statute miles, drizzle, mist and overcast sky at 200 feet, and for 1418Z, snow, broken clouds at 400 feet and more than 6 statute miles of visibility (entry 6 at 1).

[17] According to Mr. Hamel, the weather forecast in GFACN34 (exhibit M‑1) and in the various METARs (exhibit M-2) and TAFs (exhibit M-3) from Sept-Îles, Gaspé, Mont‑Joli and Natashquan show that Mr. Lévesque should have used instrument flight rules (IFR).

[18] The Minister filed as evidence exhibits M-4 and M-5. Exhibit M-4 shows that the Sainte‑Anne-des-Monts Airport is located in controlled airspace (white area). Exhibit M-5 indicates the altitude and speed of aircraft C‑GRYE (identified by transponder code 1200) at seven different locations. This information was obtained through the Sept-Îles radar file (at 2‑7). Mr. Hamel stated that Mr. Lévesque flew at an average cruising altitude of around 8000 feet. The first page of exhibit M‑5 shows part of the path aircraft C‑GRYE followed, towards Rivière aux Saumons. This path is formed by joining seven points to each other.

B. Applicant

(1) Jacques Lévesque

[19] Mr. Lévesque has 14 500 flight hours and is the owner of Sept‑Îles Aviation Enr. He testified that he stowed the baggage himself at the back of the aircraft with a net and he gave the safety briefing to the passengers before take-off. On this subject, the applicant filed the statement Yvon Bournival sent to Mr. Hamel of Transport Canada (exhibit R-1). According to this document, the pilot gave a safety briefing to the passengers before take-off.

[20] Mr. Lévesque claimed that on the morning of November 15, 2006, the owner of the lodge to which the passengers were heading informed him that the weather was not very good in Rivière aux Saumons. The owner has a private runway for clients at his lodge. He called around 10:30 a.m. to inform Mr. Lévesque that the weather had cleared and that winds were blowing at 40 knots. Shortly thereafter, around 11:00 a.m., Mr. Lévesque took off from the Sainte‑Anne‑des‑Monts Airport.

[21] Mr. Lévesque indicated that he had visibility of 15 miles and the winds blowing from the west cleared away the clouds. The tailwinds increased his speed. According to Mr. Lévesque, the sky was clear above the river. On the approach to Rivière aux Saumons, broken and scattered clouds prevented the use of visual flight rules (VFR) at landing time.

[22] According to Mr. Lévesque, the pilot has a better view from the cockpit than a passenger sitting near the centre of the aircraft, close to a window, with a view obstructed by the wings. On the ride to Rivière aux Saumons, the weather had nothing to do with the GFACN34 forecast in effect at 1121Z (exhibit M‑1). The weather conditions of the November 15, 2006 flight were VFR conditions. Mr. Lévesque therefore used the aircraft in VFR flight.

[23] The following facts emerged during cross-examination:

· the witness consulted the weather of Mont-Joli, Gaspé and Natashquan, but not the GFA;

· he reiterated that he secured the baggage himself with the assistance of an attendant named Victor;

· the net restraining the baggage always remains in the aircraft (exhibit R‑4);

· the witness reiterated that he gave a safety briefing to the passengers, in particular, how to open the door, and the location of the first aid kit and fire extinguishers;

· the Sainte-Anne-des-Monts Airport is located 87 miles from that in Mont‑Joli and 150 miles from that in Gaspé; and

  • the speed of the Piper Navajo C‑GRYE was 175 knots.

V. ARGUMENT

A. Minister of Transport

(1) Offence under section 602.86(1) of the CARs

[24] The Minister submits that Mr. Nadeau's testimony is credible and the Tribunal should take it into consideration.

(2) Offence under section 602.114 of the CARs

[25] The Minister has demonstrated on a balance of probabilities that there were IFR conditions upon departure from the Sainte-Anne-des-Monts Airport. Mr. Nadeau's credible testimony was corroborated by Yvon Bournival's written statement. According to the evidence, the flight was carried out above the clouds or in the clouds, with some breaks.

[26] Mr. Nadeau's testimony is also supported by the following:

· the METAR from Sept-Îles that forecast, at 1700Z, drizzle, fog and 100 feet of vertical visibility;

· the METAR from Gaspé that forecast, at 1700Z, broken clouds at 2000 feet and overcast sky at 4000 feet;

· the METAR from Mont-Joli that forecast, at 1700Z, broken clouds at 2000 feet;

· the METAR from Natashquan that forecast, at 1653Z and 1700Z, reduced visibility and overcast sky; and

· the radar images that indicated that aircraft C-GRYE flew above the clouds; Mr. Lévesque therefore lost his visual reference to the surface.

(3) Offence under section 602.121(1) of the CARs

[27] This offence is closely related to the preceding one. If the Tribunal finds that due to the weather conditions the applicant applied VFR rules without visual reference to the surface, it must find that the applicant should have used the aircraft in instrument meteorological conditions (IMC) with a flight plan and IFR authorization, which was not the case.

(4) Offence under section 703.39(1) of the CARs

[28] The Minister argues that he has met its burden of proof for the first three offences mentioned at schedule A of the notice of assessment of monetary penalty. However, he acknowledges that he did not prove on a balance of probabilities that there was an offence under section 703.39(1) of the CARs, specifically that the applicant neglected to give a safety briefing to the passengers.

B. Applicant

[29] The applicant claims that the Minister has not met its burden of proof.

(1) Offence under section 602.86(1) of the CARs

[30] Mr. Nadeau's testimony is not credible. It is contradicted by the written statement of his travelling companion, Yvon Bournival, on both the safety briefing and on the issue of baggage restraint at the back of the aircraft. Mr. Lévesque, contrary to Mr. Nadeau, testified in a credible fashion on this issue. The Tribunal should grant more weight to the pilot‑in‑command's testimony, in which he stated he secured the baggage himself with a net.

(2) Offence under section 602.114 of the CARs

[31] Because of his experience and the adverse weather conditions, Mr. Lévesque was the best person to decide whether to apply the VFR rules and delay the flight to Rivière aux Saumons. Mr. Nadeau's view outside was not as clear as that of the pilot in the cockpit. Mr. Lévesque is the best person to indicate whether he carried out the flight with visual reference to the surface. The weather forecasts from the METARs, TAFs and GFACN34 were more or less precise regarding the weather conditions on November 15, 2006, at 1700Z, in Sainte-Anne-des-Monts, when the applicant decided to apply the VFR rules.

(3) Offence under section 602.121(1) of the CARs

[32] Mr. Lévesque did not have to file a flight plan or obtain IFR authorization because he used the aircraft in VFR flight, as he declared at paragraph 3 of the agreement between the parties.

C. Minister's Reply

[33] The Minister insists on the fact that a passenger is fully able to assess whether the aircraft is in the clouds or above them. It is impossible to believe that Mr. Lévesque, who carried out a flight in altitudes above the ceilings listed in the GFACN34, METAR and TAF documents, did not lose his visual references when he was above the clouds.

VI. CONCLUSIONS

(1) Offence under section 602.86(1) of the CARs

[34] We have two contradictory versions. Mr. Nadeau stated that the baggage in the back of the aircraft was not secured, because he did not see the net holding it. On the other hand, Mr. Lévesque stated that he secured the baggage himself with the net. In his written statement to Mr. Hamel (exhibit R‑1), Yvon Bournival indicated that the baggage was secured with a net, and to Mr. Paquet (exhibit R-2), it appeared that the pilot used a net to secure the baggage. These statements contradict those of Mr. Nadeau. Since neither Mr. Bournival nor Mr. Paquet testified at the hearing, the Tribunal did not grant any weight to these statements.

[35] Mr. Nadeau testified without contradiction on this aspect. However, his memory lapse at the hearing regarding the safety briefing taints the reliability of his sense of observation and the memory he claims to have.

[36] The Minister did not prove on a balance of probabilities that Mr. Lévesque contravened section 602.86(1) of the CARs.

[37] Determination – The penalty of $750 regarding the offence under section 602.86(1) of the CARs is cancelled.

(2) Offence under section 602.114 of the CARs

[38] All the elements of this offence were admitted by the applicant, except that regarding loss of visual reference to the surface. On this issue, we are once again faced with two completely contradictory versions.

[39] On one hand, the Minister's key witness, Mr. Nadeau, an experienced pilot, testified that the flight conditions upon departure from Sainte‑Anne‑des‑Monts were and remained IFR conditions throughout the flight. Mr. Nadeau claimed that, from his position sitting near the centre of the aircraft, on the right side by the window, he did not see anything all the way to Rivière aux Saumons.

[40] On the other hand, Mr. Lévesque, also an experienced pilot, claimed he kept his visual references to the surface throughout the trip, carried out in VFR flight. According to Mr. Lévesque, the sky was clear above the river when he left the Sainte‑Anne-des-Monts Airport; he stated that he had visibility of 15 statute miles during the flight and strong westerly winds clearing the clouds.

[41] It is important to recall that there are no weather stations in either Sainte‑Anne‑des‑Monts or Rivière aux Saumons. The pilot-in-command must therefore rely on the forecasts and observations from neighbouring weather stations or third parties, and on his own experience and observations.

[42] According to Nav Canada, the organization that ensures distribution of weather briefings to pilots in Canada, a METAR signals surface weather observations in a three‑kilometre area around the observation site. These observations are issued every hour. The TAF provides aerodrome forecasts, which describe the most likely weather conditions in a five-nautical-mile area around the centre of the runway complex. The GFA describes the most likely weather conditions between the surface and an altitude of 24 000 feet for a given area. These GFAs are issued at the following times: 0530Z, 1100Z, 1730Z and 2330Z.

[43] The forecasts described in the METARs and the TAFs from the surrounding weather stations (Mont-Joli, Gaspé, Sept-Îles and Natashquan) and the GFA submitted by the Minister do not indicate the same weather conditions that Mr. Lévesque claims to have experienced. According to Mr. Hamel, it is unlikely that Mr. Lévesque could have kept his visual reference to the surface at the altitudes he maintained (exhibit M-5) during the flight.

[44] The documents filed (exhibit M-2) indicate that around 1700Z, the time of the alleged offence, there were broken clouds at 2000 feet (METARs from Mont‑Joli and Gaspé), visibility of ⅛ statute mile, fog, vertical visibility of 100 feet (METAR from Sept-Îles) and a completely overcast sky (METAR from Natashquan).

[45] Mr. Lévesque used red ink to identify, on the GFACN34 (exhibit M-1), the location of the towns of Sainte-Anne-des-Monts (to the left of the blue line indicating a cold front) and Rivière aux Saumons (to the right of the blue line). The forecasts that apply to these places indicated visibility of ½ to 2 statute miles, drizzle, fog and a ceiling of 2000 feet above ground level. They were issued at 1121Z and validated at 1200Z, or at 7:00 a.m. on November 15, 2006, four hours before Mr. Lévesque left the Sainte‑Anne‑des‑Monts Airport.

[46] The weather data found on the GFA, METARs, TAFs, although scientifically compiled, represent probable weather forecasts for the area, location and time they were issued. Without more specific information, pilots flying from areas that do not have weather stations consult the forecasts of surrounding stations. These stations can be quite far, depending on the situation. Mr. Lévesque estimated that the Mont-Joli and Gaspé stations were respectively located at 87 and 150 miles from the Sainte-Anne-des-Monts Airport. The forecasts filed as evidence by the Minister do not necessarily indicate the state of the weather conditions at the Sainte‑Anne‑des‑Monts Airport, considering the range of the GFA, METARs and TAFs and the times of the readings in the GFA and TAFs. They do, however, provide useful information for interpreting the type of weather that is likely to develop in Sainte‑Anne-des-Monts. Even when targeting a specific location, a forecast might still not represent the conditions actually observed on site.

[47] The evidence shows that Mr. Lévesque consulted the forecasts of the Mont-Joli, Gaspé and Natashquan weather stations. He also twice obtained meteorological observations from the owner of the lodge about the weather and wind coming from Rivière aux Saumons. On the faith of this information, along with his experience and his own observations, Mr. Lévesque decided to operate the aircraft in VFR flight.

[48] The Minister's witness, Mr. Nadeau, stated that Mr. Lévesque likely did not have the required visibility to maintain ground references since he himself saw nothing, because the aircraft was either in the clouds or above the clouds. Mr. Nadeau's testimony is based on what he saw, or rather on what he did not see as a passenger sitting close to the centre of the aircraft, on the right side near the window. Mr. Lévesque's testimony is based on what he saw with his own eyes as the pilot of aircraft C-GRYE.

[49] The review determination Canada (Minister of Transport) v. Devlin, [1998], CAT file no. P-1614‑33, [1998] C.A.T.D. no. 36 (QL), presents facts similar to the ones in the present case. In that case, a Transport Canada inspector was sitting on the right side near the window under a wing of a Twin Otter. He testified that the pilot-in-command did not maintain visual reference to the surface during a special VFR flight. The pilot Devlin stated that, although visibility was reduced over the sea, his co-pilot maintained visual reference to the ground while he focused on navigating visually. In that case, the Tribunal found that the pilot was the most appropriate person to testify about what he observed during the flight. "Flight visibility" is defined at section 101.01(1) of the CARs as "the visibility forward from the cockpit of an aircraft in flight".

[50] Determination – The $1000 penalty regarding the offence under section 602.114 of the CARs is cancelled.

(3) Offence under section 602.121(1) of the CARs

[51] Since the Minister did not prove on a balance of probabilities that Mr. Lévesque operated the aircraft in VFR flight without visual reference to the surface, the alleged offence claiming he used the aircraft in IMC without a flight plan and without IFR authorization is not valid.

[52] Determination – The $750 penalty regarding the offence under section 602.121(1) is cancelled.

(4) Offence under section 703.39(1) of the CARs

[53] The Minister admitted that he did not prove on a balance of probabilities that the pilot‑in‑command neglected to give the passengers a safety briefing before take-off. Mr. Nadeau, who stated to Transport Canada (exhibit M-6) that the pilot-in-command did not give a safety briefing before departure from Sainte-Anne-des-Monts, did not mention this element at the hearing.

[54] Determination – The $750 penalty regarding the offence under section 703.39(1) of the CARs is cancelled.

VII. DETERMINATION

[55] The Tribunal is of the view that the Minister of Transport did not meet its burden of proof on a balance of probabilities. The allegations are dismissed and the $3250 penalty against the applicant is cancelled, specifically,

· offence 1: the $750 penalty regarding the offence under section 602.86(1) of the CARs is cancelled;

· offence 2: the $1000 penalty regarding the offence under section 602.114 of the CARs is cancelled;

· offence 3: the $750 penalty regarding the offence under section 602.121(1) of the CARs is cancelled;

· offence 4: the $750 penalty regarding the offence under section 703.39(1) of the CARs is cancelled.

January 10, 2008

Suzanne Racine

Member


Appeal decision
Faye H. Smith, Howard M. Bruce, Michel Larose


Decision: December 1, 2008

Citation: Lévesque v. Canada (Minister of Transport), 2008 TATCE 35 (appeal)

Heard at Sept-Îles, Quebec, on May 22, 2008

Held: The appeal is allowed as follows:

· offence no. 2 − the $1000 penalty regarding the offence under section 602.114 of the Canadian Aviation Regulations is reinstated; and

· offence no. 3 − the $750 penalty regarding the offence under section 602.121(1) of the Canadian Aviation Regulations is reinstated.

The total amount of $1750 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this decision.

 I. APPEAL DECISION WITH REASONS

[1] This is an appeal by the Minister of Transport from a determination by the reviewing member who found that the Minister did not meet the burden of proof on a balance of probabilities. Accordingly, the member dismissed the four allegations and the $3250 penalty assessed against the applicant. Of the four allegations, the Minister, however, is appealing offence nos. 2 and 3 as follows:

[Translation]

2. On or about November 15, 2006, around 17:00 UTC, at or near Ste‑Anne‑des‑Monts, Quebec, you did operate the aircraft registered as C‑GRYE in VFR flight within controlled airspace, when the aircraft was not being operated with visual reference to the surface, thereby contravening section 602.114 of the Canadian Aviation Regulations.

Penalty: $1000

3. On or about November 15, 2006, around 17:00 UTC, at or near Ste‑Anne‑des‑Monts, Quebec, as pilot-in-command, you did operate the aircraft registered as C‑GRYE in IMC, while not complying with the instrument flight rules, namely that you did not have a flight plan or IFR authorization, thereby contravening section 602.121(1) of the Canadian Aviation Regulations.

Penalty: $750

II. BACKGROUND

[2] The following portions of the agreement between the parties are relevant for purposes of this appeal:

· offence under section 602.114 of the Canadian Aviation Regulations (CARs) – Jacques Lévesque admits that this flight took place, in part, within controlled airspace; and

· offence under section 602.121(1) of the CARs – Mr. Lévesque admits that there was no recorded communication of the frequency during the entire flight.

III. CANADIAN AVIATION REGULATIONS

[3] Sections 602.114 and 602.121(1) of the CARs read as follows:

602.114 No person shall operate an aircraft in VFR flight within controlled airspace unless

(a) the aircraft is operated with visual reference to the surface;

(b) flight visibility is not less than three miles;

(c) the distance of the aircraft from cloud is not less than 500 feet vertically and one mile horizontally; and

(d) where the aircraft is operated within a control zone,

(i) when reported, ground visibility is not less than three miles, and

(ii)   except when taking off or landing, the distance of the aircraft from the surface is not less than 500 feet.

602.121 (1) No pilot-in-command shall operate an aircraft in IMC in any class of airspace, except in accordance with IFR.

IV. GROUNDS FOR APPEAL

[4] The Minister filed the following grounds for appeal on February 11, 2008:

[Translation]

1. The member erred in law in granting the request of the applicant to reject the allegations under sections 602.114 and 602.121(1) of the Canadian Aviation Regulations.

2. More specifically, the review determination contained an error in law in the interpretation of section 602.114.

3. Further, the question of knowing if there had been visual references to the ground has been evaluated in an erroneous manner, such that the conclusion of fact reached by the member is unreasonable.

4. The member also erred in preferring the testimony of Mr. Lévesque to that of Mr. Nadeau when the testimony of the latter is corroborated by meteorological evidence presented at the hearing.

V. MINISTER'S SUBMISSIONS

[5] The Minister's representative stated that offence nos. 2 and 3 were the objects of the two paragraphs of the agreement between the parties mentioned in paragraph [2] above. The first paragraph indicated that on November 15, 2006, the flight took place in controlled airspace and that section 602.114 had been contravened. The second paragraph stated that the same flight was an instrument flight.

[6] The Minister stated that there were two elements of error in the member's review determination: the first related to her interpretation of section 602.114(b) as the alleged infraction, when she should have been considering section 602.114(a). This error is obvious in paragraph [49] of her review determination, and the Devlin case that she quoted, Canada (Minister of Transport) v. Devlin, [1998], review determination, CAT file no. P‑1614‑33, [1998] C.A.T.D. no. 36 (QL), does not apply to the present case. The flight in the present case was made in the clouds and then sometimes above the clouds. The member concludes in her analysis that the pilot‑in‑command is the best person to observe the land visibility. However, it is important to point out that the Devlin case is a different concept and does not apply to the facts of the present case. The second reason for error in the member's review determination is the evidence of the witnesses as regards the preponderance of proof.

[7] The analysis of the probability, as explained by the member, starts at paragraph [38] of the review determination regarding the testimony of Michel Nadeau (transcript at 19-25 (November 8, 2007)). His testimony is corroborated by his own written statement (exhibit M-6) and the statement of Yvon Bournival (exhibit R-1).

[8] The Minister made reference to paragraphs [15]-[17] of the review determination, which detail all of the forecasts described in the weather reports (METARs), the forecasts from the surrounding weather stations (TAFs) and the graphic area forecast GFACN34 for the Atlantic region submitted by the Minister. The member states in paragraph [43] of her review determination that these forecasts do not indicate the same weather conditions that Mr. Lévesque claims to have experienced. She went on to say that in Guy Hamel's view, it is unlikely that Mr. Lévesque could have kept his visual reference to the surface at the altitudes he maintained during the flight (exhibit M-5). The Minister asked that the appeal be allowed.

VI. RESPONDENT'S SUBMISSIONS

[9] It was the submission of the counsel for the respondent that the three panel members could not overturn the decision of the review member, unless they find it to be manifestly unreasonable, as in the following case, Dunsmuir v. New Brunswick, [2008] S.C.J. no. 9.

[10] He then referred the panel to the summary at paragraphs [22] and [23] of the review determination to Mr. Lévesque's testimony, wherein the latter stated that the pilot has a better view from the cockpit than a passenger sitting close to a window, near the centre of the aircraft, with a view obstructed by the wing. On the ride to Rivière aux Saumons, the weather had nothing to do with the GFACN34 forecast in effect at 1121Z (exhibit M-1). The weather conditions of the flight of November 15, 2006 were VFR conditions. Mr. Lévesque therefore used the aircraft in VFR flight.

[11] Counsel for the respondent submitted that Mr. Nadeau was not a credible witness because he was contradicted in all sorts of things, even by his travelling companions. He urged that his client, Mr. Lévesque, has 40 years in aviation and is familiar with the area; he also asked that the review determination be confirmed.

VII. DISCUSSION

[12] In reviewing a matter by way of appeal, the panel should not interfere with the member's review determination, except in the circumstances as set out in Moore v. Canada (Minister of Transport), [1991], appeal determination, CAT file no. C-0138-33, [1991] C.A.T.D. no. 5 (QL). In the appeal determination, the member stating concurring reasons said:

I am satisfied that a finding of fact by the Hearing Officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law, . . . The second is, notwithstanding that there is some evidence concerning the finding, it is non‑the‑less unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an Appeal Tribunal, hearing an appeal on the record should not interfere with the fact findings of the hearings officer.

A. Offence no. 2 – Section 602.114 of the CARs

[13] That the flight took place within controlled airspace was admitted in the agreement. Mr. Lévesque submitted that he kept his visual reference throughout the trip and carried out the flight entirely VFR. Mr. Nadeau, on the other hand, stated that the conditions from departure were, in his view as an experienced pilot, above the clouds being IFR conditions and remained so throughout the flight.

[14] If we were limited to deciding this case on the basis of the oral evidence alone, we might be compelled to resolve conflicting evidence in favour of the respondent. However, there is overwhelming corroborating evidence described at paragraphs [14]-[16] of the review determination, providing that the weather forecasts were completely consistent with the evidence of the eye witnesses. The witness statements taken in December 2006 (exhibit M-6) and March 2007 (exhibit R-1) are notes taken and recorded well in advance of the hearing date; they are consistent with a finding that the flight was in and above the clouds. We agree with the Minister that the Devlin case has no application to the facts of the case before us, as it relates to an entirely different situation altogether.

[15] An analysis of this evidence demonstrates that it is completely consistent with the evidence of the Minister's witnesses. We cannot ignore the contents of the METARs (exhibit M-2) and the TAFs (exhibit M-3), a brief overview of which may be found in the Minister's argument at the review hearing (transcript at 106-108 (November 8, 2007); emphasis added).

(1) METARs (Exhibit M-2)

[Translation]

If one looks at the weather ceilings in the surrounding air space, which would be . . . beginning with Gaspé,. . . for November 15, 2006 at 5:00 p.m., already we have some broken at 2000 feet and since then we have an over cloud at 4000 feet . . . and I am referring to the testimony of Guy Hamel – broken cloud, one is already in IFR conditions and, in any event, at 4000 feet at 5:00 p.m., we are in over cloud . . . .

. . .

Sept-Îles now . . . it is even worse because there the weather is absolutely terrible . . .  at Sept-Îles. November 15, and at about  . . . the report of 5:00 p.m., a visibility of 1/8, drizzle, fog and vertical visibility of 100 feet. Thus there was absolutely terrible weather for that day.

Now the METAR for Mont-Joli: if we look at 5:00 p.m., we have a few at 1200 feet and some broken at 2000. There is another broken again at 10 000. But . . . already at 2000 feet, we have some broken. One is already in IFR conditions at 2000 feet.

Natashquan. Natashquan, this is at page 9 . . . the weather is terrible. One can see that . . . at 5:00 p.m., there are some clouds obviously over the ground "overcast" at ground level. At 5:14 p.m., it is at 200 feet. And, it does not get any better until 6:00 p.m., . . . in fact, all day long it had been like that.

(2) TAFs (Exhibit M-3)

[Translation]

And finally we go to the TAFs for the different . . . the forecasts which were in force from the moment of the take-off or a little before the take-off. The last information which was available, the TAF at Mont-Joli. Thus, at 1:00 p.m., there was a "few "at 800 feet, scattered to 2000 and broken to 7000. And that they had temporarily broken to 4000 a little later.

The TAF at Sept-Îles starting at 4:00 p.m. at page 1, at the bottom of page 1 one sees that the visibility is not very good and that the vertical visibility is scarcely 100 feet there. There again the weather is really unfavourable.

Natashquan, we see that the ceilings are once again very low. Thus, broken starting at 400 feet and completely cloudy starting at 1000 feet.

And finally Gaspé, at page 2 at the top, one sees that (few) starting at 2000 feet and broken starting at 4000 feet.

. . .

[16] It was Mr. Lévesque's testimony that he was always in VFR flight. He maintained that at all times he had visual reference to the surface of the ground and that his entire flight was made in VFR conditions. The Minister's representative countered that with the METARs, the TAFs and the testimony of witnesses, it is impossible that this flight took place in VFR conditions. She urges that when Mr. Lévesque says that the weather was fine all the way, it simply becomes hard to believe with the weather reports and the testimony of the two witnesses who were also in the aircraft. Even if one is tempted to say that your visibility is not good because of where you are seated in the aircraft, clearly you are still able to see whether you are above cloud or not. Even though Mr. Nadeau was not sitting in the cockpit, he is a pilot and knows the difference between VFR and IFR conditions. He was very specific in his testimony that the conditions were IFR.

[17] The Minister's two witnesses, Messrs. Nadeau and Hamel, said that it was not a VFR flight. That the flight was above the clouds was also mentioned by Mr. Bournival in his written statement filed in evidence as exhibit R-1 by the counsel for Mr. Lévesque.

VIII. CONCLUSION

[18] While an appeal panel is reluctant to disagree with the conclusions of a tribunal member at review, it is required to do so when, in the appeal pannel' view, the review determination is, on the face of all the evidence presented, unreasonable and not supported by the evidence. In this case the evidence of independent witnesses, who were in a position to observe the weather conditions, coupled with the METARs and the TAFs make it clear to us that the review determination on offence no. 2 was not supported by the totality of the evidence. We believe that the flight undertaken by Mr. Lévesque on the relevant date was not in VFR conditions and that the Minister has demonstrated that offence no. 2 was proven on a balance of probabilities.

B. Offence no. 3 − Section 602.121(1) of the CARs

[19] As well, offence no. 3 is proved on a balance of probabilities following offence no. 2. There was also an admission for offence no. 3 as there was no communication of a recorded frequency and no flight plan.

IX. DECISION

[20] The appeal is allowed as follows:

· offence no. 2 − the $1000 penalty regarding the offence under section 602.114 of the CARs is reinstated; and

· offence no. 3 − the $750 penalty regarding the offence under section 602.121(1) of the CARs is reinstated.

December 1, 2008

Reasons for appeal decision by: Mrs. Faye Smith, Chairperson

Concurred by:

Dr. Michel Larose, Member

Mr. Howard Bruce, Member