TATC File No. Q-3403-33
MoT File No. N5504-61930
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Jacques Lévesque, Applicant
- and -
Minister of Transort, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, 7.7
Canadian Aviation Regulations, SOR/96-433, 602.114, 602.121(1)
Decision: May 13, 2008
Citation: Lévesque v. Canada (Minister of Transport), 2008 TATCE 23 (review)
[Official English translation]
Heard at Sept-Îles, Quebec, on January 29, 2008
Held: The Tribunal dismisses the Minister's allegations. Consequently, the $1000 penalty for contravening section 602.114 of the Canadian Aviation Regulations and the $750 penalty for contravening section 602.121(1) of the Canadian Aviation Regulations are cancelled.
 On August 14, 2007, the Minister of Transport issued a notice of assessment of monetary penalty to Jacques Lévesque, the applicant, for contraventions of sections 602.114 and 602.121(1) of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act (Act). The total amount of the penalties is $1750.
 Schedule A of the notice of assessment of monetary penalty reads as follows:
You have contravened the following sections of the Canadian Aviation Regulations:
1. On or about November 30, 2006, at around 22:00 UTC, while in cruise flight between Port‑Menier, Quebec, and Sainte-Anne-des-Monts, Quebec, as pilot-in-command of the aircraft registered C-GRYE, you operated the aircraft registered C-GRYE in VFR flight within controlled airspace, although the aircraft was not being operated with visual reference to the surface, thereby contravening section 602.114 of the Canadian Aviation Regulations.
2. On or about November 30, 2006, at around 21:45 UTC, during a flight between Port‑Menier and Sainte-Anne-des-Monts, Quebec, as pilot-in-command, you operated the aircraft registered C-GRYE in IMC, while not complying with the instrument flight rules, thereby contravening subsection 602.121(1) of the Canadian Aviation Regulations.
 On August 28, 2007, the applicant filed a request for review of the decision of the Minister of Transport.
 Section 7.7 of the Act provides 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.
(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate
(a) the designated provision that the Minister believes has been contravened;
(b) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and
(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.
 Sections 602.114 and 602.121(1) of the CARs provide the following:
(a) the aircraft is operated with visual reference to the surface;
(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.
A. Minister of Transport
(1) Guy Hamel
 Guy Hamel is the Transport Canada inspector who investigated the two offences. He commented on a first series of printed charts (exhibit M-1 at 1-15), which he had obtained from the Sept-Îles radar file. The document provides a dot-by-dot illustration of aircraft C‑GRYE's location (represented by a triangle), speed and altitude in controlled airspace between Port‑Menier and Sainte-Anne-des-Monts on November 30, 2006. The cover page displays the path that is formed by joining the dots. The witness explained that aircraft C‑GRYE maintained a cruising altitude of about 6500 feet. The second series of charts (exhibit M-1 at 1-7) provides a dot-by-dot illustration of aircraft C-GRYE's location, altitude and speed while approaching and landing at Sainte‑Anne-des-Monts Airport. The cover page of the second set of charts illustrates the localizer course including two control points identified by "+" signs and the path flown by the aircraft until it reached Sainte‑Anne-des-Monts Airport.
 The witness drew the Tribunal's attention to pages 2 and 3 of the first series of charts. He pointed out that the transponder code of aircraft C-GRYE appearing on page 2, that is, code 1233, is replaced on page 3 by code 1200 for the remainder of the flight. The change in code indicates that the applicant switched from instrument flight rules (IFR) to visual flight rules (VFR). The charts of the second series, the cover page in particular, indicate that the approach included a right turn, which does not comply with the non-directional beacon (NDB) approach prescribed for instrument landings on runway 14 at Sainte‑Anne-des-Monts Airport (exhibit M-3). The enroute low altitude chart (exhibit M-2) covers the area in which the flight took place. The white area represents controlled airspace. The Sainte‑Anne‑des‑Monts Airport is located in this area.
 The witness stated that there was no weather station in either Port-Menier or Sainte‑Anne-des-Monts. To check the weather in the area, Mr. Hamel consulted the following documents:
· Graphic Area Forecast (GFAs) for Atlantic Region (GFACN34; exhibit M‑4). This forecast was valid as of 1800Z on November 30, 2006. Onto the forecast, the applicant had written by hand the codes for the towns of Mont‑Joli (YYY), Baie‑Comeau (YBC), Sept-Îles (YZV) and Gaspé (YGP) and indicated the path flown by aircraft C-GRYE between Port-Menier and Sainte‑Anne‑des-Monts. All of these towns are within the area enclosed by a green line, in which precipitation in the form of rain and mist and patchy clouds (PTCHY) at 500 feet above the ground were expected. On the chart, the same towns are located between a cold front heading southeast, represented by the blue line behind Baie-Comeau, and a warm front heading northwest, represented by the red line to the east of Anticosti Island. Visibility in this area varied between 2 and 6 statute miles (SM).
· Terminal aerodrome forecasts (TAFs) for Mont-Joli, Baie-Comeau, Sept-Îles and Gaspé (exhibit M-5):
· At 2016Z, the amended Mont-Joli TAF for the period between 2000Z and 0200Z was visibility of 6 SM, rain and mist, scattered clouds at 800 feet, overcast sky at 1200 feet with a 40 percent chance of visibility of 1 SM, rain and mist, and a ceiling at 300 feet.
· At 2013Z, the amended Baie-Comeau TAF for the period between 2000Z and 0200Z was visibility of 5 SM, rain showers, fog, a ceiling at 2000 feet and overcast sky at 3 000 feet.
· At 2018Z, the amended Sept-Îles TAF for the period between 2000Z and 2400Z was visibility of over 6 SM, scattered clouds at 1500 feet, overcast sky at 4000 feet, and rain and mist.
· At 1939Z, the amended Gaspé TAF for the period between 2000Z and 2400Z was visibility of over 6 SM, scattered clouds at 1500 feet and a ceiling at 10 000 feet.
· Mont-Joli, Baie‑Comeau, Sept-Îles and Gaspé aviation routine weather reports (METARs) (exhibit M-6):
· At 2100Z, the Mont-Joli METAR indicated visibility of 2.5 SM, rain showers, a ceiling at 400 feet and overcast sky at 2000 feet; the 2200Z METAR provided almost the same forecast, with the exception of overcast sky at 1200 feet.
· At 2109Z, the special Baie-Comeau METAR indicated visibility of 9 SM, rain and a ceiling at 2600 feet. At 2200Z, visibility was 9 SM in the rain, and the ceiling was at 2600 feet.
· At 2100Z, the Sept-Îles METAR indicated visibility of 15 SM, a few clouds at 600 feet, a ceiling at 2000 feet and overcast sky at 7800 feet. At 2200Z, visibility was 15 SM in the rain; there were a few clouds at 600 and 2000 feet, and overcast sky at 7100 feet.
· At 2100Z, the Gaspé METAR indicated visibility of 15 SM, a ceiling at 1800 feet, a second ceiling at 14 000 feet and overcast sky at 24 000 feet. At 2200Z, it indicated visibility of 15 SM, a ceiling at 2000 feet and overcast sky at 14 000 feet.
 The Minister filed in evidence the flight plans and itineraries for each of the four flights made by the applicant in aircraft C-GRYE on November 30, 2006 (exhibit M-7). According to Inspector Hamel, Mr. Lévesque filed an IFR flight plan for flying from Sept-Îles to Port‑Menier. In the flight rules box of the flight plan (at 3), Mr. Lévesque entered the letter "I" and signed the plan. In the operational flight plan (at 1), he wrote by hand that he had obtained a weather report from the flight service station (FSS).
 The applicant submitted a VFR flight plan (exhibit M-7 at 6) for the second flight made on November 30, 2006, between Port-Menier and Sainte‑Anne‑des‑Monts. On the operational flight plan (at 4), above the title, he had written by hand [translation] "briefing CAVOK weather". Mr. Lévesque operated the two subsequent flights in VFR flight. He wrote [translation] "CAVOK weather" on the operational flight plans (at 7 and 10).
 The Minister filed an extract from Transport Canada's Aeronautical Information Manual (October 25, 2007; exhibit M-8). Section 1.4 of the manual explains use of the term CAVOK "in air-to-ground communications when transmitting meteorological information to arriving aircraft".
CAVOK refers to the simultaneous occurrence of the following meteorological conditions at an airport:
(a) no cloud below 5 000 feet, or below the highest minimum sector altitude, whichever is higher, and no cumulonimbus;
(b) a visibility of 6 SM or more;
(c) no precipitation, thunderstorms, shallow fog, or low drifting snow.
 According to Inspector Hamel, the simultaneous occurrence of such weather conditions had not been very likely in light of the GFACN34, TAFs and METARs filed in evidence. The conditions show that Mr. Lévesque should have used IFR to operate the flight.
(1) Jacques Lévesque
 Jacques Lévesque has been piloting aircraft for 40 years and has over 14 000 flight hours. He is familiar with both day and night instrument flying. He has also provided flight instrument training in the course of his career. The witness repeated that there was no weather station in either Port-Menier or Sainte‑Anne-des-Monts.
 On November 30, 2006, Mr. Lévesque left Sept-Îles in the aircraft registered as C‑GRYE to fly to Port-Menier, after filing an IFR flight plan. Before his departure, he consulted with the Sept‑Îles FSS. Mr. Lévesque stated that after reaching his cruising altitude, he was able to see the lights of the Gaspé shoreline, despite a layer of clouds. He stated that he saw the village of Saint‑Joachim during the flight and, upon his arrival, the town of Port‑Menier. When he left Port‑Menier for Sainte‑Anne‑des‑Monts, Mr. Lévesque decided to operate a VFR flight, as he had obtained a weather report from the Québec FSS, and Mr. Pinel, an employee of Safari Anticosti in Sainte‑Anne‑des-Monts, had confirmed CAVOK weather conditions. After being informed of a cold front heading towards the southeast, Mr. Lévesque decided to operate a VFR flight. He announced his intention to fly visually over the radio. The witness stated that he maintained visual references. Throughout the flight, he used the lights of the Gaspé towns as a guide.
 Cross-examination of Mr. Lévesque revealed the following:
· The fact that the cold front continued to move southeast allowed Mr. Lévesque to maintain visual contact with the lights of the Gaspé peninsula on his left.
· Mr. Lévesque did not use a global positioning system during his flight to Sainte‑Anne-des-Monts.
· Mr. Lévesque is used to evaluating the height of cloud layers during night VFR flights.
· Mr. Pinel, an employee of Safari Anticosti, the company for which Mr. Lévesque provides air transportation, was in Sainte‑Anne‑des-Monts. He informed Mr. Lévesque that the weather was good and that there were no clouds.
· Ten-knot northeasterly winds were blowing in Port-Menier before Mr. Lévesque left the airport.
· The Port Menier and Sainte‑Anne-des-Monts airports are 100 nautical miles apart.
A. Minister of Transport
 The Minister submits that it has proven on a balance of probabilities that on November 30, 2006, at around 2200Z, Mr. Lévesque operated the aircraft registered as C‑GRYE without visual reference to the surface while in VFR cruise flight between Port-Menier and Sainte‑Anne-des-Monts. With regard to the first offence, the only element being contested is the maintenance of the visual reference to the surface during VFR flight.
 According to the Minister, the second offence is related to the evidence that the aircraft was operated in VFR flight without visual reference to the surface. In fact, the flight was conducted in instrument meteorological conditions (IMC), which were not in accordance with VFR.
 The charts of the radar file (exhibit M-1) indicate that the applicant operated a VFR flight between Port-Menier and Sainte-Anne-des-Monts. The same document also shows that the applicant maintained a cruising altitude of 6500 feet, which was confirmed by the witness. The TAFs from various towns surrounding Sainte‑Anne-des-Monts, that is, Mont-Joli, Baie‑Comeau, Gaspé and Sept-Îles (exhibit M-5), reported cloud cover ranging from broken to complete, at altitudes much lower than those maintained by the applicant. These meteorological data confirm the GFACN34 forecast (exhibit M-4).
 Contrary to the applicant's statement, the cold front did not improve weather conditions. An examination of the METARs previously recorded for surrounding towns suffices for one to note that the weather conditions were hardly better behind the cold front (exhibit M‑6).
 Mr. Lévesque limited himself to obtaining the observations of only one person in Sainte‑Anne‑des-Monts and a weather report from the Québec FSS. He did not consult any GFAs, TAFs or METARs.
 It is practically unthinkable that, on November 30, 2006, at around 2200Z, the necessary criteria for justifying CAVOK weather conditions were met, given the weather forecasts and observations for the entire area filed in evidence. The Minister argues that the Tribunal should not lend credibility to Mr. Lévesque's testimony, given his interest in the outcome of this case.
 The Minister did not prove on a balance of probabilities that the applicant operated aircraft C-GRYE in VFR flight without visual reference to the surface.
 As there is no weather station in either Sainte-Anne-des-Monts or Port‑Menier, the applicant obtained the observations of a Safari Anticosti employee who was on site before flying to Sainte‑Anne‑des‑Monts. He also obtained a weather report from an FSS. Based on this information, the applicant felt that the weather conditions were suited to VFR flight. The applicant's considerable experience in piloting was not questioned. He stated that his flight was conducted in VFR conditions. While he was flying above the St. Lawrence, he used the lights of the towns in the Gaspé peninsula, which he could see on his left, as a visual reference. The pilot‑in‑command is the best person to decide whether the weather conditions are right for a VFR flight. The weather forecasts and observations filed in evidence by the Minister do not represent the actual conditions in which the flight between Port-Menier and Sainte‑Anne‑des‑Monts was carried out.
 There is no weather station in either Port-Menier or Sainte-Anne-des-Monts. The applicant is only contesting the allegation that he operated the aircraft without visual reference to the surface.
 The Minister argues that it has proven on a balance of probabilities that, on November 30, 2006, at around 2200Z, between Port-Menier and Sainte-Anne-des-Monts, the weather conditions did not allow the applicant to operate the aircraft registered as C‑GRYE with visual reference to the surface while he was in cruise flight at about 6500 feet.
 The GFACN34 of November 30, 2006, effective as of 1800Z, and the TAFS and METARs of the surrounding towns contradict the applicant's testimony. The applicant states that during his cruise flight he maintained visual contact on his left with the lights of the Gaspé peninsula's shoreline. These weather data do not correspond to the CAVOK weather conditions reported by Mr. Pinel, who was at the Sainte‑Anne‑des‑Monts Airport.
 I commented on a similar issue during a previous review hearing requested by the applicant (Lévesque v. Canada (Minister of Transport) 2008 TATCE 3 (review),  C.T.A.T.D. no. 3 (QL)). As in this case, the Minister had filed in evidence the TAFs and METARs of the surrounding towns of Sainte‑Anne‑des-Monts, as well as the GFACN34, as there is no weather station in either Sainte‑Anne‑des-Monts or Rivière aux Saumons, to demonstrate that the applicant had not had visual contact with surface references.
 TAFs provide aerodrome forecasts of the most likely conditions within a five‑nautical‑mile radius of the runway complex. GFAs, which are issued every six hours, describe the most likely weather conditions between the surface and an altitude of 24 000 feet for a given area. METARs are regular observations of surface weather conditions for a specific location and time. This information is therefore limited.
 As there is no weather station at either Port-Menier or Sainte‑Anne-des-Monts airports, pilots or on-site observers provide information about weather conditions. The applicant relied on the weather information from the Québec FSS, a report of CAVOK conditions, information from an employee who has worked for Safari Anticosti for a long time and who was in Sainte‑Anne‑des-Monts, and his own observations and experience to prepare the flight. On the basis of this information, he decided that the weather conditions were suited to VFR flight.
 While the GFAs and TAFs for surrounding airports provide valuable information for extrapolating the most likely weather conditions for a given time, they do not necessarily represent the actual weather conditions the applicant experienced on his trip. Even though they concern a particular area, forecasts may differ from the conditions actually observed on site. It is likely that the applicant operated the aircraft with visual reference to the surface. Given the contradictory testimonies about the weather conditions, I find that the applicant was the best person to testify to the conditions he observed during the flight. Consequently, the $1000 penalty for contravening section 602.114 of the CARs is cancelled.
 The Minister did not prove on a balance of probabilities that the applicant operated the aircraft in VFR flight without visual reference to the surface. The alleged offence, claiming he used the aircraft registered as C-GRYE in IMC conditions, which were not in accordance with VFR, is without merit. Consequently, the $750 penalty for contravening section 602.121(1) of the CARs is cancelled.
 The Tribunal dismisses the Minister's allegations. Consequently, the $1000 penalty for contravening section 602.114 of the CARs and the $750 penalty for contravening section 602.121(1) of the CARs are cancelled.
May 13, 2008
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