Decisions

TATC File No. P-3318-02
MoT File No. EMS 61372

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

James Vincent Filippone, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, 6.9
Canadian Aviation Regulations, SOR/96-433, 602.14(2)


Review Determination
Jean-Marc Fortier


Decision: October 23, 2008

Citation: Filippone v. Canada (Minister of Transport), 2008 TATCE 31 (review)

Heard at Vancouver, British Columbia, on April 8-9 and May 14, 2008

Held: The Tribunal determines that, on September 13, 2006, James Vincent Filippone operated his aircraft to the extent necessary for the purposes of the operation in which the aircraft was engaged at altitudes and distances less than those set out in section 602.14(2)(b) of the Canadian Aviation Regulations, that the aircraft was operated for the purpose of aerial photography conducted by the holder of an air operator certificate, and that the aircraft was operated without creating a hazard to person or property on the surface of Coal Harbour. Accordingly, the Tribunal dismisses the 30-day suspension issued by the Minister.

The Tribunal also dismisses the request for cause presented by James Vincent Filippone on the issue of allocation of costs.

I. BACKGROUND

[1] On December 8, 2006, the Minister of Transport issued a notice of suspension of the commercial pilot licence – helicopter of the applicant, James Vincent Filippone, pursuant to section 6.9 of the Aeronautics Act (Act), alleging that Mr. Filiponne had contravened section 602.14(2)(b) of the Canadian Aviation Regulations (CARs). Schedule A of the notice of suspension provided that :

1. On or about September 13, 2006, at approximately 18:30 hours local time, at or near Coal Harbour in the City of Vancouver, British Columbia, you, James Vincent Filippone, when you were not conducting a take-off or landing, nor operating as permitted under section 602.15 of the Canadian Aviation Regulations, did operate an aircraft at less than 500 feet from any person, vessel, vehicle, or structure, thereby violating section 602.14(2) of the Canadian Aviation Regulations.

Suspension Assessed: Commercial Pilot Licence Helicopter - 30 days

II. APPLICABLE LEGISLATION

[2] Section 6.9 of the Act provides the following:

  6.9 (1) If the Minister decides to suspend or cancel a Canadian aviation document on the grounds that its holder or the owner or operator of any aircraft, airport or other facility in respect of which it was issued has contravened any provision of this Part or of any regulation, notice, order, security measure or emergency direction made under this Part, the Minister shall by personal service or by registered or certified mail sent to the holder, owner or operator, as the case may be, at that person's latest known address notify the holder, owner or operator of that decision and of the effective date of the suspension or cancellation, but no suspension or cancellation shall take effect earlier than the date that is thirty days after the notice under this subsection is served or sent.

[3] The following sections 602.12(1), 602.14(2), 602.15(1) and (2), 602.16(1) and (2) and 702.22(2) of the CARs are relevant to the present case:

602.12 (1) For the purposes of this section and sections 602.14 and 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons if the built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon;

(b) 2,000 feet from an aircraft other than a helicopter or balloon.

602.14 (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 event 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,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

602.15 (1) A person may operate an aircraft at altitudes and distances less than those specified in subsection 602.14(2) where the aircraft is operated at altitudes and distances that are no less than necessary for the purposes of the operation in which the aircraft is engaged, the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated

(a) for the purpose of a police operation that is conducted in the service of a police authority;

(b) for the purpose of saving human life;

(c) for fire-fighting or air ambulance operations;

(d) for the purpose of the administration of the Fisheries Act or the Coastal Fisheries Protection Act;

(e) for the purpose of the administration of the national or provincial parks; or

(f) for the purpose of flight inspection.

(2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

(a) paragraph 602.14(2)(a), where operation of the aircraft is authorized under Subpart 3 or section 702.22; or

(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

(i) aerial application or aerial inspection,

(ii) aerial photography conducted by the holder of an air operator certificate,

(iii) helicopter external load operations, or

(iv) flight training conducted by or under the supervision of a qualified flight instructor

602.16 (1) No person shall operate a helicopter that is carrying a Class B, C or D external load over an open-air assembly of persons.

 

(2) Except where authorized under section 603.66 or 702.22, no person shall operate a helicopter that is carrying a Class B, C or D external load over a built-up area.

702.22 (2) For the purposes of paragraph 602.15(2)(a), a person may operate an aircraft over a built-up area at altitudes and distances less than those specified in paragraph 602.14(2)(a), if the person

(a) has an authorization from the Minister or is authorized to do so in an air operator certificate; and

(b) complies with the Commercial Air Service Standards.

III. SUMMARY OF THE FACTS

[4] On September 11, 2006, Blackcomb Helicopters Ltd, an air operator, obtained an authorization pursuant to sections 702.22(2)(a) and 702.22(3)(a) of the CARs to operate a helicopter at altitudes and distances less than those specified in section 602.14(2)(a) of the CARs and to operate a helicopter that is carrying a helicopter Class B external load, over a built-up area (exhibit M-1). The authorization applied only to Blackcomb Helicopters when operating for the purpose of aerial filming for the Disney Circle-Vision Theatre over the downtown portion of the City of Vancouver, British Columbia. The authorization contained 17 conditions and was to remain in effect until the earliest of:

(a) 21:30 hours PDST, Wednesday, September 13, 2006;

(b) the date on which any of the conditions set out is breached; or

(c) the date on which the authorization is cancelled, in writing, by the Minister.

[5] Amongst the conditions, the site of operation was the aerial work zones as depicted on the maps submitted and held on file with the Commercial and Business Aviation Section, Pacific Region, Transport Canada, being the downtown core area of the City of Vancouver. In addition, the minimum height of the aircraft was never to be less than 300 feet above ground level (AGL), or not below roof top height of the Hyatt Hotel, Burrard Street, Vancouver, whichever is the highest (exhibit M-1).

[6] In the evening of September 13, 2006, Mr. Filippone was the pilot‑in‑command of a helicopter AS355, registered as C-FXFX. After having completed the aerial work over the downtown area of the City of Vancouver, pursuant to the authorization, he proceeded to continue filming scenes for the Disney Circle-Vision movie O Canada by flying his helicopter over the Coal Harbour area of Vancouver (exhibits M-2 and M-3).

[7] Mr. Filippone made two low passes over the Coal Harbour channel by flying at altitudes ranging from 25 to 75 feet. The two low passes were witnessed by two Transport Canada inspectors, Stephen Creagh and Rick Hewitt, from different locations situated on the premises of the Vancouver Rowing Club, which is located at the head of the Coal Harbour channel (exhibits M‑2, M‑3 and M‑9 to M‑16).

[8] Inspectors Creagh and Hewitt reported these events the next day to their superiors at Transport Canada. Following their reports, a standard investigation was undertaken by representatives of Transport Canada. This led to the issuance of the notice of suspension by the Minister of Transport against Mr. Filippone on December 8, 2006.

IV. EVIDENCE

A. Minister of Transport

(1) Steve Ray

[9] Steve Ray was the inspector responsible for investigating the alleged offence. He explained that a low-flying authorization over the downtown area of Vancouver had been issued for helicopter AS355, with identification letters C‑FXFX (exhibit M-1). The work area described in the authorization did not include Coal Harbour and limited the altitude of the helicopter to no less than 300 AGL.

[10] A secretary certificate, identifying helicopter C‑FXFX as a Canadian registered AS355 helicopter, was produced as evidence (exhibit M-4). Another secretary certificate, stating that James Vincent Filippone, the pilot‑in‑command of helicopter C-FXFX at the time of the incident held a valid Canadian commercial helicopter pilot licence number no. CH259531, was also produced as evidence (exhibit M-7).

[11] Inspector Ray then confirmed that Blackcomb Helicopters had a valid air operator certificate (AOC) and that it operated a commercial operation (exhibit A-1). However, Inspector Ray had no direct evidence concerning the flights in question nor did he witness the flights. His role was to undertake an investigation and make a recommendation to his superior. He recommended a monetary penalty of $750 rather than a suspension.

[12] During cross-examination, Inspector Ray acknowledged that the charge against Mr. Filippone did not allege that there was a hazard to persons or property on the surface and that the charges solely referred to the operation of a helicopter at less than 500 feet. Inspector Ray also testified that there was no allegation against the applicant that the helicopter flew over a built-up area, contrary to section 602.14(2)(a) of the CARs. The charge facing Mr. Filippone was that he operated his helicopter at a distance less than 500 feet from any person, vessel, vehicle or structure, thereby violating section 602.14(2)(b).

(2) Stephen Creagh

[13] The Minister's second witness was Inspector Creagh, who is a civil and business aviation inspector with Transport Canada and is an experienced licensed helicopter pilot. On September 13, 2006, while he was at the Vancouver Rowing Club, he witnessed the Blackcomb helicopter fly two passes over the Coal Harbour area at the approximate height of 50 to 60 feet above water (approximately at heights corresponding with the top of sailboat masts).

[14] According to Inspector Creagh, during the first flight the helicopter hovered momentarily above a rowing shell and then sped up and flew away. The helicopter then made a second pass 10 minutes later, at approximately the same speed, height and in a similar flight path.

[15] Inspector Creagh confirmed that he was located approximately 1500 feet from the shell in the water. He stated that during the second pass, the flight took place only over water and not over any person, vessel or structure. He testified that the helicopter flew over the top of a quad rowing shell although he was mainly observing the helicopter.

[16] Inspector Creagh took pictures of the Coal Harbour area (exhibits M-2, M-3 and M-9 to M‑16). These pictures indicate the flight path followed by helicopter C-FXFX on September 13, 2006 (exhibits M-2, M-3 and M-13 in particular).

[17] Inspector Creagh testified that should an emergency occur, such as an engine failure or a tail rotor failure, when a helicopter is flown at the low altitude and speed that he witnessed that day, it made a recovery of the helicopter to a safe landing area unlikely.

[18] During cross-examination, Inspector Creagh acknowledged that section 602.15(2)(b) of the CARs provides an exception for low flying where the helicopter is operated without creating a hazard to persons or property on the surface and for purposes of aerial photography conducted by the holder of an AOC.

[19] The applicant's counsel presented to Inspector Creagh a copy of an application relating to the filming of the motion picture Passengers over Spanish Banks, which was produced as evidence (exhibit A-3). Inspector Creagh was also shown an email that he had addressed to Peter Murray of Talon Helicopters Ltd. (exhibit A-4), where he concluded that the application for exemption filed by Talon Helicopters was not required, provided that the pilot did not deviate from the proposed flight route indicated in the plan. The flight route was clearly identified in the plans submitted with the application (exhibit A-3). Since Spanish Banks did not constitute a built-up area, Inspector Creagh had concluded that no authorization was required in that case.

(3) Rick Hewitt

[20] The Minister's third witness was Inspector Hewitt, who is an experienced fixed wing pilot but not a helicopter pilot. Inspector Hewitt also witnessed the flight on September 13, 2006. He observed the helicopter flying eastbound at the height of the top of sailboat masts (approximately 50 feet). He testified that during the first pass, his view was eclipsed by the sailboats and he saw no activity on the water. However, on the second pass, he recalled seeing the helicopter from his location on the deck of the Vancouver Rowing Club, flying at a slow speed (25 to 30 knots) over a rowing shell, but not over a tender. Inspector Hewitt testified that in his view the low flight was not safe.

(4) Marie Helene Zubryckyj

[21] The Minister's final witness, Marie Helene Zubryckyj was, in September 2006, the regional manager of the Aviation Enforcement Section, Pacific region, Transport Canada. Her duties included reviewing cases that have been investigated by inspectors to make a determination regarding appropriate sanctions.

[22] In this regard, Ms. Zubryckyj reviewed Mr. Filippone's file and looked at the factors to determine whether a 30-day sanction was appropriate under the circumstances. Ms. Zubryckyj told the Tribunal that there were aggravating factors in this case, which would allow a regional manager to bump up the sanction above what an investigator could recommend.

[23] The witness then reviewed the Aviation Enforcement Policy Manual (TP 13794E; revised December 2004, exhibit M-17) and the Aviation Enforcement Procedures Manual (TP 4751E, revised February 2006, exhibit M-18), which dealt with the levels of sanction based on the gravity of the offence.

[24] Ms. Zubryckyj recommended a 30-day suspension after considering that the low flights over Coal Harbour created a hazard and constituted a blatant disregard of the regulations, since Mr. Filippone had been told not to conduct such a flight below 300 feet AGL and he had decided to conduct it anyway below the 300 feet minimum.

[25] Ms. Zubryckyj's decision to recommend a suspension was based on the fact that she was told by Inspector Henk van Erkelins of Transport Canada that Mr. Filippone had asked him for an authorization to conduct a flight at very low altitudes over Coal Harbour, but that Inspector van Erkelins had denied issuing one on the basis of safety.

[26] In cross-examination, Ms. Zubryckyj appeared hesitant when explaining the presence of the aggravating factors that she had considered for recommending a 30‑day suspension. The witness could not recall the date when she had the conversation with Inspector van Erkelins and she did not review the other documents concerning the case.

[27] However, Ms. Zubryckyj reiterated her opinion on what constitutes an aggravating factor, such as the restriction of flying under 300 feet AGL over a built-up area, as stipulated in the authorization, pursuant to paragraphs 702.22(2)(a) and 702.22(3)(a) of the CARs (exhibit M-1).

[28] Although Ms. Zubryckyj submitted, during cross-examination, that she had taken into account the fact that this was Mr. Filippone's first offence, she referred to Mr. Filippone as "a client of ours on numerous occasions" and a "repeat offender". Ms. Zubryckyj then corrected herself by saying that the words "repeat offender" she had used were incorrect, as Mr. Filippone had no previous offence under the CARs. However, Ms. Zubryckyj reiterated that her decision to assess a 30-day suspension was based on the fact that Mr. Filippone violated the condition of the authorization, and that she had been told by Inspector van Erkelins that Mr. Filippone had requested and been refused an authorization for a low flight over Coal Harbour.

[29] Ms. Zubryckyj also testified in cross-examination that the pilot's competence was not questioned nor was there any negligence or reckless conduct by the pilot. She confirmed that she saw no actual threat to anyone's safety on the surface of the land or water but that there was, in her opinion, actual hazard.

B. Applicant

(1) James Vincent Filippone

[30] During his testimony, Mr. Filippone gave a summary of his flying experience since 1977 and a description of the requirements needed to ensure that helicopter flying in film work is safe at all times and executed within the requirements of the CARs. He has obtained numerous low-flying authorizations from Transport Canada. He stated that in every single film, low flying is involved.

[31] Mr. Filippone testified that his paramount concern is to ensure a safe operation for the passengers, pilot, aircraft and general public. He has no record of offences under the Act and the CARs. Three complaints have been filed against him over a 30-year period, which all resulted in no action letters.

[32] Mr. Filippone also explained the procedure that he has followed in prior cases where an authorization from Transport Canada was necessary, given the nature of the aerial photography work involved. The process required the intervention of several parties, including Transport Canada, police and city authorities, as well as residents near the location of the low-level flight, and anyone who may be affected by such operation.

[33] Mr. Filippone explained the process that was followed in two instances: the Sea Wall shooting in July 2006 and the Spanish Banks shooting in February 2007 (respectively two months prior and six months after the events of September 13, 2006). In both cases, after proper applications were submitted to Transport Canada, Mr. Filippone received an email response from Transport Canada (Inspector van Erkelins with respect to the Sea Wall shooting (exhibit A-14) and Inspector Creagh with respect to the Spanish Banks shooting (exhibit A-4) that a low-level flying authorization was not required because of the aerial photography exception found in the CARs.

[34] In preparation of the flights, Blackcomb Helicopters filed, on August 24, 2006, an application for authorization with Inspector van Erkelins, to fly at low level for the purposes of aerial filming for Disney in downtown Vancouver, (exhibit A-15). The authorization requested under section 702.22 of the CARs (aerial work) was for operating a helicopter at altitudes and distances less than those specified in section 602.14(2)(a), over a built-up area with less than 1000 feet above the nearest obstacle and within a horizontal distance of 500 feet.

[35] The application also contained a description of the operation to be undertaken by Mr. Filippone. In item 4 of the application checklist, the Downtown Core Vancouver area is stated as being the area where the operation would take place. The application was attached with letters from the City of Vancouver and the Vancouver Police Department, confirming that the aerial film work would be done in the downtown core of Vancouver.

[36] Mr. Filippone testified that after he had completed his operation covered by the authorization (Downtown Core Vancouver), he proceeded to fly over Coal Harbour. He made two low flights over Coal Harbour in subsequent passes. He stated that he did not fly over any boats or people in the water. He saw a clear path in the Coal Harbour channel free of any boats when he flew over the causeway at an altitude above 500 feet.

[37] He also testified that he did not fly over a rowing shell, as the Coal Harbour channel was clear under his helicopter. He maintained that his flight path and speed, during both passes, were effectively the same and that he held an altitude ranging between 25 and 75 feet.

[38] He concluded that there was no hazard to the rowers or to his helicopter at any time during his flights over Coal Harbour, and that no boat ever crossed the path of his helicopter on September 13, 2006. He confirmed that he was flying at speeds between 40 and 60 knots, and he stated that when flying at over 30 knots, "[y]ou have enough power to fly away even on one engine". When questioned by the Tribunal, Mr. Filippone stated that he would adjust his flight path if he noticed there was a boat that may be intruding on his flight path.

[39] Mr. Filippone confirmed that there were rowers and boats in the channel at the time, but that he did not fly over them and that the pathway was cleared before he flew over the Coal Harbour area.

[40] The hearing was then adjourned. The parties reconvened on May 14, 2008, at 1:00 p.m. in Vancouver.

V. NEW EVIDENCE

A. Motion by the Minister of Transport

[41] On May 14, 2008, a motion was presented by the Minister's representative, who substantially sought to introduce additional evidence, which consisted of a video that would show an extract from the O Canada film presented by Disney at their Orlando theme park. The sequence of the video concerned more particularly a flight over the City of Vancouver and the Coal Harbour area, which appears to have been taken from a flying helicopter. These images were obtained by Transport Canada on the Internet during the adjournment period.

[42] The Minister's representative declared that he wanted to show the video to the Tribunal and to Mr. Filippone. He also wanted to ask questions to Mr. Filippone about the film. Transport Canada indicated that this new evidence was not available prior to the hearing on April 8 and 9, 2008 and prior to the 30-day period preceding this hearing.

[43] The applicant's counsel opposed the motion on the basis that such evidence was not reliable or accurate evidence (as it was obtained illegally and lacked quality). He also submitted that the video was obtained too late and that it was not admissible rebuttal evidence.

B. Decision by the Tribunal on the Motion of the Minister of Transport

[44] Under the general provisions of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATC Act), it is true that the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it. However, the Tribunal has the obligation to ensure that the rules of natural justice are met and followed throughout the process, as it applies to direct evidence, to cross-examination and to the introduction of additional evidence which may not have been previously available.

[45] For the Tribunal to admit additional evidence not previously available, the following rules apply:

  • the additional evidence must be considered necessary for the purposes of the hearing. In other words, such evidence must have a direct link with the hearing and the matters dealt with at the hearing;
  • such evidence must not be previously available. In such case, it is not sufficient to argue that a party did not know that the evidence existed to claim that it was not previously available.

[46] In this case, the video in question had been found on the Internet by an inspector from Transport Canada during the recess period, and apparently had been available prior to the hearing. In addition, Transport Canada acknowledged that there was no assurance that it could submit to the Tribunal satisfactory evidence that would link the content of the video to the present case. Therefore, the relevancy of such evidence to the hearing was not established.

[47] The Minister of Transport would also have to demonstrate that the video had not been altered from its original condition. Accuracy and reliability of the video is essential, as it had been extracted from the Internet. Finally, the Tribunal was also concerned that the reliability and accuracy of such evidence, if admitted, would be extremely difficult for Mr. Filippone to rebut. Consequently, the Tribunal rejected the motion by the Minister of Transport to introduce this additional evidence at the hearing.

VI. ANALYSIS

A. Review and Consideration of the Evidence

[48] At the outset of the hearing, arguments were raised by the applicant's counsel as to what specific section of the CARs was the applicant charged under.

[49] The wording contained in the notice of suspension could be interpreted to mean that the applicant has contravened either section 602.14(2)(a) or (b). This led to the applicant's counsel submitting earlier a motion to the Tribunal requesting the dismissal of the charges on the grounds that the notice of suspension was based on the contravention of section 602.14(2)(a), while the September 13, 2006 flights were operated over Coal Harbour and not over a built-up area, as the applicant contended. The Tribunal rejected the applicant's motion as being premature and proceeded with the hearing.

[50] The Minister of Transport's representative then clarified the matter when he stated that the relevant section of the CARs to be applied was 602.14(2)(b) and not 602.14(2)(a). Therefore, Mr. Filippone was not charged under the former section which deals with operating an aircraft over a built-up area.

[51] In his reply to the applicant's written closing arguments, the Minister agreed that a special authorization was not required for the flight under discussion before the Tribunal (in ¶ 19), thereby confirming that most of the flight was not conducted over a built-up area (in ¶ 22). The Minister contended in the same paragraph that Coal Harbour, a non built-up area, is not the same as a non built-up area found in the remote wilderness. The Tribunal does not find this argument compelling, as no specific evidence was put forward to determine whether the definition of built-up area applied to Coal Harbour.

[52] Low-altitude flights are permitted under sections 602.15(1) and (2) of the CARs, as an exception to the provisions of section 602.14. The first exception is found in section 602.15(1), which authorizes low-altitude flights without contravening section 602.14(2). Section 602.15(2) introduces a second exception to an infraction committed under sections 602.14(2)(a) and (b), but for different purposes. Since the applicant is charged only under section 602.14(2)(b), the exception provided in section 602.15(2)(b)(ii) (aerial photography) is available to him.

[53] To benefit from the exception found in section 602.15(2)(b)(ii), the applicant has to demonstrate that while operating an aircraft at altitudes and distances less than 500 feet from any person, vessel, vehicle or structure:

  • the aircraft was operated to the extent necessary for the purpose in which the aircraft is engaged;
  • the aerial photography was conducted by the holder of an air operator certificate; and
  • the aircraft was operated without creating a hazard to persons or property on the surface.

[54] The evidence presented at the hearing has clearly demonstrated that:

· the applicant had operated his helicopter at an altitude between 25 and 75 feet over Coal Harbour (which the applicant has admitted in his own testimony);

  • the helicopter was operated for aerial photography;
  • the operations were conducted by Blackcomb Helicopters, the holder of an AOC.

[55] However, the applicant still has to prove that the helicopter was operated without creating a hazard to persons or property on the surface. On the question concerning the creation of a hazard, the Minister's representative has submitted that the wording found in section 602.14(2) implies that a hazard is created (almost automatically) if an aircraft flies within 500 feet of a person, vessel, vehicle or structure. The Tribunal disagrees with such interpretation. The wording of the relevant section indicates otherwise. Section 602.14(2) begins by stating the existence of two exceptions to the prohibition found in sections 602.14(2)(a) and (b).

[56]  Therefore, a hazard is not necessarily created if an aircraft flies within 500 feet of a person, vessel, vehicle or structure, although a contravention of section 602.14(2) may have occurred. The wording found in sections 602.14(2)(a) and (b) has to be read jointly with the exception provisions of 602.15(1) and (2).

[57] In addition, acknowledging that a hazard is created solely by flying an aircraft within 500 feet of a person, vessel, vehicle or structure, according to section 602.14(2)(b), would negate the application of the exception found in section 602.15(2)(b) and prevent a document holder from successfully reversing the onus imposed upon him by demonstrating that no hazard has been created to persons or property on the surface.

[58] Consequently, as both parties have agreed during the hearing and confirmed in their final submissions, the only issue to be determined by the Tribunal is whether the flights in question created a "hazard to person or property on the surface", thereby preventing the applicant from relying on the exception provided to him under section 602.15(2)(b).

B. Witness Credibility

[59] It is not the first time that the Tribunal has dealt with conflicting testimonies. However, after having reviewed the evidence, the Tribunal's task is to distinguish between the conflicted and the non-conflicted aspects of the testimonies in order to determine whether a hazard had been created to a person or property on the surface by the applicant while operating his helicopter.

[60] Inspectors Creagh and Hewitt, who testified on behalf of Transport Canada, did not have the same view as to where the applicant's helicopter was located over the water of Coal Harbour in relation to the location of the boats and rowers during the first and second passes.

[61] Both inspectors were located at different areas of the Vancouver Rowing Club during the first flight. Their versions differ as to where the rowing sculls or other boats were specifically located in the water during the first flight. Inspector Hewitt stated that from where he was located, he saw no activity on the water during the first pass.

[62] Inspector Creagh testified that, during the second pass, the helicopter flew over water and not over any person, vessel or structure, and that he was just watching the helicopter. He did not see the helicopter fly over a chase boat. However, both inspectors' versions generally coincided with the applicant's testimony as to the approximate height of the helicopter when it flew over Coal Harbour (between 25 and 75 feet).

[63] In his testimony, the applicant denied flying low over the rowers or close to them to create a hazard, although he admitted that there were boats and rowers on the water during the flights. The testimonies of Inspectors Creagh and Hewitt could not establish with certainty from where they were standing, whether the applicant flew low directly over or parallel to the boats and rowers during both passes, or close enough to create a hazard to them.

[64] In his final arguments, the Minister makes reference to two legal precedents on the issues of conflicting testimony. In paragraph 18 of the first decision, Giguère v. Canada (Minister of Transport), [2004], appeal decision, TATC file no. Q-2834-33, [2004] C.T.A.T.D. no. 15 (QL), the Minister highlighted the following:

. . . when the evidence of an important fact is contradictory . . . the court must weigh the motives of the witnesses, their relationship or friendship with the parties, their attitude and demeanour in the box, . . . . (emphasis added)

In paragraph 63 of the second case, Canada (Minister of Transport) v. Régionnair Inc., [2001], appeal determination, CAT file no. Q-1990-37, [2001] C.A.T.D. no. 27 (QL), the Tribunal has found particularly relevant the last part of the citation referred to by the Minister in his final arguments, which states:

… The court, however, is not to disbelieve or attribute error to the evidence of a witness solely because he is interested but must, instead, examine such evidence with reference to the facts of the case and other relevant factors . . . .

[65] Therefore, the Tribunal has an overall responsibility to weigh the entire evidence by reference to the facts of the case and other relevant factors, and not by granting more or less credibility to certain witnesses solely based upon their interest or disinterest in the hearing.

C. Concept of Hazard

[66] Section 602.14 of the CARs creates a strict liability offence. The Minister has submitted that all of the elements of the offence have been proven on a balance of probabilities. The applicant had flown his helicopter at less than the minimum distance authorized, that is 500 feet from any person, vessel, vehicle or structure, and a hazard to persons or property on the surface had been created, thereby contravening section 602.14(2)(b) of the CARs. Consequently, the onus has shifted to the applicant to establish that the exception found in section 602.15(2)(b) applied to the events in question and that the flights did not create a hazard to persons or property on the surface.

[67] The Minister and the applicant have cited in their final submissions the same two legal precedents, Canada (Minister of Transport) v. Boklaschuk, [1990], appeal determination, CAT file no. C-0141-33, [1990] C.A.T.D. no. 65 (QL), and Killen v. Canada (Minister of Transport), [1999] F.C.J. no. 893 (QL). Both decisions set out the principles of what constitutes a hazard to persons or property under the predecessor to the current CARs. In the Boklaschuk case, the Minister had established that the flight was in breach of the low-flying regulations. The Tribunal then held that the onus has shifted to the pilot to show he fell within one of the exceptions. In that particular case, the only real issue was whether the crop-spraying flights were conducted without creating a hazard to person or property.

[68] In the Killen appeal determination, Canada (Minister of Transport) v. Killen, [1997] appeal determination, CAT file no. C-1300-33, [1997] C.A.T.D. no. 51 (QL), Chairperson Faye Smith of the Tribunal quoted an extract of the Boklaschuk decision which is reproduced as follows:

. . . To determine whether a hazard was created in a particular instance, the facts surrounding that case must be examined and each case decided on its own particular facts. For a hazard to be created, the chance of an accident, the risk or peril or the exposure to danger, must be real. To determine whether or not the operation in question created a "hazard", the Hearing Officer must determine whether the manner in which the operation was conducted conforms to the standards that a reasonably competent Crop Sprayer would adhere to in the circumstances. If the operator in question can establish on a balance of probabilities that the operation in question conforms to those standards, the onus on him has been met. This is a matter which the Hearing Officer must determine based on the evidence adduced at the Hearing.

[69] In the Boklaschuk decision, the Tribunal had found that the pilot was qualified and experienced in flying a special purpose agricultural aircraft and that he had taken the necessary precautions to verify the area which was going to be sprayed before the crop spraying actually occurred. The operation was conducted in a competent and professional manner. Accordingly, the Tribunal concluded that no hazard was created and that the flights came within the exceptions under the Regulations.

[70] There are other decisions rendered by the Tribunal, such as Canada (Minister of Transport) v. Tree Tops Air Ltd., [1998], review determination, CAT file no. P-1519-37, [1998] C.A.T.D. no. 16 (QL), whereby the exemption under section 602.15(2)(b) of the CARs was found not to be available to the document holder as the aircraft was operated in a manner that created a hazard to persons or property on the surface.

[71] In the Tree Tops Air Ltd. case the hearing member stated as follows:

34   There is no dispute on the evidence that the flight in question carried out by Tree Tops Air Ltd. struck the powerline and knocked off the top of the power pole. This in turn sent down a live wire, started a fire, and scattered sparking insulators and other debris over the Potter field. This is not the standard of operation expected of a reasonably competent crop sprayer. It is difficult to reach any other conclusion but that the flight was carried out in a manner which created a hazard to persons or property on the surface.

[72] Therefore, the Tribunal found that the respondent's aircraft was operated in a manner which created a hazard to persons or property on the surface, as the facts had shown. The respondent could not avail itself of the exception found in section 602.15(2)(b) of the CARs.

[73] However, Tree Tops Air was still held not liable by reasons of section 8.5 of the Act by demonstrating to the Tribunal that it had exercised all due diligence to prevent the contravention. The Tribunal based its decision on the evidence, which demonstrated that Tree Tops Air had clearly exercised all reasonable care by establishing proper and appropriate maintenance of the aircraft and took reasonable steps to ensure that it could safely complete the operation and thereby prevent any occurrence or violation of the Act or Regulations.

[74] The evidence given by Inspectors Creagh and Hewitt, though reliable, cannot constitute per se expert evidence to demonstrate that the applicant created a hazard to persons or property on the surface. Neither of the inspectors were called upon to testify as expert witnesses to substantiate whether a hazard was created by the low-flying flights made by the applicant on September 13, 2006. While Inspector Creagh is an experienced helicopter pilot, his testimony was limited to what he observed when the applicant flew over Coal Harbour. He also expressed his concerns as to the type of general risks that could arise had a mechanical problem occurred to the helicopter. Inspector Hewitt, who is not a helicopter pilot, testified that from where he stood the low flight was not safe without emphasizing this point. He did not rely on any scientific evidence to justify his statement.

[75] There was no evidence produced by the Minister of Transport or from any expert witness with the objective of demonstrating that the flights did not conform to any proper standards that a reasonably competent pilot specializing in aerial photography should adhere to in the circumstances.

[76] The Minister of Transport's book of authorities quotes the opinion expressed by John Sopinka and Sidney N. Lederman on the degree of credibility to be given to witnesses in certain circumstances (Sopinka and Lederman, The law of evidence in Civil Cases, (Canada: Butterworths, 1974, at 530):

The testimony of a witness who was in a position to observe an event is to be preferred to the evidence of a witness who can only testify by reference to records. Similarly, the account of the "actor" is to be given more weight than the account of a bystander. Although there is no mechanical rule of application whereby preference is given to involved witnesses over the evidence of expert witnesses, in a conflict between proved facts and scientific conclusions, the former should prevail.

[77] Therefore, based on the above expressed opinion by two well-known legal authors, the Tribunal would be justified to give more weight to the testimony of the applicant (actor) in relation to the testimonies of Inspectors Creagh and Hewitt (bystanders) in determining whether the applicant had operated his helicopter in a manner that created a hazard to persons or property on the surface.

[78] The Black's Law Dictionary defines the word "hazard" as a danger or peril or also as a contributing factor to a peril. In addition, the concept of hazard in section 602.15 of the CARs must be a danger or risk that is peculiar to a particular operation or occupation. In this case, the hazard must be directly related to a low-flying operation undertaken by a document holder involved in aerial photography.

[79] In the Killen appeal determination, the appeal panel had come to the following conclusion at page 7:

. . . To determine whether a hazard was created in a particular instance, the facts surrounding that case must be examined and each case decided on its own particular facts. For a hazard to be created, the chance of an accident, the risk or peril or the exposure to danger, must be real . . . .

[80] Taking into account the test put forward by the Killen decision, the Tribunal has to determine whether the applicant's conduct prior to and during the flights was conformed to the standards that a reasonably diligent and prudent aerial photography pilot would adhere to in the circumstances. (See Drader v. Canada (Minister of Transport), 2007 TATCE 7 (review), [2007] C.T.A.T.D. no. 5 (QL)).

[81] All throughout his testimony, Mr. Filippone stated that he took all reasonable steps in order to prepare his flight in the most professional manner and to avoid creating any hazard to persons or property, either during his flight under the terms of the authorization over downtown Vancouver, or afterwards on the surface of the water in Coal Harbour. In addition, he described the regular pre-flight procedure he followed to ensure that all precautions were taken, including power checks on the helicopter to ensure that both engines were functioning at sufficient power levels, in accordance with the planned operations for the flights in question.

[82] Mr. Filippone also testified that at all times he concentrated on flying his aircraft in a safe and methodical manner. On the day in question, the visibility was good and there was no obstruction on the water over Coal Harbour or in the flight path he followed as observed from the cockpit of his helicopter.

[83] Mr. Filippone acknowledged that there were boats in the Coal Harbour area that were not docked when he made his flights and that there were rowers out. However, he stated that the rowers were not at risk at any time due to his flights and that he never flew over the rowers in such a way as to create a hazard.

[84] Mr. Filippone confirmed that he was the pilot-in-command on the day in question and that beside him, there were two other persons on board the helicopter, the director and the camera operator who had different functions. The director looked into the monitor and gave directions accordingly and the camera operator was responsible for operating, manoeuvring and focusing the camera. The responsibility of Mr. Filippone was to safely pilot the aircraft.

[85] As pilot-in-command, Mr. Filippone was in the best position to conduct his flight plan and to determine at which height he would fly over the causeway and Coal Harbour. In addition, he testified that he would adjust his flight path if he noticed there was a boat that may be intruding on his flight path. In certain circumstances, he would not hover on the flights because it was not safe. According to Mr. Filippone, a hover or a hover taxi is from 0 to 10 knots, while he stated that he was flying his aircraft at approximately 35 to 75 knots over Coal Harbour.

D. Previous Low-Level Applications by the Applicant

[86] After reviewing the evidence presented, the Tribunal finds that it would not be unreasonable for the applicant to conclude that the flights that he intended to take over Coal Harbour would be treated by Transport Canada representatives in the same category as those flights which were exempted from the requirement of an authorization. These include the filming of the Skipper commercial along the Stanley Park seawall and the Spanish Banks shoot for the movie entitled Passengers. In both cases, applications had been filed with Transport Canada for low-level flying authorization. In both instances, Mr. Filippone had been told by Transport Canada that a low-level flying authorization was not required because of the aerial photography exception found in the CARs.

[87] Transport Canada has confirmed that no authorization was required for the Skipper commercial because the location was not considered a built-up area. Mr. Filippone did not ask authorization from Transport Canada to conduct low flying over the Coal Harbour area. He testified that if it was good for the Skipper commercial, then it should be good for this flight (over Coal Harbour).

E. Conclusion

[88] In conclusion, the Tribunal finds that the applicant is an extremely experienced and highly capable pilot with over 30 years of flying and more than 10 000 hours of helicopter flying time. He has substantial expertise in carrying out numerous highly delicate and difficult tasks as a helicopter pilot involved in aerial photography operations.

[89] Based on the applicant's testimony, and on the evidence that he took numerous precautionary measures before and during the September 13, 2006 low-flying flights, the Tribunal finds that the applicant has exercised due diligence when preparing the September 13, 2006 flights. He exercised the same due diligence when operating these flights over Coal Harbour. The Tribunal finds that it is unlikely that the applicant, with his years of experience, would endanger himself, as well as the director and the camera operator who were present in the helicopter and the people or rowers who were in the Coal Harbour channel on that day. Accordingly, the Tribunal concludes that the applicant has operated his helicopter without creating a hazard to persons or property on the surface, when he flew his helicopter over Coal Harbour on September 13, 2006.

[90] The Tribunal has found that Mr. Filippone has met the onus of having proven on a balance of probabilities that the flights on September 13, 2006 did not cause any hazard to persons or property on the surface. The Tribunal does not have to consider the other issues raised in the applicant's final arguments concerning the doctrine of legitimate expectation, of officially induced error and of the defence of due diligence. However, the Tribunal will address the issues raised in connection with the recommended sanction and the treatment of costs.

VII. OTHER ISSUES TO BE ADDRESSED

A. Sanction

[91] The evidence presented by the witnesses of the Minister of Transport on the question of sanction raised a number of issues as to what level of sanction would be fair in this case. Ms. Zubryckyj reviewed the prior record of the applicant, which indicated that he had not been found guilty of any infraction under the Act or the CARs. She also took into consideration a verbal statement made to her by Inspector van Erkelins that the applicant had been denied a prior verbal application to fly over Coal Harbour. This is clearly hearsay and it was not corroborated by any other witness. The Tribunal therefore cannot grant much weight to such evidence.

[92] The evidence also shows that there had been no independent verification by the witnesses from the Minister of Transport to determine whether the applicant had, in fact, been denied such an application and whether the further actions by the applicant constituted an aggravating factor to justify the proposed sanction. This is somewhat surprising since Inspector Ray had originally recommended that a fine be issued to the applicant rather than a suspension assessment.

[93] In addition, since the applicant has not been charged as having contravened the provision of his authorization, he cannot be found to have violated a condition of such authorization and which could then be used as the basis for justifying a suspension.

[94] On the question of the admissibility of hearsay, the Tribunal is not bound by any legal or technical rules of evidence as outlined in the TATC Act. However, in the following case, Canada (Minister of Transport) v. McIvor, [1991], appeal determination, CAT file no. C‑0135‑33, [1991] C.A.T.D. no. 19 (QL), the Tribunal concluded that hearsay may be accepted into evidence if its introduction would not infringe procedural fairness and natural justice.

[95] This principle was reviewed in the following case, Sierra Fox Inc. v. Canada (Minister of Transport), [2004], review determination TATC file no. O-2988-10, [2004] C.T.A.T.D. no. 31 (QL), where the Tribunal concluded at the review determination level to accept the evidence of hearsay as it did not infringe, in that case, on procedural fairness and natural justice.

[96] The decision was overturned in appeal, Sierra Fox  Inc. v. Canada (Minister of Transport), [2005], appeal decision, TATC file no. O-2997-41, [2005] C.T.A.T.D. no. 9 (QL). The appeal panel found in favour of the operator Sierra Fox Inc. on the basis that:

43  We also find that accepting hearsay evidence as the sole source of evidence to uphold an alleged contravention would be contrary to the tenets of fairness and natural justice. Section 15 of the TATC Act specifically provides that matters shall be dealt with by the Tribunal as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

44  Natural justice is recognized as having two tenets:

-  the right to be heard

-  the right to an unbiased decision

45  All other rules of natural justice derive from those two tenets. Included in those derivative rules of natural justice are the following:

-  Right to Notice

-  Right to counsel

-  Right to adduce evidence and cross-examine witnesses

[97] The appeal panel then concluded that:

51. . . . it is an error to accept this uncorroborated hearsay evidence as the sole proof of an allegation . . .

52 . . . In the circumstance, that deprives him of fairness and natural justice.

[98] The Tribunal finds that recommending a sanction as serious as a 30-day suspension, based upon an uncorroborated verbal statement made by a Transport Canada's representative to another representative whose responsibility is to assess appropriate sanctions, is not justified.  This fails to meet the rules of natural justice as stated in the Sierra Fox Inc. appeal decision.

[99] In addition, the applicant did not have the opportunity to examine the elements of such evidence and question the principal witness, Inspector van Erkelins. To justify such a sanction, Transport Canada should have made available additional corroborating evidence, including the appearance of the appropriate representative as a witness. His testimony would have been essential to determine the existence of the aggravating factor and whether the suspension requested against the applicant was justified.

B. Allocation of Costs

[100] Section 19(1) of the TATC Act reads as follows:

19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a) it is seized of the matter for reasons that are frivolous or vexatious;

(b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or

(c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.

[101] The applicant's counsel stated that Mr. Filippone should be awarded full indemnity for his legal costs and expenses against the Minister, due to bad faith, bias and vexatious nature of the allegation and proceedings against Mr. Filippone by officials at Transport Canada involved with the investigation and the issuance of the notice of suspension.

[102] Section 602.14(2) of the CARs creates a strict liability offence from which the only exceptions are the ones found in sections 602.15(1) and (2) of the CARs. Once a violation of section 602.14(2) of the CARs has been found to have occurred after proper investigation by Transport Canada, then the Minister of Transport has little discretion but to issue a notice of suspension to a document holder that an offence has occurred pursuant to section 6.9 of the Act.

[103] The Tribunal has been faced with numerous cases in the past, dealing with unauthorized low flying in aerial photography activities which constitute infractions to section 602.14(2) of the CARs.

[104] Based on the events that were witnessed by Inspectors Creagh and Hewitt on September 13, 2006, and following the investigation that was undertaken by Transport Canada relating to these events, the Tribunal finds that the decision by the Minister to assert his legal right against the applicant, in this case, did not constitute a frivolous or vexatious process.

[105] Professional aerial photography contains a high component of risks and requires from the pilot, like the applicant, the highest degree of competence and professionalism when operating his helicopter in low-level flying. He must ensure at all times that, if he flies below the minimum threshold, he does not cause a hazard to any persons or property on the surface.

[106] Contrary to the submission of the applicant's counsel, low flights for aerial photography are not routine flights. The fact that the September 13, 2006 flights occurred without incident and complaint from the public cannot be used to argue successfully that the Minister of Transport had acted in bad faith and in a vexatious and frivolous manner against the applicant.

[107] As a competent and professional pilot, the applicant understands thoroughly the nature of the risks related to his professional activities and, as he has stated himself in his testimony, "The best you can do is mitigate the risk".

[108] Consequently, on the issue of allocation of costs, the Tribunal dismisses the request for cause presented by the applicant.

VIII. DETERMINATION

[109] The Tribunal determines that on September 13, 2006, the applicant operated his aircraft to the extent necessary for the purposes of the operation in which the aircraft was engaged at altitudes and distances less than those set out in section 602.14(2)(b); that the aircraft was operated for the purpose of aerial photography conducted by the holder of an AOC; and, that the aircraft was operated without creating a hazard to persons or property on the surface of Coal Harbour. Accordingly, the notice of suspension issued on December 8, 2006 against the applicant, Mr. Filippone, is dismissed.

[110] The Tribunal likewise dismisses the request for cause presented by the applicant on the issue of allocation of costs.

October 23, 2008

Jean-Marc Fortier

Member