Decisions

TATC File No. O-3543-33
MoT File No. PAP5504-EMS 65360

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Richard Jeffrey Leibov, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, paragraph 602.96(3)(c)


Review Determination
François Audette


Decision: October 8, 2009

Citation: Leibov v. Canada (Minister of Transport), 2009 TATCE 28 (review)

[Official English Translation]

Heard at Ottawa, Ontario, on April 7, 2009

Held: The decision of the Minister of Transport, set out in the notice of assessment of monetary penalty dated October 14, 2008, is confirmed. The total amount of $750 is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.

I. BACKGROUND

[1] On October 14, 2008, the Minister of Transport issued to the applicant, Richard Jeffrey Leibov, a notice of assessment of monetary penalty in the amount of $750. The Minister alleges that, on or about April 15, 2008, on taking off from runway 27 at Rockcliffe Airport, Ottawa, Ontario, Mr. Leibov turned left instead of right, thereby contravening paragraph 602.96(3)(c) of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act (Act).

[2] Schedule A of the notice of assessment of monetary penalty reads as follows:

On or about April 15, 2008, at approximately 1450 UTC, at or near Ottawa/Rockcliffe Airport, Ontario, you as the pilot-in-command of Robinson R44 helicopter bearing registration marks C‑GUZB, did not make all turns to the right when operating within the aerodrome traffic circuit, as specified by the Minister in the Canada Flight Supplement, thereby contravening s. 602.96(3)(c) of the Canadian Aviation Regulations. Monetary Penalty Assessed: $750.00

II. CANADIAN AVIATION REGULATIONS

[3] Paragraph 602.96(3)(c) of the CARs states the following:

602.96(3) The pilot‑in‑command of an aircraft operating at or in the vicinity of an aerodrome shall

. . .

(c) make all turns to the left when operating within the aerodrome traffic circuit, except where right turns are specified by the Minister in the Canada Flight Supplement or where otherwise authorized by the appropriate air traffic control unit;

. . .

III. EVIDENCE

A. Minister of Transport

(1) Simon Philip Garrett

[4] Simon Philip Garrett has been the Rockcliffe airport manager for nine years and is the operations manager for the Rockcliffe Flying Club. In addition to being the chief flight instructor (class 1), he is in charge of aircraft maintenance at the Club. He is an examiner for Transport Canada. He holds an airline pilot licence and has several thousand hours of flight time experience. He flies more than 23 different types of single‑engined and twin‑engined aeroplanes.

[5] Mr. Garrett testified that, on the morning of April 15, 2008, he was sitting in his office where the window looks out onto the airport runway and ramp. First, he heard the pilot announcing on the radio that he was going to land on the ramp; next, he saw the helicopter land to board a passenger and then take off 100 feet from his office, thus throwing a storm of dust and stones up against his window. Later, Mr. Garrett was returning from a flying lesson and arrived on the final approach area of runway 27, where he saw the same helicopter turn left instead of continuing until it reached the circuit traffic altitude before making a 20-degree turn to the right, in accordance with the procedure set out in the Canada Flight Supplement (CFS in effect from April 10, 2008, to June 5, 2008, at page B662, exhibit M‑4). Mr. Garrett made a note of the helicopter's registration number, C-GUZB, to contact the pilot, as he always does for incidents involving safety in the vicinity of the airport.

[6] Mr. Garrett stated that he had been unable to contact the pilot. Therefore, on April 15, 2008, he sent an email to Oonagh Elliott, a civil aviation safety inspector with Transport Canada, Ontario Region, to ask her to contact the pilot or send him more information on the pilot so that he could contact that person (exhibit M‑1). In her reply, Inspector Elliott informed Mr. Garrett that the pilot in question was the son of the owner of the helicopter. Later, when Mr. Garrett discussed the incident with the applicant, the latter stated that he had followed all the procedures for the aerodrome (various emails exchanged between Mr. Garrett and Inspector Elliott from April 21 to 23, 2008, exhibit M‑2).

[7] Mr. Garrett explained some of the documents presented in evidence:

  • Rockcliffe Airport's daily flight record for April 15, 2008, is evidence that Mr. Garrett gave a flying lesson from 10:30 a.m. to 11:05 a.m. that day in the aircraft bearing registration number C‑GBRI (daily flight record, exhibit M-3). Upon his return, when he was at 200 or 300 feet above ground level, he saw and heard the helicopter, which was at approximately 300 or 400 feet above the Royal Canadian Mounted Police stable and was making a left turn towards Ottawa International Airport;
  • an excerpt from the publication entitled Canada Flight Supplement explains the procedure for departing runway 27 at Rockcliffe Airport. Pilots must make a right turn (exhibit M-4);
  • an excerpt from section 4.5.2 of the Transport Canada Aeronautical Information Manual shows a picture of an airport circuit and the departing procedure to follow (TC AIM, exhibit M‑5);
  • aerial photographs and a geographical map of Rockcliffe Airport from the Internet. The left turn made by the helicopter is drawn in blue ink on the map. It is clear that the helicopter was flying below circuit altitude (exhibit M-6).

[8] During cross-examination, Mr. Leibov explained that the helicopter had been coming from Montréal and not Gatineau. In his opinion, it is difficult to observe a helicopter on final approach at 200 feet from an aeroplane with a student on board. He asked Mr. Garrett where, in the CFS, a noise restriction is indicated. Mr. Leibov asked Mr. Garrett whether he could prove at what altitude he had been flying and his helicopter's point of origin. Mr. Leibov referred to section 4.5.2 of the TC AIM (exhibit M-5), where it is written that aircraft "should" follow the procedure but are not required to do so.

(2) Oonagh Elliott

[9] Oonagh Elliott has been a civil aviation safety inspector for Transport Canada, Ontario Region, for 19 years. In addition to being an experienced pilot with an airline pilot licence, she is a flight instructor (class 1). She has more than 6000 flight hours.

[10] Inspector Elliott testified that the Canadian Civil Aircraft Register printout confirms the identity of the owner of helicopter C-GUZB (exhibit M‑7). She also testified that, on April 21, 2008, she contacted the owner of the aircraft, Mark Leibov (6802206 Canada Inc.), who stated that he had been at Rockcliffe Airport on April 15, 2008. Mark Leibov explained that he had not known about the special procedure in the CFS for Rockcliffe Airport. The essence of this telephone conversation was documented in a telephone or visit record prepared by Inspector Elliott (exhibit M-8).

[11] That same day, Inspector Elliott received a telephone call from the applicant. He identified himself as the son of Mark Leibov and explained that he had been flying the helicopter C-GUZB at Rockcliffe Airport on April 15, 2008. He explained that he had done nothing illegal, that he was very unhappy about the complaint that Mr. Garrett had made against him and that he wanted to speak to him (telephone or visit record prepared by Inspector Elliott, exhibit M-9).

[12] Inspector Elliott confirmed that the applicant holds a valid pilot licence (printout of the details of Mr. Leibov's licence, exhibit M-10). She stated that she had asked Nav Canada to send her the radar and audio tapes of the incident (exhibit M-11). The applicant objected to the CD from Nav Canada being presented in evidence, as he had not been made aware of it prior to the hearing. However, it must be noted that, in correspondence with Mr. Leibov's lawyer, the Minister had suggested that the applicant watch the CD but received no answer to this request.

[13] The video shows the time and date. It shows, at 10:50 a.m. (local time), an aircraft in the circuit on final approach and another at the end of runway 27. This is the only moment an aircraft can be seen landing while another takes off. Nothing on this video proves that these are the aircraft being investigated, as the radar shows only the code 1200, indicating aircraft in visual flight, and the altitude of the aircraft. However, it is highly likely that they are aircraft C‑GUZB and C‑GBRI. On the video, when an aircraft is on final at 900 feet, another can be seen on the radar at 800 feet at the end of the runway, commencing a left turn and continuing to the left. There is no sound for this period.

[14] During cross-examination, the applicant asked Inspector Elliott whether she had seen any offences in his pilot file over the last 18 years. There are none. He also asked her where, in the CFS, the departure procedure is indicated. Inspector Elliott answered that it mentions that the after take‑off check is a procedure. Mr. Leibov asked questions on the fact that, at the time of the incident, there were other aircraft that had selected code 1200 on the radar. Inspector Elliott explained that the other aircraft were far from Rockcliffe Airport. The applicant asked her to confirm the date on the video. She answered that the date is indicated on the letter accompanying the video (exhibit M-11). The time can be seen on the bottom and top portions of the screen.

[15] The second page of a letter from the applicant's lawyer, dated August 11, 2008, was filed in evidence at the request of Mr. Leibov (exhibit A-2). On this page, Inspector Elliott has written by hand that turning at an altitude of 400 feet is acceptable. Mr. Leibov repeated that there is no law requiring a pilot to depart the circuit at a specific altitude. This is merely a recommendation.

[16] During re-examination, the Minister's representative stated that the altitude is not mentioned on the notice of assessment of monetary penalty. He explained that paragraph 602.96(3)(c) of the CARs states that the pilot must turn right when within the circuit. There is no mention of the altitude.

[17] Still during re‑examination, the applicant stated that an aircraft can depart the circuit halfway down the runway, in any direction, altitude permitting. He referred to section 4.5.2 of the TC AIM where "should" is written and not "must". Inspector Elliott disagreed with this statement, since the middle of the runway is within the circuit.

B. Applicant

(1) Ronald Zeitlin

[18] During his testimony, Ronald Zeitlin stated that, over the last 18 years, he has often travelled as a passenger with the applicant and that the latter is a very safe pilot. Mr. Zeitlin stated that he was on board Mr. Leibov's helicopter on April 15, 2008, when Mr. Leibov landed on the circuit at approximately 150 or 200 feet from the flying club house. On cross-examination, Mr. Zeitlin stated that he had not been in the helicopter when Mr. Leibov left Rockcliffe Airport to fly to Ottawa International Airport. During re-examination, Mr. Zeitlin stated that he had gone to his car immediately after getting out of Mr. Leibov's helicopter.

(2) Mark Jason Shulman

[19] During his testimony, Mark Jason Shulman stated that he is an airline pilot for Air Canada on Boeing 767 aircraft and has 6500 flight hours. He stated that, over the last 19 years, he has often travelled as a passenger with the applicant and that the latter is a very safe pilot. Mr. Shulman stated that, after take‑off, the aircraft is no longer within the circuit and can turn left or right, or continue straight ahead. He also explained that he knows of no law stipulating the altitude of an aircraft in a circuit. In cross-examination, Mr. Shulman drew a rectangle around the airport in the picture (exhibit M‑5), showing the position of an aircraft flying a circuit. However, this circuit can be modified based on the aircraft's capabilities. During re‑examination, Mr. Shulman stated that the aircraft can turn or continue straight ahead after having left the aerodrome.

IV. SUBMISSIONS

A. Minister of Transport

[20] The Minister submits that he has proven, on a balance of probabilities, each element of the offence alleged in the notice of assessment of monetary penalty. Mr. Garrett's testimony is unequivocal; he saw Mr. Leibov's helicopter turn left. Moreover, the applicant identified himself as being the pilot in question, and the CD is visual proof that confirms the presence of the helicopter and the aircraft in the circuit (exhibit M-12). The Minister's representative cited Canada (Minister of Transport) v. Jeffrey Erhard Albin Schroeder, [1998], CATD file no. C-1584-33 (review), where the Minister's decision to assess a monetary penalty is confirmed. He asks the Tribunal to uphold the recommended penalty of $750 for this first offence. He explained that the maximum penalty for this type of offence is $3000.

B. Applicant

[21] The applicant alleges that he did not contravene the CARs and that Mr. Garrett took all these steps following the conversation he had with him. In the applicant's opinion, Mr. Garrett wants to prove that he is right. The applicant stated that he is a safe pilot and takes every necessary precaution for each flight; his record at Transport Canada is impeccable. Nothing on the radar video proves that it is his helicopter. He can exit an airport when and how he wants, to the left or right, or continuing straight ahead.

V. DISCUSSION

[22] The Minister has to prove, on the balance of probabilities, each of the following elements:

  • identity of the pilot-in-command;
  • use of the C-GUZB aircraft;
  • the fact that the aircraft was at Rockcliffe Airport or in its vicinity;
  • the failure to make all turns to the right when operating within the aerodrome traffic circuit.

[23] By definition, the Rockcliffe runway is an "aerodrome" within the meaning of the Act. A "helicopter" is an "aircraft" by definition.

[24] With regard to the first element, Mr. Leibov confirmed in his April 21, 2008 telephone conversation with Inspector Elliott that he was the pilot-in-command of the flight in question. Moreover, Mr. Zeitlin stated that he had been on board the applicant's helicopter on April 15, 2008, when Mr. Leibov landed on the circuit within about 150 to 200 feet of the flying club house at Rockcliffe Airport.

[25] With regard to the second element, Mr. Garrett provided Inspector Elliott with the helicopter's registration number in the email he sent to her on April 15, 2008. According to the results of Inspector Elliott's inquiries, the aircraft registered as C-GUZB is indeed a Robinson 44 helicopter (exhibit M-7).

[26] With regard to the third element, Mr. Garrett provided the location of the helicopter at the time of the incident (exhibit M-1) in his email to Inspector Elliott, dated April 15, 2008.

[27] As for the fourth element, although the term "circuit" is mentioned in the CARs and in section 4.5.2 of the TC AIM, it is not defined in section 4.5.2 of the TC AIM. This term refers to the path of an aircraft operating in the vicinity of an aerodrome. Mr. Garrett, Inspector Elliott and even Mr. Schulman confirmed that the circuit was the area around the runway, as indicated by a rectangle on the picture (exhibit M-5).

[28] Excerpts from the CFS and the TC AIM and Mr. Garrett's testimony, documented by Mr. Garrett's email to Inspector Elliott 30 minutes after the incident, as well as the video of the incident obtained from Nav Canada, are credible evidence.

DETERMINATION

[29] The decision of the Minister of Transport, set out in the notice of assessment of monetary penalty dated October 14, 2008, is confirmed.

October 8, 2009

François Audette

Member


Appeal decision
Richard F. Willems, Suzanne Racine, J. Richard W. Hall


Decision: September 1, 2010

Citation: Leibov v. Canada (Minister of Transport), 2010 TATCE 22 (appeal)

Heard at Montréal, Quebec, on April 15, 2010

Held: The Appeal is dismissed and the monetary penalty of $750 assessed by the Minister is upheld.

The total amount of $750 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within thirty‑five (35) days of service of this Decision.

1. BACKGROUND

[1] On October 14, 2008, the Minister of Transport issued to the Appellant, Richard Jeffrey Leibov, a Notice of Assessment of Monetary Penalty ("Notice") in the amount of $750. The Minister alleged that on or about April 15, 2008, at approximately 14:50 UTC, Mr. Leibov, as the pilot‑in‑command of a helicopter Robinson R44 bearing registration mark C‑GUZB, did not make all turns to the right when operating within the aerodrome traffic circuit, as specified in the Canada Flight Supplement ("CFS"), thereby contravening paragraph 602.96 (3)(c) of the Canadian Aviation Regulations ("CARs").

[2] Following the Review Hearing that was held on April 7, 2009, the Member, François Audette, found that the Appellant, Mr. Leibov, contravened paragraph 602.96(3)(c) of the CARs and confirmed the monetary penalty assessed by the Minister.

[3] Consequently, on October 30, 2009, Mr. Leibov filed a Request for Appeal with the Transportation Appeal Tribunal of Canada ("Tribunal").

II. GROUNDS FOR APPEAL

[4] The Appellant, Mr. Leibov, appeals the Review Determination on the following grounds:

  1. The Member erred in law in failing to include in the necessary elements of the charge to be considered, whether the Appellant was operating "within the traffic circuit".
  2. The Member erred in law in failing to give any consideration to [the] Appellant's defence.
  3. The Member erred in law in failing to consider the appropriate procedure to be used when departing an airport.
  4. The Member erred in fact and in law in failing to consider that a circuit includes both a flight path and a flight altitude as pleaded by [the] Appellant at the review hearing.
  5. The Member erred in fact and in law in failing to appropriately consider whether [the] Appellant's departure procedure violated the Rockcliffe Airport's departure procedure.
  6. The Member erred in fact and in law in failing to give any consideration to the proof produced by [the] Appellant on whether his departure procedure constituted an appropriate airport departure procedure.
  7. Such further and other grounds in fact and in law that the transcripts of the proceedings may disclose.

III. ARGUMENTS

A. Appellant

[5] The Appellant submits that he was not, as alleged by the Minister, operating "within the aerodrome traffic circuit". The Appellant submits that when he took off on runway 27 and turned left en route for the Ottawa International Airport, he followed an appropriate departure procedure. The Minister did not define the term "aerodrome traffic circuit" and did not prove that the Appellant was operating within the aerodrome traffic circuit.

[6] According to the Appellant, there are no requirements in the CFS procedures for the Rockcliffe Aerodrome that prohibits a pilot‑in‑command from turning left after take‑off. The CFS and the CARs do not specify that a mandatory circuit traffic altitude must be attained before turning in any direction, nor do they require that a mandatory flight path be flown within the traffic circuit before turning left or right.

[7] The Appellant submits that the Transport Canada Aeronautical Information Manual ("TC AIM") states that a circuit is normally flown at 1 000 feet above aerodrome elevation ("AAE"). According to the Appellant, this clearly means that an aircraft can fly a traffic circuit at a lower altitude. The Appellant submits that it is not abnormal for a helicopter to fly a circuit at an altitude lower than 1 000 feet AAE because of the unique characteristics of this type of aircraft.

B. Minister of Transport

[8] The Minister argues that the burden of proof has been met with regard to each element of the alleged offence. The Appellant did not bring any evidence of an acceptable defence to counter the Minister's evidence.

[9] Further, the Minister submits that the Member made no unreasonable findings of facts. His findings are supported by the testimonies of Simon Philip Garrett and Oonagh Elliott and the documentary evidence.

[10] Lastly, the Minister submits that the Member made no legal error in considering that the aircraft was within the traffic circuit of the aerodrome.

IV. DISCUSSION

A. Ground 1 of Appeal

The Member erred in law in failing to include in the necessary elements of the charge to be considered, whether the Appellant was operating "within the aerodrome traffic circuit".

[11] The Appellant submits that the term "aerodrome traffic circuit" is not defined in the CARs or the Aeronautics Act ("Act"). Furthermore, the Minister has failed to show that on April 15, 2008, the Appellant was indeed operating within the aerodrome traffic circuit after taking off from the Rockcliffe Aerodrome on a course for Ottawa International Airport.

[12] However, the Minister argues that the Review Member considered this important element of the offence at paragraphs [22], [27] and [28] of his determination.

[13] Paragraph 602.96(3)(c) of the CARs does refer to the term "circuit", as the Review Member points out, although the term is not defined in the Act or the TC AIM. However, in the absence of a legal definition of the term "circuit", it should be noted that traffic circuit procedures in uncontrolled airspace are described at section 4.5.2 of the TC AIM. A standard left‑hand circuit pattern is shown at figure 4.6 to be a rectangular flight path around the aerodrome, consisting of a climb, crosswind leg, downwind leg, base leg and final leg. These procedures apply to aircraft joining or departing the circuit, performing a series of circuits or departing the aerodrome.

[14] The Appeal Panel is of the opinion that section 4.5.2 of the TC AIM explains perfectly well the notion of "circuit" and the procedures at uncontrolled aerodromes. Paragraph 4.5.2(c) provides that an aircraft departing the aerodrome should climb straight ahead on the runway heading until it reaches the circuit traffic altitude before commencing a turn in any direction to an en route heading.

[15] The Appeal Panel is also of the opinion that the Appellant, in making a left‑hand turn almost immediately after taking off when he was at approximately 400 feet AAE, had not reached the normal circuit traffic altitude of 1 000 feet AAE and was, at that time, within the aerodrome traffic circuit.

[16] In light of the above, the Appeal Panel rejects this ground of appeal.

B. Ground 4 of Appeal

The Member erred in fact and in law in failing to consider that a circuit includes both a flight path and a flight altitude as pleaded by [the] Appellant at the review hearing.

[17] The Appeal Panel is of the opinion that the Review Member necessarily had to consider both the flight path and the altitude of the aircraft within the circuit area around the aerodrome in order to be able to issue a decision determining whether or not the Appellant was within the aerodrome traffic circuit. This argument is redundant. Both elements, the flight path and the altitude, go hand in hand, for it is inconceivable to envision that the rectangular circuit area around the aerodrome is other than in three dimensions. Section 4.5.2 of the TC AIM informs the pilot of both the circuit flight path and the normal circuit altitude of 1 000 feet AAE.

[18] Consequently, the Appeal Panel rejects ground 4 of appeal.

C. Grounds 3 and 5 of Appeal

Ground 3 of Appeal

The Member erred in law in failing to consider the appropriate procedure to be used when departing an airport.

Ground 5 of Appeal

The Member erred in fact and in law in failing to appropriately consider whether [the] Appellant's departure procedure violated the Rockcliffe Airport's departure procedure.

[19] The Appellant submits that he left the aerodrome circuit when he departed the Rockcliffe Airport on a course for the Ottawa International Airport. He submits that he could therefore make a left‑hand or right‑hand turn in the direction of his choice, en route towards his destination.

[20] This argument is unacceptable. The procedure to be used when departing an aerodrome, as set out at paragraph 4.5.2(c) of the TC AIM, states that pilots may turn in the direction of their choice only when they reach the circuit traffic altitude, normally set at 1 000 feet AAE. However, the Appellant commenced a left‑hand turn at an altitude no higher than 600 feet above sea level, well below the altitude recommended in the TC AIM.

[21] Furthermore, the CFS specifies that the Rockcliffe Aerodrome does not have a standard circuit because it is a right‑hand circuit. Not only did the Appellant make a left‑hand turn well before having reached the normal circuit traffic altitude, but he made a left‑hand turn almost immediately after taking off on a right‑hand circuit when he was within the traffic circuit.

[22] The Appeal Panel therefore rejects grounds 3 and 5 of appeal.

D. Grounds 2 and 6 of Appeal

Ground 2 of Appeal

The Member erred in law in failing to give any consideration to the Appellant's defence.

Ground 6 of Appeal

The Member erred in fact and in law in failing to give any consideration to the proof produced by the Appellant on whether his departure procedure constituted an appropriate airport departure procedure.

[23] The Appellant alleges that the Review Member did not give his arguments any consideration in his determination because the Review Member did not refute them.

(1) Interpretation of Paragraph 4.5.2(c) of

Transport Canada Aeronautical Information Manual

[24] The Appellant submits that paragraph 4.5.2(c) of the TC AIM is not mandatory because it contains the English verb "should". However, the Minister points out that in the French version of that paragraph the imperative verb "doivent" (must) is used. Given the difference in meaning between the English and French versions, the Minister asks the Appeal Panel to prefer the interpretation given by the French version because it more closely reflects the spirit of the Act and its Regulations, in accordance with the discussion in R. v. Daoust, [2004] 1 S.C.R. 217.

[25] It must be noted that the TC AIM is a publication consolidating reference information, such as the rules of the air and essential procedures, as well as certain sections of the CARs. The TC AIM has no legal force. However, in the AIM's General Information section, section 1.1.3 specifies that the term "should" (devrait) implies that Transport Canada encourages all pilots to conform to the applicable procedure. The term "shall" implies that the applicable procedure is mandatory because it is supported by regulations.

[26] The Appeal Panel considers that it is not desirable to interpret the English term "should" at paragraph 4.5.2(c) of the TC AIM in the imperative sense, as the Minister argues. In our opinion, the French version of this paragraph should have used the verb "devrait". Consequently, this paragraph must be interpreted as describing a procedure that, while not mandatory, is desirable and even strongly recommended.

[27] However, this particular argument is not relevant because the Minister is not reproaching the Appellant for having failed to climb straight ahead on the runway heading until reaching the circuit traffic altitude before commencing his left‑hand turn. The Minister is reproaching the Appellant for having contravened paragraph 602.96(3)(c) of the CARs when he failed to perform all of the right‑hand turns when operating within the right‑hand traffic circuit at the Rockcliffe Aerodrome. Moreover, section 4.5.2 of the TC AIM reiterates the requirements set out at paragraph 602.96(3)(c) of the CARs in stating that all turns shall be to the left while operating in the circuit, unless a right‑hand circuit has been specified in the CFS.

[28] Consequently, the Appeal Panel rejects this argument.

(2) Circuit Altitude

[29] The Appellant also alleges that section 4.5.2 of the TC AIM does not require pilots to reach an altitude of 1 000 feet AAE within a circuit. At the most, the TC AIM states that a circuit is normally flown at 1 000 feet AAE.

[30] It is true that the AIM procedures do not have legal force; nonetheless, they were developed to promote flight safety. The purpose of a circuit is to promote smooth air traffic and reduce the likelihood of in‑flight collisions. It is paramount that pilots know what to expect in the circuit area. The Minister expects pilots to adopt a circuit altitude of 1 000 feet AAE and encourages them to use a procedure at uncontrolled aerodromes that is as uniform and as safe as possible. The circuit altitude generally maintained by pilots is 1 000 feet AAE when operating within the traffic circuit, which does not prevent pilots‑in‑command from exercising their discretion if this procedure presents a danger.

[31] Nothing is apparent or was drawn to the Appeal Panel's attention that justified the Appellant's disregard for that procedure or his failure to reach circuit traffic altitude before making his left‑hand turn.

[32] Consequently, the Appeal Panel rejects this argument.

(3) Distance to Fly within the Circuit

[33] The Appellant submits that the TC AIM also does not require pilots to fly a certain distance within the circuit.

[34] The Appeal Panel is of the opinion that it would not be appropriate for the TC AIM to require pilots to fly a certain distance within the circuit area, since that depends on the aircraft's performance. The TC AIM asks pilots, to the extent possible, to use the circuit procedures unless they believe that it is safer to do otherwise.

[35] Consequently, the Appeal Panel rejects this argument.

(4) Departure Procedure

[36] The Appellant argues that he used a departure procedure that complied with the departure procedure for the Rockcliffe Aerodrome.

[37] The Appeal Panel is of the opinion that the Appellant is in error to believe that when a pilot has departed an aerodrome, that pilot has necessarily departed the circuit of that aerodrome.

[38] The TC AIM advises unequivocally that in order to leave a circuit or an aerodrome, the pilot must first reach circuit traffic altitude. The Appellant did not follow that procedure with regard to altitude. The Appellant also failed to use the right‑hand circuit pattern stipulated in the CFS when he departed runway 27 at the Rockcliffe Aerodrome. It is mandatory that turns within a right‑hand circuit be made to the right, which the Appellant failed to do.

[39] Consequently, the Appeal Panel rejects this argument.

(5) Type of Aircraft and Circuit Altitude

[40] According to the Appellant, the Review Member should have taken into account the fact that a helicopter is easier to manoeuvre than a fixed‑wing aircraft.

[41] The Appeal Panel rejects this argument outright because a helicopter is defined as an aircraft in the CARs, and the TC AIM does not provide different circuit procedures for this type of aircraft. In other words, at all times, aircraft of any make or type should be operated in such a manner as to ensure the utmost in safety and uniformity.

[42] Consequently, the Appeal Panel rejects this argument. The Appeal Panel rejects therefore grounds 2 and 6 of appeal.

V. PENALTY

[43] The Appeal Panel considers that a monetary penalty of $750 is appropriate in the circumstances, since this is a first offence.

VI. DECISION

[44] The Appeal is dismissed and the monetary penalty of $750 assessed by the Minister is upheld.

September 1, 2010

Reasons for Appeal Decision: Suzanne Racine, Member

Concurred by: J. Richard W. Hall, Chairperson

Richard F. Willems, Member