Decisions

TATC File No. O-3509-41
MoT File No. PAP5504-EMS 64476

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

9144-6765 Québec Inc., d.b.a. Hydravion Aventure, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
François Audette


Decision: September 10, 2009

Citation: 9144-6765 Québec Inc. v. Canada (Minister of Transport), 2009 TATCE 26 (review)

[Official English Translation]

Heard at Ottawa, Ontario, on April 14, 2009

Held: The Tribunal dismisses the Minister's allegation. Accordingly, the monetary penalty of $3750 imposed for contravention of paragraph 602.96(3)(d) of the Canadian Aviation Regulations is dismissed.

I. BACKGROUND

[1] On June 6, 2008, the Minister of Transport issued a notice of assessment of monetary penalty in the amount of $3750 to the applicant, 9144-6765 Québec Inc., d.b.a. Hydravion Aventure. The Minister alleges that on or about November 6, 2007, the pilot‑in‑command of the aircraft C‑FJST, belonging to the applicant, flew two left-hand circuits over runway 27 at Rockcliffe Airport in Ottawa, Ontario, thus contravening paragraph 602.96(3)(d) of the Canadian Aviation Regulations (CARs), pursuant to section 7.7 of the Aeronautics Act (Act). The applicant is prosecuted pursuant to subsection 8.4(1) of the Act.

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

[Translation]

On or about November 6, 2007, at approximately 11:26 Eastern Standard Time, at or near Rockcliffe Airport in Ottawa, Ontario, the pilot-in-command of a Cessna U206G aircraft, bearing registration C‑FJST, did not, where the aerodrome was an airport, comply with the operating restrictions specified by the Minister in the Canada Flight Supplement, thereby contravening paragraph 602.96(3)(d) of the Canadian Aviation Regulations.

Specifically, the aircraft flew two left-hand circuits over runway 27 when the operating restrictions specified by the Minister in the Canada Flight Supplement stipulate right hand circuits for runway 27. Pursuant to subsection 8.4(1) of the Aeronautics Act, you as the registered owner of the aircraft are being proceeded against in respect of this offence and are liable to the penalty provided therefore as punishment. Monetary penalty assessed: $3750.00

II. LAW

[3] Paragraph 602.96(3)(d) of the CARs provides as follows:

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

. . .

(d) where the aerodrome is an airport, comply with any airport operating restrictions specified by the Minister in the Canada Flight Supplement;

. . .

[4] Subsection 8.4(1) of the Act states as follows:

8.4(1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

III. EVIDENCE

A. Minister of Transport

(1) Simon Phillip Garrett

[5] Simon Phillip Garrett has been a pilot for 37 years. He is the manager of Rockcliffe Airport and 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 holds an airline transport pilot licence and has several thousand hours of flight time experience. He flies more than 23 different types of single-engine and twin-engine airplanes.

[6] Mr. Garrett stated that Rockcliffe Airport is uncontrolled and that pilots are not required to communicate by radio. However, they must follow the procedures set out in the Canada Flight Supplement. Mr. Garrett detailed the characteristics of Rockcliffe Airport.

[7] Mr. Garrett testified that on the morning of November 6, 2007, he was sitting at his desk when he heard a radio announcement from the pilot of an approaching aircraft. Since the announcement was in French, and Mr. Garrett does not understand that language, he paid no attention. Then he heard a few persons from the flying club mention that an aircraft was flying over the runway at low altitude and counter to the circuit direction. Mr. Garrett testified that from his office window, he had seen an aircraft heading east at the runway threshhold begin a left‑hand turn. He immediately asked Jean René de Cotret, a bilingual instructor, to communicate with the pilot to inform him of the circuit procedure. On November 6, 2007, Mr. Garrett emailed Oonagh Elliott, Civil Aviation Safety Inspector, Ontario Region, Transport Canada, to inform her of the incident (exhibit M-1).

[8] Mr. Garrett stated that, according to the procedure he set up at Rockcliffe Airport, he always communicates with the pilot in the event of a safety-related incident near the airport. Usually, a discussion is held between Mr. Garrett, the pilot and Inspector Elliott prior to closing the file.

[9] On a large sheet of paper, Mr. Garrett showed three different ways of taking the official landing path for the airport's runway 27. On the same sheet of paper, he drew in red the course taken by the aircraft that he saw from his office (exhibit M-2). The Nav Canada's publication entitled Canada Flight Supplement (CFS, in effect from October 25, 2007 to December 20, 2008, at page B634, exhibit M-3) describes the official circuit procedure at Rockcliffe Airport. For runway 27, a right-hand circuit must be conducted, followed by a right‑hand turn of 20 degrees. To the extent possible, a downwind leg must be made above the river, according to Nav Canada's publication entitled Canada Water Aerodrome Supplement (in effect from March 15, 2007 to March 13, 2008, at page B135, exhibit M-4).

[10] The Rockcliffe Flying Club's daily flight record for November 6, 2007, states that the aircraft registered as C-GBRI was on the ramp at 11:30 a.m. for an engine check just prior to take‑off (exhibit M-5). However, during the cross-examination, counsel for the applicant noted an error in the time stated for aircraft C-GBRI. Mr. Garrett confirmed the error and clarified that he did not enter the information in the record. On re-examination, Mr. Garrett was unable to confirm that he had seen the float plane make a water landing.

[11] Three photographs were filed in evidence. On the first, Mr. Garrett marked off the place where he saw the float plane from the window (exhibit R-1). The second photograph shows where the airport's UNICOM is located (exhibit R-2) and the third photograph completes the second (exhibit R-3). On the second and third photographs, it is obvious that the UNICOM is not in Mr. Garrett's office.

(2) Jean René de Cotret

[12] Mr. de Cotret has been a ground instructor at the Rockcliffe Flying Club since 2002 and a flight instructor since fall 2004. He was in the flying club building when he was asked to communicate with a Francophone pilot who had just flown over the airport. Mr. de Cotret informed the pilot that the circuit had to be made to the north of the airport and not directly over it. He does not recall the pilot's response. Mr. de Cotret drew out the official landing path according to the procedure to follow for Rockcliffe Airport (exhibit M-6). On cross-examination, Mr. de Cotret confirmed that he did not see the float plane on November 6, 2007. He communicated with the pilot but does not recall his response.

(3) Oonagh Elliott

[13] Oonagh Elliott has been a civil aviation safety inspector for 19 years with the Ontario Region, Transport Canada. She is an experienced pilot, holding an airline transport pilot licence, and is also a flight instructor (class 1). She has accumulated over 6000 hours of flight time.

[14] Inspector Elliott explained the characteristics of Rockcliffe Airport, which is an uncontrolled airport. She testified that the printout from the Canadian Civil Aircraft Register confirms that the owner of the float plane C-FJST is indeed Hydravion Aventure (exhibit M-7).

[15] Inspector Elliott explained a few documents filed in evidence:

  • two printouts from the National Aviation Company Information System (NACIS) provide details on Hydravion Aventure (exhibit M-8) and its president, Mr. Priem, who holds the positions of chief pilot, head of maintenance and executive manager (exhibit M-9);
  • the printout from the Distributed Air Personnel Licensing System indicates that Mr. Priem's licence and medical certificate were valid at the time of the incident (exhibit M‑10);
  • in her letter of January 2, 2008, to Hydravion Aventure, Inspector Elliott confirmed the investigation and requested the company's cooperation (exhibit M-11);
  • in his letter dated January 7, 2008, Mr. Priem described the flight made on November 6, 2007 (M‑13). Inspector Elliott's email to Mr. Priem, dated February 19, 2008, served as a follow‑up to the investigation (exhibit M-12).

B. Applicant

[16] Counsel for the applicant alleges that the Minister failed to prove that the aircraft did two left‑hand circuits of runway 27 at the circuit altitude. He seeks a motion for non-suit dismissing the proceedings against Mr. Priem. The Minister requests that this motion be dismissed and the case be heard to assess all of the evidence.

(1) Joann Ronsin

[17] Joann Ronsin works for Nanuq Adventure Inc., a receptive/wholesale tour operator that puts together the various components of land-based trips.

[18] Mr. Ronsin testified that he had accompanied Mr. Priem on his trips for at least five times. On November 6, 2007, he sat in the co-pilot's seat in Mr. Priem's float plane en route from Toronto to Ottawa, making a water landing on the Gatineau side. Mr. Ronsin stated that there had been no change in altitude, neither during the flight nor when making the two circuits at Rockcliffe Airport. However, it had been necessary to decrease altitude to land at the Gatineau water aerodrome. Mr. Ronsin explained that he had observed aircraft on the airport's runway but that he was mainly checking the access from the wharf to the road to locate future clients.

(2) Gilles Lapierre

[19] Gilles Lapierre is retired and president of the Aviateurs et pilotes de brousse du Québec association. He has been an airplane, float plane, helicopter and instrument pilot for 10 years. He has known Mr. Priem since 2003. Mr. Lapierre stated that on the morning of November 6, 2007, he landed his aircraft at Rockcliffe Airport. He had tried, without success, to communicate using UNICOM. On cross-examination, Mr. Lapierre confirmed that from what he has observed, Mr. Priem communicates on the radio in English when he is in the United States. He also explained the procedure that he had used to land at Rockcliffe Airport since he had not received any radio response.

(3) Alain Priem

[20] Alain Priem is the president of Hydravion Aventure. He has 25 years of experience in the aeronautics sector, including 15 years as a fighter pilot in France on the Mirage 2000. He finished as formation leader after having accumulated 2000 hours of experience before changing careers to become a float plane pilot in Quebec. In carrying on his business in Mauricie, Mr. Priem operates four aircraft and has four pilots working for him.

[21] Mr. Priem explained that the November 6, 2007, flight was part of a series of flights spread over two days to confirm a route for European clients. All radio communication, in Ontario, was conducted in English. Furthermore, Mr. Priem specified that all of his documents for each aircraft were in a briefcase. Mr. Priem also testified that, on the morning of November 6, 2007, he had filled the fuel tanks, plotted his flight itinerary and prepared the flight plan. On a course from Toronto at an altitude of 3500 feet, he descended to 1500 feet to the west of Ottawa and then climbed to 2200 feet to cross the Rockcliffe corridor. He stated that he flew over the runway and then made a left-hand turn to come back over the runway. He thus made two loops over Rockcliffe Airport and then headed northeast to fly the length of the island on the north shore until he was above the Gatineau water aerodrome.

[22] To get an idea of the traffic, Mr. Priem listened to the frequency for Rockcliffe Airport, at 123.5, at least 30 minutes prior to his arrival. When he made his first radio announcement, he was about 15 or 20 minutes away from the airport. Five minutes before arriving, he tried to make contact again, three times, but received no response. One minute before arriving at the airport, Mr. Priem announced on the UNICOM frequency that he was about to fly over the runway at 2000 feet. Upon his arrival, he made the following announcement: " . . . (o)verfly airport for a downwind leg on the river". Mr. Priem stated that despite his efforts, he received no radio response. It was only when he made his first pass over the airport, on the downwind leg, that Mr. Priem received a radio communication. This communication could have been coming from anyone. Nonetheless, Mr. Priem stated his position and his intentions. He received no response and saw no aircraft on the airport's manoeuvring area.

[23] Mr. Priem testified that on January 7, 2008, he replied to Inspector Elliott's letter dated January 2, 2008. In his reply, he detailed the flight to the best of his recollection in a sincere and cooperative manner. Three weeks later, Mr. Priem sent an email to Inspector Elliott to make sure that she had indeed received his letter. She replied that she had sent his letter to be translated, but never attempted to speak with him about this matter. In June 2008, Mr. Priem received the notice of assessment of monetary penalty.

[24] Mr. Priem explained that before flying over Rockcliffe Airport, he had consulted page B634 of the CFS to see if there was a circuit to the north of the airport. Mr. Priem stated that it is important to take into account the definitions of "active runway" and "preferred runway" from the Transport Canada Aeronautical Information Manual (TC AIM, TP 14371, section 5.1, exhibit R-5). That morning, the preferred runway was runway 27 because the winds were from the west. However, a pilot may use an into-wind runway. Since there was no radio communication or indications regarding traffic, there was no active runway. Mr. Priem therefore announced that he would use runway 09 in accordance with CFS instructions regarding aircraft coming from the west corridor, in particular at an altitude of 2000 feet. His aim was to get an overall fix on the area. Since he did not want to land at Rockcliffe Airport, he made two circuits at 2000 feet and then headed for the Gatineau water aerodrome.

[25] On cross-examination, Mr. Priem stated that when he began the second circuit, someone came in on the frequency in French to specify circuit 27. However, contrary to that instruction, Mr. Priem chose to make a circuit over runway 09. On re-examination, Mr. Priem stated that for safety or personal reasons, it is up to the pilot to choose the runway.

IV. SUBMISSIONS

A. Minister

[26] The Minister alleges that he has proven, on a balance of probabilities, each of the elements of the offence alleged in the notice of assessment of monetary penalty. The testimonies of Messrs. Garrett and de Cotret and Inspector Elliott show that the company is indeed operated by Mr. Priem, who acts as chief pilot, head of maintenance and executive manager. Rockcliffe Airport is uncontrolled, and the restrictions must be complied with. Mr. Priem acted in a manner that endangered his life, those of his passengers and those of the persons on the ground in the vicinity. The Minister's representative requests that the Tribunal uphold the recommended monetary penalty of $3750 imposed on Mr. Priem.

B. Applicant

[27] Counsel for the applicant notes that the strongest factual element in this case is the one raised at the time of the motion for non-suit, namely that a pilot has the right to fly over an airport at an altitude of 2000 feet above sea level (ASL). No witness has proven that Mr. Priem descended below 2000 feet. The real circuit was made in Gatineau when he descended to the circuit altitude and made a water landing. Mr. Priem showed that he had properly prepared his flight prior to departure. He chose the runway that he would use and, had there been an aircraft on the manoeuvring area, the onus would have been on the pilot of that aircraft to communicate before touching down on the runway. No one testified that there was an aircraft on the manoeuvring area. The information on the daily flight record, namely that there was an aircraft on the manoeuvring area, has not been proven. According to counsel for the applicant, this is an abuse of process. He requests that costs be awarded to the applicant to be paid by the Minister. On cross-examination, the Minister's representative stated that if Mr. Priem's aircraft was flying at 2000 feet, Mr. Garrett could not see it. The Minister also referred to subsection 19(1) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 (TATC Act).

V. DISCUSSION

[28] The Minister must prove each of the following elements on a balance of probabilities:

  • the identity of the pilot-in-command;
  • the use of aircraft C-FJST;
  • the aircraft made two left-hand circuits of runway 27 at the Rockcliffe aerodrome.

[29] By definition, the Rockcliffe landing runway is an "aerodrome" within the meaning of the Act.

[30] With respect to the first element, it was established that on November 6, 2007, Mr. Priem was the pilot-in-command of the aircraft C-FJST. Mr. Garrett sent an email to Inspector Elliott to inform her of the incident on November 6, 2007, and the float plane's registration number. Mr. Priem confirmed in his letter dated January 7, 2008, that he was at the controls during the flight of November 6, 2007, in the float plane registered as C-FJST.

[31] As for the second element, Inspector Elliott searched the Canadian Civil Aircraft Register and found that the aircraft registered as C-FJST is indeed a Cessna U206G float plane.

[32] Regarding the third element, in order for there to be a circuit, the Minister and his witnesses needed to prove that the float plane descended to circuit altitude. If an aircraft is above an airport at 2000 feet or more, it is not necessarily performing a circuit. A circuit is normally conducted at 1000 feet above the airport. Moreover, since there were no other aircraft in the circuit or in flight at the time of the incident, Mr. Priem attempted, several times but without success, to contact Rockcliffe Airport using UNICOM, because it is an uncontrolled airport. He therefore announced his intention to fly over runway 09 at an altitude of 2000 feet and make a left-hand turn, which is not a violation of the Regulations. Since no other pilot was in the vicinity of Rockcliffe Airport and no one made any radio announcements, there was no active runway at that time.

[33] I dismiss the request to order costs against the Minister for the reasons set out in subsection 19(1) of the TATC Act. The applicant and all of the witnesses appeared, there was no adjournment of the hearing, and the applicant did not bring the matter before the Tribunal for reasons that are frivolous or vexatious.

IV. DETERMINATION

[34] The Tribunal dismisses the Minister's allegation. Accordingly, the monetary penalty of $3750 imposed for contravention of paragraph 602.96(3)(d) of the Canadian Aviation Regulations is dismissed.

September 10, 2009

François Audette

Member