Decisions

TATC File No. O-3535-33
MoT File No. PAP5504-EMS 65884

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Edward David Lubitz, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, subsection 602.96(4)


Review Determination
Richard F. Willems


Decision: December 10, 2009

Citation: Lubitz v. Canada (Minister of Transport), 2009 TATCE 35 (review) 

Heard at Kitchener, Ontario, on April 28 and 29, 2009

Held: I confirm the decision of the Minister of Transport set out in the Notice of Assessment of Monetary Penalty dated September 25, 2008. The total amount of $1 500 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 determination.

I. BACKGROUND

[1] On September 25, 2008, Transport Canada issued a monetary penalty of $1 500 against the Applicant, Edward David Lubitz. It is alleged that Mr. Lubitz contravened subsection 602.96(4) 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 provides as follows:

On or about June 14, 2008, at approximately 1400 UTC, at or near New Hamburg, Ontario, as pilot-in-command of Cuby Coupe ultralight aircraft bearing registration marks C-IBCZ, you operated the aircraft at an altitude of less than 2,000 feet over an aerodrome (John Kunz airstrip located at N 43 25 15, W 80 43 54) when it was not for the purpose of landing or taking off, thereby contravening subsection 602.96(4) of the Canadian Aviation Regulations.

Monetary Penalty Assessed: $1,500.00

[3] On October 29, 2008, the Transportation Appeal Tribunal of Canada received a request for review from the Applicant.

II. STATUTES, REGULATIONS AND POLICIES

[4] Subsection 602.96(4) of the CARs sets out the offence at issue and provides as follows:

602.96(4) Unless otherwise authorized by the appropriate air traffic control unit, no pilot-in-command shall operate an aircraft at an altitude of less than 2,000 feet over an aerodrome except for the purpose of landing or taking off or if the aircraft is operated pursuant to subsection (5).

III. EVIDENCE

A. Minister of Transport

(1) Gary Wolf

[5] Gary Wolf is the national president of the Recreational Aircraft Association of Canada ("RAA"). On June 14, 2008, Mr. Wolf flew his Beaver basic ultralight aircraft to the John Kunz airstrip to attend a fly‑in barbecue sponsored by the Kitchener‑Waterloo chapter of the RAA. His route of flight paralleled Nafziger Road to the east, and he was at about 2 000 feet above sea level ("ASL"). As he approached Erb's Road, Mr. Wolf noticed a blue Champ aircraft heading in a northerly direction, at roughly his altitude. This aircraft, however, would not cause him any problems while completing his circuit at the Kunz aerodrome. Mr. Wolf joined the left‑hand circuit from overhead midfield, observing the wind sock and checking the parking area to confirm that runway 33 would be the correct runway for the landing.

[6] While doing this procedure, Mr. Wolf noticed a beige Cuby Coupe aircraft on short final to runway 33, at a low altitude and well below his aircraft. He assumed that the aircraft was on short final for a landing on runway 33, and extended his downwind to allow the aircraft not only to land but also to backtrack to the parking area, which is normally at the button of runway 33. Unable to spot the aircraft, Mr. Wolf completed his circuit, landed on runway 33 and backtracked to the south end of the Kunz aerodrome to park. This is where he met Donald Sinclair and Clare Snyder, who informed him that Mr. Lubitz had done a straight‑in approach followed by a low and over and then had disappeared off to the northwest.

[7] One of the reasons why Mr. Wolf brought up this issue is that he has been informed by the insurance agent for the RAA that, if non-standard procedures were used by aircraft arriving and departing during the fly-in, the event could be deemed an air show and no insurance coverage would be provided.

[8] Mr. Wolf testified that he did not see Mr. Lubitz in the aircraft on short final to the Kunz airstrip the day of the event, although he suspected it was Mr. Lubitz. He agreed, under cross‑examination, that he did not positively identify the aircraft, given the fact that the registration marks of an aircraft are not shown on the top of the wings. After landing, Mr. Sinclair told him that he had noted the registration marks of the aircraft that had done the low pass.

[9] In his emails to Inspector Oonagh Elliott, Mr. Wolf expresses concern that the animosity between himself and Mr. Lubitz is the cause of the slow progress in this case.

(2) Clare Snyder

[10] Clare Snyder is currently the president, and at the time of this event was the vice‑president and acting president of the local chapter of the RAA, which was sponsoring the fly‑in. He is not a pilot at this time but in his words, he "is working towards it".

[11] He was near the approach end of the airstrip that morning, when he heard Mr. Wolf's Beaver aircraft and watched it fly over and join the downwind. At about the same time, he noticed a blue high-winged aircraft at about 1 000 feet above ground level ("AGL"), on a track about halfway between the airstrip and Nafziger Road. A third aircraft appeared on the scene; it was about one kilometer away, quite low and lined up with the runway. It was flying too fast to land on the runway it was lined up with. The aircraft passed directly in front of Mr. Snyder, close enough that he could see a glint off of a visor or sunglasses that the pilot was wearing. This aircraft did not land or join the circuit, but it continued on its way after passing over the runway.

[12] After landing, Mr. Wolf asked Mr. Snyder his opinion on who had done the fly-by. Mr. Snyder replied that he thought it was Mr. Lubitz. He was unable to positively identify the pilot, but saw that he was wearing wraparound sunglasses.

(3) Donald Sinclair

[13] Mr. Sinclair drove to the Kunz airstrip that morning and arrived at about 9:30 a.m. He was the secretary of the RAA and had been assigned the duty of cooking for the event. At about 10:00 a.m., while standing in the parking area next to the grass strip with Mr. Snyder, he saw Mr. Wolf arrive, and at about the same time, he heard another aircraft approaching the field from the south. This aircraft, which was well below Mr. Wolf's aircraft, descended towards the threshold of the runway and passed overhead. Mr. Sinclair was able to identify it as a beige Cuby type aircraft, bearing the registration marks C-IBCZ.

[14] Later that day, Mr. Sinclair saw the same aircraft arriving at the Kunz airstrip and he took pictures of it (Exhibit M‑12). Mr. Sinclair did not know Mr. Lubitz.

(4) Oonagh Elliott

[15] Inspector Elliott, who works for the Enforcement Branch of Transport Canada, was assigned to the investigation of the event. She took us through the process of her investigation.

[16] On June 15, 2008, Inspector Elliott received an email from Mr. Wolf, reporting the alleged infraction. Mr. Wolf asked her to contact Mr. Lubitz and counsel him as to circuit procedures (Exhibit M‑4). Considering the fact that, in the past, Mr. Wolf had addressed this situation with Mr. Lubitz, Inspector Elliott felt that it would be pointless to speak to him on behalf of Transport Canada (Exhibit M-4). Consequently, she initiated her investigation and contacted the witnesses that Mr. Wolf provided to her, as well as Mr. Lubitz and Don Goddard.

[17] Inspector Elliott received an email from David Kubassek, who was asked by Mr. Lubitz to share his recollection of the event with Inspector Elliott (Exhibit M‑14). In his email, Mr. Kubassek states that he and Mr. Lubitz flew in loose formation at approximately 1 700 feet AGL. He claims not to have seen any other aircraft in the circuit, nor did he see Mr. Lubitz's aircraft leave the loose formation and fly over the runway at the Kunz airstrip.

[18] Inspector Elliott reported her telephone conversation with Mr. Goddard who was a passenger in Mr. Kubassek's aircraft. He indicated that Mr. Lubitz was always on his right wing tip and expressed doubt that Mr. Lubitz could have broken the formation, done the low and over and still be in that formation on their arrival at Brussels, Ontario (Exhibit M‑15). He also stated that they were flying at about 1 500 to 1 600 feet ASL, and that the weather was nice; it was sunny and the air was smooth. At one point in this conversation, Mr. Goddard stated that the airstrip was on their left, but later he claimed not to have noticed the airstrip during the flight.

[19] Inspector Elliott testified that, in her telephone conversation with Mr. Wolf, he indicated that, the morning of the event, the ceiling was solid overcast at 1 000 feet (Exhibit M‑16). Mr. Wolf's aircraft was the first to arrive at the Kunz airstrip. He also told Inspector Elliott that John Kunz, the owner of the airstrip, is a very good friend of both Messrs. Wolf and Lubitz, and that Mr. Kunz was not in favor of this investigation until the liability issues had been explained to him.

[20] Inspector Elliott stated that during her telephone conversation with Mr. Sinclair, he raised the following points (Exhibit M-17):

  • he was watching Mr. Wolf doing a circuit, when he noticed a second aircraft which he initially thought was going to land;
  • the aircraft flew along the runway centerline at about 50 to 100 feet, but it became obvious that it was not going to land;
  • he did see the registration marks C-IBCZ;
  • while all this was going on, he asked someone near him whom that registration belonged to, and he was told it was Mr. Lubitz's;
  • this aircraft came back to the Kunz field later that same day. Two photographs of the aircraft were introduced as evidence (Exhibit M-12).

[21] On the day of the event, the report from the nearest weather reporting station to the Kunz airstrip shows an overcast condition at 10:00 a.m (local time), improving as the day goes on (Exhibit M‑18). Everyone agreed with this observation, except Mr. Goddard.

[22] As the next step in her investigation, Inspector Elliott searched the Canadian Civil Aircraft Registry database. She found that aircraft C-IBCZ is registered to Mr. Lubitz (Exhibit M‑19) and that aircraft C-GOUK is an Aeronca 7ACX registered to Mr. Kubassek.

[23] On July 9, 2008, Inspector Elliott sent a letter of investigation to Mr. Lubitz, advising him of the proceedings and his rights (Exhibit M‑23). A telephone call (Exhibit M‑24) and a series of emails (Exhibits M‑25 to M‑27) followed. In these emails, Mr. Lubitz states that he, in fact, flew over, or near to the Kunz airstrip the morning of the event, at about 1 700 feet ASL. However, at no time did he do a low approach and overshot. He told Inspector Elliott about the personal issues taking place between Mr. Wolf and himself and his wife Kathy.

B. Applicant

(1) Don Goddard

[24] The morning of the event, Mr. Goddard was a passenger in Mr. Kubassek's aircraft for the flight to Brussels. He testified that they took off a little after 10:00 a.m., flew over the Lubitz airstrip, and once Mr. Lubitz was airborne, they flew in loose formation with him. Every time Mr. Goddard looked to his right, Mr. Lubitz was there.

[25] Under cross-examination, Mr. Goddard agreed that it is possible that Mr. Lubitz could have flown over the Kunz airstrip at a lower altitude. He did not recall how close to the Kunz airstrip their route of flight took them that morning. He stated that Mr. Lubitz was flying a J‑4 Cuby aircraft and agreed that the picture of a flying aircraft presented as evidence (Exhibit M‑12) shows the same aircraft. Mr. Goddard had flown in this loose formation in the past, and he agreed that the two aircraft are closely matched in performance. He testified that on this trip, Mr. Lubitz got slightly behind. When asked if the two aircraft arrived at Brussels at the same time, he answered: "[p]retty close. It was shortly after". Mr. Goddard was asked if he believed, given the performance of these two aircraft, that Mr. Lubitz could have left the formation, descended to fly over the Kunz airstrip at a lower altitude, climbed back up and still arrived at the Brussels airstrip in the loose formation. He testified that it would be very unlikely. He remembered the weather as being fairly good that morning, and improving as the day progressed.

(2) David Kubassek

[26] Mr. Kubassek was flying the blue Aeronca 7ACX aircraft, which was in the loose formation with the J-4 Cuby aircraft of Mr. Lubitz on the morning of June 14, 2008. To correct his statement in his email, he indicated that he was at 1 700 feet ASL instead of 1 700 feet AGL, as this would have put him about 700 to 750 feet above ground in the Kunz airstrip area. He testified that Mr. Lubitz was in the loose formation for the whole flight, and that they arrived at their destination within minutes of each other. He considered the cruise performance of these two aircraft to be similar. He did not notice if Mr. Lubitz had left his position, being to the right and behind his aircraft. Mr. Lubitz was behind him and he was flying, so he could not watch him constantly. Under cross-examination, Mr. Kubassek agreed that it could be possible that Mr. Lubitz left the formation, flew over the Kunz airstrip at a lower altitude and resumed the flight.

(3) Edward David Lubitz

[27] Mr. Lubitz is a retired captain from Air Canada, who started flying at the age of 16. He has been involved in the RAA and the Ultralight Pilots Association of Canada. He testified that over the years, because there has been a deteriorating relationship with the RAA executive and Mr. Wolf, he is no longer allowed to belong to the RAA or the local chapter.

[28] Mr. Lubitz explained his recollection of the flight that took place on June 14, 2008. Mr. Kubassek and he flew in loose formation to Brussels at 700 feet AGL, that is about 1 700 feet ASL, because the first third of the trip would be under class E controlled airspace, and his basic ultralight aircraft is not allowed in that airspace. He noticed the Kunz aerodrome on his left, about 15 minutes into the flight, and took note of one aircraft on the ground, which was a Beaver ultralight aircraft parked near the barn. He changed course to keep the field in sight and to stay clear of the circuit.

[29] After clearing the north end of the Kunz airstrip, he set a new GPS course and continued on to Brussels. Messrs. Kubassek and Lubitz decided to stop at the Kunz airstrip that afternoon to attend the RAA barbecue. Mr. Lubitz lead the flight, joining a left downwind for a landing to the north. While he was still on the runway, Mr. Kubassek did a missed approach before returning for another landing.

IV. LEGISLATION AND POLICY ANALYSIS

[30] Mr. Lubitz agreed that he was flying the Cuby Coupe aircraft registered as C‑IBCZ on June 14, 2008. He admitted being in the vicinity of the Kunz airstrip at about 10:00 a.m. that day, and that he landed back at the same airstrip later that same day.

[31] Messrs. Wolf and Snyder recognized the aircraft in question to be owned by Mr. Lubitz. Although Mr. Wolf agreed that he did not positively identify the aircraft while in the air that morning, he had a good idea whose aircraft it was. His suspicion was confirmed after he had landed and spoke to Messrs. Sinclair and Snyder. Mr. Sinclair saw the registration of the aircraft, as it passed in front of him over the airstrip.

[32] According to the three Transport Canada's witnesses, Mr. Lubitz's aircraft flew over the runway at low altitude. Messrs. Kubassek and Goddard did not dispute the version of the Transport Canada's witnesses, concerning the event; they testified that Mr. Lubitz was in loose formation with them, but admitted that they were not constantly watching him. They agreed that he could have left the loose formation for a period of time without them noticing. They also stated that, in their opinion, it is possible that he could have flown low over the Kunz airstrip that day and returned to the formation.

[33] The Minister's witnesses provided similar testimony to support the allegation that the Applicant operated his aircraft at an altitude of less than 2 000 feet over John Kunz airstrip when it was not for the purpose of landing or taking off, contrary to paragraph 602.96(4) of the CARs.

[34] Accordingly, on a balance of probabilities, I find that the evidence is more supportive of the Minister's case and submissions and conclude that the Applicant, Edward David Lubitz, did contravene subsection 602.96(4) of the CARs.

V. DETERMINATION

[35] I confirm the decision of the Minister set out in the Notice of Assessment of Monetary Penalty dated September 25, 2008.

December 10, 2009

Richard F.Willems

Member


Appeal decision
Suzanne Racine, J. Richard W. Hall, Franco Pietracupa


Decision: September 28, 2010

Citation: Lubitz v. Canada (Minister of Transport), 2010 TATCE 24 (appeal)

[Official English Translation]

Heard at Toronto, Ontario, on May 20, 2010

Held: The Appeal is dismissed, and the monetary penalty assessed by the Minister of Transport is upheld. The amount of $1 500 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 September 25, 2008, Transport Canada assessed a monetary penalty of $1 500 against the Appellant, Edward David Lubitz, for contravening subsection 602.96(4) of the Canadian Aviation Regulations ("CARs"), pursuant to section 7.7 of the Aeronautics Act ("Act").

[2] The Appellant, as pilot-in-command of a Cuby Coupe ultralight aircraft bearing registration mark C-IBCZ, was alleged to have, on or about June 14, 2008, at approximately 14:00 UTC (10:00 a.m., local time), at or near New Hamburg, Ontario, operated the aircraft at an altitude of less than 2 000 feet above aerodrome elevation (AAE, John Kunz airstrip located at N 43 25 15  and W 80 43 54) when it was not for a purpose of landing or taking off.

[3] The Review Member, Richard F. Willems, determined that the Appellant had contravened subsection 602.96(4) of the CARs and confirmed the monetary penalty of $1 500 assessed by the Minister of Transport.

[4] On January 11, 2010, Mr. Lubitz appealed the Review Determination rendered by the Transportation Appeal Tribunal of Canada ("Tribunal").

II. GROUNDS FOR APPEAL

[5] The Appellant's grounds are set out in his letter to the Tribunal dated January 8, 2010, and in the brief he presented at the hearing.

1. The Minister's witnesses are not credible. They contradict each other on major points, including:

  • identification of the Appellant and his aircraft;
  • time at which the Appellant's aircraft was seen; and
  • position of the Appellant's aircraft, as well as the number of aircraft seen the morning of June 14, 2008, and their positions.

2. The testimonies regarding the Appellant's character and events unrelated to the alleged contravention are not relevant and should be rejected.

III. ARGUMENTS

A. Appellant

[6] The Appellant submits that on the morning of June 14, 2008, the Minister's witnesses did not identify his aircraft, nor did they identify him as the pilot-in-command of the aircraft flying at low altitude that morning.

[7] Gary Wolf claims to have seen a beige J‑4 Cuby Coupe aircraft. He assumed it was the Appellant's aircraft, but he was unable to take note of the aircraft's registration mark or its pilot‑in‑command, as he had been looking at the roof of the aircraft. Also, Mr. Wolf did not notice the dark fibreglass window covering the aircraft's cockpit, despite the fact that it is an unusual characteristic of the aircraft he claims to have seen that morning.

[8] Clare Snyder said that he had seen a "glint" when the aircraft flew over at low altitude. He identified the aircraft as a J-3 Cuby Coupe with red stripes. However, he had been unable to note the aircraft's registration mark or see its pilot-in-command.

[9] Donald Sinclair said that he had seen the letters C-IBCZ on the tail of the aircraft, but he was unable to confirm that the Appellant had been the pilot-in-command of the aircraft in question.

[10] Taken separately, in the opinion of the Appellant, the testimonies of Messrs. Wolf, Snyder and Sinclair are insufficient to establish that the Appellant flew over the Kunz airstrip at low altitude in his J‑4 Cuby Coupe aircraft without landing.

[11] The Appellant also submits that the Minister's witnesses gave contradictory evidence as to the time at which they saw his aircraft. Therefore, the witnesses' contradictions regarding this important element of the contravention undermine their credibility. The Appellant argues that the Review Member erred in relying on these testimonies rather than the consistent testimonies of the Appellant's witnesses.

[12] Messrs. Wolf and Sinclair said that they had seen the Appellant at about 10:00 a.m., while Mr. Snyder said that the low-altitude flight had occurred at about 10:30 a.m. The Appellant submits that it was not possible for the Minister's witnesses to have seen his aircraft at around 10:00 a.m., as he was at home at that time, checking the weather forecast. The Appellant states that he left the Lubitz aerodrome shortly after 10:00 a.m. on June 14, 2008, to meet up with David Kubassek's aircraft in loose formation and head for Brussels, Ontario. The Appellant remained in this loose formation for the entire journey to Brussels. He was half a mile from Mr. Kubassek's aircraft, slightly behind it and to the right. Don Goddard, a passenger flying with Mr. Kubassek, confirmed this fact by stating that he could see the Appellant's aircraft when he looked to his right, and slightly behind. The Lubitz aerodrome is 10 miles from the Kunz aerodrome. Since Mr. Kubassek's aircraft was closely matched in performance, flying at about 65 miles per hour, the Appellant stated that he arrived in the vicinity of the Kunz aerodrome at about 10:15 or 10:20 a.m. There he saw a Beaver aircraft parked near the Kunz barn.

[13] The Appellant also submits that the Minister's witnesses do not agree about the relative positions of the aircraft they claim to have seen on the morning of June 14, 2008. Mr. Wolf stated that his aircraft was south of Erb's Road and that it was approaching the Kunz aerodrome along Nafziger Road. That was when he first saw a blue aircraft, outside of the Kunz aerodrome traffic circuit, flying in a northerly direction, east of Nafziger Road. Later in his testimony, during chief examination, Mr. Wolf contradicted himself by stating that he had seen a blue aircraft to the west while he was flying midfield over the Kunz airstrip.

[14] Mr. Snyder said that he was at the approach end of the Kunz airstrip on the morning of June 14, 2008, and that he had seen a blue aircraft, which he identified as a Champ aircraft, flying in a northwesterly direction about halfway at the east between the Kunz airstrip and Nafziger Road, at an altitude lower than that estimated by Mr. Wolf. This witness also stated that the Champ was about a mile away.

[15] Mr. Sinclair did not notice the blue aircraft, despite the fact that he was next to Mr. Snyder.

[16] Re-entering the Kunz aerodrome circuit on the downwind leg, Mr. Wolf noticed, at an altitude much lower than his own, a J-4 Cuby Coupe aircraft on short final that appeared to be landing on the Kunz airstrip.

[17] Mr. Kubassek and his passenger, Mr. Goddard, stated that they had flown in loose formation with the Appellant all the way to Brussels on the morning of June 14, 2008. The Appellant's aircraft was slightly behind and to the right of Mr. Kubassek's aircraft, at a distance of half a mile.

[18] According to the Appellant, the Minister's witnesses probably did not see what they believed they saw, and the Review Member should not have relied on their testimony.

[19] The Appellant also submits that the Minister's documentary and testimonial evidence contains unfounded and irrelevant accusations that prejudicially affect his reputation, and that he was not given the opportunity to rebut them. These allegations should never have been admitted into evidence, as they are unfairly injurious to the Appellant.

B. Minister of Transport

[20] The Respondent submits that it has proven, on the balance of probabilities, each element of the alleged contravention.

[21] Mr. Sinclair took note of the registration mark of the aircraft flying below the regulatory 2 000 feet without landing on the airstrip of the Kunz aerodrome. The aircraft in question belongs to the Appellant. The testimonies of Messrs. Wolf and Snyder complete and corroborate that of Mr. Sinclair.

[22] The Appellant himself admitted that, on June 14, 2008, he had flown over the Kunz aerodrome at an altitude of 700 feet above ground level (AGL).  

[23] Concerning the contradictions regarding the positions of the other aircraft the morning of June 14, 2008, the Minister submits that these are irrelevant and cannot be taken into consideration.

[24] From the Respondent's perspective, the Review Member is in the best position to evaluate the evidence before him when it is contradictory. In this case, the Review Member's findings of fact are reasonable and must be upheld.

IV. ANALYSIS

A. Ground 1 for appeal

The Minister's witnesses are not credible. They contradict each other on major points, including:

  1. identification of the Appellant and his aircraft;
  2. time at which the Appellant's aircraft was seen; and
  3. position of the Appellant's aircraft, as well as the number of aircraft seen the morning of June 14, 2008, and their positions.

(1) Identification of the Appellant and his aircraft

[25] The Appellant submits that the Minister has not established, on the balance of probabilities, that on June 14, 2008, he flew over the Kunz aerodrome at an altitude lower than 2 000 feet AGL without intending to land, thereby contravening subsection 602.96(4) of the CARs. Mr. Wolf said that he had seen a beige J-4 Cuby Coupe aircraft flying at an altitude much lower than his own when he was joining the downwind leg of the Kunz aerodrome circuit. The aircraft seemed to be on short final for a landing on the Kunz airstrip. Although he suspected that it was the Appellant's aircraft, Mr. Wolf could not positively identify the aircraft he had seen that morning or its pilot‑in‑command.

[26] The morning of June 14, 2008, Mr. Snyder was near the approach end of the Kunz aerodrome airstrip. He stated that he had seen a J-3 Cuby Coupe with red stripes, while Mr. Wolf testified that he had seen a beige J-4 Cuby Coupe. According to Mr. Snyder, the aircraft was flying too fast to land. When the aircraft passed over, Mr. Snyder saw a glint off of a visor or sunglasses. He had not been able to identify the pilot-in-command. From the comments of the others present, Mr. Snyder assumed that it was the Appellant.  

 

[27] The Appellant submits that Mr. Snyder must have convinced himself, given that comment, that he had seen his aircraft on the morning of June 14, 2008. That afternoon, on the Kunz farm, Mr. Snyder saw the Appellant, who was wearing wraparound sunglasses, exit the aircraft bearing registration mark C‑IBCZ. The glasses could have caused the glint that he had seen during the low-altitude flyover. Nevertheless, Mr. Snyder could not positively identify the Appellant as the pilot-in-command of the aircraft.

[28] Mr. Sinclair, who was near the approach end of the Kunz airstrip next to Mr. Snyder, noted that the aircraft bore the registration mark C-IBCZ. Mr. Sinclair did not notice the colour of the aircraft, nor could he identify the Appellant as the pilot-in-command of the aircraft bearing registration mark C‑IBCZ, as he did not know him. According to the Appellant, it is possible that Mr. Sinclair was confused about the letters he saw, given that they are only six inches high.

[29] According to the Appellant, the Minister's evidence is so riddled with assumptions and contradictions that the Review Member should not have relied on the testimony in question in support of his determination.

[30] However, the Minister submits that Mr. Sinclair did indeed note on the morning of June 14, 2008, that the aircraft bore the registration mark C-IBCZ. A search performed by Inspector Oonagh Elliott in the database of the Canadian Civil Aircraft Register confirmed that the aircraft bearing the registration mark C-IBCZ was registered in the Appellant's name. Although Mr. Wolf could not positively identify the Appellant, his testimony was supported by that of Mr. Sinclair, who noted the registration mark of the aircraft that had flown at low altitude over the Kunz airstrip on the morning of June 14, 2008. Mr. Snyder, who was next to Mr. Sinclair, also saw the same aircraft fly at low altitude over the Kunz airstrip without landing.

[31] The Appellant alleges that on the morning of June 14, 2008, he flew in loose formation with Mr. Kubassek toward the Brussels aerodrome, north of the Kunz aerodrome. The Appellant stated that he maintained a 45-degree angle behind Mr. Kubassek's aircraft the whole time, at a distance of half a mile, and that the two aircraft were closely matched in performance. Mr. Goddard, a passenger in Mr. Kubassek's aircraft, testified that he saw the Appellant's aircraft every time he turned around to check for it. Mr. Goddard did not, however, keep the Appellant's aircraft in view at all times.

[32] In the face of contradictory evidence, the Review Member must attempt to determine the most likely version of events in light of all the circumstances described. After reviewing all the evidence, the Review Member determined that the evidence was in favour of the Minister. From the Appeal Panel's perspective, the fact that Mr. Sinclair noted the registration mark of aircraft C‑IBCZ was the determinative element in the analysis of the evidence carried out by the Review Member on the balance of probabilities, despite the consistent testimonies of the Appellant's witnesses.

[33] Mr. Snyder indicated that he was with Mr. Sinclair when he saw an aircraft on the morning of June 14, 2008, fly low over the Kunz airstrip without landing. His testimony corroborates Mr. Sinclair's with respect to a low flyover by an aircraft. Even though Mr. Wolf was unable to identify the aircraft as being the Appellant's, his testimony on the colour and type tends to corroborate and complete the testimonies of Messrs. Sinclair and Snyder. Inspector Elliott established that aircraft C-IBCZ was registered under the Appellant's name.

[34] The Review Member was also influenced by the fact that Mr. Goddard, the passenger in Mr. Kubassek's aircraft, did not keep the Appellant's aircraft, which was flying in loose formation with Mr. Kubassek's aircraft, in constant view. The Review Member also accepted the evidence of Messrs. Kubassek and Goddard that it was possible that the Appellant had left the formation that morning, flown over the Kunz airstrip and returned to the formation.

[35] The Appeal Panel is of the view that Mr. Sinclair's testimony regarding the aircraft's registration mark, which was completed and corroborated by the testimony of Messrs. Wolf and Snyder and the admission by the Appellant's witnesses that the Appellant could have left the formation and returned, was enough to convince the Review Member that, on the balance of probabilities, the Minister's version was more plausible and more representative of the events that actually occurred on the morning of June 14, 2008. The unequivocal testimony of Mr. Sinclair, a disinterested party who knew neither the Appellant nor his aircraft, was determinative.

[36] In The Law of Evidence in Civil Cases (Toronto: Butterworth, 1974, at pp. 530-31), authors Sopinka and Lederman have the following to say about contradictory evidence regarding an essential element of an offence:

Absent extenuating circumstances, the testimony of disinterested witnesses should prevail over that of persons who are or may be interested in the result. 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. One judge has put it this way:

". . . when the evidence of an important fact is contradictory . . . the Court must weigh the motives of the witnesses, their relationship with the parties, their attitude and demeanour in the box, the way in which they gave evidence, the probability of the facts sworn to, and come to a conclusion regarding the version which should be taken as the true one. . . ."

[37] According to the Appeal Panel, the Review Member is in the best position to evaluate the evidence before him. In this case, the Review Member made reasonable findings of fact, which must be confirmed.

[38] Consequently, the Appeal Panel rejects the item "Identification of the Appellant and his aircraft" under ground 1 for appeal.

(2) Time at which the Appellant's aircraft was seen

[39] The Appellant submits that the Minister did not establish the time at which the contravention occurred. Schedule A of the Notice of Assessment of Monetary Penalty ("Notice") states that the contravention took place on June 14, 2008, in New Hamburg, at approximately 14:00 UTC, or 10:00 a.m. (local time).

[40] The Appellant submits that the Minister's three witnesses said that they had seen a low‑flying aircraft at different times. Mr. Sinclair saw an aircraft bearing registration mark C‑IBCZ fly at low altitude over the Kunz airstrip, without landing, shortly before 10:00 a.m., while Mr. Snyder claims to have seen the same thing at about 10:30 a.m. Mr. Wolf testified that he had seen a beige J‑4 Cuby Coupe aircraft in short final at about 10:00 a.m. on June 14, 2008, while he was joining the downwind leg of the Kunz aerodrome circuit.

[41] The Appellant claims that nobody could have seen him at or near the Kunz aerodrome at around 10:00 a.m. on June 14, 2008, as he was at home at the time, checking the weather forecast. The Appellant submits that he left shortly after 10:00 a.m. to join Mr. Kubassek's aircraft in loose formation. The Appellant stated that he was not in the vicinity of the Kunz aerodrome until 10:15 a.m., when he saw Mr. Wolf's Beaver aircraft parked by the Kunz barn, not far from the runway.

[42] The Appellant's testimony is corroborated by Mr. Kubassek's. The latter states that he left his home at about 9:45 a.m. on June 14, 2008, and flew over the Lubitz aerodrome. Mr. Kubassek stated that he flew above the aerodrome for at least 15 minutes, waiting for the Appellant to join him in loose formation to fly toward Brussels. Given that the Appellant's aircraft and Mr. Kubassek's are closely matched in performance, 65 miles per hour at most, and that the Kunz aerodrome is located 10 miles north of the Appellant's, it would have taken Messrs. Lubitz and Kubassek at least 10 minutes to reach the Kunz aerodrome. The Appellant's aircraft could therefore not have been seen near that aerodrome before at least 10:10 a.m.

[43] According to the Appellant, the testimonies of Messrs. Wolf, Snyder and Sinclair diverge too much on this important element of the contravention to be credible. The Review Member should have, according to the Appellant, preferred the consistent testimony of his own witnesses with respect to the time of the alleged contravention in light of the circumstances described.  

[44] The Appellant did not admit to having been in the vicinity of the Kunz airstrip at around 10:00 a.m. on June 14, 2008, contrary to the Review Member's assertion at paragraph [30] of his determination. The Review Member nevertheless concluded that it was highly probably that the Appellant's aircraft had been seen at about 10:00 a.m. He preferred to accept the version put forth by the Minister's witnesses rather than that of the Appellant, who denied having committed the offence, claiming that he was at home checking the weather forecast at 10:00 a.m. and that he had left shortly thereafter to join Mr. Kubassek's aircraft in loose formation.

[45] The Review Member based his determination on the fact that Mr. Sinclair saw, at approximately 10:00 a.m. on June 14, 2008, an aircraft bearing registration mark C-IBCZ fly at low altitude over the Kunz aircraft without landing. Although Mr. Snyder, who was beside Mr. Sinclair at the approach end of the Kunz airstrip, said that he had seen the aircraft fly low over the airstrip at around 10:30 a.m. without landing, the fact remains that both witnesses simultaneously saw the same aircraft fly low over the Kunz airstrip that morning. A 30‑minute difference between the two testimonies is not a determinative factor undermining Mr. Sinclair's credibility.

[46] Mr. Sinclair noted the aircraft's registration mark at about 10:00 a.m. on June 14, 2008. The fact that Messrs. Sinclair and Snyder saw the aircraft at the same time convinced the Review Member that the aircraft bearing registration mark C‑IBCZ was indeed spotted at about 10:00 a.m. on June 14, 2008. The testimonies of Messrs. Snyder and Sinclair also confirmed that of Mr. Wolf, who said that he had seen, shortly before 10:00 a.m. that day while completing the downwind leg of the Kunz aerodrome circuit, a beige J‑4 Cuby Coupe aircraft on short final to the Kunz airstrip.

[47] The Appeal Panel is of the view that this finding of fact is based on the evidence presented at the Review Hearing and that it is reasonable. The Review Member was best placed to evaluate the evidence before him and make the necessary findings of fact.

[48] Accordingly, the Appeal Panel rejects the item "Time at which the Appellant's aircraft was seen" under ground 1 for appeal.

(3) Position of the Appellant's aircraft, as well as the number of aircraft seen the morning of June 14, 2008, and their positions

[49] The Appellant has also based his arguments on the fact that the Minister's witnesses contradicted each other on the positions of the aircraft they saw the morning of June 14, 2008.

[50] Mr. Wolf saw two aircraft while he was approaching the Kunz aerodrome. While he was south of Erb's Road, travelling east above Nafziger Road, he first saw, at 800 feet AGL, a blue aircraft travelling in a northerly direction, at approximately the same altitude as his. A few minutes later, after joining the downwind leg of the Kunz aerodrome circuit, he saw a beige J‑4 Cuby Coupe aircraft on short final to the Kunz airstrip, at an altitude much lower than his. Mr. Wolf did not notice any aircraft in loose formation to the right of the blue aircraft that he had seen when he was south of Erb's Road. He said that he had seen the blue aircraft and the beige Cuby Coupe aircraft at very different altitudes and locations.

[51] Mr. Kubassek testified that he had flown at the head of a loose formation with the Appellant at an altitude of 700 feet AGL for the entire flight to Brussels. The Appellant's aircraft, which was slightly behind and to the right of his own, arrived in Brussels shortly after he did. When he arrived in the vicinity of the Kunz aerodrome, the Appellant noted that there was a Beaver aircraft parked near the Kunz barn.

[52] Mr. Snyder, who was near the approach end of the Kunz airstrip, said that he first heard Mr. Wolf's Beaver and then saw it in the downwind leg of the circuit. At about the same time, he saw a blue Champ aircraft at an approximate altitude of 1 000 feet AGL, heading in a northerly direction halfway between the Kunz airstrip and Nafziger Road. Shortly after that, he saw a third aircraft about a mile from the blue aircraft. It was coming from the south and flying at low altitude over the Kunz airstrip, too fast to land. Beside him, Mr. Sinclair was able to identify the aircraft's registration mark as being C-IBCZ.

[53] Mr. Snyder's testimony corroborates Mr. Wolf's on the fact that the blue aircraft and the beige Cuby Coupe were seen at very different altitudes and locations. According to Mr. Snyder, the blue aircraft was flying alone in a northerly direction, east of the Kunz airstrip, at an altitude much higher than that of the beige aircraft he had seen when he had been with Mr. Sinclair. The morning of June 14, 2008, the blue aircraft flew low over the Kunz airstrip without landing on it. The Appellant attempted to discredit Mr. Snyder's testimony by pointing out that he had miscalculated the distances between the aircraft. The fact that Mr. Snyder thought that the blue aircraft was one mile rather than half a mile from the location where he had first seen the Appellant flying low over the Kunz airstrip does not impugn the Minister's evidence.

[54] Moreover, the Appeal Panel is of the view that the fact that Mr. Sinclair did not see the blue aircraft is not really material to the alleged contravention. The Review Member did not accept this detail put forth for the purpose of discrediting the witness with respect to his recollection of the events. The fact that Mr. Sinclair noted the aircraft's registration mark when it passed in front of him while flying over the Kunz airstrip was more important to the Review Member than the fact that he did not notice the blue aircraft flying outside the aerodrome circuit.

[55] Therefore, the Appeal Panel finds that the Review Member's findings of fact were reasonable and supported by the evidence.

[56] Therefore, the Appeal Panel rejects the item "Position of the Appellant's aircraft, as well as the number of aircraft seen the morning of June 14, 2008, and their positions" under ground 1 for appeal.

B. Ground 2 for appeal

Testimonies relating to the Appellant's character and to events not related to the alleged contravention are not relevant and should be rejected

(1) The Appellant's reputation

[57] The Appellant alleges that the Minister's evidence contains several disparaging remarks about his conduct relating to events that have nothing to do with the contravention described in the Notice. The Minister's evidence is therefore an unfair attack on the Appellant's reputation as an aviator. The allegations constitute hearsay and should not be admitted into evidence. According to the Appellant, the Review Member should not have referred in his determination to the warning from the insurance agent from the Recreational Aircraft Association Canada. The insurance agent had told Mr. Wolf that, if non-standard procedures were used by aircraft arriving and departing from a fly-in, the event could be deemed an air show and no insurance coverage would be provided (paragraph [7] of the Review Determination).

[58] The Review Member may admit any evidence that he considers relevant when hearing the parties. Relevant evidence is evidence that tends to prove or disprove the existence of a disputed fact. The Review Member must then determine the evidential weight to be attached to it.

[59] To prove the contravention, the Minister had to establish the following elements on the balance of probabilities:

  • approximate date and time of the contravention;
  • place of the contravention;
  • identity of the pilot-in-command;
  • identity of the aircraft; and
  • place, time and date the pilot-in-command operated the aircraft at an altitude of less than 2 000 feet AAE when it was not for the purpose of landing.

[60] The Appellant's character and reputation with respect to similar facts before or after the alleged contravention are not among the elements that the Minister must prove to establish, on the balance of probabilities, that there has been a contravention of the CARs. Such evidence is neither relevant nor admissible with respect to the contravention of which the Minister accuses the Appellant.

[61] In our view, the Review Member addressed the insurance coverage issue to provide context for why Mr. Wolf reported the low-altitude flyover that took place on June 14, 2008. The Review Member did not consider this issue in his analysis of the facts (Part IV of the Determination) to render his Determination on whether the Appellant had or had not flown over the Kunz aerodrome at an altitude of less than 2 000 feet AAE for a purpose other than landing. He also did not consider the impressions or assumptions of Messrs. Wolf and Snyder regarding the Appellant's reputation as an aviator, the state of their relationship with the Appellant or facts that occurred before or after the contravention under appeal and that were alleged in paragraphs [5], [7], [9] and [10] of the Review Determination, which relies on and is rightly limited to the testimonies heard and the documentary evidence specifically related to the elements of the contravention, ignoring any irrelevant elements.

[62] In light of this, the Appeal Panel rejects ground 2 of the appeal.

C. Two items raised by the Appellant

(1) Afternoon of June 14, 2008

[63] The Appellant attempted to undermine the credibility of the Minister's witnesses regarding the events that occurred on the afternoon of June 14, 2008, specifically with respect to Mr. Kubassek's missed approach. The only relevant elements of the evidence submitted that the Review Member could integrate into his analysis were the photographs (Exhibit M‑12) of the aircraft bearing registration mark C‑IBCZ, taken by Mr. Sinclair on the afternoon of June 14, 2008, and showing that it was indeed the aircraft that he had seen flying at low altitude over the Kunz airstrip on the morning of June 14, 2008, without landing. Mr. Snyder stated that, on the afternoon of June 14, 2008, the man he saw exiting the aircraft bearing registration mark C‑IBCZ was wearing sunglasses that may have caused the glint. According to him, it was the same person who had flown at low altitude over the Kunz airstrip without landing.

 

[64] The Review Member did not give any weight to the glint observed by Mr. Snyder during the low-altitude flight over the Kunz airstrip when analyzing the facts to render his determination.

[65] The photographs (Exhibit M‑12) clearly show that Mr. Wolf saw a beige aircraft bearing the red stripes observed by Mr. Snyder.

[66] The Review Member was correct to limit his analysis to the events of the morning of June 14, 2008, as the events of the afternoon were unrelated to the contravention described in the Notice.

[67] Given this, the Appeal Panel rejects the item "Afternoon of June 14, 2008" raised by the Appellant.

(2) Appellant's altitude in vicinity

[68] During the Review Hearing, the Appellant admitted that, on the morning of June 14, 2008, he operated his Cuby Coupe bearing registration mark C‑IBCZ in the vicinity of the Kunz airstrip at an altitude of 700 feet AGL. However, he denied having flown over the Kunz airstrip, which he could not see to his left, as his vision was impaired by a 41‑degree blind spot. The Appellant did, however, tell Inspector Elliott that he noticed the Kunz airstrip while flying over it (Exhibit M-24) at an altitude of 700 feet AGL, much lower than the altitude permitted by subsection 602.96(4) of the CARs.

[69] The Review Member did not consider this point, preferring the version of the Minister's witnesses, particularly that of Mr. Sinclair, who saw the aircraft bearing registration mark C‑IBCZ fly along the runway centre line on June 14, 2008, at an altitude of about 200 feet, without landing. This constituted a contravention under subsection 602.96(4) of the CARs. The Review Member also accepted that Mr. Wolf had had to extend his downwind circuit to allow the aircraft he had seen lined up along the centre line of the Kunz runway on short final to land and park. Notwithstanding the Review Member's determination, the Appellant was prohibited from operating his aircraft at an altitude of less than 2 000 feet AAE for a purpose other than landing.

[70] Subsection 3(1) of the Act defines the term "aerodrome" as follows:

"aerodrome" means any area of land, water (including the frozen surface thereof ) or other supporting surface used, designed, prepared, equipped or set apart for use either in whole or in part for the arrival, departure, movement or servicing of aircraft and includes any buildings, installations and equipment situated thereon or associated therewith.

Consequently, the Review Member correctly found that the aircraft bearing registration mark C‑IBCZ had flown over an aerodrome, the Kunz airstrip, at an altitude of less than 2 000 feet without landing, contrary to the requirements of subsection 602.96(4) of the CARs.

V. SANCTION

 

[71] Transport Canada prescribes a fine of $750 to $3 750 for a first contravention of subsection 602.96(4) of the CARs. The Minister assessed a fine of $1 500 because of certain aggravating factors.

[72] First, the Appellant, a highly experienced pilot and member of an ultralight pilots association, should have known that flying at low altitude over the Kunz airstrip for a purpose other than landing was prohibited. Second, by giving Mr. Wolf the impression that he was going to land on the Kunz runway, the Appellant forced Mr. Wolf to extend his circuit. In the case of an emergency, Mr. Wolf could have had difficulty gliding his aircraft to the runway. The purpose of subsection 602.96(4) of the CARs is to ensure that pilots operating in the vicinity of an aerodrome follow established procedures to avoid any risk of accident or collision. The Appeal Panel is of the view that a fine of $1 500 is dissuasive and appropriate, despite being the Appellant's first contravention.

VI. DECISION

[73] Accordingly, the Appeal is dismissed, and the monetary penalty of $1 500 assessed by the Minister of Transport is upheld.

September 28, 2010

Reasons for Appeal Decision: Suzanne Racine, Member

Concurred by: J. Richard W. Hall, Chairperson

Franco Pietracupa, Member