Decisions

TATC File No. O-4005-33
MoT File No. Z5504-080842 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Martin Toutant, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433. s. 601.04(2)


Review Determination
Caroline Desbiens


Decision: November 19, 2015

Citation: Toutant v. Canada (Minister of Transport), 2015 TATCE 19 (Review)

[Official English translation]

Heard in: Ottawa, Ontario, on June 18, 2014 and in Montréal, Quebec, on September 17, 2014 and March 31, 2015

REVIEW DETERMINATION AND REASONS

Held: The Tribunal holds that the Minister of Transport has proven, on the balance of probabilities, the disputed elements in this application for review and that the applicant cannot use the due diligence defence. The Tribunal upholds the monetary penalty of $750 imposed by the Minister for a contravention of subsection 601.04(2) of the Canadian Aviation Regulations.

The total amount of $750 is payable to the Receiver General of Canada and must be received by the Tribunal within 35 days of service of this determination.

I. Background

[1] On August 29, 2013, pursuant to section 7.7 of the Aeronautics Act, R.S.C. (1985), c. A‑2(Act), the respondent issued a notice of assessment of monetary penalty to the applicant, alleging a contravention of subsection 601.04(2) of the Canadian Aviation Regulations, SOR/96‑433 (CARs). According to the respondent, on or about June 5, 2013, at approximately 15:39 UTC (Coordinated Universal Time), the applicant operated an American Aviation AA‑5A type aircraft bearing Canadian registration C‑GVKV in the Class F Special Use Restricted airspace known as area CYR 538 without having been authorized to do so by the person specified for that purpose in the Designated Airspace Handbook, thereby contravening subsection 601.04(2) of the CARs.

[2] The respondent is seeking a monetary penalty of $750.

[3] The applicant disputes the notice of assessment of a monetary penalty.

II. STATUTES AND REGULATIONS

[4] Section 601.04 of the CARs provides:

601.04 (1) The procedures for the operation of aircraft in Class F Special Use Restricted airspace and Class F Special Use Advisory airspace are those specified in the Designated Airspace Handbook.

(2) No person shall operate an aircraft in Class F Special Use Restricted airspace unless authorized to do so by the person specified for that purpose in the Designated Airspace Handbook.

(3) For the purposes of subsection (2), a person specified in the Designated Airspace Handbook may authorize the operation of an aircraft where activities on the ground or in the airspace are not hazardous to aircraft operating in that airspace and access by aircraft to that airspace does not jeopardize national security interests.

[5] The Designated Airspace Handbook (effective May 2, 2013) provides that the Royal Canadian Mounted Police (RCMP) is the person specified to issue authorizations in the CYR 538 Rideau Hall (Ontario) area pursuant to the aforementioned subsection 601.04(2). As mentioned hereafter, an excerpt from the Designated Airspace Handbook was introduced into evidence (Exhibit M‑4). The applicant does not dispute this piece of evidence.

[6] The excerpt from the Designated Airspace Handbook entered into evidence as Exhibit M‑4 in respect of area CYR 538 also states that the designated air space is located at an altitude of 3,000 feet with a radius of 0.35 miles centered on N45º26'40.00” and W075º41'32.00”.  CYR 538 is located above the residence of the Governor General of Canada.

[7] In the case at hand, the respondent decided to impose a monetary penalty of $750 on the applicant pursuant to section 7.7 of the Act for contravening the aforementioned subsection 601.04(2) of the CARs. The monetary penalty for this contravention was imposed pursuant to the Designated Provisions Regulations, SOR/2000‑112, as amended.

[8] Subsection 7.7(1) of the Act provides:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

III. ADMISSIONS

[9] The applicant acknowledges that he is the owner of the American Aviation AA-5A aircraft with registration C‑GVKV and that, on June 5, 2013, he took off from the Gatineau airport operating his aircraft on a visual flight rules (VFR) flight, heading toward Gray Rocks in the Mont-Tremblant area. He does not dispute the fact that he failed to obtain RCMP authorization, but denies that he entered area CYR 538.

[10] Furthermore, the applicant does not dispute that after taking off from the Gatineau airport on June 5, 2013, he identified himself to the Ottawa terminal and informed air traffic controller Lynne Girard of his intentions, namely, to conduct [translation] an “ILS 32 at minimum” approach in Ottawa, in other words, a simulated instrument flight rules (IFR) approach on runway 32, even though he was in a VFR flight.

[11] The fact that area CYR 538 is Class F restricted airspace at altitudes below 3,000 feet and therefore off limits without prior clearance by the RCMP is not being challenged.

[12] Furthermore, the fact that the applicant was in a VFR flight June 5, 2013 is not being challenged.

[13] The main question at issue is to determine whether the Minister has proven, on the balance of probabilities, that the applicant flew his aircraft into area CYR 538 below an altitude of 3,000 feet on June 5, 2013.

[14] Alternatively, in the event that the Tribunal finds that the respondent has discharged his burden of proof in respect of the elements of the alleged contravention, the second question at issue will consist of determining whether the applicant showed due care in complying with CARs section 601.04, in other words, whether he exercised due diligence to prevent the contravention pursuant to section 8.5 of the Act.

IV. PRELIMINARY ISSUES

[15] At the start of the hearing on June 18, 2014, the Minister's representative stated his intention of filing several documents as evidence and of calling three witnesses to testify, namely, Mr. Robert Gillespie, Ms. Lynne Girard and Mr. George Wright. The applicant stated he would call one expert witness, Mr. Robert Perreault.

[16] The Minister's representative asked that all of the witnesses be excluded, including Mr. Robert Perreault. The applicant challenged this witness' exclusion, considering that Mr. Perreault was to assist him as expert witness throughout the hearing.

[17] A voir dire was thus held to determine whether Mr. Perreault could serve as an expert witness. Indeed, the Minister's representative challenged Mr. Perreault's qualifications as an expert witness. The Minister also challenged Mr. Perreault's independence considering that he had previously discussed the facts of the case with the applicant.

[18] The respondent filed Mr. Perreault's curriculum vitae as Exhibit R‑1.

[19] Mr. Perreault gave testimony concerning his expertise and experience. Mr. Perreault is a nuclear engineer and obtained his bachelor's degree from the Université de Montréal in 1971. He has 47 years of experience as a pilot, holds an air traffic controller licence and has 34 years of experience as an air traffic controller with the IFR/VFR ratings, CZUL and CYHU from 1971 to 2005. He has Transport Canada accreditation to update pilot skills in accordance with CARs Standard 421.05 and as such has delivered training programs on controlled airspace, aviation communications, and use of the Canada Flight Supplement (CFS). He was also team supervisor at the Montréal control tower for Transport Canada from 1981 to 1988, shift manager at the same airport for Transport Canada and NAV CANADA from 1988 to 2004, operations manager at the same airport for Transport Canada and NAV CANADA from 1988 to 2004, Transport Canada tower superintendent for the Montréal Region from 1991 to 1995 and operations manager for NAV CANADA in Ottawa from 2004 to 2005. On cross-examination by Mr. Forget, Mr. Perreault acknowledged that he discussed the facts of the case with the applicant and that he was present at the hearing to assist in interpreting the applicable rules and technical arguments of the case based on the evidence introduced by the respondent.

[20] The applicant stated that Mr. Perreault's presence was important to him in order to be able to refer to his technical expertise. Mr. Perreault is well-versed in air traffic control operating systems, familiar with the culture at the Montréal control centre, and his presence is important for radar data interpretation in relation to aviation safety and the air traffic controller's role.

[21] Mr. Perreault was qualified as an expert witness for the applicant, more specifically in relation to interpreting air traffic control radar data and the procedures that air traffic controllers are required to apply in the course of their duties. Mr. Perreault was therefore permitted to remain at the hearing to assist Mr. Toutant. In response to the Minister's argument concerning the witness's independence and impartiality, however, the parties were informed that it is the Tribunal's responsibility to establish the credibility of expert witnesses, and that such credibility is assessed during their testimony.

[22] At the hearing on March 31, 2015, to rebut the expert report by Mr. Perreault, the respondent asked the Tribunal to hear the testimony of two expert witnesses, Mr. Michael Bourget and Mr. Jacques Lemire, both NAV CANADA employees. The applicant's counsel raised no objection to the expert testimony of these individuals, provided that Mr. Perreault could be called again to give rebuttal evidence, and that the two expert witnesses did not testify on the same matter. The applicant's counsel clarified that Mr. Bourget would testify concerning the Air Traffic Control Manual of Operations
(MANOPS) while Mr. Lemire would testify concerning the WINRAD radar system. While the applicant had no objections, both expert witnesses were nevertheless qualified in advance of their testimony to allow them to remain in the hearing room to assist the respondent's counsel.

[23] Mr. Bourget is a NARDS system and radar data operations specialist with NAV CANADA. Mr. Bourget explained that NARDS is a radar system primarily used as a back-up system in air traffic control towers and VFFS towers across Canada. Mr. Bourget has held his position since 2013. He is an air traffic controller licensed for the Mirabel airport since 2001, and a licensed air traffic controller for the Ottawa tower since 2003. Prior to obtaining his specialist position, he was therefore an air traffic controller for two years at Mirabel and eight years at Ottawa. In 2013, he also became a qualified NARDS system instructor. Mr. Bourget's curriculum vitae was filed as Exhibit M-10.

[24] Mr. Lemire is a surveillance systems specialist for NAV CANADA. He has held this position since about 1996, or 19 years. His air traffic control qualifications consist of 20 years as an air traffic controller with the Canadian Armed Forces. He worked as an air traffic controller at several bases, including Valcartier, Bagotville and in Germany. He ended his military career as an instructor in Cornwall. After 20 years, he accepted an air traffic control instructor position with Transport Canada and later worked full-time in Ottawa as an operations system surveillance specialist (radar, ADS-B and WAM). Mr. Lemire's curriculum vitae was filed as Exhibit M‑11.

[25] Both experts were approved as expert witnesses for the respondent Minister.

V. EVIDENCE

A. Minister's Evidence

(1) Robert Gillespie

[26] Mr. Gillespie investigated the elements of the contravention alleged against the applicant. He currently heads the Transport Canada tactical team for flight operations, and has held this position since January 2014. He previously worked as an air traffic controller at Pearson International Airport and as flight operations investigator from 2012 to 2014. He has 22 years of experience in the aviation field, including 18 years as a professional pilot. He has 8,000 hours of experience as an airline pilot and also worked as a Transport Canada pilot examiner and a flight trainer.

[27] During Mr. Gillespie's testimony, the Minister's counsel entered the following documents into evidence:

· Exhibit M-1: excerpt from the journey logbook of aircraft C-GVKV establishing that the aircraft in question took off on June 5, 2013 from the Gatineau executive airport (CYND) heading for Gray Rocks near Mont-Tremblant (CSZ3);

· Exhibit M-2: excerpt from the Canadian Civil Aircraft Register showing that the aircraft registered as C‑GVKV has been owned by the applicant since October 14, 2005;

· Exhibit M-3: excerpt from the Distributed Air Personnel Licensing System for licence number 741059 dated September 24, 2013 establishing the applicant as the holder of private pilot's licence number 741059 with SEL (single-engine landplanes) rating;

· Exhibit M-4: excerpt from the Designated Airspace Handbook number 236, taking effect on May 2, 2013 and pertaining to the special area CYR 538 Rideau Hall (Ontario), with the specification that no one may enter the area in question at an altitude of 3,000 feet or less without prior clearance from an RCMP officer;

· Exhibit M-5: email from Mr. Daniel Bernier, RCMP officer, to Mr. Gillespie dated October 7, 2013, confirming that on June 5, 2013, Mr. Toutant, owner of the aircraft bearing registration C-GVKV, did not obtain clearance to enter area CYR 538, a Class F Special Use Restricted airspace. This exhibit also includes Mr. Gillespie's initial email to Mr. Bernier on October 7, 2013 asking him to check whether Mr. Toutant had obtained such clearance;

· Exhibit M-6: excerpt from the CFS in force from May 2, 2013 to June 27, 2013, showing area CYR 538 and indicating a restricted area up to an altitude of 3,000 feet;

· Exhibit M-7: report generated by the Civil Aviation Daily Occurrence Reporting System (CADORS) obtained by witness Gillespie concerning the incident on June 5, 2013 involving the alleged contravention;

· Exhibit M-8: letter from Mr. Gillespie to the Pearson Transport Canada Center comprising a request for information and documentation related to Mr. Gillespie's investigation. The aim of this letter dated June 13, 2013 was to obtain the name of the air traffic controller involved at the Ottawa terminal and a copy of all audio and radex data tapes (file on CD) related to the incident, as well as a copy of the flight plans;

· Exhibit M-9: letter from NAV CANADA (Mr. Ben Girard) dated August 21, 2013 to Mr. Gillespie, containing the information requested in relation to his investigation, i.e., the name of the sector (Ottawa Tower) and the name of the controller (Lyne Girard [sic]). According to this letter, NAV CANADA also sent Mr. Gillespie a CD of the audio and radex files, as well as a copy of the flight plans. The CD forwarded by NAV CANADA containing radar and audio data for the flight in question was entered as M‑9‑A and, as M-9-B, a bundle of four screenshots taken from Exhibit M-9-A.

[28] Mr. Gillespie stated that the Designated Airspace Handbook, an excerpt of which was filed as Exhibit M-4, is a document published by Transport Canada and available to all pilots online. It identifies the various airspace designations in Canada. For the purposes herein, it specifies that the restricted airspace known as CYR 538, within a 0.35‑mile radius centred on N45º26'40.00” and W075º41'32.00”, is continuously active and may not be entered at 3,000 feet of altitude or less without clearance from an RCMP official. In filing Exhibit M-5, Mr. Gillespie confirmed that the RCMP told him it had not received any request for clearance from the applicant concerning the aircraft bearing registration C‑GVKV to enter Class F Special Use Restricted airspace CYR 538. He also stated that the CFS (Exhibit M-6) is available to pilots. He testified that the CADORS report, Exhibit M-7, states that American Aviation AA-5A aircraft bearing Canadian registration C‑GVKV departing from Gatineau (CYND) and headed to Saint-André-Avellin (CAA2) near Mont-Tremblant had been located north of airspace CYR 538 heading south and that the pilot had requested a simulated ILS approach toward Ottawa. The air traffic controller instructed the pilot to climb to an altitude of 3,100 feet in order to avoid area CYR 538. The air traffic controller then noted that the aircraft was still at an altitude of 2,600 feet and informed the pilot that he was about to enter area CYR 538. The pilot requested vectors, but by this time it was too late and the aircraft entered the restricted airspace.

[29] On cross-examination, Mr. Gillespie was unable to specify whether the 0.35 mile radius shown in Exhibit M-4 (Designated Airspace Handbook) for area CYR 538 referred to a nautical mile or a statute mile. He confirmed that the altitude of 3,000 feet was in relation to sea level (ASL) even though it is not shown on Exhibit M-4. He did not investigate the air traffic controller's actions in the circumstances since they were not the focus of the contravention and he does not know whether the air traffic controller was reprimanded following the incident. In the course of his investigation, he did not consider the difference alleged by the applicant between the altitude of 2,800 on the radar image in Exhibit M-9-B and of 2,600 in the CADORS report. Inspector Gillespie continued by saying that even if the altitude specified by the air traffic controller had been 2,800 feet instead of 2,600 feet, he would have issued a notice of contravention to the applicant in any event, since such altitude is below the minimum 3,000 feet required for the area in question. In his study of the radar and audio data relevant to the incident, Mr. Gillespie found no evidence of any air traffic likely to interfere with the applicant's aircraft, and did not consider this possibility in his decision to issue a notice of contravention. He did not recall discussing this aspect of the case with the applicant by telephone, or having asked the applicant about his altitude when they spoke about the incident by telephone. Mr. Gillespie stated again that even if the applicant had entered the restricted airspace at 3,000 feet, he would have recommended issuing a penalty since he would have required a clearance for altitudes of 3,000 feet or less.

[30] Concerning calibration of the applicant's altimeter, Mr. Gillespie did not know whether it was subject to a margin of error of 20 feet and did not recall having asked the applicant about his altimeter's margin of error. Mr. Gillespie acknowledged that radar's range of accuracy was within approximately 100 feet, i.e., roughly 50 feet more or less than the reported altitude. Mr. Gillespie agreed that there was indeed air traffic at the time the applicant entered area CYR 538 but added that he had not taken it into account because it did not affect the applicant. He testified having noted the presence of the aircraft bearing registration C‑IJKY but considered that it was heading north-east, and would not create any conflict considering the heading of the applicant's aircraft. Mr. Gillespie was also unaware whether, between May 2013 and October 2013 any other CADORS incident reports had been submitted for the same restricted airspace above the Governor General's residence. In this regard, the applicant produced a list of CADORS he had compiled concerning areas CYR 538 and CYR 537 between September 2013 and May 7, 2013 (in reverse chronological order). The Minister's representative objected to the submission of this exhibit and the objection was conditionally sustained since the applicant had not yet testified about the source of the document at the time of the cross-examination. This document was temporarily numbered R-2 at the hearing but was subsequently withdrawn because the applicant did not testify. In any case, Mr. Gillespie stated he was unaware of any cases similar to the applicant's case between May 2013 and October 2013. He specified that in 2012, the restricted airspace limit had increased from 1,500 feet to 3,000 feet.

[31] Mr. Gillespie did not recall any cases in which the pilot was forced to enter restricted airspace due to heavy traffic. On the contrary, he stated that anyone entering restricted airspace without RCMP clearance was assessed a monetary penalty. Mr. Gillespie acknowledged that in the course of his duties, while investigating various contraventions, he had previously asked a number of pilots the reason they entered restricted airspace in order to understand trends or pilot habits, but stated that the pilots' comments were not forwarded to his supervisor. To his knowledge, he had never received an RCMP complaint concerning an excessive number of aircraft in restricted area CYR 538. Moreover, the security issues related to the restricted area are outside his authority and are managed at a higher level. Mr. Gillespie did not interview anyone who had witnessed from the ground the applicant enter the restricted airspace. For the purposes of his investigation, Mr. Gillespie relied on radar evidence, which he believed showed conclusively that the applicant was not above 3,000 feet in altitude when he entered the restricted airspace. Lastly, Mr. Gillespie acknowledged that he did not contact NAV CANADA to determine whether it had investigated the incident given that, for the purposes of his investigation, the matter was irrelevant since the offence was one of strict liability.

(2) George Wright

[32] Mr. Wright is a manager with NAV CANADA and an engineer specializing in air traffic management and navigation surveillance. In particular, his duties involve managing radar and navigational aids, such as data reporting and processing for air traffic controllers. He has worked with Transport Canada and NAV CANADA for thirty-eight (38) years and has experience with various navigational aid-related tasks, including navigation, weather and altimeter data processing. He is not a pilot, and his primary expertise pertains to radar detection and radar data reporting for air traffic controllers. Mr. Wright provided his interpretation of the radar data and audio data filed as Exhibit M-9-A and of the screenshots filed as Exhibit M-9-B. Mr. Wright stated that the margin of error shown on the radar screen is 100 feet of altitude, meaning that an aircraft may be 50 feet more or less above or below the altitude shown on radar, based on sea level (ASL).

[33] Using radar data from the WINRAD system (Exhibit M-9‑A), Mr. Wright identified the applicant's aircraft bearing registration C‑GVKV north of restricted area CYR 538 at 2,000 feet above sea level (ASL) and showed it heading toward and inside the restricted airspace at 2,800 feet ASL. The screenshots (Exhibit M-9-B) also show the path followed by the applicant's aircraft until it left the restricted airspace at an altitude of 2,900 feet. Mr. Wright identified another aircraft bearing registration C‑IJKY on the radar screen, initially at 2,600 feet (outside the restricted airspace) and heading toward the applicant's aircraft, but on a different trajectory, and then at 2,000 feet and descending by the time the applicant's aircraft had reached 2,800 feet, and then to 1,900 feet and descending, whereas the applicant's aircraft was at 2,900 feet and climbing. Accordingly, Mr. Wright stated there was no potential for conflict between the two aircraft because the separation between them was sufficient. Mr. Wright explained that the radar data in question, which also appear on the screenshots in Exhibit M-9-B, come from the aircraft transponder data in Mode C. Transponders report data to NAV CANADA air traffic control systems through radar towers and the data then appears on the air traffic controllers' radar screens. Mr. Wright stated that if an aircraft's altimeter reads an altitude of 2,600 feet, the same altitude should appear on NAV CANADA radar if the aircraft pilot is using the same barometric reference pressure as the local air traffic control station. He added that the barometric pressure setting of NAV CANADA radar systems used by air traffic controllers is automatically adjusted every minute. Mr. Wright therefore stated that the NAV CANADA radar systems used across Canada are extremely reliable.

[34] On cross-examination, Mr. Wright responded that he had developed NAV CANADA radar data reporting programs but does not operate them. He did not know when the NAV CANADA radar system had last been calibrated prior to the incident on June 5, 2013. However, he stated that all systems are regularly maintained. He also emphasized that air traffic controllers are trained to notice aircraft positioning errors on their charts, and if they perceive a problem, they immediately ask the pilot to state the aircraft's altitude and position. Mr. Wright has never received complaints from pilots concerning altitude errors or abnormalities, such as a discrepancy of 100 to 200 feet in this restricted airspace. Mr. Wright did not know the exact distance or separation between the two aircraft, i.e., the applicant's aircraft C-GVKV and aircraft C‑IJKY also identified on the radar screen at the same time, but stated that an application allows air traffic controllers to determine such separation, adding that he would be able to do so using the application in question. Mr. Wright also mentioned that the radar data entered into evidence come from Ottawa control tower data. According to Mr. Wright, there is a processing delay of approximately one to two seconds between the transmission of aircraft altitude data by a transponder in Mode C and its being displayed on the air traffic controller's radar screen.

[35] On re-examination, Mr. Wright confirmed that NAV CANADA performs regular radar maintenance but added that he was not familiar with the exact procedure involved. According to Mr. Wright, aircraft altitudes shown on a radar screen are not affected by such maintenance. He also stated that if the radar were to display incorrect data, air traffic controllers would immediately detect the problem and issue flight restrictions in the affected area.

[36] Cross-examined again, Mr. Wright acknowledged that there may have been a discrepancy between the altitude data displayed on the radar screen and the altitude shown on the aircraft's altimeter if the pilot had not set the altimeter correctly.

(3) Lynne Girard

[37] Ms. Girard was on duty at the Ottawa terminal on June 5, 2013. Ms. Girard has worked as an Air Traffic Controller for NAV CANADA since January 2003. She was also an air traffic controller with the Canadian Armed Forces from September 1997 to November 2002.

[38] Ms. Girard testified after hearing an excerpt from the audio tape filed as Exhibit M-9-A. It was established that at approximately 11:37 (real time, not UTC time), Ms. Girard asked the pilot, Mr. Toutant, to state his intentions, and the pilot answered that he wanted to conduct [translation] an “ILS 32, at minimum, if possible [in] Ottawa.” The audio tape then recorded the exchange between the controller and the pilot as follows:

[Translation]

Controller: Victor/Kilo/Victor, Roger. Are you able to climb to 3,100 feet to clear the CYR?

Pilot: Climbing to 3,100 feet. Victor/Kilo/Victor.

Controller: Victor/Kilo/Victor, Roger. Please climb immediately. I have an aircraft approaching Rockcliffe, west of your position.

The audio tape then records the controller speaking to other aircraft before resuming contact with Mr. Toutant as follows:

[Translation]

Controller: Roger. Victor/Kilo/Victor, you are headed straight for the CYR, sir, at your 12 o'clock position, it's 3,000 feet.

Pilot: Do you have a vector, please?

Controller: Victor/Kilo/Victor, it's too late now, sir, you are right inside the area, so it's 3,100 feet to avoid the area. Keep climbing as fast as you can, sir.

Pilot: Victor/Kilo/Victor I was at maximum climb.

Controller: Roger.

[39] Ms. Girard summarized the incident by saying that the pilot, Mr. Toutant, contacted her asking to conduct an ILS approach on runway 32 at Ottawa airport, and that when she identified him, she saw that he was immediately north of restricted area CYR 538. She therefore asked him if he was able to climb to 3,100 feet to avoid the area, at which point the pilot confirmed to her that he was climbing to 3,100 feet. She then told him to climb without delay to avoid the area, and mentioned traffic west of his position. She spoke with the pilot of the other aircraft to tell him to descend because the applicant's aircraft was nearby, heading south, in order to ensure adequate separation between the two aircraft. In her second interaction with the applicant, Ms. Girard initially told him he was about to enter restricted airspace, and then that it was too late to vector him since he had already entered the area by this point.

[40] After listening to the audio tape at the hearing for a second time, it came to light that when the controller realized that it was too late and the applicant's aircraft was in restricted airspace, it was about 11:39, or 15:39 UTC, meaning that approximately two minutes had elapsed between the time the applicant had asked to conduct an ILS approach and the time it was noted that he had entered the area.

[41] Then, when asked about the radar data filed as Exhibit M-9-A, Ms. Girard began by stating that the applicant's aircraft first identified itself, and the letters FV changed to OA on the radar screen. According to Ms. Girard, this means that the aircraft in question was, to use her words, in her “jurisdiction” (page 74, lines 15-17 of the transcript dated September 17, 2014). The identification is made by the aircraft's transponder when the pilot activates the IDENT button. At about 15:38 UTC, the radar screen showed that that the applicant's aircraft was flying at an altitude of 2,700 feet, although he should have been at 3,000 feet, and that he was about to enter the CYR restricted area. More specifically, the radar screen showed that he was climbing at 2,700 feet at a speed of 90 knots, that he was completely inside the area at 2,800 feet and that he had reached 3,000 feet by the time he was almost out of the area. Therefore, Ms. Girard stated that he entered restricted area CYR 538 at 2,700 feet, or below the required altitude of 3,000 feet. Concerning the two minutes that elapsed between the two conversations between the applicant and the controller, she stated that during this time, she was speaking with other aircraft, and she acknowledged that she might have informed the applicant that he was heading directly into the area and might have warned him if she had not been speaking with other aircraft at the time. However, Ms. Girard stated that since she had asked him if he was able to climb to 3,100 feet to avoid the CYR and he had answered that he would, she counted on the pilot doing so, noting that he was flying VFR. She also stated that if the pilot had told her he did not have time to climb above 3,000 feet, she would have provided radar guidance to divert him eastward, away from the restricted airspace, to the right on the radar screen, since the other aircraft was on the left.

[42] Ms. Girard stated that she later had a third conversation that day with the applicant, during which she asked him why he had entered restricted airspace and had not followed her instructions. He told her that he did not know where the area was. It should be mentioned, however, that this audio tape was not located and is not included in Exhibit M-9‑A. Lastly, Ms. Girard stated that pilots take on greater responsibility when they fly VFR.

[43] On cross-examination, Ms. Girard stated that during her interaction with the applicant she was controlling six aircraft, three of them VFR and three IFR. She acknowledged that the situation was not complicated and that she was not extremely busy. Given the fact that she did not know the aircraft's heading or direction, she did not provide radar guidance when the applicant requested an ILS approach. Her initial intention was to have the applicant's aircraft pass over the airport and then lead it further eastward (to the right on the screen) to avoid traffic taking off from the Rockcliffe airport. Also, depending on the direction of the applicant's aircraft, she stated she could not direct it to the left because of another aircraft in the area. Given the applicant's altitude, she did not want him to enter the Rockcliffe airport area either, and she therefore asked if he could climb to 3,100 feet, since this heading was safe in relation to traffic to the left and the Rockcliffe airport to the right. When asked why she had not inquired to know the applicant's altitude, Ms. Girard explained that she does not always request altitude for VFR flights. She does so only when two aircraft are close together, simply to confirm their altitude. Also, concerning the applicant, she did not request his altitude because she had asked him instead to climb to 3,100 feet. She also explained that there was no need to request his altitude since there was no potential for conflict with another aircraft. The two aircraft were on her frequency and, she claimed, there were over six nautical miles between them when she spoke with the two pilots. She had asked the applicant to climb to 3,100 feet since she could not ask him to climb to 3,000 feet, an altitude that was still inside restricted CYR area.

[44] Ms. Girard also acknowledged that she did not know the applicant's rate of climb. When asked about the CADORS report (Exhibit M-7), and more specifically about the “other duties” she performed, Ms. Girard stated that she was busy watching four screens. She recalled that after speaking to the applicant, she had coordinated a situation with the tower concerning an aircraft headed toward Rockcliffe and for that reason she was not exclusively watching her screen, but had to carry out a full check of all her radar screens and the weather. She did not recall having taken a telephone call at this time. The CADORS report (Exhibit M-7) was completed by her supervisor after she reported the incident to him.

[45] On re-examination by the respondent's counsel, Ms. Girard stated again that if the applicant had told her he was unable to reach the requested altitude, she would have given him radar guidance around the restricted airspace to avoid entering it. However, the applicant at no time gave her any indication that he was unable to climb.

B. Applicant's Evidence

[46] The applicant elected not to testify.

(1) Robert Perreault

[47] Mr. Perreault primarily testified as an expert witness with regard to air traffic control and his general knowledge of the applicable rules in this field.

[48] Mr. Perreault's submission was supported by a PowerPoint presentation comprising the expert report filed as Exhibit R‑3. He based his information primarily on the Transport Canada Aeronautical Information Manual (AIM), a publication intended for pilots, filed as Exhibit R‑4, and the NAV CANADA Air Traffic Control Manual of Operations (MANOPS), intended for air traffic controllers, filed as Exhibit R‑5, with both documents cited based on the version in force on June 5, 2013. The presentation also relied on two statutory sources: Part IV of the CARs, entitled “Personnel Licensing and Training,” and Part VIII of the CARs, entitled “Air Navigation Services.” Mr. Perreault based his opinions on the facts entered into evidence by the respondent. According to Mr. Perreault, his interpretations were based not only on his experience as an air traffic controller but also as a pilot, supervisor, floor manager and operations manager at an air traffic control centre and as a control tower superintendent.

[49] First, using the chart on page 2 of his expert report (Exhibit R‑3), Mr. Perreault explained that the Gatineau airport is located on the right side of the screen and that airspace from ground level to 2,500 feet is Class E airspace, and from 2,500 feet to 12,500 feet, Class D airspace, controlled by the Ottawa terminal. Mr. Perreault stated that the applicant's aircraft was operating in Class D airspace controlled by the Ottawa terminal. For a VFR flight in Class D airspace, Mr. Perreault explained that controllers are not required to provide aircraft separation, i.e., to resolve flight conflicts, but may do so depending on their workload. The large circle centred on the Ottawa airport shown in the figure on page 2 delineates Class C airspace, located from ground level to an altitude of 1,900 feet. In class C airspace, Mr. Perreault stated that the obligation to separate aircraft is the sole responsibility of the controller, regardless of the type of flight. Airspace above 3,000 feet is Class D airspace which is also controlled by the Ottawa terminal. Lastly, Class G (uncontrolled) airspace where the Rockcliffe airport is located near the restricted airspace extends from ground level to an altitude of 2,500 feet, and airspace between 2,500 feet and 12,500 feet is Class D airspace controlled by the Ottawa terminal.

[50] Mr. Perreault stated that the rule followed by pilots taking off at any of these airports is to establish contact with the Ottawa terminal before entering controlled airspace. Therefore, based on the radar data filed by the respondent (Exhibit M-9-A), Mr. Perreault explained that when the applicant took off from Gatineau, he continued along the runway line up to about 2,000 feet and then made contact with the Ottawa terminal before climbing to 2,500 feet. According to Mr. Perreault, by establishing contact with the Ottawa terminal, the applicant was in [translation] “controlled airspace” and in “controlled VFR” flight, and not in uncontrolled airspace over which the air traffic controller has absolutely no responsibility or authority to provide services. Mr. Perreault clarified that terminal control is actually a service provided by an area control centre to controlled IFR and VFR flights and intended to offer air traffic and flight information services. Mr. Perreault acknowledged, however, that a controlled VFR flight usually takes place at altitudes exceeding 12,500 feet in [translation] “terminal space,” i.e., the terminal controller controls VFR flights to guide them. According to Mr. Perreault, a VFR flight controller is not authorized to allow an instrument approach procedure; only an IFR flight controller may do so.

[51] In a terminal control area space like the one used by the applicant, Mr. Perreault stated that the air traffic controller is responsible for controlling VFR aircraft and, in the case at bar, Mr. Perreault argued that Ms. Girard admitted in her testimony that the applicant's aircraft was in her control. Mr. Perreault argues that, based on the MANOPS, the controller had to provide radar assistance once the applicant requested a simulated ILS approach and maintain such assistance until he reached the vicinity of CYR 538, and that she was responsible for providing the applicant with radar vectoring to allow him to avoid area CYR 538. To summarize, Mr. Perreault stated that by requesting a simulated ILS approach, he was asking the controller for vectoring services. Because she had not refused the request, he believed she had consented to the ILS approach in question. Accordingly, Mr. Perreault explained that section 477.1 of the MANOPS (Exhibit R‑5) clearly provides:

477.1 Apply vertical, lateral or geographical separation between an aircraft and the following:

[…]

B. areas restricted to ensure aviation safety.

[52] According to Mr. Perreault, the CYR area at issue in this case comprises just such a “restricted area.” Therefore, in his opinion, radar vectoring was not optional but mandatory, and in the controller's case, the 3,100-foot vertical separation she applied had not worked. The evidence shows that she had two minutes to notice that the applicant's aircraft was on a direct course for the restricted CYR area with an insufficient rate of climb. Mr. Perreault argued that she should then have applied a back-up plan and given him radar vectoring to avoid the area, since it was her responsibility (pages 200 and 201, transcript dated September 17, 2014). Moreover, Mr. Perreault underscored that she admitted in her testimony that she could have done so. In short, according to Mr. Perreault, given request for a simulated ILS approach in Ottawa on runway 32, which is an IFR simulated approach, the controller should normally have issued the following instruction: [translation] “Victor/Kilo/Victor you have been radar identified, climb to 3,000 feet, follow heading 2-3-0 radar vectoring on approach.” Mr. Perreault then stated that when the aircraft was 7 or 8 miles from the runway line, she should have said [translation] “Victor/Kilo/Victor, turn left, heading 1-0-0 and intercept localizer course.” According to him, this was the job of the Ottawa terminal space controller.

[53] Mr. Perreault continued by stating that the objective of terminal control is to ensure the orderly and safe operation of all flights, including VFR flights as provided in the MANOPS, which states the following at section 551.2:

551.2 Vector an aircraft if:

A. necessary for separation purposes;

B. required by noise abatement procedures;

C. you or the aircraft will gain an operational advantage; or

D. the aircraft requests it.

According to Mr. Perreault, the applicant requested radar vectoring when he requested an ILS approach. Mr. Perreault added that section 168 of the MANOPS, entitled “Radar Navigation Assistance,” specifies the following in the imperative at section 168.1:

168.1 Unless specifically prohibited, provide radar assistance to navigation if requested by the aircraft.

[54] Mr. Perreault added that the air traffic controller should have asked the pilot for his altitude during their initial contact. If the pilot had confirmed that he was at 2,000 feet in his first contact with Ottawa terminal, the controller would have realized that he could not reach an altitude of 3,100 feet to avoid the restricted airspace.

[55] Furthermore, Mr. Perreault alleged that the respondent cannot prove that the applicant's aircraft actually entered area CYR 538 because of the lack of solid evidence. The only way to prove this claim would have been to have asked the applicant to specify his aircraft's altimeter reading, that being the only true and accurate evidence of his altitude in Mr. Perreault's opinion.

[56] Additionally, concerning pages 3 and 4 of the presentation filed as Exhibit R‑3, Mr. Perreault stated, in reference to a printout of the applicant's aircraft altimeter readings allegedly produced by a mechanic on October 17, 2012, the altimeter in the applicant's aircraft was subject to a margin of error of 25 feet. The respondent's counsel objected to this document, since the applicant had chosen not to testify and therefore could not certify its origin and accuracy to allow its entry into evidence. The objection in question applied to all elements in Exhibit R-3 pertaining to the aircraft altimeter's margin of error given that no witnesses were available to testify concerning the document's origin or accuracy. If the applicant had at least introduced this document into evidence to certify that it was indeed a copy of a printout of his aircraft's altimeter readings produced on October 17, 2012, when it was certified by a mechanic, or if witness Perreault had obtained a copy directly, or made a copy of the original himself after verifying its origin, the document could have been entered into evidence. Furthermore, Mr. Perreault did not personally verify the altimeter's margin of error. This was clearly explained to the applicant at the hearing, yet he maintained his decision not to testify.

[57] Next, based on the maximum legal limit of 125 feet provided in the Transport Canada maintenance standards concerning the difference between the transponder's automatic output and the altitude displayed on the aircraft altimeter (CARs Standards, Part 5, Standard 571, Appendix F entitled, “ATC Transponder Performance Tests”), Mr. Perreault stated that this margin of error must be considered when the respondent cites the altitude shown on the Ottawa control tower radar screen. He added that according to Mr. Wright's testimony, the response or sweep time between the altitude displayed on the altimeter and the altitude shown on the air traffic controller's radar is from one to two seconds, which translates into a difference of 20 feet, by his calculations, between the actual altitude of the altimeter and the altitude shown on the radar, taking account of the rate of climb of the applicant's aircraft. Furthermore, as Mr. Wright mentioned, the air traffic controller's radar readout is rounded off to the nearest multiple of 100, and the margin for error is therefore plus or minus 50 feet. Mr. Perreault argued that if we rely on the altitude shown on the air traffic controller's radar at the time the applicant's aircraft entered restricted area CYR 538, i.e., 2,800 feet, then the applicant's aircraft could just as well have been at 2,751 feet or 2,850 feet, based on Mr. Wright's testimony, considering the margin of error applicable to the radar readout. If we take 2,850 feet and add the 125‑foot margin of error between the altitude of the transponder output and the altitude shown on the altimeter, and allow 20 feet to account for the control tower radar response time and the 25‑foot margin of error in altitude allowed for the applicant's altimeter, we arrive at a total of 3,020 feet, then this would mean that the applicant's aircraft did not enter the restricted area (calculation shown at page 4 of Exhibit R‑3).

[58] Mr. Perreault also specified that pursuant to section 503.1 of the MANOPS, filed as Exhibit R‑5, an air traffic controller must validate an altitude readout by comparing it to the data reported by the aircraft on initial contact or as soon as possible if, at the time of initial contact, the altimeter readout is not displayed or cannot be verified. This readout verification applies to all aircraft that request air traffic control services in controlled airspace, whether the airspace is Class A, B, C, D or E. Note 1 also provides that this altitude readout is valid if it does not vary by more than 200 feet from the altitude reported by the aircraft. In this case, since the accuracy of the altitude of the applicant's aircraft was not verified, the altitude shown on the radar entered into evidence through the radar data filed as Exhibit M-9-A is not valid for aircraft separation purposes, and the respondent could not enter it on the record as evidence. Section 503.9 of the MANOPS also provides the following:

503.9 Do not use invalidated altitude readouts to determine an aircraft's altitude. [Translator's note: The French version refers to “un affichage d'altitude qui n'a pas été validé” (an altitude readout that was not validated) rather than “un affichage d'altitude invalidé”.] However, they may be used to:

A. observe whether an aircraft is in level flight, climbing or descending;

B. observe rates of climb or descent; or

C. provide traffic information.

Mr. Perreault acknowledged, however, that a controller may use a non-validated altitude for observation purposes to gather a general rather than a precise idea of a situation.

[59] In terms of the lateral position of the applicant's aircraft, Mr. Perreault claimed that the respondent did not bring any evidence in this regard, as shown at page 5 of his presentation (Exhibit R‑3). He stated that the diameter of restricted area CYR 538 is 4,256 feet, or 0.7 nautical miles, and that the hexagon illustrating the target on the radar screen (in which the aircraft was located) fit only partially, not completely, inside the restricted area. In his opinion, the aircraft could have been anywhere inside this hexagon, and without evidence placing the applicant's aircraft inside this target, the Minister has failed to show that the applicant's aircraft had indeed entered area CYR 538. This explanation is given at page 6 of his presentation (Exhibit R‑3).

[60] To summarize, Mr. Perreault stated once again that, in accordance with MANOPS section 551.2, the air traffic controller should have vectored the aircraft since the pilot had requested vectoring by asking for a simulated ILS approach to Ottawa. The same radar navigation assistance requirement provided in MANOPS section 168.1 was also not met. Again according to Mr. Perreault, the air traffic controller should have realized that the applicant's aircraft would not reach the recommended altitude of 3,100 feet and she should therefore have vectored it around the restricted area as provided in MANOPS section 477.1.

[61] Mr. Perreault argued that the air traffic controller and Transport Canada were responsible in this case. He therefore argues the following:

1) Transport Canada did not investigate the delivery of services by NAV CANADA, specifically, the controller's obligations under section 477.1 of the MANOPS;

2) Transport Canada did not conduct a full investigation into the division of responsibilities between the pilot and the air traffic controller. Had such an investigation been completed, the air traffic controller would have been held responsible if the applicant's aircraft had indeed entered the restricted area;

3) The aircraft never entered the restricted area in question if we consider instrument allowances and the air traffic controller's failure to verify the altitude of the applicant's aircraft, as well as the size and location of the target (wherein the applicant's aircraft could have been at any number of locations) in relation to the restricted airspace (page 6 of the presentation filed as Exhibit R‑3).

In conclusion, Mr. Perreault argued that the penalty imposed by the respondent is unfounded for the following reasons:

1) Transport Canada's findings are based on a misunderstanding of the air traffic control system and, more specifically, ATC equipment (limitation of Canadian ATC radar system) and ATC procedures (MANOPS approved by Transport Canada under CARs Part VIII);

2) The deficient performance of NAV CANADA personnel, in this case, of the air traffic controller.

Mr. Perreault concludes that no incursion was made into area CYR 538 and the applicant therefore did not contravene CARs subsection 601.04(2).

[62] On cross-examination, Mr. Perreault acknowledged that the expression “Roger” indicates that a transmission has been [translation] “received.” He also acknowledged that the Transport Canada Aeronautical Information Manual (AIM) filed as Exhibit R‑5 is intended for pilots, and that subsection 3.1 of the “General Information” section states that the pilot-in-command of an aircraft, before commencing a flight, must be familiar with the available information that is appropriate to the intended flight, in order to comply with section 602.71 of the CARs. Mr. Perreault also acknowledged that before take-off, the pilot-in-command of an aircraft must consult the latest CFS, notices to airmen (NOTAM), VFR navigation charts for the proposed flight path and the applicable VFR terminal area charts as provided in the AIM under the heading “Chart Updating Data,” subsections 1 and 2, concerning flight planning and CFS receipt. He also stated that flight planning is always essential (page 32, line 3 of the transcript dated March 31, 2015). The respondent's counsel then asked Mr. Perreault to comment on MANOPS section 343.2, which provides:

343.2 Do not clear an aircraft for a simulated approach. You may, however, approve a simulated approach provided:

A. VFR conditions exist at the airport;

B. traffic permits; and

C. you instruct the aircraft to maintain VFR at all times.

[63] Mr. Perreault stated that the portion of the MANOPS that includes this section 343.2 does not apply in the case at hand since the applicant's aircraft was operating in the Ottawa terminal control area (whose control centre is physically located in Montréal), not the Ottawa control tower control area. He explained that Part 3, entitled “Airport and VFR Control,” applies to F control (airport), i.e. in the airport control tower control zone for VFR or IFR flights, and therefore to airport control, not terminal control as in the applicant's case. He added that a VFR flight terminal controller is not permitted to authorize an instrument approach, which is the exclusive responsibility of IFR controllers. In this case, MANOPS Parts 4 (“Area and Terminal Control”) and 5 (“Radar Procedures”) would apply.

[64] Concerning the lateral position of the applicant's aircraft in relation to restricted area CYR 538, Mr. Perreault confirmed at page 5 of his presentation (Exhibit R‑3) that he had calculated the diameter of the target in proportion to the diameter of the CYR area, which he found to be 4,256 feet, with a target diameter of 1,639 feet. However, when asked about the scale of the Google Earth image at page 6 of his report R‑3, and more specifically, about the target's transposition in relation to the restricted area (which according to Mr. Perreault shows the target partially outside the restricted area), Mr. Perreault admitted that he did not know the scale of the map in question, and even added that there was no scale [translation] “strictly speaking” (page 53 of the transcript dated March 31, 2015). Concerning the size of the targets, Mr. Perreault explained that he had extracted the information from the WINRAD data provided by Transport Canada (Exhibit M-9-A) and then transposed it using CAD (computer-aided design) software to the Google Earth image shown at page 6 of his R‑3 presentation in order to create a visual image of the target with its full diameter positioned over the restricted area.

[65] When cross-examined by the respondent's counsel about his claim during his main testimony that the range bearing line (RBL) instrument used to calculate the distance between two points could not be used with WINRAD software, Mr. Perreault eventually admitted that he no longer knew whether this instrument was available on WINRAD (page 60 of the transcript dated March 31, 2015).

[66] Mr. Perreault denied that a correlation had to be established between the altimeter aboard the applicant's aircraft and the transponder in order to verify the altimeter and transponder. On the contrary, Mr. Perreault explained that the altimeter is a self-contained instrument that functions only according to the surrounding barometric pressure, and that a transponder in Mode C is completely separate. Mode C is connected to the transponder, and Mode C information is reported by the transponder to the radar system. Therefore, the information displayed on the aircraft's altimeter differs from that shown on the NAV CANADA radar; for that reason, verification is necessary at every initial contact between the controller and the pilot.

C. Minister's Rebuttal Evidence

(1) Michael Bourget

[67] Mr. Bourget explained that the MANOPS comprises a series of rules for air traffic controllers and constitutes an extrapolation of various CARs rules. The AIM is the equivalent reference document for pilots. Mr. Bourget stated that he had examined the transcript of the September 17, 2014 hearing, specifically the testimony of Mr. Perreault, and that he had also viewed Exhibit M‑9‑A, composed of WINRAD radar data for the flight in question. Mr. Bourget also confirmed having examined the conversation between the applicant and the air traffic controller as reported in the transcript dated September 17, 2014.

[68] Based on this evidence, Mr. Bourget stated that the applicant was engaged in a VFR flight in Class D airspace. He stated that the expression “Roger” indicates that the message was [translation] “well heard” or “received.” Mr. Bourget stated that a simulated ILS approach, an activity subject to IFR rules, nevertheless remains a VFR flight and thus the pilot's responsibility.

[69] In reference to the first conversation between the controller and the pilot, in which the pilot mentions that he would like to conduct an “ILS 32, at minimum, if possible” approach, and the controller answers, “Victor/Kilo/Victor, Roger. Can you climb to 3,100 feet to clear CYR?” Mr. Bourget summarized section MANOPS 343.2, stating that a controller cannot clear an aircraft for a simulated ILS unless VFR conditions are favorable at the airport, unless traffic permits and unless the controller orders the aircraft to maintain VFR at all times (pages 74 and 75 of the transcript dated March 31, 2015).

[70] In this case, according to Mr. Bourget, the phraseology that the air traffic controller should have used to approve the simulated ILS 32 request would be to answer, “simulated ILS 32 approach approved, maintain VFR at all times.” Mr. Bourget stated that the air traffic controller never approved the ILS approach and was under no obligation to verify altitudes since she was not providing a radar service. Therefore, according to Mr. Bourget, it was not important for her to verify the applicant's altitude.

[71] Mr. Bourget disagreed with Mr. Perreault's position that section 343.2 of the MANOPS does not apply. Mr. Bourget insisted instead that the applicant's flight was at all times a VFR flight and that Part 3 of the MANOPS did not apply exclusively to cases of airport control, but to all VFR flights and in all control zones. He added that according to the MANOPS definitions of services, the controller provides either IFR service or VFR service. Further to this, Mr. Bourget referred to the following MANOPS air traffic service definitions:

AIR TRAFFIC SERVICES — The following services that are provided by ATC units:

A) IFR CONTROL SERVICES

1. AREA CONTROL SERVICE — The control service provided by ACCs to IFR and CVFR aircraft operating within specified control areas.

2. TERMINAL CONTROL SERVICE — The control service provided by ACCs to aircraft operating within specified control areas.

B) VFR CONTROL SERVICES

1. AIRPORT CONTROL SERVICE — The control service provided by Airport Control Towers to airport traffic.

2. RADAR SERVICE — The control service provided by ATC units to:

a. VFR aircraft operating within Class B C and D airspace; and

b. aircraft in a Tower Radar Area.

C) INFORMATION SERVICES

[…]

3. FLIGHT INFORMATION SERVICE — The service provided by ATC units for the purpose of giving advice and information, useful for the safe and efficient movement of aircraft. This service includes:

a. information on adverse weather conditions as reported, visually observed, or radar observed;

b. information on the unserviceability of NAVAIDs and facilities;

c. traffic information;

d. radar assistance, on request, to all aircraft operating within radar coverage and desiring position information, navigational guidance, or both; and

e. VHF/UHF direction-finding assistance to aircraft operating within the range of stations so equipped.

[Emphasis added.]

[72] VFR control services can refer to airport control services (not here, however, given that the applicant's aircraft was not operating in Class C airspace), a radar service provided by an ATC unit to VFR aircraft operating in Class B, C or D space. In this case, Mr. Bourget explained that if the applicant had asked, he could have flown using the Ottawa Terminal radar service in Class D space, in which case MANOPS Part 3, section 343.2 (mentioned above), entitled “Airport and VFR Control” would have applied.

[73] Mr. Bourget went on to explain that radar services are also defined as follow in the MANOPS:

RADAR SERVICE — The term used to indicate a service provided directly by means of radar.

A. RADAR ADVISORY — The provision of advice and information based on radar observations.

B. RADAR CONTROL SERVICE — The control of aircraft through the provision of radar vectors in order to establish required separation and/or desired spacing between aircraft and between aircraft and obstructions.

C. RADAR MONITORING — The use of radar for the purpose of providing aircraft with information and advice relative to significant deviations from their normal flight path.

D. RADAR NAVIGATIONAL ASSISTANCE — The provision of position information, vectors, or track and ground speed checks.

E. RADAR SEPARATION — Radar spacing of aircraft in accordance with established minima, with information derived from radar sources.

[74] That said, Mr. Bourget observed that the applicant did not request any of these radar services, but instead requested a simulated ILS approach to Ottawa, a request that was never approved by the controller, Ms. Girard. According to Mr. Bourget, a simulated approach request is not the same as a request for a radar advisory service (no information based on radar data was requested), radar control service (no vector was requested), radar monitoring service (no advice concerning deviations from the flight trajectory path), navigational assistance service (on making contact, the pilot never stated he was lost or off course, or that he wanted vectors), or radar separation service. Mr. Bourget explained that when Ms. Girard saw that the applicant was entering the CYR area, she gave him an altitude but was not obliged to assist him. Mr. Bourget explained that for VFR flights, merely speaking to an air traffic controller does not authorize a pilot to enter restricted airspace. However, a pilot can request vectors if he is lost, in which case navigational assistance is clearly requested and radar service is provided. In such circumstances, the controller must then provide vectors to keep the pilot outside restricted airspace.

[75] In short, Mr. Bourget argued that since the applicant had requested a simulated ILS approach and the request had never been approved, and furthermore, since he had not requested radar assistance but simply a simulated ILS approach, the applicant therefore was not receiving a radar service.

[76] Concerning MANOPS section 477.1 (controller's obligation to apply vertical, lateral or geographical separation between an aircraft and restricted areas), considered by the applicant's witness, Mr. Perreault, to apply in the present case, Mr. Bourget disagreed, considering it instead applicable to a controlled VFR flight in Class B airspace, i.e., above 12,500 feet in question with ATC clearance. The section does not apply to the applicant's VFR flight since the flight was not, to the extent it was conducted in Class D space, a controlled VFR flight.

[77] Mr. Bourget went on to say that the WINRAD radar screen, which displays radar data similar to those filed as Exhibit M-9-A, is a radar screen on which the controller receives radar messages directly from the radar (in this case, Ottawa, Mirabel and Dorval radars). Mr. Bourget explained that it is a primary, certified tool for the Ottawa tower and all surrounding personnel. He has worked personally with engineers on certification, and at the Ottawa terminal, it operates as a backup screen in the event of main system failure. If controllers lose the main display, WINRAD is on hand to manage air traffic over Canada. Mr. Bourget certified that the system is very reliable, and even more reliable than the primary system.

[78] On cross-examination, Mr. Bourget stated that although the controller had asked the applicant to climb to 3,100 feet, she was not obliged to do so because he was flying VFR in Class D airspace. She would have been obliged to do so, however, if she was providing a radar service, which was not the case.

[79] He added that the controller was also under no obligation to inform him about the restricted CYR area or provide a separation, but probably did so just to be on the safe side.

[80] Lastly, Mr. Bourget acknowledged that the controller could not know the applicant's precise altitude considering that she had not verified it, but added that she was not obliged to do so.

(2) Jacques Lemire

[81] Mr. Lemire stated that he had examined Mr. Perreault's PowerPoint presentation filed as Exhibit R‑3. He had also read the transcript of Mr. Perreault's testimony dated September 17, 2014. He began by confirming that three radar sources cover the radar area containing CYR 538, and that the closest radar (Ottawa) provides primary coverage because the others cannot. Primary coverage extends up to 80 nautical miles laterally, while secondary coverage extends up to 250 nautical miles. Mr. Lemire stated that the Ottawa radar is 9 nautical miles or less from the CYR 538 area, and can therefore easily detect aircraft at altitudes of 500 feet up to a vertical limit of 70,000 feet since there are no major obstacles in the way. He added that the Mirabel and Dorval radars can also cover area CYR 538 without difficulty, but considering their remoteness, only above altitudes of 3,500 and 4,500 feet, respectively, to a vertical limit of 70,000 feet.

[82] In the case at bar, because the applicant's aircraft was flying below 3,000 feet, Mr. Lemire confirmed that only the Ottawa radar data were recorded in the computer system, and that there was no information from the Mirabel or Dorval radars.

[83] Concerning the targets shown in Exhibit M-9-A (i.e., radar data indicating the position of the applicant's aircraft), Mr. Lemire stated that a change in scale does not always change the onscreen size of the targets, although the surface they cover changes. Mr. Lemire went on to explain that controllers can select target size independently of their radar scale. Therefore, to determine whether or not a target enters the circle delineating area CYR 538, the air traffic controller can reduce the scale for greater accuracy. For example, in VFR mode, there may be two targets that from the controller's vantage point may almost seem to touch on a screen using a scale of 40 nautical miles. By reducing the scale to 15 nautical miles with a target size of “2,” the controller can check whether the targets actually touch or not.

[84] Using Exhibit M-9-A, Mr. Lemire added that the preferred size for evaluating targets is usually number “2,” although the size can go as high as number “7.” A demonstration of changes in size between numbers “2” and “7” showed that size of the target changes but the chart remains the same, in other words, the size of area CYR 538 shown on screen does not change. Mr. Lemire also explained during his demonstration that the WINRAD radar system can be used to calculate distance with the range bearing line application. Altering the size of the targets does not alter distance, which is consistently measured from the centre of the targets. Mr. Lemire then commented on slide 10 of Mr. Perreault's presentation (page 5 of Exhibit M-3), where Mr. Perreault assesses the size of the target on the WINRAD screenshot. Mr. Lemire confirmed that the general estimates of the target and restricted area are acceptable. Using Exhibit M-9-A and adjusting the scale to one mile and the target size to number “2,” Mr. Lemire showed that the applicant's aircraft was inside area CYR 538. He added that controllers would never use such a small scale in performing their duties because the space they monitor often covers 20 or 40 nautical miles, and would therefore not be able to focus their attention on a segment covering barely one mile. However, during an investigation, these tools can be used as they have been in this case.

[85] Concerning the twelfth slide of the PowerPoint presentation by Mr. Perreault (page 6 of Exhibit R‑3), Mr. Lemire confirmed that the size of area CYR 538 transposed by Mr. Perreault is acceptable. However, concerning the two targets positioned by Mr. Perreault and representing the location of the applicant's aircraft at the entrance and exit of the restricted airspace, Mr. Lemire stated that both these targets are too large, making it difficult to determine the position of the aircraft inside them, which is why adjusting the size of the targets on the WINRAD screen makes it possible to determine whether they are in fact located in area CYR 538. According to Mr. Lemire, then, the slide in question is not conclusive. Furthermore, Mr. Lemire disagrees with Mr. Perreault's findings at page 7 of his presentation suggesting that the applicant had ascended to 3,020 feet and did not laterally penetrate area CYR 538. On the contrary, Mr. Lemire states with certainty that the applicant did indeed enter area CYR 538 vertically and laterally according to the evidence on record, more specifically, the radar data filed as Exhibit M-9-A that shows the applicant's aircraft entering the restricted area at 2,700 feet and exiting it at 3,000 feet (page 114 of the transcript dated March 31, 2015).

[86] Furthermore, Mr. Lemire stated that although the pilot did not validate his altitude, if we briefly examine the applicant's flight path from the time he departed the Gatineau airport, we clearly see that he was gradually ascending in a steady climb, which suggests that the NAV CANADA radar system was effectively tracking his aircraft. Mr. Lemire added that controllers check their equipment about one hundred times a day to verify the altitude shown on screen and that under normal conditions, a variation in altitude of 200 feet, or even 100 feet, is highly unusual. Based on his knowledge and expertise, Mr. Lemire stated that the 2,700-foot altitude is correct, even though it was not validated with the pilot. Mr. Lemire even added that if the pilot's altimeter had been adjusted incorrectly and was subject to a 200-foot difference, the applicant should not have flown his aircraft to the Gatineau airport. The fact that he did take off must lead to the assumption that his altimeter was functioning properly.

[87] Concerning the transcript of the conversation between the applicant and Ms. Girard, Mr. Lemire confirmed that the applicant had never requested radar vectoring and that the controller never offered it, and that in the situation at issue, the pilot, i.e. the applicant, is the one who should have requested the service if he wanted it considering that the was flying VFR.

[88] Mr. Lemire concluded his testimony by saying that all controllers' screens are operationally certified and, if we could not rely on this equipment, the entire Canadian air traffic control system would be in serious difficulty. However, Mr. Lemire stated that he agreed with Mr. Perreault that the system operates within a margin of error of 100 feet (i.e., a variation of plus or minus 50 feet) in terms of the altitude shown on the radar.

[89] On cross-examination, Mr. Lemire acknowledged that the controller could have validated the applicant's altitude on initial contact, but was not obliged to do so in the course of her services. He also confirmed that the controller could have validated the applicant's altitude again when she commented that it was too late and that he had entered the restricted area, but that everything depended on her workload at the time. He stated that she did not require his altitude for the purposes of her work. The pilot had understood that he was to climb to 3,100 feet and did not indicate that he wanted vectors or was in difficulty. Since the applicant never asked for vectoring, there was no need for the controller to validate his altitude.

[90] Mr. Lemire acknowledged that the only way for a controller to know the exact altitude of an aircraft was to verify it with the pilot, and that Ms. Girard had the opportunity to do so if her workload permitted. However, she did not need to do so for the purposes of this flight. In the case of a VFR flight, no standard or manual requires controllers to verify altitude on initial contact, according to Mr. Lemire. He also stated again that a controller is required to provide radar vectoring only if it entails an operational advantage for the controller or the pilot. He also stated that if he had been in the controller's position, he would have taken for granted that the pilot was familiar with the area, knew the rules applicable to this CYR and would have requested radar vectoring had he truly not known how to proceed.

D. Applicant's Response to Minister's Rebuttal Evidence

[91] The applicant called expert witness Mr. Perreault to address certain elements raised in the rebuttal evidence submitted by the respondent's experts.

[92] Mr. Perreault stated that Mr. Lemire's findings concerning the applicant's altitude based on Exhibit M-9-A constitute a solid hypothesis, but are not confirmed or validated values.

[93] Cross-examined again by the respondent's counsel, Mr. Perreault acknowledged that VFR radar services must be requested, that the applicant was flying VFR, and the Ottawa terminal may be designated as an ATC unit in any number of the references filed as evidence. However, in terms of establishing whether the applicant requested radar service, Mr. Perreault maintained that such service was effectively requested when the applicant asked to conduct a simulated approach. He claimed that as soon as the pilot had requested a simulated approach and the controller had not refused, she had implicitly agreed to allow the aircraft into controlled airspace subject to the relevant conditions, namely, to provide the air traffic control services required for the approach. The only means of doing so was radar vectoring until the final approach. The aircraft would subsequently be taken charge of in control tower space. Mr. Perreault based this statement on section 801.02 of the CARs, which provides that air traffic control services provided to aircraft using Class D airspace necessarily include traffic information, which Ms. Girard provided, and a separation between IFR aircraft and any other aircraft using runways.

[94] Questioned about AIM section 2.8.4 (Exhibit R‑5, section “RAC – Rules of the Air and Air Traffic Services,” subsection 2, “ Airspace – Requirements and Procedures,” paragraph “Class D Airspace”), Mr. Perreault acknowledged that ATC must separate IFR flights only, and provide traffic information to other aircraft. If equipment and workloads allow, ATC will assist in resolving conflicts between VFR and IFR aircraft and, by request, between VFR aircraft.

VI. ARGUMENTS

A. Minister

[95] The respondent's counsel began by underscoring that the applicant had admitted several important elements concerning the contravention of paragraph 601.04(2) of the CARs, which prohibits the operation of an aircraft in Class F special restricted airspace without obtaining authorization from the person specified in the Designated Airspace Handbook. The respondent stated that at page 145 of the hearing transcript dated June 18, 2014, the applicant admitted he had made the flight in question on June 5, 2013, that he was flying the aircraft bearing registration C‑GVKV, and that no prior clearance had been obtained from the authorities having jurisdiction, in this case, the RCMP, to cross through restricted area CYR 538 at an altitude of less than 3,000 feet. Furthermore, the applicant does not challenge the existence of restricted area CYR 538 or the prohibition against entering it at less than 3,000 feet.

[96] Concerning the defence of necessity, which the respondent says would require the applicant to prove that he had no alternative but to enter the area to avoid traffic, the applicant has apparently withdrawn this argument considering that even the applicant's expert witness, Mr. Perreault, agreed that there was no air traffic near the applicant's aircraft providing any grounds for such a defence. This is noted at page 181 of the transcript dated September 17, 2014, lines 20 to 25. More specifically, when Mr. Perreault commented on the “back-up plan” that the air traffic controller should have applied, he underscored that the issue did not relate to traffic, and that the other aircraft was relatively distant, four or five miles away.

[97] The respondent therefore claims that the only element in dispute, which the Minister must prove on the balance of probabilities, is that the applicant entered restricted area CYR 538 at an altitude of less than 3,000 feet.

[98] In this regard, the Minister respondent claims that WINRAD radar data for the incident (Exhibit M-9-A), as interpreted by Mr. Lemire, its expert witness, are compelling and clearly show that the applicant's aircraft penetrated restricted area CYR 538 at an altitude of 2,700 feet and remained below 3,000 feet until it left the area in question. At the hearing, using Exhibit M‑9-A, Mr. Lemire showed that by altering the scale and size of the target, the applicant's aircraft clearly crossed the CYR area below 3,000 feet of altitude.

[99] The respondent also added that Mr. Wright and experts Lemire and Bourget all testified to the fact that radar data readouts report numbers in thousands and hundreds only. Therefore, an aircraft that appears at 2,700 feet on the radar screen may actually be at 2,651 feet or at 2,750 feet. The respondent argues that the only variation possible in relation to the altitude shown on the radar is plus or minus 50 feet. Based on the above, the respondent determined that the applicant obviously entered restricted airspace at an altitude of less than 3,000 feet.

[100] As well, the audio conversation played at the hearing between controller Ms. Girard and the applicant, filed as Exhibit M-9-A, clearly establishes that the applicant entered the restricted airspace at an altitude below 3,000 feet. In this regard, the respondent referred to page 34 of the transcript dated September 17, 2014, which it cited as follows:

[Translation]

Controller: Ottawa Terminal control shown in altimeter 3024, advise intentions?

Pilot: Yes, would like to conduct an ILS 32, at minimum, if possible, Ottawa, Victor/Kilo/Victor.

Controller: Victor/Kilo/Victor, Roger. Can you climb to 3,100 feet to clear CYR?

Pilot: Will climb to 3,100 feet. Victor/Kilo/Victor.

Accordingly, this confirms that the applicant's aircraft was not at 3,100 feet of altitude on initial contact. The controller then turned her attention to other tasks, as confirmed by the audio tape played at the hearing, and when she resumed contact with Victor/Kilo/Victor (page 35 of the transcription, line 20), she mentioned the following:

[Translation]

Controller: Roger. Victor/Kilo/Victor, you are headed straight for CYR, sir, at your 12 o'clock, it's 3,000 feet.

Pilot: Do you have a vector, please?

Controller: Victor/Kilo/Victor, it's too late now, sir, you are right inside the area, so it's 3,100 feet to avoid the area. Keep climbing as fast as you can, sir.

The pilot answered, and this is important:

Pilot: Victor/Kilo/Victor, I was at maximum climb.

[101] The respondent's counsel underscored that immediately on initial contact, the controller asked the applicant to climb to 3,100 feet, which he confirmed he would. When the controller then told him that the was about to enter the area, he replied that he was at maximum climb and, when he asked for a vector, he acknowledged that he was below the altitude required by the restricted area, but excused himself by saying that he had been unable to climb higher. The respondent added that if the applicant's aircraft had already reached 3,100 feet when the controller informed him that he was about to enter area CYR 538, why did the applicant not simply say that he was already at 3,100 feet if his defence is that he overflew the area without entering it? According to the respondent, the only reason why the applicant stated he had been at maximum climb instead and did not inform the controller that he was already above 3,100 feet is that he did not know where the restricted area was, or even that it was on his flight path. This is also confirmed by Ms. Girard's testimony (page 84, lines 10 to 22 of the transcript dated September 17, 2014), in which she states that she contacted the applicant again later to ask him why he had entered the area and he told her that he did not know where the restricted airspace was.

[102] Concerning expert Perreault's challenges to the respondent's evidence concerning the altitude of the applicant's aircraft, the respondent stated first of all that the margin of error applicable to the applicant's altimeter, i.e., 25 feet (Exhibit R‑3, slide number 5), should not be admitted into evidence since the applicant never testified to confirm the source of this document or mention this margin of error. The respondent argued that this Tribunal could not consider the evidence in question and that no evidence had been brought concerning the margin of error applicable to the applicant's altimeter. Concerning the 125-foot margin of error provided in the CARs standards, Part V, Appendix F, the respondent underscored that the allowance in question has to do with aircraft maintenance, and that the applicant repeatedly stated in his comments that his aircraft was in order. The applicant was therefore trying to play both sides of the field and would have to choose: either i) his aircraft was in good order and had been maintained in good condition, along with all of his instruments, and therefore the altitude reading of his altimeter and the altitude displayed on the radar screen were accurate, or ii) his altimeter and his instruments were defective, in which case, if he is a responsible pilot, he should not have taken off on June 5. If the applicant took off in his aircraft on June 5, the assumption must be that all of his equipment was in good working order and good navigational order, including the altimeter, which otherwise would have made it the pilot's responsibility not to take off at that time.

[103] Concerning the applicant's argument that he never laterally entered the restricted CYR area, the respondent alleged that Mr. Lemire's testimony and his radar screen demonstrations (Exhibit M-9-A) clearly show that the aircraft was inside restricted airspace. In this regard, the respondent disputes slide 12 (page 6 of Exhibit R‑3) since the size of the targets is inconclusive. In fact, the respondent's expert witness, Mr. Lemire, showed that the target size can change without necessarily altering the onscreen background showing the restricted area. Mr. Perreault also acknowledged that he did not know the scale of the map he used. Based on Mr. Lemire's radar screen demonstration, the chart, with a range of one nautical mile and a size “2” target clearly showed that the target representing the applicant's aircraft was completely inside the CYR area.

[104] In regard to the applicant's argument, more specifically the argument of the applicant's expert witness, Mr. Perreault, that the air traffic controller should have confirmed the applicant's altitude on initial contact, that she had several opportunities to do so, and that she should have vectored the aircraft to allow it to avoid area CYR 538, the respondent replied that the air traffic controller was under absolutely no obligation to do so since the applicant, who was flying VFR, had not requested radar vectoring. This statement is supported by the opinions expressed by the respondent's expert witnesses, Mr. Bourget and Mr. Lemire, and all of the witnesses agree that the applicant was flying VFR. In any case, the respondent argued that even if the air traffic controller had verified the applicant's altitude, the outcome would not have changed: pilots flying VFR are responsible for avoiding the restricted CYR area. Furthermore, altitude verification on initial contact would not have changed the second communication, during which the controller informed the applicant that he had already entered the restricted CYR area.

[105] The respondent then submitted that the applicant could not possibly contend that the controller, simply by answering “Roger,” had agreed to his ILS approach request considering that both the applicant's expert, Mr. Perreault, and the controller, had confirmed that the expression “Roger” means that a message has been received, nothing more. Mr. Bourget also confirmed this interpretation. Accordingly, the applicant's expert contradicts himself by claiming that the controller, by not refusing the pilot's ILS approach request, had agreed to it, yet by doing so he infers a meaning into the expression “Roger” other than the meaning he admitted, namely, “message received,” which doesn't in any way indicate an acceptance of a request. The respondent also added that air traffic controllers use the expression “Roger” quite frequently, and if it were taken to indicate an approval of everything pilots say, this would result in poor communication in the skies. The respondent also added that the phraseology used during inflight communications between pilots and controllers is extremely important. MANOPS (Exhibit R‑5) describes the various mandatory phrases to be used. If a request is submitted to a controller, the controller answers in a clear, specific manner, in accordance with the applicable MANOPS instructions and phraseology. The respondent therefore argues that clear terms are used to authorize specific manoeuvres.

[106] The respondent also added that the two expert witnesses, Mr. Lemire and Mr. Bourget, confirmed that the air traffic controller had never received a radar vectoring request and was not obliged to provide radar service to the applicant given that he was flying VFR. Had the applicant actually received radar vectoring, the air traffic controller would have used the phraseology specified in MANOPS section 551.3, which states:

551.3 If you initiate vectoring, inform the aircraft of the purpose of the vectors and/or the point to which the aircraft is being vectored.

Hence, if the air traffic controller had provided radar vectoring, she would have stated, for example, “maintain current heading, vector ‘X' due to traffic, […] follow heading 310,” but she did not. Simply put, requesting an ILS approach is not the same as requesting radar vectoring, and the controller simply heard the applicant and said “Roger.”

[107] The respondent also considers it implausible to claim that radar data are inaccurate, or that the applicant cannot rely on them to prove the contravention. Mr. Lemire, Mr. Wright and Mr. Bourget, NAV CANADA employees, all testified to the fact that radar systems, especially WINRAD, provide a sufficiently accurate reading of aircraft altitude (plus or minus 50 feet) and are used across Canada. To argue the contrary would be to call into question Canada's entire navigational assistance system.

[108] The respondent also stated that the Minister has discretionary authority to bring charges against anyone involved in an aviation incident. Therefore, even if the air traffic controller had committed an error of some kind, which the respondent denies, the applicant's liability in respect of the alleged contravention would remain undiminished. The respondent stated once again that under VFR conditions, the pilot is responsible for the flight and it is the pilot's duty to avoid obstacles and restricted areas as well as other aircraft in the same area. Moreover, the AIM (Exhibit R‑4), intended for pilots, is clear on this matter. As section 602.71 of the CARs, provides, “the [pilot] shall, before commencing a flight, be familiar with the available information that is appropriate to the intended flight.” In other words, when planning a flight, pilots must check for any obstacles such as a restricted CYR area along the flight path. This is especially important when the pilot is flying in an unfamiliar area. Here, Ms. Girard testified that the pilot applicant did not know where the CYR area was located, which shows he did not exercise due care to avoid penetrating the area; because the applicant never testified at the hearing, he did not challenge this statement. In the respondent's opinion, this element, combined with the fact that the applicant stated he was “at maximum climb” once he realized he was in airspace restricted below 3,000 feet, confirms the fact that he was below 3,000 feet at the time.

[109] Lastly, concerning the amount of the monetary penalty of $750, the respondent referred to Mr. Gillespie's testimony, stating that this is the first level recommended for a first contravention. The recommendation is consistent with the directives of the Enforcement Division and the respondent sees no reason for the Tribunal to lower the monetary penalty in question.

B. Applicant

[110] The applicant claims that he never conceded at any time that he had flown below the permitted altitude of 3,000 feet. Even during the last contact between the controller and the pilot applicant, when she asked him why he had entered restricted airspace (page 84 of the transcript dated September 17, 2014), the controller never asked him for his altitude at any time. The applicant underscored that this fact is important, since the Minister carries the burden of proof in respect of the critical element of altitude. The applicant therefore claims that apart from speculation and suppositions, there is no evidence showing that he directly entered the area at an altitude of less than 3,000 feet.

[111] In the absence of an admission by the applicant, the applicant alleges that the radar evidence is inadmissible since the only valid evidence would be evidence of altitude from the altimeter of the applicant's aircraft, or radar evidence validated by the air traffic controller with the applicant. However, the controller never validated the applicant's altitude, although she had the opportunity to do so on initial contact as well as later on.

[112] Furthermore, the applicant's counsel explained that a chain of events needlessly brought the applicant before this Tribunal, which can be summed up as follows:

1) At the outset, when the applicant contacted the controller, she should have verified the applicant's altitude at such time;

2) Once the controller took charge of the aircraft, although she knew it was heading into the restricted area, she neglected to control it for a significant period of time, namely, two minutes.

3) When the aircraft was about to enter the restricted area according to the controller, she omitted once again to verify the altitude.

4) Then, the controller should have verified altitude when, according to her, the applicant's aircraft had actually entered the area, but she did not.

5) Finally, when the controller contacted the pilot again a while later, she could yet again have asked for his altitude, but she did not.

[113] According to the applicant, this chain of events had a significant impact on various levels. If his altitude had been verified on initial contact, it would at least have allowed the controller to better determine the options available to her, in other words, to ensure a vertical, lateral or geographic separation along the north-west edge. Moreover, this was unfair to the applicant, since he could have avoided the area if his altitude had been verified at any of these first three opportunities.

[114] The other consequence of the failure to verify altitude also emerges in Mr. Lemire's testimony. In fact, since the altitude was not validated, it is impossible to determine whether the aircraft was indeed inside what seems to be an acceptable margin of plus or minus 200 feet. Indeed, we do not know if the aircraft was at 2,800 feet, 2,900 feet, 3,000 feet or 3,100 feet.

[115] The applicant referred to page 74 of the transcript dated September 17, 2014 concerning Ms. Girard's testimony, which he considers conclusive as to the fact that she had agreed to provide radar vectoring when she stated:

[Translation]

I took control of that aircraft, with the radar, the system; that means he is now under my control, my jurisdiction, as we say.

Furthermore, at page 83, line 7, she added:

[Translation]

Yes, I could have taken him that way because I was talking with the other aircraft, I could have given him radar vectoring too, and moved him over a little too.

According to the applicant, the controller was therefore aware of the other options available to her. Page 108 of the transcript dated September 17, 2014 is also crucial, starting at line 9, where the controller states the following in answer to a question by the applicant:

[Translation]

Q. Do you ever ask people for their altitude?

A. Yes, not all the time; for VFRs, I ask for their altitude if they are near another aircraft, just to confirm.

The applicant therefore stated that the controller's testimony showed she was handling two aircraft, and could therefore have asked the applicant for his altitude.

[116] The applicant cited the controller's testimony again:

[Translation]

I did not ask Golf/Victor/Kilo/Victor because I'd given him an altitude of 3,100 feet; if he hadn't been at altitude 3,100 feet, then I would have asked him, I would have questioned him, “Ok, are you at 3,100 feet?” Then, we would have decided if he was or he wasn't.

The applicant claimed that the controller here was making an admission that she could have asked if he was at the altitude she had given him.

[117] Concerning Ms. Girard's workload, the applicant referred to page 102 of the transcript dated September 17, 2014, in which she answered that she was not busy. She therefore had the time to provide radar vectoring to the applicant. The applicant also relied on the opinion of expert witness Mr. Perreault, who stated that the controller could have and should have given him radar vectoring, in accordance with section 168.1 of the MANOPS, which uses the term “provide” in the imperative (page 184 of the transcript dated September 17, 2014).

[118] The applicant's counsel also relied on various sections of the MANOPS to support his arguments that the air traffic controller had to provide radar vectoring and to show the importance of validating an aircraft's altitude to ensure appropriate minimum separation between an aircraft and the outer edge of Class F airspace in controlled airspace.

[119] More specifically, the applicant cited the following sections of MANOPS:

131 SERVICE PRIORITY

131.1 Give priority to the provision of control service over other services.

[...]

133.8 If workload or traffic conditions prevent immediate provision of Class D service, instruct the pilot to remain outside the Class D airspace, until such time that conditions permit the services to be provided.

[...]

551.2 Vector an aircraft if:

A. necessary for separation purposes;

[...]

552.2 You may vector a VFR aircraft provided:

A. the aircraft is in, or is about to enter, airspace where radar service to VFR aircraft is provided;

[...]

503.1 Validate altitude readouts by comparing the readout with the altitude reported by the aircraft:

A. on initial contact; or

B. as soon as practicable, if the readout is not displayed, or cannot be validated on initial contact.

503.1 Note 1: An altitude readout is valid, if the readout value does not differ from the aircraft-reported altitude by more than 200 feet.

[...]

503.9 Do not use invalidated altitude readouts to determine an aircraft's altitude.

[...]

476.1 Apply the appropriate separation minimum between an aircraft and the outer edge of Class F airspace [...].

[...]

477.1 Apply vertical, lateral or geographical separation between an aircraft and the following:

[…]

B. areas restricted to ensure aviation safety.

[120] The applicant's main argument is that the Minister respondent did not bring evidence that the applicant's aircraft was below 3,000 feet in restricted airspace. Alternatively, the applicant's counsel argued that there were several points where applicant's altitude could have been and should have been validated, which would have allowed him to avoid the restricted airspace if indeed he had been in such airspace, which he denies. In fact, by omitting to validate the altitude, the controller deprived herself of the ability to perform her duties adequately, thus depriving the applicant of the opportunity to take the necessary steps, as applicable, to avoid entering the area. The applicant therefore alleges that validation of the altitude reading would not only have been useful to the controller, but also vital to the pilot.

[121] To support the assumption that the Minister failed to discharge his burden of proof, the applicant presented the Tribunal with the determination in 9144-6765 Québec inc. v. Canada (Minister of Transport), 2009 TATCE 26, docket number O-3509-41 (review). The applicant in that case was charged with contravening paragraph 602.96(3)d) of the CARs. More specifically, the pilot-in-command of the aircraft was charged with using an aircraft in the vicinity of an aerodrome in contravention of the aircraft operating restrictions set out in the CFS. The pilot challenged this accusation, claiming he was permitted to overfly the airport at altitudes above 2,000 feet without special restriction. No witness had proven that the pilot had descended below 2,000 feet. In that case, the Minister's proving the altitude was an important factor in proving the contravention, and without this evidence, the charge was rejected.

[122] Lastly, the applicant did not dispute the amount of the monetary penalty, stating that he did not appear at the hearing to challenge the amount of the monetary penalty but rather to dispute the charge made against him.

C. Minister's Rebuttal

[123] In rebuttal, the respondent stated that if we accepted the applicant's arguments, only the pilot of an aircraft would be able to attest to its altitude, and no one but the pilot could prove such altitude. In this case, what purpose would NAV CANADA's radars, WINRAD or other such systems serve? The respondent claimed that it is implausible that pilots alone could confirm altitude, or that Canada's entire air traffic control system should depend on the pilot's word for its validation.

[124] The respondent added that it is erroneous to allege that the Minister submitted no evidence of altitude. If the radar evidence filed as Exhibit M-9-A is not evidence, then neither is any of the testimony of the expert witnesses showing that this radar system to be reliable across Canada within a range of plus or minus 50 feet, meaning that the Minister would never be able to prove any contravention whatsoever concerning aircraft altitude under the Act or the CARs.

[125] Concerning the applicant's argument whereby he was deprived of the information needed to conduct his flight since the controller did not ask him to confirm his altitude, the respondent underscored that for a VFR flight, the responsibility falls primarily on the pilot, before taking off, to ensure that he has all of the necessary information to complete the flight, that the aircraft's altimeter is functioning properly and is properly calibrated. As provided in the AIM and in sections 602.71 and 602.73(2) of the CARs, the pilot-in-command of an aircraft is responsible for carefully planning the flight prior to departure.

[126] As for section 476.1 of the MANOPS cited by the applicant, which concerns separation in relation to Class F airspace and requires the controller to apply the appropriate separation minimum between an aircraft and the outer edge of Class F airspace inside controlled airspace, the respondent underscored that this section applies to IFR flights, and is therefore irrelevant in the case at hand, since everyone agrees that the applicant was flying VFR.

[127] Lastly, the respondent stated that section 602.31 of the CARs provides that pilots must comply with all ATC instructions given:

602.31 (1) Subject to subsection (3), the pilot-in-command of an aircraft shall

a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; […]

Furthermore, in the RAC section at page 181, subsection 1.7, the AIM states:

Whenever pilots receive and accept an ATC clearance, they shall comply with the clearance. If unable to comply with the clearance, pilots should immediately inform ATC since the controller will understand the acknowledgement of the clearance as indicating acceptance.

[...]

A clearance will be identified by the use of some form of the word “clear” in its contents. An instruction will always be worded in such a manner as to be readily identified, although the word “instruct” will seldom be included. Pilots shall comply with and acknowledge receipt of all ATC instructions directed to and received by them, provided the safety of the aircraft is not jeopardized (CAR 602.31).

[128] In this case, the controller asked the applicant during their initial contact to “climb to 3,100 feet” if he was able to, and the applicant confirmed that he was climbing to 3,100 feet (transcript dated September 17, 2014, page 33, lines 23 and following). The applicant therefore accepted the instruction and, if he was unable to climb to 3,100 feet, he should have informed the controller accordingly and asked for radar vectoring as required by the AIM. Since he accepted the instruction, the evidence clearly establishes that he implied he was able to climb to an altitude de 3,100 feet and did not need additional assistance from the controller. The respondent alleges that had this not been the case, he could have immediately asked the air traffic controller for another route in order to receive radar vectoring, but he did not.

[129] The respondent emphasized the fact that the Minister's evidence, especially the WINRAD demonstration by Mr. Lemire in which he had changed the size of the targets and the scope of the radar screen, showed that the applicant's aircraft had entered restricted area CYR 538 at an altitude of less than 3,000 feet and that the radar system in question is reliable.

[130] Lastly, even if the controller were in some manner at fault, which is denied, the Minister is not prevented from exercising his discretionary authority to take action against the applicant in respect of a strict liability contravention, the facts of which have been proven on the balance of probabilities.

VII. ANALYSIS

[131] In the present case, the Minister must prove, on the balance of probabilities, that on or about June 5, 2013, at approximately 15:39 UTC, the applicant used an American Aviation AA‑5A bearing Canadian registration C‑GVKV in Class F special use restricted airspace known as area CYR 538 when he had not been authorized by the person designated for that purpose pursuant to the Designated Airspace Handbook, thus contravening the provisions of subsection 601.04(2) of the CARs.

[132] The applicant acknowledges all of the aforementioned elements of the contravention, except that he penetrated area CYR 538 vertically and laterally. The applicant does not dispute that the Designated Airspace Handbook requires RCMP clearance to penetrate this area at altitudes below 3,000 feet, and acknowledges that he did not obtain such clearance. The main question at issue is therefore limited to determining whether the Minister has proven on the balance of probabilities that the applicant flew his aircraft in restricted area CYR 538 below an altitude of 3,000 feet on June 5, 2013.

[133] In order to establish the evidence, the Minister submitted the following:

· The recorded conversation between the air traffic controller and the applicant as well as WINRAD radar data entered as Exhibit M-9-A, showing that at approximately 15:39 UTC, the applicant's aircraft was ascending at a speed of 90 knots and an altitude of 2,700 feet when it should have been at 3,000 feet, and was about to enter the restricted CYR area. The same evidence then shows him completely inside the restricted airspace at 2,800 feet, reaching 3,000 feet immediately before leaving the restricted airspace;

· The radar screenshots filed jointly as Exhibit M-9-B show the trajectory of the applicant's aircraft north of the restricted area at 2,000 feet of altitude and inside the airspace at 2,800 and 2,900 feet of altitude;

· The testimony of all of the respondent's witnesses, namely, Mr. Wright, the NAV CANADA engineer specializing in radar data, Ms. Girard, the air traffic controller, and the two expert witnesses, Mr. Lemire and Mr. Bourget, who, using these radar data and the audio conversation between the applicant and the air traffic controller, confirmed that the applicant's aircraft had been identified north of restricted area CYR 538 at 2,000 feet and penetrated the airspace in question at 2,700 feet before exiting it at 3,000 feet;

· At the hearing, Mr. Lemire also demonstrated, using the radar data filed as Exhibit M‑9‑A, and the target size recommended by controllers to evaluate a target, namely, size number “2,” that the applicant's aircraft had indeed entered the restricted area at 2,700 feet and left it at 3,000 feet (page 114 of the transcript dated March 31, 2015). Although this altitude was not confirmed by the pilot, Mr. Lemire nevertheless mentioned that the radar data showed that the applicant's aircraft was climbing at a gradual, steady rate, and that the NAV CANADA radar system had adequately detected the applicant's aircraft;

· All of the witnesses, including Mr. Perreault, expert witness for the applicant, agreed that the applicant was flying VFR in Class D airspace;

· All of the witnesses, including Mr. Perreault, agreed that there was no possible conflict between the applicant's aircraft and the other aircraft identified at the same time on the radar screen, namely, aircraft C-IJKY;

· Mr. Perreault acknowledged that pursuant to section 602.71 of the CARs, the pilot is responsible for flight planning and for ensuring the absence of obstacles, such as restricted areas;

· Both the audio tape and the testimony of Ms. Girard, the controller, show that she asked the applicant if he was able to climb to 3,100 feet during their first contact to prevent him from entering restricted airspace and that he answered at the time that he was climbing to 3,100 feet; the applicant did not dispute this important element since he never testified at the hearing. The controller then told the applicant to climb without delay to avoid the area, and mentioned that there was traffic to the west of him;

· Ms. Girard's testimony also shows that she communicated with the applicant on the same day, after the incident, and asked him why he was in restricted airspace, to which the applicant answered that he did not know where the area was located; the applicant did not testify at the hearing and therefore did not dispute this statement;

· Both Mr. Wright and the expert witnesses, Mr. Lemire and Mr. Bourget, confirmed that NAV CANADA radar systems are regularly maintained and that if an aircraft pilot used the same barometric pressure setting as the one used by the local air traffic control station, the same altitude should appear on the radar screen. Mr. Wright also stated that the barometric pressure adjusted automatically every minute on NAV CANADA radar systems, and these systems, used across Canada, are therefore extremely reliable.

[134] The applicant did not bring any testimony or any other evidence indicating that he had not entered the barometric pressure of the Ottawa control station on his altimeter. Pursuant to CARs sections 602.35 and following, the pilot must perform altimeter setting procedures prior to takeoff. The applicant did not testify in order to dispute this fact, and the fact that he took off in his aircraft on June 5, 2013 leads to the assumption that the altimeter was functioning properly, in the absence of evidence to the contrary.

[135] Concerning the WINRAD data of June 5, 2013, from which the radar data filed as Exhibit M-9-A were extracted, Mr. Bourget confirmed that they were generated by the Ottawa radar, which is a primary certified tool. Mr. Bourget personally worked on its certification with engineers, and confirmed that it serves as a back-up system in the event that the main system fails, and thus if controllers lose their main display, they use WINRAD to manage traffic over Canada. Mr. Bourget therefore certified that it is an extremely reliable system.

[136] Expert witness Lemire also confirmed that the Ottawa radar detected the applicant's aircraft below an altitude of 3,000 feet in area CYR 538 and that the radar in question is located nine nautical miles or less from area CYR 538, which means that in order to detect the applicant's aircraft, there was no major obstacle preventing radar coverage.

[137] Mr. Lemire added that the controllers check their equipment approximately one hundred times daily to verify the altitude shown on the general screen, and that it is extremely rare for altitude to vary by 200 feet or even 100 feet. According to Mr. Lemire's report, the altitude of 2,700 feet was correct, regardless of whether the pilot validated it or not. He also stated that if the applicant's altimeter had been improperly adjusted and differed by 200 feet, he would not have flown his aircraft to the Gatineau airport. The fact that he took off that day implies that his altimeter was functioning properly.

[138] It is important to highlight Ms. Girard's statement that when she had asked the applicant if he was able to climb to 3,100 feet to avoid the restricted area and he had repliedthat he would, she had relied on his word and therefore did not request his altitude. Ms. Girard explained that if the applicant had told her that he was unable to reach the specified altitude, she would have provided him with radar vectoring around the restricted area to prevent him from entering it. However, she stated that the applicant never once informed her that he was unable to climb to the specified altitude. Ms. Girard also stated that pilots are responsible for VFR flights. Various witnesses also explained that there was no need to verify the aircraft's altitude with the pilot since there was no possible conflict with another aircraft. These elements show that Ms. Girard was not providing a radar vectoring service, but would have done so if the applicant had told her he could not comply with her initial instruction that he climb to 3,100 feet.

[139] According to the applicant, this evidence is insufficient and the Minister respondent has not discharged his burden of proof on the balance of probabilities since the only acceptable evidence to prove the altitude of the applicant's aircraft must come from the altimeter of the aircraft itself, and this is the altitude that the air traffic controller should have asked to validate against the altitude shown on her radar screen, and yet there is no evidence whatsoever that the controller endeavoured to validate the applicant's altitude. The Tribunal disagrees with that claim.

[140] In light of the aforementioned evidence, the Tribunal believes that the respondent proved the contravention on the balance of probabilities. Indeed, the Minister as the respondent did not provide the “best evidence,” i.e., that shown on the altimeter of the applicant's aircraft and which the air traffic controller would have used to validate or invalidate the altitude shown on her screen. To prove the contravention on the balance of probabilities and not beyond a reasonable doubt, the Minster may rely on other evidence and this Tribunal considers that the Minister submitted reliable evidence and credible experts to interpret it. In the absence of contradictory evidence from the applicant, and given pilot's obligations with regard to flight preparation (section 602.71 of the CARs) and altimeter-setting (sections 602.35 and following of the CARs), the assumption can be made that the altimeter of the applicant's aircraft was functioning properly on June 5, 2013 when he commenced his flight.

[141] Although the applicant's expert witness, Mr. Perreault, tried to call into question the altitude of the applicant's aircraft, his presentation did not bring any convincing elements that would overcome the respondent's solid evidence showing that the applicant's aircraft penetrated the restricted area.

[142] Relying on the following information, the applicant claimed that the 2,700 feet of altitude alleged by the respondent may have been 3,020 instead, and accordingly, that the respondent's evidence concerning the altitude of the applicant's aircraft is insufficient: i) the plus or minus 50‑foot margin of error applicable to the radar readout, accepted by all; ii) the 25-foot margin of error applicable to the applicant's altimeter; iii) the one to two-second radar readout lag time resulting in a difference of 20 feet, based on the aircraft's rate of climb; and iv) the 125-feet allowance provided in Appendix F, CARs Standard 571 concerning the air traffic control transponder's performance.

[143] The Tribunal cannot make allowance for an alleged 25-foot margin of error applicable to the applicant's altimeter and referred in report R-3 by expert witness Mr. Perreault report given that no evidence concerning the source and reliability of this document was entered, as explained earlier. Also, the fact that CARs Standard 571 provides a 125-foot margin of error with respect to transponder maintenance does not constitute evidence that such margin of error affected the transponder in the applicant's aircraft. As such, the only margin of error actually proven and accepted by all is the one applicable to the radar readout, which is plus or minus 50 feet. We may also make allowance for the 20-feet calculated by expert Perreault and the two-second response time delay (sweep) mentioned in Mr. Wright's testimony in the radar readout. When the Minister respondent's witnesses mention that the applicant's aircraft entered the area at an altitude of 2,700 feet and left at 3,000 feet, it is possible, in the best-case scenario, that the applicant's aircraft entered this restricted airspace at 2,770 and left at 3,070 feet. And even in these circumstances, the applicant's aircraft penetrated the restricted area.

[144] It is also worth noting that the issue concerns a contravention of strict liability, and that even if the MANOPS (note 1, section 503.1) allows a variation of less than 200 feet before considering an altitude reading “invalid,” the same allowance for the purposes of air traffic control has no impact on the Minister's discretionary authority to impose a monetary penalty pursuant to section 601.04(2) of the CARs once the minimum required altitude is not met in a restricted airspace such as CYR 538.

[145] Concerning the horizontal position of the applicant's aircraft in relation to the restricted area, the applicant alleges, based on Mr. Perreault's report R-3, that no evidence was submitted concerning the location of the applicant's aircraft in the targets identified on the photo at page 6. During Mr. Perreault's cross-examination, however, it became evident that he did not know the scale of the map used and shown at page 6 of his report, and it was also established conclusively through the rebuttal evidence of the respondent's experts that the two targets in report R‑3 (inside which the applicant's aircraft was located) were inappropriately sized to establish whether the applicant's aircraft entered the restricted area. More specifically, Mr. Lemire's demonstration using WINRAD radar data at the hearing conclusively proved that the two targets were actually inside the restricted CYR area once appropriate tools were used to focus in on their location. Mr. Perreault's cross-examination also showed that he was no longer able to affirm whether the range bearing line tool could be used with WINRAD, revealing Mr. Perreault's knowledge of the system to be less extensive than that of Mr. Lemire. This Tribunal therefore gives precedence to the testimony submitted by the respondent's experts.

[146] Essentially, despite the fact that the air traffic controller did not validate the altitude of the applicant's aircraft, the Tribunal believes that the Minister proved that the applicant's altitude was below 3,000 feet in restricted area CYR 538 on the balance of probabilities. Although the best evidence would have been for the applicant to have confirmed his altitude, for the controller to have verified it with the pilot applicant, the Minister as the respondent was nevertheless able to provide evidence of the altitude in question by other means, namely, through the reliable radar systems used across Canada by the entire Canadian air navigation system, as the respondent's expert witnesses explained. The evidence submitted at the hearing, based on WINRAD radar data as well as the demonstrations given by the air traffic controller and expert witness Mr. Lemire, show that the applicant's aircraft entered restricted airspace below an altitude of 3,000 feet. Furthermore, the mere fact that a controller cannot use an invalidated radar readout for aircraft separation purposes does not mean that the Minister respondent cannot use such readouts as evidence in relation to the contravention alleged in the case at bar. Lastly, the audio conversation played at the hearing between the applicant and the air traffic controller, in which the applicant defends himself by saying he was at maximum climb when the air traffic controller confirmed that he had entered the restricted area below 3,000 feet, tends to support the evidence submitted by the respondent whereby he was not flying above 3,000 feet, i.e. above the restricted area. In the absence of evidence from the applicant, we can surmise, from this comment, that the applicant had not reached the minimum required altitude of 3,000 feet since this presumption is consistent with other evidence submitted by the Minister respondent.

[147] We should point out that the determination in 9144-6765 Québec inc. v. Canada (Minister of Transport), submitted by the applicant, differs from the case at bar in that the Minister did not submit any evidence of the aircraft pilot's altitude, contrary to the present case. Therefore, this decision is not helpful in supporting the applicant's claims supporting the challenge he brought forward in this case.

[148] That said, we must nevertheless consider the applicant's subsidiary argument, whereby he was prevented from taking the necessary precautions to comply with 601.04 of the CARs by the air traffic controller's actions and omissions. In short, the applicant's subsidiary argument resembles the due diligence defence provided in section 8.5 of the Act:

8.5 No person shall be found to have contravened a provision of this Part or any regulation, notice, order, security measure or emergency direction made under this Part if the person exercised all due diligence to prevent the contravention.

[149] In R. v. Sault Ste. Marie [1978], 2 SCR 1299, the Supreme Court determined the need to prove that “all due care” was taken in order to use the defence of due diligence in respect of a strict liability offence, which involves examining what a reasonable person would have done in the circumstances. In Lévis (City) v. Tétreault, 2006 SCC 12, the Supreme Court once again examined the due diligence defence and determined that it can require proving that active measures were taken to avoid the offence. Passive ignorance is not a valid defence, and a respondent that raises due diligence must show that a process was followed or an attempt was made to be informed.

[150] The applicant is therefore responsible for proving that he actively took steps to comply with the provisions of CARs 601.04.

[151] The applicant alleges that he was prevented from taking due care to avoid the restricted airspace because the air traffic controller should have verified his altitude and given him radar vectoring from the time he stated he wanted to make a simulated approach at the Ottawa airport. More specifically, and based on the expertise of Mr. Perreault, the applicant argued that he was operating in a Class D airspace in controlled VFR mode as soon as he asked to make a simulated ILS approach and that it was then up to the air traffic controller to verify his altitude at their first contact and then guide him so that he could avoid the restricted area. In the applicant's opinion, these actions would have allowed him to avoid the restricted airspace.

[152] To support his claim, the applicant cited MANOPS section 477.1 (Exhibit R‑5), which provides that the air traffic controller must apply a vertical, lateral or geographical separation between an aircraft and restricted areas to ensure aviation safety. The applicant also cited MANOPS section 551.2, whereby an air traffic controller must vector an aircraft if:

A. necessary for separation purposes;

B. required by noise abatement procedures;

C. you or the aircraft will gain an operational advantage; or

D. the aircraft requests it.

In the present matter, the applicant underscores that such request was made considering that he asked to make an ILS approach, adding that pursuant to MANOPS section 168 entitled “Radar navigation assistance,” the air traffic controller must provide navigational radar assistance if an aircraft so requests. Although the air traffic controller applied a vertical separation by asking the applicant pilot to climb to 3,100 feet, the applicant claims she should have enlisted a back-up plan when she realized that his rate of climb was insufficient, and she should then have provided him radar vectoring to avoid the restricted area. In the applicant's opinion, he showed due care by contacting the air traffic controller to request a simulated ILS approach, but she omitted to provide him with radar vectoring service, thus preventing him from avoiding restricted airspace.

[153] In the circumstances, the Tribunal must examine whether the applicant did indeed show due care to avoid restricted airspace and comply with the provisions set out in section 601.04 of the CARs by taking active steps that a reasonable pilot would have taken in the circumstances and, especially, in relation to the rules applicable to VFR flights. To answer this question, the Tribunal must also determine whether:

i) the applicant is correct when he states that he requested radar service, that he should have received radar vectoring and that such service was not adequately provided to him;

ii) the request for a simulated approach to land at the Ottawa airport amounted to sufficient care in the circumstances to allow him to argue due diligence.

[154] After analyzing the evidence, the Tribunal's determination is that both questions are to be answered in the negative.

[155] The Tribunal does not support the claim by expert Perreault that the applicant was operating in controlled VFR mode by virtue of having requested a simulated approach. In his testimony, Mr. Perreault admitted that a controlled VFR flight usually involves a flight at altitudes exceeding 12,500 feet in Class B airspace. Furthermore, Mr. Bourget, one of the respondent's expert witnesses, also testified to the fact that a controlled VFR flight takes place in Class B airspace above 12,500 feet and with ATC clearance.

[156] MANOPS defines a controlled VFR flight as follows:

CONTROLLED VFR FLIGHT — A flight conducted under visual flight rules within Class B Airspace and in accordance with an ATC clearance.

The applicant was flying in Class D airspace. This Tribunal is therefore compelled to disagree with the hypothesis suggested by Mr. Perreault that as soon as the applicant requested a simulated ILS approach, his flight became a controlled VFR flight, since such a situation is not covered by the definition of a controlled VFR flight. Rather, the Tribunal subscribes to the position of witness Bourget, whereby the applicant was flying VFR in Class D airspace, not engaged in a controlled VFR flight, and was not receiving a radar service. Accordingly, MANOPS section 477.1, concerning the controller's obligation to apply a vertical, lateral or geographical separation between an aircraft and restricted areas does not apply in the circumstances since the MANOPS part containing this section concerns controlled VFR flights and IFR flights.

[157] This Tribunal also considers that MANOPS 343.2, Part 3. entitled “Airport and VFR Control,” submitted by expert Bourget, to apply:

343.2 Do not clear an aircraft for a simulated approach. You may, however, approve a simulated approach provided:

A. VFR conditions exist at the airport;

B. traffic permits; and

C. you instruct the aircraft to maintain VFR at all times.

In fact, the applicant was flying VFR and requested a simulated approach, but the controller had to issue him an authorization as referred to in MANOPS section 343.2. To accept that the phrase “Roger” used by the air traffic controller, or to argue that the air traffic controller, by not explicitly refusing the applicant's simulated approach request, was in fact giving him clearance, as the applicant claims, would prevent the controller from exercising her aviation safety obligations within the meaning of section 343.2 of the MANOPS, and would also contradict the phraseology provided in the note pertaining to this section: “Simulated (type) approach approved. Maintain VFR at all times.” In the present case, the air traffic controller never uttered the prescribed phraseology for clearing a simulated approach.

[158] Furthermore, this Tribunal cannot support the applicant's claim that the section in question applies only in airport areas, and not to the applicant because he was operating in a terminal area. Indeed, MANOPS section 301.3 specifies that “airport and VFR control service” is provided in the following circumstances:

A. airport traffic operating on the manoeuvring area;

B. VFR aircraft operating within the control zone or Tower Radar Area; and

C. IFR aircraft for which the tower has responsibility for control.

[Emphasis added.]

Thus, a VFR aircraft operating in the control zone can receive the service provided in section 343.2.

[159] The expression “control zone” is defined in section 101 of the CARs as follows:

control zone means the controlled airspace that is so specified in the Designated Airspace Handbook and that extends upwards vertically from the surface of the earth up to and including 3,000 feet AGL, unless otherwise specified in that Handbook.

In this case, the evidence shows that the applicant's aircraft was below 3,000 feet, and therefore in the control zone within the meaning of section 101 of the CARs and section 301.3 of the MANOPS. The pilot therefore had access to the services described in section 343.2 of the MANOPS, and applicable to him. Accordingly, the argument by expert Perreault—that section 343.2 of the MANOPS applies only to aircraft inside the airport control zone and not to aircraft operating under the authority of a terminal, like the Ottawa terminal—contradicts the very terms of the CARs, which defines the nature of a control zone.

[160] In these circumstances, and contrary to the applicant's claims, Part 3 of the MANOPS, entitled “Airport and VFR Control,” not Parts 4 or 5, applies.

[161] Concerning MANOPS section 168.1, which mentions that the controller must provide radar assistance to navigation if the aircraft requests it, this Tribunal concurs that MANOPS section 168.1 does not apply herein since the applicant did not request any radar assistance based on the evidence submitted. In fact, according to the MANOPS definition of “radar service,” as pointed out by expert Bourget at the hearing, it seems readily apparent that the applicant never asked the air traffic controller to provide him with radar data-based information, i.e., radar advice, nor did he request vectoring on their initial contact, advice about a deviation from his path, navigational assistance to obtain information on his position, vectors, flight path or flight speed verifications. Instead, the evidence shows that the applicant followed the air traffic controller's instruction to climb to 3,100 feet. According to the provisions of CARs section 602.31, pilots must comply with all instructions received from the ATC and with the provisions of the AIM (for pilots) insofar as when a pilot receives and accepts ATC instruction, the pilot must comply and where such compliance is not possible, the pilot must immediately notify ATC given that the controller will consider a simple acknowledgement of receipt to indicate acceptance, in accordance with the MANOPS.

[162] It must be underscored that the applicant was flying VFR and was therefore responsible for his flight. Accordingly, while confirming that he would climb to 3,100 feet, he did not request any radar vectoring, although he had requested a simulated approach to the Ottawa airport, and the air traffic controller was entitled to expect him to obey the instruction without being obliged to validate his altitude. If the applicant was unable to climb to an altitude of 3,100 feet as she had instructed, he could have requested an alternative, such as radar vectoring, but he did not. When the applicant finally requested a vector, he had already entered restricted airspace, as the air traffic controller told him. Although Ms. Girard stated that the applicant's aircraft was [translation] “under [her] jurisdiction," her statement must be taken with caution and in context since during her testimony, after having made that statement, she specified that she was not required to validate the applicant's altitude or provide him with a vector considering that he was flying in VFR mode and had confirmed that he was climbing to 3,100 feet to avoid the restricted CYR area.

[163] Therefore, contrary to the applicant's claims, section 503.1 of the MANOPS, which requires the controller to validate altitude readouts by comparing them against the altitude reported by the aircraft, does not apply in this case since the applicant was not receiving radar vectoring. To summarize, the air traffic controller was not obligated in the circumstances to validate the applicant's altitude at any of the stages listed by the applicant's counsel. She was also not obligated to monitor operation of the applicant's aircraft to ensure he avoided the restricted area, or give him a vector to divert him away from it on realizing he was unable to reach the requested altitude.

[164] For a VFR flight, unless radar vectoring service was requested, the applicant had to show due care in avoiding restricted areas. Requesting a simulated ILS approach for a landing in Ottawa, the only step taken by the applicant in the circumstances, failed to show sufficient care to provide for a due diligence defence.

[165] Last but not least, the evidence shows that the applicant was unaware that restricted area CYR 538 was on his flight path or itinerary. The applicant never contradicted Ms. Girard's testimony. How can the applicant therefore claim to have taken due care through active steps, or have demonstrated due diligence, if he did not know where the restricted airspace was located? As the respondent rightly pointed out, the applicant was expected, pursuant to section 602.71 of the CARs, to be familiar with the available information that was appropriate to the intended flight prior to commencing the flight, including the existence of restricted area CYR 538, a special Class F restricted area, and to take the necessary steps to avoid it. The applicant brought no evidence concerning this basic prerequisite. On the contrary, the only uncontroverted evidence submitted at the hearing indicates that he was unaware of its existence, which tends to show that he did not reasonably plan his flight prior to takeoff.

[166] Therefore, based on evidence indicating that the applicant was unaware of the existence of restricted area CYR 538 combined with the fact that he was operating in VFR flight mode and did not request radar vectoring until he knew he was about to commit a contravention proves that he did not show due care to avoid entering the restricted airspace.

VIII. CONCLUSIONS

[167] The Tribunal holds that the respondent has proven, on the balance of probabilities, that the applicant contravened subsection 601.04(2) of the CARs on June 5, 2013.

[168] The Tribunal further holds that the applicant did not show due diligence pursuant to section 8.5 of the Act to prevent the contravention.

[169] The applicant did not dispute the amount of the $750 monetary penalty. Since this is a first contravention and the amount is consistent with the Transport Canada Enforcement Division guidelines, the monetary penalty is deemed reasonable in the circumstances and an appropriate deterrent.

IX. Determination

[170] The Tribunal holds that the Minister of Transport has proven, on the balance of probabilities, the disputed elements in this application for review and that the applicant cannot use the due diligence defence. The Tribunal upholds the monetary penalty of $750 imposed by the minister for a contravention of subsection 601.04(2) of the Canadian Aviation Regulations.

[171] The total amount of $750 is payable to the Receiver General of Canada and must be received by the Tribunal within 35 days of service of this determination.

November 19, 2015

Caroline Desbiens,

Member