Decisions

TATC File No. P-4175-33
MoT File No. EMS 86821

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

John Waring, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A-2


Review Determination
Stephen Rogers


Decision: October 11, 2016

Citation: Waring v. Canada (Minister of Transport), 2016 TATCE 29 (Review)

Heard in: Nanaimo, British Columbia, on July 19, 2016

REVIEW DETERMINATION AND REASONS

Held: The member confirms the Minister of Transport's decision to impose a monetary penalty on Mr. Waring, as he failed to familiarize himself with the available NOTAMs of his proposed route of flight, and this information was appropriate to the intended flight.

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

I. BACKGROUND

[1] Mr. David Moss, Aviation Enforcement Officer, Pacific Region, Transport Canada, informed Mr. John Waring by email dated June 1, 2015, that he had been the alleged pilot-in-command of aircraft C-FUVI, a Bell 47 helicopter, that allegedly flew within the airspace reserved by NOTAM (Notice to Airmen) for aerial firefighting in the vicinity of Little Bobtail Lake, British Columbia, in violation of Canadian Aviation Regulations (CARs) 602.71.

II. STATUTES AND REGULATIONS

[2] CARs section 602.71 requires that a pilot-in-command of an aircraft shall, before commencing a flight, be familiar with the available information that is appropriate to the intended flight.

III. PRELIMINARY MATTERS: Motion by the Respondent to amend the Notice of Assessment of Monetary Penalty

[3] Following the Notice of Assessment of Monetary Penalty (Notice) dated September 30, 2015, Mr. Toke Adams, Regional Manager, Aviation Enforcement, Pacific Region, Transport Canada, was advised on May 13, 2016 that the Notice should be amended because it was insufficiently particularized.

[4] The applicant challenged the Minister's application to amend the Notice on the grounds that it contained information obtained from an informal meeting Mr. Adams had with the applicant.

[5] Mr. Waring was sworn in and invited to give evidence and testimony as to why the Transport Canada-amended Notice should not be accepted.  Mr. Waring argued that the Notice was amended as a result of a conversation with Mr. Adams. However, no evidence was provided to indicate this. Mr. Waring pointed out that the message from Prince George (YXS) Tower was in error and that the helicopter had landed at the Northwood Pulp Mill rather than at Waverly Aerodrome, as suggested by YXS.  This is correct but irrelevant because it happened after the offence took place.  

[6] Given the foregoing, I have decided to accept the Notice as amended.

IV. EVIDENCE

[7] The following exhibits were entered into evidence:

  • A-1: Applicant Letter re: Informal Meeting
  • M-1: Email from Danielle Rehm to Toke Adams, May 21, 2015
  • M-2: Email from Jeffrey Ellis to Toke Adams, May 22, 2015
  • M-3: Letter of Investigation, June 1, 2015
  • M-4: Telephone Record of Conversation with John Waring, June 2, 2015
  • M-5: Emails between David Moss and Prince George Fire Centre Personnel, June 2, 2015
  • M-6: Emails between David Moss and NAV Canada Personnel, June 2 and 3, 2015
  • M-7: Email from Kamloops Flight Information Centre, and attachment, to David Moss June 5, 2015
  • M-8: Telephone Record of Conversation with John Waring, June 3, 2015
  • M-9: Map Showing Location of Little Bobtail Lake
  • M-10: NOTAM and Flight Route, May 21, 2015
  • M-11: Secretary's Certificate and Pilot's Licence, May 19, 2016
  • M-12: CAWIS Search Printout, June 17, 2016
  • M-13: CCARCS Search Printout, June 17, 2016
  • M-14: Notice of Assessment of Monetary Penalty, September 30, 2015
  • M-15: Table of Sanctions
  • M-16: Email from Cody McEwen to Dan Martens, May 14, 2015
  • M-17: Fax from Dan Martens to Kamloops Flight Information Centre, May 15, 2015
  • M-18: Fax from Kamloops Flight Information Centre, May 15, 2015
  • M-19: Email from Cody McEwen to Dan Martens, May 19, 2015
  • M-20: Fax from Dan Martens to Kamloops Flight Centre, May 19, 2015
  • M-21: Fax from Kamloops Flight Information Centre, May 19, 2015
  • M-22: Email from Dan Martens to Danielle Rehm, May 21, 2015
  • A-2: Letter from Randy Spritt re: Cabin
  • A-3: Smithers Air Traffic Control Audio Transcription
  • A-4: Prince George Air Traffic Control Audio Transcription

[8] From the 15th of May to the 28th of May, 2015, a NOTAM from Vancouver FIR (flight information region) listed the coordinates and identified that the centre of the fire was approximately 20 nautical miles southwest of Beaverly Aerodrome, from the surface to 6,000 feet MSL (mean sea level). Both Mr. Waring and his passenger, Neil Waring, testified that they were aware of this particular fire from news sources.

A. Minister

(1) Mr. David Moss

[9] Mr. Moss read into the record an email from Dan Martens, Civil Aviation Safety Inspector. He had received a call from the Prince George fire centre, saying that a helicopter had been flying through the NOTAM fire area on May 20th and 21st.

[10] The fire control centre contacted YXS Tower who were able to confirm that a Bell 47, C‑FUVI, had left Naltesby Lake, a.k.a. (Little or Big) Bobtail Lake, and flown to a small aerodrome called Beaverly, west of the City of Prince George.

[11] Mr. Moss spoke by telephone to Mr. Waring, who stated that on May 20th he flew from Terrace to a cabin on Bobtail Lake, and then on May 21st Mr. Waring flew C-FUVI from a cabin on Naltesby Lake to the Northwood Pulp Mill in Prince George.

[12] Following a conversation with Mr. Waring, Mr. Moss concluded that Mr. Waring was pilot-in-command of Bell 47 C-FUVI; that he flew from Waterlily Bay on Lakelse Lake and landed at Terrace, British Columbia (YXT) for fuel; and that he did not check NOTAMs at YXT. He then flew via a Burns Lake fuel stop to the cabin on Naltesby Lake where he overnighted. On May 21st, he flew to the Northwood Pulp Mill (not Beaverly, as suggested by YXS Tower). Mr. Adams of Transport Canada proceeded with the Notice upon receipt of this information. Mr. Moss then read the charge and the penalty provision into the record.

Cross-examination by Mr. John Waring

[13] Mr. Moss was asked: “What is an airspace bust?” He replied that it is a restricted airspace incursion.

[14] Mr. Moss was asked if he had an audio of Mr. Waring's contact with the YXT Tower. He replied that the audio tape is no longer available.

[15] Mr. Moss was asked if he had the YYD (Smithers) FSS (flight service station) audio (Exhibit A-3). He answered “yes”.

[16] Mr. Moss was asked if he knew that the YYD FSS had been asked by Mr. Waring about a NOTAM to remain above 12,500 feet showing on his GPS. According to the transcript of the Smithers ATC audio recording (Exhibit A-3), YYD advised that it is their restricted airspace and it was not valid at that time.

[17] Mr. Waring asked Mr. Moss if he was aware that he (John Waring) was asked for his destination. According to the transcript of the Smithers ATC audio recording, Mr. Waring's reply was that he was headed for Burns Lake for fuel.

(2) Mr. Daniel Martens

[18] Mr. Martens is a Transport Canada Civil Airspace, Flight Operations and Aerodrome Inspector.

[19] Mr. Martens explained the process required to obtain a NOTAM for firefighting purposes, the distribution purpose for NOTAMs, and other protocols (Exhibits M-17 and M-18).

[20] Mr. Martens then confirmed that Little Bobtail Lake and Naltesby Lake are both located in the centre of the NOTAM area. He confirmed that the NOTAM was effective May 19, 2015 to May 28, 2015.

Cross-examination by Mr. John Waring

[21] Mr. Waring asked Mr. Martens if NOTAMs can be accessed by air radio. Mr. Martens responded “yes”. He testified that the NOTAMs were circulated to the Vancouver FIR.

B. Applicant

(1) Testimony by Mr. Neil Bruce Waring, son of Mr. John Waring, and passenger in helicopter C-FUVI

[22] Mr. John Waring asked: “Did we ask YXT for clearance from Waterlily Bay to Terrace Airport and were we assigned a transponder code?” Mr. Neil Bruce Waring answered “yes”.

[23] Mr. John Waring asked: “Were we asked our destination?” Mr. Neil Bruce Waring answered “yes”.

[24] Mr. John Waring asked: “Did we say YXS (Prince George)?” Mr. Neil Bruce Waring answered “yes”.

[25] Mr. John Waring asked: “Did we land in Burns Lake?” Mr. Neil Bruce Waring answered “yes”.

[26] Mr. John Waring asked: “Did we land at Plateau Forest Products?” Mr. Neil Bruce Waring answered “yes”.

[27] Mr. John Waring asked: “Did we land in Vanderhoof?” Mr. Neil Bruce Waring answered “yes”.

[28] Mr. John Waring asked: “Did we land at Bobtail Lake?” Mr. Neil Bruce Waring answered “yes”.

[29] Mr. John Waring asked: “Were there fires burning in the area?” Mr. Neil Bruce Waring answered “no”.

[30] Mr. John Waring asked: “Did we land straight in?” Mr. Neil Bruce Waring answered “yes”.

[31] Mr. John Waring asked: “Did we depart Bobtail Lake at 9:40 am on the 21st?” Mr. Neil Bruce Waring answered “yes”.

[32] Mr. John Waring asked: “Was there any fire in the area?” Mr. Neil Bruce Waring answered “no”.

[33] Mr. John Waring asked: “Were there any aircraft in the area?” Mr. Neil Bruce Waring answered “no”.

[34] Mr. John Waring asked: “Were we able to contact YXS on the ground?” Mr. Neil Bruce Waring answered “no”.

[35] Mr. John Waring asked: “Did we identify ourselves once airborne to YXS Tower?” Mr. Neil Bruce Waring answered “yes”.

[36] Mr. John Waring asked: “Did a forest ranger drive by the cabin when we were there?” Mr. Neil Bruce Waring answered “yes”.

Cross-examination by Dana Kripp

[37] Ms. Kripp asked Mr. Neil Waring if he was aware of the forest fire. Mr. Neil Bruce Waring said he thought it had been on the news, though quite a while ago.

[38] Ms. Kripp asked if his father checked NOTAMs. Mr. Neil Bruce Waring said he did not know.

[39] Mr. Neil Bruce Waring stated that Bobtail Lake is in the Prince George Airport control area (this is not corroborated) and no fires were seen. They went to a cabin for a friend who was concerned about the fire.

[40] When asked if he was a licensed pilot, Mr. Neil Bruce Waring answered that he was not.

V. ARGUMENTS

A. Applicant

[41] Mr. John Waring is a successful contractor and rancher, and holds a commercial pilot licence for helicopters. He admits that as a result of this incident, he feels overwhelmed by Transport Canada. He said that he saw no fires and that his transponder was on. When asked by YXS Tower where they were going on the 21st, he replied that they were going to Northwood Pulp Mill.

B. Minister

[42] Ms. Kripp emphasized that Mr. John Waring admitted that he was aware of the fire, that he went to the cabin because of the fire, and that he did not check NOTAMs.

VI. ANALYSIS

[43] The elements of the violation are as follows:

1) John Francis Waring was the pilot-in-command of a Bell 47G-3B-1, registration C-FUVI, on May 20th, 2015.

2) Mr. Waring failed to familiarize himself with NOTAMs at or near Terrace, B.C.

3) The NOTAMs were information-appropriate to the intended flight.

[44] The evidence shows that Mr. Waring was the pilot-in-command of a Bell 47G-3B-1, registration C-FUVI, on May 20th, 2015. Moreover, Mr. Waring did fly his helicopter into an area that was designated by NOTAM as a “no fly” area. On the balance of probabilities, the evidence shows that he was not advised by any NAV Canada facility of the NOTAM because he did not inform anyone that his destination was in a prohibited area. On the balance of probabilities, the evidence provides that Mr. Waring failed to familiarize himself with the NOTAM. Considering the situation in B.C. at the time, a NOTAM constitutes information necessary for the intended flight.

VII. DETERMINATION

[45] The member confirms the Minister of Transport's decision to impose a monetary penalty of $750 on Mr. Waring, as he failed to familiarize himself with the available NOTAMs of his proposed route of flight, and this information was appropriate to the intended flight.

October 11, 2016

Stephen Rogers
Member