Decisions

CAT File No. C-1300-33
MoT File No. RAP-6504-P-376742-027828

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Mark Frank Killen, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Air Regulations, C.R.C. 1978, c. 2, ss. 534(1), (2)(b), (5)

Low flying, Pilot training, Special purpose operation, Burden of proof, Creating a hazard


Review Determination
William C. Pearson, Q.C.


Decision: April 9, 1997

Paragraph 534(2)(b) is not applicable to this flight, and I therefore dismiss the allegations of the Minister.

The Review Hearing on the above matter was held Monday, March 24, 1997 at 10:00 hours at the Office of the Arbitrator, Northern Flood Agreement, in the city of Winnipeg, Manitoba.

The parties were questioned as to:

(a) Disclosure – satisfied
(b) Preliminary Motions – none
(c) Agreement as to any facts – none

The Review Hearing then proceeded.

The Minister issued a Notice of Assessment of Monetary Penalty to the Respondent:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty in the grounds that you have contravened the following provision(s):

Air Regulation 534(2)(b) in that, at or about 10:15 hours local on February 7th, 1996 at or near East Selkirk, Manitoba you did unlawfully fly an Aircraft, to wit, a Piper PA28-140 bearing Canadian Registration Marks C-GQPV at an altitude of less than 500 feet above the highest obstacle within a 500-foot radius from the aircraft to wit the buildings, horses and other livestock and person of Sue Matheson.

THE EVIDENCE

It is clear from the evidence that Mr. Killen was, on the day in question, operating as a Flying Instructor with his pupil Robert Bushey. They were doing Precautionary Landings and Forced Landings in the Practice Area as same is shown on Exhibit D-3.

Equally clear is the evidence of Sue Anne Matheson who was attending to the watering of several race horses which as she said were "high-strung, aggressive thoroughbreds." Mrs. Matheson was aware of the aircraft in the general area but was not watching it.

Suddenly Mrs. Matheson heard the roar of the engines as it passed immediately over her head at a height of 40' to 50'. She left her animals and ran a short distance after the aircraft which was flying East to West over her buildings. She was adamant that the plane followed the track as shown on Exhibit M-4. She did not hear the aircraft until it was directly overhead. As it left her yard it banked to the right and climbed.

There is no evidence of any disturbance of the high-strung aggressive race horses or any of the other animals.

Both of the witnesses for the Respondent admitted to doing training for Precautionary Landings and Forced Landings and did three or four of them that morning. Both Mr. Bushey, the student, and Mr. Killen, the instructor, emphatically denied that they had overflown the farm yard of Mrs. Matheson.

The Minister's first witness Mr. Hiscock testified that, in discussions with Mr. Killen during the investigation phase, he was satisfied that Mr. Killen was very cooperative and is believable.

There was no evidence tendered about any movement of the animals resulting from the alleged over flight; which normally one would have expected.

In section 534 of the Air Regulations the following appears:

534. (1) In this section,

(...)

"special purpose operation" means an operation in which

(a) an aircraft is flown for the purpose of ... pilot training conducted by or under the supervision of a qualified flight instructor,

and subsection 534(5) of the Air Regulations provides as follows:

(5) A person may fly an aircraft at a lower altitude than that specified in paragraph (2)(b) where

(a) the flight is conducted without creating a hazard to persons or property; and

(b) the aircraft is flown in a special purpose operation of a nature that necessitates the flight of the aircraft at such lower altitude.

In my view subsection (5) is an exception to subsection (2) so that if subsection (5) is applicable then subsection (2) is not applicable to the flight in question.

Having reviewed all of the evidence, I have reached the conclusion that there is no evidence of damage to the Matheson property or animals as a result of the flight creating a hazard. Accordingly I do not have to consider the distance above ground or include the track of the aircraft.

DETERMINATION

In view of the fact that there is no evidence that a hazard was created, subsection 534(5) of the Air Regulations approves the flight which was conducted. Accordingly paragraph 534(2)(b) is not applicable to this flight, and I therefore dismiss the allegations of the Minister.

William C. Pearson, Q.C.
Member
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Gordon R. Mitchell, Suzanne Jobin


Decision: September 24, 1997

This panel finds that there was a contravention of paragraph 534(2)(b) of the Air Regulations, the facts of the flight having been made out and there being a lack of evidence to satisfy the application of the exemption set out in subsection (5) of the Regulations. We allow the appeal and reinstate the assessed monetary penalty of $500. This amount is to be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within 15 days of service of this determination.

An Appeal Hearing on the above matter was held before three designated Tribunal Members, Monday, July 28, 1997 at 10:00 hours at the Federal Court of Canada, in the city of Winnipeg, Manitoba.

BACKGROUND

The Appellant Minister of Transport is appealing a ruling handed down April 9, 1997 by W.C. Pearson, Q.C., Member, following a Request for Review by the Minister of Transport. Mr. Killen, the Respondent herein, was assessed a monetary penalty of $500.00 pursuant to section 7.7 of the Aeronautics Act for an alleged contravention on February 7, 1996 of paragraph 534(2)(b) of the Air Regulations being flight of an aircraft at an altitude of less than 500 feet above the highest obstacle within a 500-foot radius from the aircraft. In his decision of April 9, 1997, the Tribunal Member dismissed the Minister's allegation and held that paragraph 534(2)(b) of the said Regulations did not apply to the flight in question.

GROUNDS FOR APPEAL

The Appellant cites the following grounds for appeal:

  1. The member erred in law when he found that [sic] "...there is no evidence that a hazard was created, subsection 534(5) of the Air Regulations approves the flight which was conducted. Accordingly paragraph 534(2)(b) is not applicable to this flight, and I therefore dismiss the allegations of the Minister."
  2. The member erred in law in interpreting the entire section 534 and more specifically paragraph 534(2)(b) and paragraphs 534(5)(a)(b) of the Air Regulations.
  3. The member erred in law in applying the civil standard of damages to determine whether or not a hazard had been created to persons or property.

THE FACTS

The Tribunal Member at Review made the following summations of fact:

It is clear that Mr. Killen was on the day in question operating as a Flying Instructor with his pupil Robert Bushey. They were doing precautionary landings and forced landings in the practice area set out in Exhibit D-3.

Equally clear was the evidence of the Minister's witness Mrs. Matheson who was attending to watering of several race horses which as she said were "high-strung, aggressive thoroughbreds." Mrs. Matheson was aware of the aircraft in the general area but was not watching it. Suddenly, Mrs. Matheson heard the roar of the engines as the aircraft passed immediately over her head at a height of 40 to 50 feet. She left her animals and ran a short distance after the aircraft which was flying east to west over her buildings. She was adamant that the plane followed the track as shown on Exhibit M-4. She did not hear the aircraft until it was directly overhead. As it left her yard it banked to the right and climbed.

At Review both of the witnesses for the Respondent admitted to doing training for precautionary landings and forced landings and did three or four of them that morning. Both Mr. Bushey, the student, and Mr. Killen, the instructor, emphatically denied that they had overflown the farm yard of Mrs. Matheson.

THE LAW

In subsection 534(1) of the Air Regulations:

"special purpose operation" means an operation in which

(a) an aircraft is flown for the purpose of spraying, dusting, seeding, crop fertilizing, inspection of crops or livestock, pipeline or powerline patrolling, or any operation of a similar nature, rotorcraft external load operations, pilot training conducted by or under the supervision of a qualified flight instructor, or

(b) a commercial aircraft is flown for the purposes of the execution, by an air carrier, of aerial photography, aerial survey, or any operation of a similar nature.

Subsection 534(2):

Except as provided in subsections (4), (5) and (6), or except in accordance with an authorization issued by the Minister, unless he is taking off, landing or attempting to land, no person shall fly an aircraft

(a) over the built-up area of any city, town or other settlement or over any open air assembly of persons except at an altitude that will permit, in the event of an emergency, the landing of the aircraft without creating a hazard to persons or property on the surface of the earth, and such altitude shall not in any case be less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft; or

(b) elsewhere than over the built-up area of any city, town or other settlement or over any open air assembly of persons at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

Subsection 534(5):

A person may fly an aircraft at a lower altitude than that specified in paragraph (2)(b) where

(a) the flight is conducted without creating a hazard to persons or property; and

(b) the aircraft is flown in a special purpose operation of a nature that necessitates the flight of the aircraft at such lower altitude.

APPELLANT'S ARGUMENT

The Appellant submits that the Tribunal Member erred in law in finding that there was no evidence of a hazard and in applying the civil standard of damages to determine whether or not a hazard had been created.

The Tribunal Member stated that there is no evidence of any disturbance of the high-strung aggressive race horses or any of the other animals. He stated at page two of his reasons that there was no evidence tendered about any movement of the animals resulting from the alleged over-flight; which normally one would have expected and concluded his reasons by holding that there is no evidence of damage to the Matheson property or animals as a result of the flight creating a hazard.

The Appellant provides a review of a number of court cases which cite "undue hazard" an earlier wording of the predecessor to section 534 of the Air Regulations. We do not find it necessary to review all such cases as it is clear to this panel as well that it is not necessary for an accident to occur for a hazard to exist; it is merely the potential for damage that creates the situation.[1] There is ample Tribunal Jurisprudence on this issue as well.[2]

The focus of the Appellant's argument appears to be that there was indeed evidence of the creation of a hazard and in support of that argument cites at item 19 of her submission, the following references to the transcript of the proceedings:

At page 22 Mrs. Matheson stated that the horses were race horses, thoroughbred horses, extremely aggressive and high strung. She also stated that there is an income from the horses.

At page 23 she stated

'I went back and I started watering the same horses off and I had four horses around me at the time. They were really close. All of a sudden this plane was right over top of me.'

At page 24-25 she stated:

'It's extremely dangerous to be working with large animals and have someone come over at abot [sic] 30 feet, right over top of you. I was very, very lucky that I wasn't hurt and I wanted to make sure that nobody would do that again because, if I was hurt, there was no way anybody was going to come and pick me up and take me inside.

As well, the horses could have gone right through a fence and, if they went through the fence, we could have lost the animals or there would have been big vet bills and it would have just knocked us out for the entire racing season, so --'

At page 38 she stated in response to a question regarding the first pass of the plane prior to the low flying incident

'Q ... you made one statement that you were very happy that he flew around your property. Why is that?

A. Well, because I was out working with animals. If he had come in over top of me, there's a chance that those animals can bolt, run through a fence or run over top of me and damage me.'

The Appellant states that the Minister has proven on a "balance of probabilities" all of the elements of the offence at the Review and that the Tribunal Member erred in his interpretation of the term "hazard" and in the application of the facts to that term. The exception to the prohibition against low flying as set out in subsection 534(5) of the Air Regulations was not proven "on a balance of probabilities," and hence the Tribunal Member erred in his determination.

RESPONDENT'S ARGUMENT

The Respondent submits that the Tribunal Member was satisfied "on a balance of probabilities" from the evidence adduced by Transport that a breach had not occurred.

On the issue of credibility, the Respondent submits that the Hearing Officer in his decision does not give much credibility to the statements made by the complainant. He further states that the Hearing Officer was correct in determining that on a balance of probabilities the evidence given by Mr. Killen and Mr. Bushey was more credible than that of the evidence of the complainant.

The Respondent submits that it was the evidence of Mark Killen and Robert Bushey that they only operated their plane under 500 feet in the practice area and in accordance with rules ..., and they would avoid homes because of the rules. He states that they were not careless or negligent in the handling of the aircraft.

DISCUSSION OF ISSUES

Did the Tribunal Member err in law in dismissing the Minister's case on the basis that he found no evidence that a hazard was created, citing subsection 534(5) of the Air Regulations as approval for the conduct of the flight and accordingly that paragraph 534(2)(b) did not apply to the flight?

The issues raised in the interpretation of section 534 of the Regulations merit our detailed analysis. Before doing so, we would point out that in our view the Tribunal Member did not hold that there was no breach of paragraph 534(2)(b) of the Air Regulations, rather he held that that paragraph had no application. In so doing, it was the opinion of the Tribunal Member that he did not have to consider the facts determining distance above ground or include the track of the aircraft.

It is the view of this panel that the Member erred in failing to determine that issue, as his first task was to determine on the facts presented whether the Minister had made out its case by establishing flight below 500 feet within a 500-foot radius as prescribed in paragraph 534(2)(b). If the Minister meets the burden of proving the constituent elements of paragraph 534(2)(b), only then do considerations arise regarding the applicability of exceptions to the rule.

This very issue had arisen in the case of Minister of Transport v. Boklaschuk[3] and was in our view correctly decided by that appeal panel. While the Boklaschuk case involved the special purpose operation of crop spraying rather than the special purpose operation of flight training, we are of the view that identical considerations apply respecting the application of the exception. It is also worthwhile noting that the legislation has been amended in the intervening period between the decision rendered in Boklaschuk and the present; however, we note that the material portions of the exception have not changed.

At page 5 in the Appeal Determination in the Boklaschuk case, the panel made the following analysis:

Section 534(2)(a) and (b) cover the altitude at which a pilot is permitted to fly. Subsection (a) specifies the altitude a pilot may fly over a built up area of any City, Town or other settlement or over an open air assembly of persons. Subsection (b) specifies the altitude a pilot may fly elsewhere. The cumulative effect of the two subsections is that together, they provide a rule covering flying altitudes everywhere. Subsections (4), (5) and (6) are merely exceptions to the rule.

If Transport allege a contravention of either subsection (a) or subsection (b) and establish on a balance of probabilities that a contravention has occurred, in absence of any other evidence, the case has been proven.

The legislation, however, recognizes that there are circumstances where a breach of 534(2)(a) or (b) is permitted.[4]

The panel had the following analysis at page 6 of the Appeal Determination, relating to the applicability of the exceptions:

If Transport proves a breach of the rule, the onus shifts to the Respondent to establish that he falls within one of the exceptions. It is not up to Transport to prove the exception.

In dealing with an allegation of a breach of either 543(2)(a) or (b), the Hearing Officer must be satisfied "on a balance of probabilities" from the evidence adduced by Transport that a breach occurred. If the Hearing Officer is satisfied, then in order to dismiss the complaint, the Hearing Officer must be satisfied again "on a balance of probabilities" from the evidence adduced by the Respondent that the Respondent falls within one of the exceptions to the rule.

It is therefore the task of this panel to determine whether Mr. Killen flew at an altitude of below 500 feet so as to bring the flight within that paragraph. We are satisfied on the evidence that Mr. Killen and Mr. Bushey were in the practice area set out in Exhibit D-3, doing precautionary and forced landings on February 7, 1996. Exhibit M-2 is a daily flight log for this date identifying Mr. Killen as pilot-in-command. In this regard we reject the suggestion that a second aircraft with similar markings conducted the flight in question. There was no confusion regarding the aircraft identification, and we are satisfied that Mrs. Matheson correctly identified the aircraft in her report to the airport immediately following the incident.

At pages 22 to 27 of the transcript is the evidence of Mrs. Matheson. Notably at pages 23 and 24 she indicates that at the relevant time she had watered some two-year-old horses and had moved over to the pen beside the barn on the east side when she noticed a plane coming in over the hay field to the east, taking a look and then flying off. She went back to water the same horses, and they were in really close. She reported that all of a sudden the plane was over top of her. It had come in from the east. She looked up and there it was. She dropped the bucket and ran after the plane. It was flying west. She indicated that it flew over an old cattle barn which was about 20 feet high, and the plane was beside or just above it. It was headed for the trees; it dipped its wings and headed for a spot where the trees were a little bit thinner and lower. She reported that the plane made it just over the trees and went back west to St. Andrews Airport. The flight path over the farm is indicated at Exhibit M-4.

When the aircraft dipped its right wing, she could see the letters on the aircraft. She then called the airport to report the incident.

We find Mrs. Matheson's evidence to be very credible, and we have no difficulty in making our determination that the flight path was directly as indicated on Exhibit M-4 and that the flight was made in contravention of paragraph 534(2)(b) of the Air Regulations having been conducted at an altitude well below the 500-foot requirement.

Having determined that the Minister has made out a breach of paragraph 534(2)(b) of the Regulations on a balance of probabilities, it now falls to be decided whether this flight was exempted by subsection (5). We hold as did the Tribunal Member at review that this flight falls within the definition of "special purpose operation" and is granted the considerations of subsection (5) for lower flight than that required under paragraph 534(2)(b) of the Regulations.

The exemption contained in subsection (5) is granted on the conditions set out, in that the flight must be conducted without creating a hazard to persons or property; and that the aircraft is flown in a special purpose operation of a nature that necessitates the flight of the aircraft at such lower altitude.

In determining the first issue of whether the flights were conducted without creating a hazard to persons or property, the appeal panel in Boklaschuk made the following statement at page 7:

Parliament in enacting the legislation clearly contemplated that special purpose operations would be flown at heights less than those prescribed by 534(2)(b). Conducting a special purpose operation at heights less than those prescribed in Section 534(2)(b) does not in itself constitute a hazard. Various Dictionary definitions of Hazard refer to A fortutious [sic] event, chance accident; risk; peril, exposure to danger. To determine whether a hazard was created in a particular instance, the facts surrounding that case must be examined and each case decided on its own particular facts. For a hazard to be created, the chance of an accident, the risk or peril or the exposure to danger, must be real. To determine whether or not the operation in question created a "hazard", the Hearing Officer must determine whether the manner in which the operation was conducted conforms to the standards that a reasonably competent Crop Sprayer would adhere to in the circumstances. If the operator in question can establish on a balance of probabilities that the operation in question conforms to those standards, the onus on him has been met. This is a matter which the Hearing Officer must determine based on the evidence adduced at the Hearing.

In the instant case we have the evidence of Mrs. Matheson regarding the circumstances of the flight placing the aircraft in close physical propinquity to herself and the horses. The onus shifts to Mr. Killen to prove that the flight was conducted without hazard, and this he has not done. He has called no evidence respecting the training flight and in all probability has no specific recollection of it. He and his student pilot stated generally that they would always comply with the rules.

Additionally, in our view the second condition requires proof that, in carrying out the activity of precautionary and forced landing procedures, it is necessary to fly at lower altitudes than those set out in paragraph 534(2)(b). No evidence was adduced regarding the conduct of such training flights, and hence there is no evidence on record to satisfy this panel that flight below 500 feet was necessary for this training flight.

DETERMINATION

Accordingly, this panel finds that there was a contravention of paragraph 534(2)(b) of the Air Regulations, the facts of the flight having been made out and there being a lack of evidence to satisfy the application of the exemption set out in subsection (5) of the Regulations. We allow the Appeal and reinstate the assessed monetary penalty of $500.00.

Reasons for Appeal Determination by:

Faye Smith, Chairperson

Concurred:

Suzanne Jobin, Member
Gordon R. Mitchell, Member


[1] R. v. Beckon, (unreported, Ont. Prov. Ct. March 27, 1984) cited in the Minister's factum.

[2] Sinclair v. Minister of Transport, CAT File No. C-0200-02

Minister of Transport v. Wishlow, CAT File No. C-0168-33

Minister of Transport v. Boklaschuk, CAT File No. C-0141-33

[3] 1990 CAT File No. C-0141-33

[4] The panel herein cites the exception as set out in subsection (5) above.