Decisions

CAT File No. C-1494-33
MoT File No. RAP6504-P374397-029634

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Daniel George Knisley, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s.7.7
Canadian Aviation Regulations, SOR/96-433, s.602.126(1)(c)

Take-off Below Minimum Visibility


Review Determination
David S. Ahmed


Decision: November 25, 1997

I find that Mr. Knisley did contravene paragraph 602.126(1)(c) of the Canadian Aviation Regulations as alleged by the Minister, and I confirm the assessed monetary penalty of $250. The payment shall be made to the Receiver General for Canada and be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Friday, October 17, 1997 at 10:00 hours at Meyer Compucourt Reporting, in Saskatoon, Saskatchewan.

BACKGROUND

On February 17, 1997, Mr. Daniel George Knisley took off from Saskatoon Airport, his destination being Points North. He was flying a Cessna 402C aircraft, and he had filed an instrument flight rules (IFR) flight plan for this particular trip. On June 11, 1997, Transport Canada issued a Notice of Assessment of Monetary Penalty for $250.00 as follows:

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

Canadian Aviation Regulation 602.126(1)(c) in that, at approximately 15:50z on February 17, 1997, at or near Saskatoon, Saskatchewan, being the pilot-in-command of an aircraft, to wit, a Cessna 402C, bearing Canadian registration marks C-GCGQ, you did unlawfully conduct a take-off when the take-off visibility, as determined in accordance with CAR 602.126(2) was below the minimum take-off visibility specified in the Canada Air Pilot.

Transport Canada went on to point out that the penalty of $250.00 should be paid on or before July 15, 1997 to the Regional Manager, Aviation Enforcement, Transport Canada. Mr. Knisley was told that if he did not pay the monetary penalty before July 15, 1997 a copy of the above-mentioned Notice would be forwarded to the Civil Aviation Tribunal and that subsequently the Tribunal would request that he appear before it to hear the allegations against him. Mr. Knisley chose not to pay the monetary penalty which was the reason for this review hearing.

THE EVIDENCE

Transport Canada's Case Presenting Officer was Inspector R.D.J. Brown. He had two witnesses, Inspector Jim Welwood and Mr. Vic Shura. Mr. Brown stated that, with the evidence of his two witnesses, he would be able to confirm that Mr. Knisley had indeed taken off from Saskatoon Airport on February 17, 1997 when the weather was below IFR minima. He then called upon his first witness, Inspector Jim Welwood who was duly sworn in.

Inspector Welwood's Evidence

On request, Inspector Welwood informed us that he had been a Transport Canada employee for approximately thirteen years. His qualifications were impressive, and there was no dispute regarding the fact that he was an expert in IFR procedures. In total, Transport Canada produced nine exhibits that were filed under M-1 up to M-9. Inspector Welwood's evidence was based largely on these nine exhibits, and I will try to summarize the facts without going into unnecessary detail.

The earlier exhibits confirmed the fact that Mr. Knisley was pilot-in-command of the Cessna 402C aircraft that took off from Saskatoon Airport on February 17, 1997 at approximately 15:50 Zulu destined for Points North. It was also evident that the weather had been "up and down" most of the day prior to Mr. Knisley's flight being conducted. In any case, at approximately 15:40 Zulu on the day in question, Mr. Knisley contacted Saskatoon Ground informing it that he was ready for taxiing for an IFR flight to Points North. The conversations between Mr. Knisley and Saskatoon Tower were recorded on a voice activated tape which was presented as evidence by Transport Canada under Exhibit M-9 and was listened to from beginning to end.

When Mr. Knisley contacted Saskatoon Ground, they gave him a weather report which indicated that the reported ground visibility was one-eights of a mile with light snow grains, light freezing drizzle and freezing fog. They also informed him that the runway visual range (RVR) was 1,800 feet. He was subsequently cleared to taxi to runway 09. While taxiing to the active runway, he was given his IFR clearance which was read back and acknowledged. Prior to take-off, he contacted Saskatoon Tower informing it that he was ready for take-off. Take-off clearance was given, and he was informed to contact Saskatoon Terminal when he was airborne. Subsequently, there was another transmission from Saskatoon Tower to Mr. Knisley which, unfortunately, faded out and was not decipherable. I say unfortunately because this accidentally blanked out communication would appear to have been relevant to the latest RVR, but this, of course, will have to be a matter for conjecture.

Inspector Welwood concluded his evidence that reminded us that, if either the RVR or the ground visibility was below minima, take-off is not permitted. He reported that, at the time Mr. Knisley took off, both of these parameters were below limits.

Mr. Shura's Evidence

Mr. Shura was introduced as being a Nav Canada employee. He is the unit manager at Saskatoon Tower and has been there since 1991. He was duly sworn in, and his evidence consisted largely in confirming the facts with regards to Mr. Knisley's flight that I have alluded to before. He confirmed that, in his opinion, Mr. Knisley had conducted an unlawful take-off on February 17, 1997. This being the case, he reminded us that he was obligated to file an occurrence report which is what he did. This subsequently resulted in Mr. Knisley being assessed a monetary penalty of $250.

Mr. Shura could not explain why part of the tape that we listened to and to which I have alluded to earlier was missing. It was concluded that there must have been some sort of technical malfunction.

Mr. Knisley's Evidence

Mr. Knisley was duly sworn in. Mr. Knisley confirmed that prior to his take-off the weather had been "up and down" all day. He did not dispute the fact that when he initially contacted Saskatoon Ground he was informed that the RVR on runway 09 was measured at 1,800 feet. He explained that he taxied out anyway hoping that, by the time he reached the active runway, conditions would have improved, acknowledging the fact that he may have to wait a little while before this happened. Prior to take-off, he stated that the ground visibility had improved considerably and was, in his opinion, well within take-off limits, which is why he proceeded with the flight. To give him his credit, he did not capitalize on the fact that part of the tape recording was missing in so much as the missing part of the tape recording might have confirmed that the current RVR was within take-off limits.

INSPECTOR BROWN'S SUMMARY

Mr. Brown summarized the events as they would have appeared to have occurred. It was acknowledged by all parties concerned that Mr. Shura from Air Traffic Control had no personal grudge against Mr. Knisley which, in Mr. Brown's opinion, would have made it unlikely that he would have reported an occurrence. Mr. Brown felt that he had proved that Mr. Knisley had broken published regulations. He reminded us that for this type of offence Transport Canada could assess a monetary penalty up to $5,000, but in this case it had assessed the minimum penalty of $250 and, on this basis, requested that if I did find Mr. Knisley guilty of the offence that I not reduce the amount.

DETERMINATION

I find that Mr. Knisley did contravene paragraph 602.126(1)(c) of the Canadian Aviation Regulations as alleged and confirm the assessed penalty of $250. After carefully listening to the evidence, I conclude that Mr. Shura, from Air Traffic Control, acted reasonably in filing an occurrence report against Mr. Knisley.

Dr. David S. Ahmed
Member
Civil Aviation Tribunal