Decisions

CAT File No. C-1647-33
MoT File No. RAP6504-P379679-030772 (P

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Stanley Garry Johnson, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.114(d)(i), 602.71, 602.72

Low Visibility, Due Diligence, Defences, Controlled Airspace, VFR Flight, Weather Conditions


Review Determination
Allister W. Ogilvie


Decision: October 21, 1998

I uphold the Minister's decision and confirm the assessed monetary penalty of $1,000.00. The payment shall be made to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Wednesday, October 14, 1998 at 10:00 hours in Winnipeg, Manitoba.

BACKGROUND

On January 5, 1998, a U206F aircraft being operated as Northway 829 flew a scheduled VFR flight between Pine Dock and Winnipeg, Manitoba with a single pilot and four passengers on board. The aircraft departed in VFR conditions but the weather en route deteriorated. Before Northway 829 reached the Winnipeg control zone, the weather in the zone had become less than special VFR. Northway 829 was cleared to land and proceeded to land in Winnipeg.

The tower subsequently filed an occurrence report. That report resulted in an investigation by Transport Canada which prompted an allegation of contravention. A Notice of Assessment of Monetary Penalty dated June 1, 1998 was issued to Stanley Garry Johnson. As the Minister did not receive payment of the monetary penalty, an application was made to the Civil Aviation Tribunal for a hearing.

The Notice of Assessment of Monetary Penalty states in part:

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):

COUNT #1:

Canadian Aviation Regulation 602.114(d)(i) in that, at approximately 18:09 z, on or about January 5, 1998, at or near Winnipeg, Manitoba, you did unlawfully operate an aircraft, to wit, a Cessna U206F, bearing Canadian registration marks C-GWAZ and being operated as Northway 829, in VFR flight within controlled airspace when the said aircraft was within a control zone where the reported ground visibility was less than three miles, and more specifically, operated an aircraft within the Winnipeg International Airport control zone when the reported ground visibility was one-half statute mile.

PRELIMINARIES

Mr. Gagnon appeared for the Minister of Transport, and Mr. Tweed appeared on behalf of Mr. Johnson. The parties had discussed having an agreed statement of facts, but a miscommunication prevented that from happening before the hearing. However, in opening discussions, Mr. Tweed stated that his client did not wish to contest the elements of the offence, but did want to explain the circumstances so as to present a defence.

Because there had not been a predetermined agreed statement of the facts, both sides called their evidence. However, as Mr. Tweed acknowledged that the elements of the offence had occurred as alleged, the Minister's burden in that regard had already been met. The testimony given then went to providing the factual background against which one could measure the defence.

EVIDENCE

The weather conditions at the Winnipeg airport at the time of arrival were below that required by special VFR as the visibility was reported at one-half statute mile in snow. The tower controller had spoken to Northway 829 when it was still some distance to the north, stating that fact and advising that St. Andrews airport was not below special VFR. The pilot replied that it was good where he was and indicated that were he not to get into Winnipeg he was considering diverting to Gimli.

Mr. Johnson stated that prior to the flight he had obtained the actual weather and weather advisory from his colleagues. He had not checked the forecast. He was aware that the weather might be below VFR minima of three miles, but considered that he could get special VFR clearance if necessary.

The aircraft that he flew had no radio aids to navigation. En route, he checked with his company and found that stations such as Arnes located behind him were becoming unusable in near zero visibility. He was not aware that Winnipeg had gone below special VFR until his contact with the controller. At that time he still had what he termed to be a couple of miles forward and the ground.

He did not consider it feasible to go to St. Andrews as he had never been there before and that Winnipeg had radar and Air Traffic Control (ATC) assistance if necessary.

On cross-examination it was revealed that he had not called the weather office himself nor had he checked the St. Andrews weather before departure. Mr. Johnson had not flown into the airports at Selkirk, Gimli or St. Andrews, which were all along this planned route. He agreed that they could have been reasonable alternate aerodromes.

Mr. Johnson in his testimony said that he had not considered going to Gimli, as that was just south of Arnes, which the company had said was down to zero visibility. However, on the ATC tape he had indicated to the controller that he was considering Gimli, if he could not get into Winnipeg.

THE LAW

Subparagraph 602.114(d)(i) of the Canadian Aviation Regulations (CARs):

602.114 No person shall operate an aircraft in VFR flight within controlled airspace unless

(...)

(d) where the aircraft is operated within a control zone,

(i) when reported, ground visibility is not less than three miles, and

(...)

Section 8.5 of the Aeronautics Act:

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

Other pertinent reference in this instance is found at sections 602.71 and 602.72 of the CARs:

Pre-flight Information

602.71 The pilot-in-command of an aircraft shall, before commencing a flight, be familiar with the available information that is appropriate to the intended flight.

Weather Information

602.72 The pilot-in-command of an aircraft shall, before commencing a flight, be familiar with the available weather information that is appropriate to the intended flight.

ARGUMENT—The Minister (Applicant)

Mr. Gagnon contends that when Northway 829 spoke to Winnipeg tower and was advised that Winnipeg was below special VFR limits, but that St. Andrews airport still had special VFR, and the pilot continued, the offence was completed.

He argued that the defence of due diligence was not applicable as the pilot had other options. He could have turned around; he could have rerouted to St. Andrews, an airport at which the weather was still above legal limits. The pilot stated the weather was still good at the point of contact with Winnipeg, so he could have exercised those options.

ARGUMENT—The Document Holder (Respondent)

Mr. Tweed argued that the defence of due diligence did apply in the circumstance. He maintained that the pilot's actions were prudent and proper in that he had checked the weather with his colleagues before departure and with his company while en route. As the pilot had never been to St. Andrews, and that airport lacked facilities such as radar, and he had no navigational aids, he might have difficulty in finding it. He was familiar with Winnipeg, and it had facilities that could aid him. Therefore, he chose to continue on, a decision made on the basis of safety, which proved correct as the flight arrived safely.

DISCUSSION

The issue to be decided is whether Mr. Johnson exercised all due diligence to prevent the contravention. The concept of due diligence has been aptly stated in Leslie G. Marsh v. Minister of Transport[1]. The appeal panel, in discussing the issue stated:

The contravention of paragraph 218(a) of the Air Regulations is a strict liability offence, and thus the intent or awareness of the document holder in his actions is not a consideration. Once it is established that the contravention occurred, the burden of proof shifts to the document holder. In strict liability cases a suitable defence is provided for under section 8.5 of the Aeronautics Act:

(...)

Diligence is defined as 'the attention and care legally expected or required of a person.' The determination of what diligence would be due in a specific instance depends on the circumstances that prevail. In routine or normal circumstances, certain actions would suffice as due diligence, but in unusual or exceptional circumstances additional or different actions would be required to constitute due diligence.

In the circumstance of this case the pilot did not exercise all due diligence.

To have exercised all due diligence, the pilot must have, at the very least, met the minimum standards. Sections 602.71 and 602.72 of the CARs require that, before commencing the flight, the pilot be familiar with the available information appropriate to the intended flight and be familiar with the available weather information appropriate to the flight.

Although the weather he did obtain indicated marginal VFR weather, he did not check the weather at St. Andrews. A VFR flight plan does not require an alternate aerodrome, but knowledge of conditions at St. Andrews would also be information appropriate to the flight, in that its geographical position makes it an attractive alternative to Winnipeg.

When Northway 829 first contacted Winnipeg tower it was advised that, although Winnipeg's weather did not meet special VFR criteria, St. Andrews' weather did. The pilot replied that the weather was really good where he was and that he had considered diverting to Gimli if unable to get in. It would seem that at this point Mr. Johnson still considered that he had options.

However, he further enquired if the transmission meant that there was no possibility of getting in. The tower controller said he could still approve it and cleared the flight in "to remain VFR at all times." The pilot acknowledged that he was to remain VFR, but proceeded into conditions which he had just been advised were not VFR.

As indicated in the Marsh case, the determination of what diligence would be due in a specific instance depends on the circumstances that prevail. The due diligence here, in circumstances of conducting a VFR flight in marginal VFR conditions, would call for particular attention to the weather and its trends, and particular attention to alternate courses of action that could be taken should the original plan become untenable. Mr. Johnson did not even meet the basic standards, in that he failed to avail himself of the forecast and ignored checking enroute station weather beforehand. While still in VFR conditions and being advised that his destination was one-half mile in snow, he blithely accepted the clearance "to remain VFR at all times" knowing that he could not remain VFR.

At that point in time, while in VFR conditions and being advised that a nearby airport was available in special VFR conditions, Mr. Johnson could have avoided the contravention by diverting to St. Andrews.

CONCLUSION

Mr. Johnson did not avail himself of all the information available to him for his intended flight and made a conscious decision to continue a flight into deteriorating weather when he still had a chance to remain VFR and proceed to a viable albeit unfamiliar airport. In this circumstance he cannot be said to have exercised all due diligence.

DETERMINATION

I uphold the Minister's decision and confirm the assessed monetary penalty of $1,000.00.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] CAT File No. C-1095-02, Appeal Determination.