Decisions

CAT File No. C-1712-33
MoT File No. RAP6504-P236469-031964(P)

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Abel Frederick Chaboyer, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(a)(i)

Seaplane, Low Flying, Landing, Exemption, Built-Up Area


Review Determination
Pierre Rivest


Decision: February 2, 1999

TRANSLATION

I am satisfied that the Respondent exercised his right to fly at low altitude for the purpose of landing on water and that, consequently, he did not contravene subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations. I therefore cancel the assessed monetary penalty of $250.

A Review Hearing on the above matter was held Wednesday, January 20, 1999 at 10:00 hours, at the Federal Court of Canada, in Winnipeg, Manitoba. The witnesses were sworn in.

BACKGROUND

On August 5, 1998, the Respondent, Mr. A. F. Chaboyer, as pilot, allegedly operated an aeroplane over the built-up area of Lac du Bonnet, Manitoba, at an altitude of less than 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane, thereby contravening subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations (CARs). The aircraft in question is a Cessna 180B registered as C-FPPJ.

A monetary penalty of $250.00 was assessed.

THE LAW

Subparagraph 602.14(2)(a)(i) of the CARs provides:

602.14 (1) (...)

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane,

(...)

It must be noted here that in the above-mentioned paragraph (2), "approach" is included in the exemption for low altitude flight.

THE FACTS

For the Applicant

The Applicant's representative, Mr. Holbrook, called two witnesses, Mr. Gagnon, civil aviation inspector, who investigated the incident and Mr. Polischuk, airworthiness inspector, who is an eyewitness to the incident.

With the help of documents M-1 (aircraft journey log) and M-2 (certificate of registration), it was shown by the witness Gagnon that the aircraft involved is indeed a Cessna 180B, registered as C-FPPJ, flown by the Respondent.

The area where the incident occurred was described with the help of map M-4, and the prevailing weather conditions for the day of the incident are found in M-5.

Exhibit M-3 is the "Notice of Assessment of Monetary Penalty" sent October 6, 1998 by Transport Canada to the Respondent and received by him.

There was no cross-examination.

The second witness, Mr. Polischuk, explained to the Tribunal what he saw on August 5, 1998. He described the incident with the help of Exhibit M-6 (an aerial photo of the area involved at Lac du Bonnet) and of Exhibit M-7 (Mr. Polischuk's sketch describing the path flown by the aircraft).

He confirmed that the seaplane was coming toward him, travelling north-south, that it passed directly above his vehicle at approximately 200 feet and then made a right turn and rapidly gained altitude. In spite of the seaplane's speed, the witness was able to read the registration letters.

According to him, the aircraft was not in a water landing configuration, because the flaps were not lowered. Additionally the witness has some experience in seaplanes and in Cessna 180s.

Under cross-examination, the Respondent elicited from the witness that it could be difficult to determine the flight configuration of the seaplane given that it passed directly above his vehicle, then flew away behind it and disappeared, and that above all, the witness' deduction was based more on his personal experience as a pilot than on what he had actually seen.

For the Respondent

Mr. Chaboyer, who defended himself, explained the incident as follows (summary):

  • He was flying south to see a client.
  •  During the flight, he thought of stopping at Lac du Bonnet to visit a vegetable greenhouse belonging to some friends.
  •  As Mr. Chaboyer knew the area well, and the wind being light, he decided to land on water directly, without circling. At an altitude of approximately 150 feet, just before the lake shore, he noticed boats and Seadoos that were moving in zigzags in all directions. He thought this could create a hazard, and as he also knew that two other planes were flying near the lake, he decided to abort the landing, climb, and continue his flight.

Under cross-examination, the Respondent confirmed that his intention was to land on water, that he had already lowered the flaps by two detents, that his speed was 80 MPH, and the propeller was at fine pitch.

However, he admits that he would have landed downwind (although light), and that he unknowingly flew over an area described in the Canada Water Aerodrome Supplement as an ostrich breeding farm where noise must be avoided (Exhibits M-8 and M-9).

ARGUMENT

Before the beginning of argument, the Respondent wanted to submit a document (Exhibit D-1) in which the owners of the above-mentioned greenhouse confirm that the Respondent was in the habit of visiting them. The Minister's representative objected to the submission of the document, but I accepted it without prejudice being of the opinion that it would not change the basis of the discussions. Moreover, Mr. Holbrook did not have any questions about the content of the document.

Arguments summarized each party's position, namely that:

  • According to the Applicant it was a low altitude flight over a built-up area, in contravention of subparagraph 602.14(2)(a)(i) of the CARs.
  • According to the Respondent his intention was to land on water, but he changed his mind because of the boat and Seadoo traffic on the lake, and neighbouring air traffic.

ANALYSIS AND CONCLUSION

The aircraft, the pilot, the day and hour are not contested.

There is no doubt that a low altitude flight occurred over a built-up area.

What is left to determine is if the exemption in subsection 602.14(2) of the CARs, that is, the intention to land, including the approach before landing, applies.

If I am to believe the witness Polischuk regarding the manoeuvres he described, I must also believe the testimony of the Respondent who maintains he wanted to land on water.

The only contradiction in the evidence of the two witnesses is the fact that the witness Polischuk maintains that the aircraft was not configured to land on water while the Respondent says the contrary.

Considering that the witness Polischuk had to attend to driving his vehicle and keep his eyes on the road (he was approaching a curve, see Exhibit M-7), it was more difficult for him to notice certain details such as the position of the flaps on the seaplane. Yet, as soon as the Respondent decided to regain altitude, he says he raised the flaps. Was this before or after having overtaken the witness' vehicle? Add to this the surprise caused by a plane's noise as it passes over your head at low altitude, the noise caused by the motor at full throttle, the propeller at fine pitch and the combined speeds of the automobile and the aircraft, and you have everything in place to disturb your concentration.

I admit that the Respondent did not follow the usual rules before landing on water, but this is not the allegation.

As I do not have sufficient compelling facts not to believe the Respondent's intentions, I conclude that, based on a balance of probabilities (which is incumbent upon him after the Minister has established his proof), Mr. Chaboyer intended to land and, that being the case, he did not contravene subparagraph 602.14(2)(a)(i) of the CARs.

DETERMINATION

I am satisfied that the Respondent exercised his right to fly at low altitude for the purpose of landing on water and that, consequently, he did not contravene subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations. I therefore cancel the assessed monetary penalty of $250.

Pierre Rivest
Member
Civil Aviation Tribunal