Decisions

CAT File No. C-1840-02
MoT File No. RAP 5504-P341668-033321

CIVIL AVIATION TRIBUNAL

BETWEEN:

Larry Randal Gould, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9
Canadian Aviation Regulations, SOR/96-433, ss. 601.07(1), 602.114, 605.30(b)

White-out Conditions, VFR Flight, Icing Conditions, Necessity, Due Diligence, Defences, Burden of Proof


Review Determination
William Thornton Tweed


Decision: November 3, 1999

I uphold the Minister's decision on Counts 1 and 2, find that the Applicant committed the offences as set out, and confirm the suspension of three days for Count 1 and fifteen days for Count 2, for a total suspension of eighteen days. I dismiss Count 3. Said suspension will commence on the fifteenth day following service of the present determination.

A Review Hearing on the above matter was held Tuesday, October 5, 1999 at 10:00 hours at the Prince Albert City Hall in Prince Albert, Saskatchewan.

BACKGROUND

The Applicant Larry Randal Gould was accused of contravening the following sections of the Canadian Aviation Regulations (CARs):

601.07 (1) No person shall operate a VFR aircraft in Class B airspace unless the aircraft is operated in accordance with an air traffic control clearance or an authorization issued by the Minister.

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

(a) the aircraft is operated with visual reference to the surface

605.30 No person shall conduct a take-off or continue a flight in an aircraft where icing conditions are reported to exist or are forecast to be encountered along the route of flight unless

(...)

(b) current weather reports or pilot reports indicate that icing conditions no longer exist.

THE FACTS

  • The Applicant is the owner of and at all relevant times was the pilot-in-command of a Mooney M20C Canadian registered CF-RNU.
  • On Friday, March 19, 1999, the Applicant departed La Ronge, Saskatchewan destined for Saskatoon, Saskatchewan with a planned stop at Birch Hills, Saskatchewan.
  • A weather briefing was obtained, a VFR flight plan was filed and the Applicant departed La Ronge at 17:30 Z.
  • Deteriorating weather was encountered en route and the Applicant descended from a cruising altitude of 5,500 feet above sea level (ASL) to a cruising altitude of 3,500 feet ASL to maintain VFR.
  • The Applicant deviated from a direct route to fly over Montreal Lake on the first leg of his flight from La Ronge to Birch Hills.
  • Near the south end of Montreal Lake the Applicant encountered a whiteout condition and lost visual reference to the ground.
  • The Applicant, after losing contact with the ground, proceeded on a direct route to Birch Hills and initiated a climb in cloud until he broke out on top.
  • While on top of cloud and proceeding on course the Applicant responded to an inquiry from air traffic control (ATC) directed to an unidentified aircraft approximately 40 miles north of Prince Albert.
  • The communications between ATC and the Applicant were then established and a controlled VFR clearance was issued.
  • The Applicant later established visual contact with the ground, terminated his controlled VFR flight, and descended for landing at Birch Hills where the flight was terminated.

THE OFFENCES

Subsection 601.07(1) of the CARs: Pursuant to the Designated Airspace Handbook all airspace above 12,500 feet within a 60-mile radius of Prince Albert, SK VOR, is Class B airspace. The evidence clearly showed that the Applicant entered Class B airspace without having first obtained clearance (Count 1).

Paragraph 602.114(a) of the CARs: The Applicant admitted that he lost visual reference and climbed in cloud without a clearance along airways B2 and V303 (Count 2).

Paragraph 605.30(b) of the CARs: The Minister failed to prove that freezing rain was forecast along the intended route. The forecast was for freezing rain within 200 nautical miles of the upper trough. The Minister did not establish the location of the trough at the relevant time. Further, the Applicant demonstrated that actual weather reports were better than forecast, there was no reported freezing rain along the intended route and there were reports that the weather was improving from the west (Count 3).

ARGUMENT

The Applicant argued that notwithstanding his actions stood in violation of the CARs, he should not be found to have contravened the provision because he had exercised all due diligence. Due diligence is defined as the attention and care legally expected or required of a person. To succeed in such a contention, the Applicant would have had to have demonstrated on a balance of probabilities that the decisions he made and that the actions he took in considering the safety of his passengers and others were reasonable in the circumstances.

The evidence before the Tribunal was that the Applicant knew:

  1. That icing was forecast in cloud;
  2. That the tops of cloud were forecast to be as high as 22,000 feet;
  3. That he was flying along airways B2 and V303 which are controlled airspace.

In spite of this knowledge he chose to proceed en route to his original destination and climb in cloud hoping to break out on top. He made no attempt to turn west towards the forecast better weather and out of controlled airspace, he made no attempt to contact ATC to advise them of his predicament and he made no attempt to reverse his course. In making the choices he did, and in failing to take reasonable steps to ensure he would not conflict with other traffic, the Applicant has failed to exercise due diligence.

In addition, the Applicant argued the defence of necessity. In Minister of Transport v. Rice[1], where the member stated that:

circumstances giving rise to the defence of necessity require that the exigencies of the circumstances in which the pilot finds himself are so urgent that steps are required to be taken to avoid the danger that would result from inaction or delay ...

... it appears that compliance with the law was demonstrably impossible and that violation was inevitable or unavoidable, the trier of fact must determine whether or not there was any opportunity for an alternative course of action which did not involve a contravention of the regulations.

I do not accept the Applicant's assertion that he had no alternative but to climb. The first alternative, which he dismissed at the hearing, was a 180-degree turn to his reciprocal heading which would have returned him to the good VFR flight conditions he reported he had been encountering up until that point. The Applicant tendered as evidence the definition of a whiteout which is set out in the A.I.P. Canada[2]. The article defines a whiteout as:

'An atmospheric optical phenomenon of the polar regions in which the observer appears to be engulfed in a uniformly white glow. Neither shadows, horizon, nor clouds are discernible; sense of depth and orientation is lost; only very dark, nearby objects can be seen. Whiteout occurs over an unbroken snow cover and beneath a uniformly overcast sky, when with the aid of the snowblink effect, the light from the sky is about equal to that from the snow surface. Blowing snow may be an additional cause.' (Emphasis added)

The article goes on to say:

Consequently, whenever a pilot encounters the whiteout conditions described above, or even a suspicion of them, the pilot should immediately climb if at low level, or level off and turn towards an area where sharp terrain features exist. The flight should not proceed unless the pilot is prepared and competent to traverse the whiteout area on instruments.

The Applicant testified that he was flying over Montreal Lake near the south end when he encountered the whiteout condition. He further stated that he was not competent to fly with reference to instruments only having just received the minimal instrument training provided with his initial pilot training. The second and perhaps preferred alternative would have been not to fly over Montreal Lake (the unbroken snow-covered surface) thus avoiding the potential for whiteout. A third option would have been to maintain his altitude and proceed out of the phenomenon by turning or proceeding straight ahead which in short order would have brought him over the shoreline of the lake and out of the whiteout condition. In the circumstance the Applicant had alternatives that were not contrary to the regulations, would not have increased the hazard to himself and his passengers and would have provided less of a hazard to other potential users of the controlled airspace.

I note that there was no evidence presented at the hearing indicating that Montreal Lake was frozen and snow covered. However given the latitude of the lake and the time of year I am prepared to take notice of that fact.

For those reasons, I confirm the Minister's decision on Counts 1 and 2.

In the circumstances if the option were available to me I would be inclined to order recurrent training rather than the suspension.

DETERMINATION

I uphold the Minister's decision on Counts 1 and 2, find that the Applicant committed the offences as set out, and confirm the suspension of three days for Count 1 and fifteen days for Count 2, for a total suspension of eighteen days. I dismiss Count 3.

William Thornton Tweed
Member
Civil Aviation Tribunal


[1] CAT File No. O-0382-33 Review Determination (1993).

[2] (aeronautical information publications) at AIR 2-24, 2.12.7.