Decisions

CAT File No. C-1854-33
MoT File No. RAP5504-P212640-033180 (P

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Joseph Antonio Jean-françois Laflèche, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.100(b)
Canadian Aviation Regulations, SOR/96-433, s. 602.114(d)


Review Determination
Michel Larose


Decision: June 12, 2000

TRANSLATION

The Tribunal confirms the decisions of the Minister of Transport to assess the two monetary penalties of $250 and $500 for counts 1 and 2. The total penalty of $750 is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within 15 days of the receipt of this determination.

A review hearing on the above matter was held Wednesday, March 29, 2000, at 10:00 hours at the Delta Regina Hotel, in the city of Regina, Saskatchewan.

PRELIMINARY REMARKS

The procedure was explained to both parties, no preliminary motions were presented, and a signed agreement between the parties was filed (Exhibit M-1) and will be dealt with a little later.

A witness exclusion order was issued, to avoid the tainting of testimony and to give it more credibility.

PURPOSE OF THE REVIEW HEARING

On June 23, 1999, the Minister of Transport sent Mr. Laflèche a notice of assessment pursuant to the Aeronautics Act for having contravened paragraph 602.100(b) and subparagraph 602.114(d)(i) of the Canadian Aviation Regulations (CARs):

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a penalty against you for contravention of the following provisions:

COUNT #1

Canadian Aviation Regulations 602.100(b), in that at around 20:34 UTC, on or about February 22, 1999, at or near Swift Current, Saskatchewan, while you were the pilot-in-command of a VFR aircraft, namely, a Hughes 369D helicopter bearing Canadian registration markings C-FBVY, departing from an uncontrolled aerodrome that lies within an MF area, namely, the Swift Current airport, you failed, before take-off, to ascertain by radiocommunication that there was no likelihood of collision with another aircraft or a vehicle during take-off, specifically, you left the Swift Current airport without communicating with the Regina flight service station.

[...]

The sum of $750 is to be paid in full by July 26, 1999, to the regional manager of aviation enforcement of the Act, Transport Canada, at the above address. [...]

If the penalty is not paid in full by July 26, 1999, a copy of this notice will be sent to the Civil Aviation Tribunal. [...]

COUNT #2:

MOREOVER, at around 20:34 UTC, on or about February 22, 1999, at or near Swift Current, Saskatchewan, you operated an aircraft, namely, a Hughes 369D helicopter, bearing Canadian registration markings C-FBVY, in VFR flight in controlled airspace, namely, the Class E control zone of Swift Current, Saskatchewan, when the reported ground visibility was less than three miles, specifically, you left the Swift Current airport when the reported ground visibility was 2½ statute miles, a contravention of Canadian Aviation Regulation 602.114(d)(i).

APPLICATION OF THE PENALTY:

COUNT #1 =  $250

COUNT #2 =  $500

TOTAL:        $750

The deadline given for payment of the penalty, i.e., July 26, 1999, was not met, hence this review hearing.

THE LAW

Subsection 7.7(1) of the Aeronautics Act stipulates as follows:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

Sections 602.100 and 602.114 of the CARs stipulate as follows:

MF Reporting Procedures on Departure

602.100 The pilot-in-command of a VFR or IFR aircraft that is departing from an uncontrolled aerodrome that lies within an MF area shall

[...]

(b) before take-off, ascertain by radiocommunication and by visual observation that there is no likelihood of collision with another aircraft or a vehicle during take-off;

[...]

Division VI - visual flight rules

Minimum Visual Meteorological Conditions for VFR Flight in Controlled Airspace

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,

[...]

Section 103.08 of the CARs reads as follows:

Designated Provisions

103.08 (1) The provisions set out in column I of the schedule to this Subpart are hereby designated as provisions the contravention of which may be dealt with under and in accordance with the procedure set out in Sections 7.7 to 8.2 of the Act.

(2) The amounts set out in column II of the schedule are the maximum amounts payable in respect of a contravention of the provisions set out in column I.

(3) A notice issued to a person by the Minister pursuant to subsection 7.7(1) of the Act shall specify:

(a) the designated provision that the Minister believes has been contravened;

(b) the particulars of the alleged contravention;

(c) that payment of the amount specified in the notice will be accepted by the Minister as and in complete satisfaction of the amount of penalty for the alleged contravention and that no further proceedings under Part I of the Act will be taken against the person in respect of that contravention;

[...]

BACKGROUND

The present case concerns a complaint (Exhibit M-2) filed by an air traffic controller, Mr. Don Findling, of NAV CANADA in Regina, concerning two offences potentially committed by the pilot of helicopter (FBVY) (H500) departing from Swift Current (CYYN) for Moose Jaw and Regina (YQR) on February 22, 1999, at 14:29 or 20:29 Z (Exhibit M-8) in contravention of the sections cited above, namely, 602.100(b) and 602.114(d)(i). It is therefore with respect to these two contraventions that the Minister of Transport must discharge its burden of proof.

THE FACTS (Documentary and Testimonial Evidence)

These two charges will be treated more or less separately because they intersect in time.

To avoid any redundancy, the Tribunal deems the agreement signed between the parties (M-1) (March 29, 2000) to confirm the following facts:

  1. On February 22, 1999, at 20:34 Z, the respondent, Mr. Laflèche, was the pilot-in-command (Exhibit M-5 - Investigation of Mr. Doug Moyse) (M-8 - Log book signed by Mr. Laflèche on February 22, 1999) (Exhibit M-9 - His commercial pilot-helicopter licence for HU30s and HU50s, expiring July 1, 1999) of a Hughes 369D helicopter registered as C-FBVY (Exhibit M-6 - Certificate of Airworthiness of October 13, 1998) (Exhibit M-7 - Canadian Civil Aircraft Register) (Exhibit M-13 - McDonnell Douglas MD 500D, namely, Rotorcraft Flight Manual).
  2. The flight in question took place at the Swift Current aerodrome, in the province of Saskatchewan (cf. Exhibit M-3 - conversation between the pilot of C-FBVY in Swift Current and the air traffic controller in Regina, Mr. Don Findling (M-2, M-5, M-8 cited earlier).
  3. The aerodrome at Swift Current, Saskatchewan, is an uncontrolled aerodrome within an MF area with a mandatory frequency of 122.3 MHz in relay with the Regina flight service station (FSS) (cf. Exhibit M-10 - Canada Flight Supplement January 28, 1999, re: CYYN).
  4. The aerodrome at Swift Current, Saskatchewan, is an aerodrome that lies within a controlled airspace designated as a Class E control zone. (cf. Exhibit M-12 - Designated Airspace Handbook 4.3.3 Class E, January 28, 1999 / "Within a 5-mile radius of the following ARPs."

EVIDENCE OF THE APPLICANT

Mr. Michel Béland, representing the Minister of Transport, called Mr. Donald Findling as the first witness.

Mr. Findling stated that on February 22, 1999, he was the flight specialist on duty at the Regina controlled aerodrome (YQR) serving the FSS (Flight Service Station) and responsible for the MF (Mandatory Frequency) for CYYN (SC-M2) at 23:33/34 Z ± 2 minutes.

His first radio contact with Mr. Laflèche, the pilot of helicopter C-FBVY, located at CYYN, was at 20:33/34 Z, or 14:33/34 local time.

The essence of this exchange (M-3) by radiocommunication would be reproduced below once its authenticity had been confirmed by his second witness, Mr. Bill Stephens, and this exchange took place on frequency 122.3.

Mr. Bill Stephens, who has been retired from NAV CANADA since March 30, 1999, made a cassette tape and a written transcript of the radiocommunication from the master magnetic tape at the request of Mr. Roger Smith, on February 23 or 24, 1999. However, prior to this summary of this transcript, the Tribunal wishes to make it clear that the AWOS (Automatic Weather Observation System) (M-4) of CYYN gave the following weather readings at 222024 Z and that there was little change in these data before 222227 Z (exhibits M-2, M-4):

(A) CYYN 222024Z AUTO 18013KT 2 ½ SM OVC004 M04/M05 A2985 =

(B) CYYN 222227Z AUTO 16013KT 3 ½ SM FEW004 M03/M04 A2982 =

These AWOS data from Swift Current (CYYN) were reliable to 100% in February 1999, and, according to the Quarterly Operation Report (Winter - 1998/1999) prepared by Environment Canada for NAV CANADA, February 1999 (Exhibit M-15):

TRANSCRIPT (M-3)

Pilot of C-FBVY = P

Controller 1 = C

Pilot of C-GGKH = P2

Controller 2 = C2

[...]

P: Hughes 500 Foxtrot Bravo Victor Yankee calling with [?] radio.

[...]

P: Yes, the weather is very nice and should be no problem to go to Moose Jaw from what I see.

C: OK, Bravo Victor Yankee. Swift Current special time 2024 Zulu. Wind 180 at 13. Visibility two and one half. Ceiling 400 overcast. Special VFR or IFR is required sir. What are your intentions? Bravo Victor Yankee. Regina radio.

[...]

C : Bravo Victor Yankee. Swift Current weather, visibility two and one half miles, ceiling 400 feet overcast. Confirm you're on the ground at Swift Current.

P: Negative sir, I am in the air over the airport and there is at least 10 miles visibility with sun some sun and no snow and ceiling is at least 1,200 feet above the ground.

C: OK Bravo Victor Yankee. Regina Radio. By law, by law I have to go with the auto station weather. The altimeter two niner eight five I'll get special VFR approval for you sir but there'll probably be a lot of questions asked. Stand by. And confirm that registration was Bravo Victor Yankee.

P: Affirmative sir. Right now I'm circling around close to the airport waiting for special VFR but the weather is here very very nice.

C: Bravo Victor Yankee. Roger. Yeah I, I know what you're saying, it does happen sir but Swift Current is a control zone sir and we have to abide by the authorised weather. I would suggest that you air taxi sir and I'll have your special VFR approval for you momentarily.

[...]

C: Bravo Victor Yankee. Regina radio. There'll be about a minute or two delay. There may be IFR aircraft in the vicinity.

[...]

C: Bravo Victor Yankee. Roger. Bravo Victor Yankee. Regina radio. Special VFR approval. Special VFR has been approved for the departure of Foxtrot Bravo Victor Yankee. Report leaving the zone, I say again, report leaving the zone.

[...]

P2: Radio Cessna 152 Golf Golf Kilo Hotel. Twenty-two three.

[...]

P2: Yes, on the taxi for departure Pipelines eastbound. Has the VGM been used along runway one two and I'm requesting special VFR [?]

[...]

P: [?] radio Foxtrot Bravo Victor Yankee leaving the zone.

[...]

C: Golf Kilo Hotel. Regina radio. Special VFR has been approved for the departure of Golf Golf Kilo Hotel from the Swift Current control zone. Report airborne.

[...]

C2: Golf Kilo Hotel. Regina radio. Roger. And Golf Kilo Hotel, if we can get pilot reports about your VFR route between Swift Current and Regina, we'd appreciate it.

P2: OK [?] surely I'll pass that along and I'm just going to watch here, the visibility is up and down here. I'll go on a ways here and if it doesn't improve, I'll probably turn around but we got about a probably a good two miles slight visibility and 200 feet AGL right now.

[...]

P2: Regina radio. Golf Kilo Hotel. [?] zone from the east and I've got a good four miles visibility here now and I just did a base check here and it's a little bit ragged about 600 AGL.

[...]

C2: Roger. Special VFR is now cancelled.

[...]

The Tribunal wishes to point out that the second controller was Mr. Tom Rogers.

Following this incident, Mr. Findling wrote a report (M-2 - Aviation Occurrence Report):

[...]

  1. Weather below VFR minimums
  2. Departing a MF zone without applicable broadcasts.

YYN METAR 2024Z 18013K 2 ½ OVC004 M04/M05/A2985

2033Z FBVY H500 CALLS DEPARTING YYN; AIRCRAFT IS ADVISED THAT WEATHER IS BELOW VFR MINIMUMS; PILOT ADVISES THAT WEATHER IS FAR NICER THAN AWOS IS REPORTING. PILOT IS ADVISED THAT AWOS IS OFFICIAL WEATHER AND HE MUST ADHERE TO IT. PILOT ADVISES THAT HE WILL STAY IN CLOSE PROXIMITY TO AIRPORT TIL SVFR IS OBTAINED. PILOT IS ADVISED THAT HE BETTER BE AIR TAXIING UNTIL THE ABOVE EVENT OCCURS.

2036Z SVFR IS REQUESTED FROM VLN CONTROLLER.

2038Z SVFR APPROVAL IS OBTAINED AND PROMPTLY RELAYED TO AIRCRAFT.

2040Z AIRCRAFT REPORTS LEAVING THE CONTROL ZONE.

2049Z PIREP FROM GGKH INDICATES CLOUD BASES AT 200 FT AGL IN FLIGHT VSBY 2 MILES.

2052Z ACC SUPERVISOR ADVISED OF ABOVE.

CORRECTION * TIMES MAY VARY ± 2 MINUTES.

In the second part of this testimony and in cross-examination, Mr. Findling explained that an AWOS is established from sensors for the visibility between two points, a laser to establish the ceiling, a thermometer for the temperature, and a clock for the time.

These data are forwarded by teletype from CYYN to the Regina FSS.

In the event of a malfunction, that is, if certain parameters are not recorded, he (the controller) might resort to and check by radar, satellite, and with other airborne pilots, with other ground stations, and finally, with the Winnipeg control centre (Weather Service - Environment Canada).

As for the synchronization of the clocks, it is about ± 15 seconds.

The AWOS data remain on the screen for about 10 minutes.

Given the considerable discrepancy between what Mr. Laflèche reported as atmospheric conditions and AWOS data from CYYN, he said there is always a " briefing" before he goes on duty, he is always in contact with other pilots and that on February 22, 1999, at 20:34 Z, the climatic conditions were poor during the first radio contact at CYYN.

Finally, Mr. Findling added that even though he did not entirely doubt the remarks of the pilot Mr. Laflèche, he was going by his last AWOS at 2024 Z and the pilot was airborne before the first radio contact.

Mr. Doug Moyse, a Transport Canada inspector and the third witness for the Minister of Transport, was assigned to investigate the Swift Current occurrence of February 22, 1999. His testimony is, for all practical purposes, an explanation of his report (M-5), which is summarized in the chart below: (99/06/10)

ELEMENTS

FACTS TO BE ESTABLISHED

EVIDENCE

TAB

The pilot-in-command

Mr. La Fleche was the pilot-in command

Aircraft Journey Log Book

1

of a VFR aircraft

C-FBVY is a VFR aircraft. More specially the Hughes 369D is a VFR helicopter.

C of R

Hughes 369D flight manual

5

2

that is departing

C-FBVY was departing

ATS tape

3

from an uncontrolled aerodrome

Swift Current airport is an uncontrolled aerodrome

Canada Flight Supplement (January 29, 1999 Issue page B690)

4

that lies within an MF

Swift Current airport lies within an MF area

Canada Flight Supplement (January 29, 1999 Issue page B690)

4

shall before take-off ascertain by radiocommunication that there is no likelihood of collision with another aircraft or a vehicle during take-off

Mr. La Fleche did not ascertain by radiocommunication that there was no likelihood of collision with another aircraft or a vehicle during his lift-off

ATS tape

3

[...]

ELEMENTS

FACTS TO BE ESTABLISHED

EVIDENCE

TAB

No person shall operate

Mr. La Fleche did operate

Aircraft Journey Log Book

1

an aircraft

C-FBVY is an aircraft. More specifically a Hughes 369D helicopter

Certificate of Registration

5

in VFR flight

C-FBVY is not certified for IFR flight

Hughes 369D flight manual

2

within a control zone

Within 5 nautical miles of Swift Current Airport to an altitude of 5700 feet ASL is a control zone

Canada Flight Supplement (January 29, 1999 issue page B689)

6

when reported, ground visibility is not less than three miles

The reported ground visibility was
2 ½ miles.

AWOS weather observation for CYYN for February 22, 1999 at 2024 UTC

7

This investigation report was written after Mr. Moyse met all the parties concerned, including Mr. Laflèche, the pilot who is the respondent in this case.

Finally, as for the penalties to be assessed, they appear to be consistent with the Aviation Enforcement Procedures Manual of June 1999, that is, $250 for a violation of section 602.100 of the CARs and $500 for the violation of section 602.114.

For both counts, Mr. Moyse found aggravating factors despite the respondent's co-operation, as the respondent did not appear to understand the gravity of his actions.

EVIDENCE OF THE RESPONDENT

Mr. Laflèche has been a commercial pilot for 20 years and is also a chief instructor - Class I (Exhibit I-1).

Referring to Part I of the CARs, he wanted to establish various definitions:

"manoeuvring area" means that part of an aerodrome, other than an apron, that is intended to be used for the take-off and landing of aircraft and for the movement of aircraft associated with take-off and landing; (aire de manoeuvre)

"movement area" means a part of an aerodrome that is intended to be used for the surface movement of aircraft, and includes the manoeuvring area and aprons; (aire de mouvement)

"apron" means a part of an aerodrome, other than the manoeuvring area, that is intended to be used for the loading and unloading of passengers and cargo, the refuelling, servicing, maintenance and parking of aircraft and the movement of aircraft, vehicles and persons engaged in services necessary for those purposes; (aire de trafic)

"take-off" means

(a) in respect of an aircraft other than an airship, the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding and following the leaving of that surface,

[...]

"VFR" means visual flight rules; (VFR)

"ground visibility" in respect of an aerodrome, means the visibility at that aerodrome as contained in a weather observation reported by

[...];

(d) an AWOS used by the Department of Transport, the Department of National Defence or the Atmospheric Environment Service for the purpose of making aviation weather observations,

[...]

Then, referring to A.I.P. Canada of January 29, 1998 (Exhibit I-3), he defined "hover taxi" (circulation près du sol) and "air taxi" (circulation en vol) in 4.6:

Helicopter Operations at Controlled Airports

Two modes of helicopter airborne taxiing operations have been defined to accommodate the movement of helicopters at controlled airports: these are HOVER TAXI and AIR TAXI.

Hover Taxi is the movement of a helicopter above the surface of an aerodrome, in ground effect, and at airspeeds less than approximately 20 KT. The actual height may vary;some helicopters require hover taxi above 25 feet AGL to reduce ground effect turbulence or provide clearance for cargo slingloads.

Air Taxi is the movement of a helicopter above the surface of an aerodrome normally below 100 feet AGL. The pilot is solely responsible for selecting an appropriate height and airspeed for the operation being conducted and consistent with existing traffic and weather conditions. Pilots are cautioned of the possibility of the loss of visual references when conducting air taxi operations. Because of the greater operating flexibility, an air taxi clearance is to be expected unless traffic conditions will not permit this mode of operation.

[...]

NOTE: Helicopter pilots are reminded that aircraft, vehicle and personnel movements are not controlled on airport aprons, and that caution must be exercised at all times during any surface movement, hover or air taxiing.

And for the operation of helicopters (Exhibit I-4 - 4.5.3):

Helicopter Operations

Pilots of helicopters at uncontrolled aerodromes are urged to avoid air taxiing or low flying across runways and taxiway areas where risk of collision with unseen aircraft or vehicles exists.

In addition to maintaining a sharp look-out and practising good airmanship, generally, pilots should avoid ground or air taxiing and hovering where blown dust, sand or gravel could prove hazardous to other aircraft, or when debris could be blown onto paved surfaces.

Thus, with regard to these standards, Mr. Laflèche refèrs the Tribunal to section 602.99 and to paragraph 602.100(b) of the CARs (Exhibit I-5):

MF Reporting Procedures before Entering Manoeuvring Area

602.99 The pilot-in-command of a VFR or IFR aircraft that is operated at an uncontrolled aerodrome that lies within an MF area shall report the pilot-in-command's intentions before entering the manoeuvring area of the aerodrome.

(Underlining added by the undersigned.)

MF Reporting Procedures on Departure

602.100 The pilot-in-command of a VFR or IFR aircraft that is departing from an uncontrolled aerodrome that lies within an MF area shall

[...]

(b) before take-off, ascertain by radiocommunication and by visual observation that there is no likelihood of collision with another aircraft or a vehicle during take-off;

[...]

Division VI-visual flight rules

Minimum Visual Meteorological Conditions for VFR Flight in Controlled Airspace

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,

[...]

(Underlining added by the undersigned.)

With regard to these definitions, these standards and sections 602.99, 602.100(b) and 602.114(d)(i) of the CARs (I-5), the respondent wished to point out that he did not taxi in the manoeuvring area (602.99) and that the term "that is departing" in paragraph 602.100(b) does not mean on take-off. As for the expression "before take-off," this means "in the manoeuvring area."

For subparagraph 602.114(d)(i) of the CARs, it is necessary to have "taken off" to be in flight, and as he had not, the contravention of this subparagraph of the CARs therefore does not apply.

The respondent also pointed out to the Tribunal that there is a big difference between an airplane and a helicopter leaving the surface to "air taxi," that is, below 100 feet according to the pilot's decision (I-3).

In this regard, he added (Exhibit I-6) that he was on the "apron" to communicate with the Regina FSS and not in the manoeuvring area and was in "air taxi" (I-3) before obtaining his special VFR, and once he obtained this clearance, he took off (M-3 - I-6).

As for the meteorological conditions that existed, he is accustomed, as an experienced helicopter pilot, and even at very low altitude, to being able to assess visibility and ceiling. His witness, Mr. Marcil, made the same observations while in "air taxi" (hovering out, that is, circling in a very limited radius) over the apron.

Secondly, the respondent stated that for good radio contact, since a helicopter's transmitting-receiving antenna is under the forward airframe, it is often necessary to lift off from the ground in order to get good reception, and this is exactly what his other witness, Mr. Harvey, would have confirmed had he been heard during the conference call.

Finally, Mr. Laflèche stated that the transcription "… am in the air over the airport" (M-3, p. 2, paragraph 5) should not be construed as meaning "flying above runways, i.e., the manoeuvring area" or even skirting the airport at low altitude.

As for Mr. Gerry Marcil, the respondent's witness, he was in Swift Current on February 22, 1999. He called the Regina FSS three or four times to get the weather conditions because he wanted to leave for Ontario with his aircraft, which he did not do that day as his aircraft was in a hangar to warm up.

According to Mr. Marcil, that day, at about 14:30 hours, the visibility varied from 8-10 miles to 2-3 miles and the ceiling from 800 feet to 1,000 feet.

The weather was quite variable, so much so that the respondent himself spoke of large snowflakes, though no storm. Mr. Marcil has about 400 flying hours and is not an instructor and does not have his IFR licence.

It should be noted that Mr. Marcil had been in Swift Current for five or six days and the respondent for two days because of the poor weather conditions moving from west to east on February 22, 1999, in that province.

In cross-examination by Mr. Béland, the respondent wished to point out that he is very respectful of the CARs and that he "circled" over the tarmac, not over the manoeuvring area or buildings, but over the "ramp area," and even though his skids left the ground, he may have been in flight, but over the tarmac.

Mr. Laflèche went on to say that he had contacted Regina before his skids left the ground but had had no response, and for his second call the Regina controller put him on hold, and that was when he went "circled" to get better contact.

In a nutshell, Mr. Laflèche neither left nor took off before obtaining his special VFR.

ARGUMENTS

For the Applicant

The Minister of Transport has proven all the elements of the alleged offences. For the first count, Mr. Béland pointed out that the A.I.P. Canada definitions of "air taxi," "air traffic," "departure" and "in the air" have no force of law.

When Mr. Laflèche was "circling" he was therefore in flight at an uncontrolled aerodrome, in a control zone. His journey log book contains no entry of the poor radio contact he cites.

As for Mr. Marcil's testimony, he called Regina three or four times, which would lead one to assume that the weather conditions were not ideal, to the extent that he postponed his flight until the following day.

Still with regard to this first count, Mr. Laflèche was indeed the pilot of C-FBVY on February 22, 1999, at 14:29 hours. This aircraft (helicopter) makes VFR flights. This flight occurred at Swift Current, which is an uncontrolled aerodrome in a control zone with an MF on frequency 122.3 from Regina.

Mr. Laflèche did not ascertain by radiocommunication that there was no likelihood of collision and the first radio contact with Regina proves that he was in flight ("I am in the air") and the controller, Mr. Findling, had not previously spoken to him.

Mr. Laflèche therefore took off at 14:29 hours and his first contact was at 14:33/34 hours.

As for the second count, the Minister of Transport has proven all the elements. Mr. Laflèche was the pilot of C-FBVY at Swift Current, an uncontrolled aerodrome in a Class E control zone with a radius of 5 miles and the reported ground visibility at 222024 Z was 2 ½ SM (statute miles), according to the local AWOS.

This ground visibility means, in the case of an aerodrome, the visibility at that aerodrome as contained in a weather observation, depending on the case.

"(d)[A]an AWOS used by the Department of Transport, the Department of National Defence or the Atmospheric Environment Service for the purpose of making aviation weather observations" and not what the pilot may or may not think. This AWOS from Swift Current worked very well before, at 222024 Z, and after, and all the data appeared on Mr. Findling's screen and another pilot on the ground requested a special VFR before taking off.

Mr. Laflèche could have listened to the weather conditions of the AWOS from Swift Current on frequency 124.7 and reported to Regina on frequency 122.3 before taking off.

This AWOS was reliable to 100% on February 22, 1999.

Finally, Mr. Laflèche did not comply with section 8.5 of the Aeronautics Act in that he did not exercise all due diligence to prevent his contraventions.

As for the penalties to be assessed, the Tribunal did not require pleading on this matter, preferring to refer to the Aviation Enforcement Procedures Manual, Second Edition, June 1999.

For the Respondent

Mr. Laflèche pointed out with regard to the documents he filed that helicopters are regularly flown over the tarmac and in hover taxi, especially at Quebec City's Jean Lesage airport, and according to him, this does not constitute take-off.

With regard to paragraph 602.100(b) of the CARs, the term "on departure" does not mean "circling," and the take-off surface is the manoeuvring area, according to section 602.99 of the CARs.

The respondent deplores that these sections of the CARs are written more for airplanes, which make radio contact while moving over taxiways, than for helicopters, which "circle" over the servicing area.

Mr. Laflèche also wished to point out that radio contact is clearly better when he is hovering above the ground.

As for Mr. Marcil, if he did not leave, it is because he does not have as much experience and was afraid weather conditions would be poor at his place of destination.

At Swift Current on February 22, 1999, the weather was quite variable and he did not leave without obtaining his special VFR, and even though the skids of his helicopter were not on the ground, he made his first radio contact while "circling" over the tarmac.

He complied with section 8.5 of the Aeronautics Act and hopes that the Tribunal interprets the legislator's intent in his favour, as the sections of the CARs may lead to confusion.

DISCUSSION

The Tribunal will not summarize ad literam or in extenso all of the abundant evidence submitted, but considers that the Minister of Transport has discharged its burden of proof, on the balance of probabilities, in proving all the elements of both alleged offences.

The first radio contact between the respondent at CYYN, on February 22, 1999, at 14:34 hours (222034 Z) at the controls of his helicopter C-FBVY and the air traffic controller, Mr. Donald Findling, in Regina, occurred when he had been in the air since 14:29 hours.

Mr. Laflèche had therefore taken off, or more precisely, his skids were no longer touching the supporting surface (Exhibit I-2). Moreover, it was also shown that an aircraft in IFR flight was in the vicinity.

The weather conditions prevailing at CYYN at 222024 Z were below the required VFR minimums, that is, the ground visibility reported by the local AWOS was 2 ½ SM in this control zone. Clearance for a special VFR was requested and obtained when the respondent had taken off, even though he was over the tarmac or servicing area and circling at low altitude.

As for the respondent's defence, which is, moreover, very credible and in good faith, it does not stand up to analysis. It seems obvious to the Tribunal that the respondent was not above the manoeuvring area nor at an altitude of 1,200 feet, but article 4.6 of the A.I.P. Canada submitted does not apply to air taxi and hover taxi, as these are standards for a controlled aerodrome, which CYYN is not.

Also, according to article 4.5.3 of A.I.P. Canada, the respondent was not circling above runways and taxiways, and according to section 602.99 of the CARs, the Minister of Transport brought no charge against a pilot-in-command who, in an MF area, must indicate his intentions before circling over the manoeuvring area, which in any event the respondent did not do.

As for the respondent's other allegations, it is purely a question of semantics since, with respect to paragraph 602.100(b) of the CARs, "en partance" (that is departing) is defined by the Petit Robert (p. 1365) as "qui va partir de" (that is going to depart), and Part I of the CARs defines "before take-off" as "the act of leaving a supporting surface."

As for subparagraph 602.114(d)(i) of the CARs, the respondent considers that he did not operate his aircraft in VFR flight since he did not leave before obtaining his special VFR, but the Tribunal cannot accept this ground since the respondent had taken off and could have obtained the AWOS meteorological information from CYNN by telephone, on frequency 124.7 and 122.3 while remaining on the ground. Once the first radio contact was established, he could have asked the Regina controller for clearance to lift off to about 100 feet outside the manoeuvring area to get better reception.

In fact, with regard to section 8.5 of the Aeronautics Act, these contraventions of paragraph 602.100(b) and subparagraph 602.114(d)(i) of the CARs are: [1]

[...] a strict liability offence as defined by the Supreme Court of Canada in the case of R. v. Sault Ste. Marie,1 and the defendant is at liberty to prove that it took all necessary precautions to avoid the alleged event. The respondent must only establish this defence of due diligence on a balance of probabilities.

Section 8.5 of the Aeronautics Act is a legislative provision that echoes the defence of due diligence set out in the Sault Ste. Marie decision. Based on the ruling in R. v. Gonder2, this Tribunal has already found (see Canadian Regional Airlines (1998) Ltd. And Minister of Transport3) that in order to assess the due diligence applicable, it is necessary to examine the general standard of reasonable care in the sphere of activity in question as well as the particular circumstances of the case apt to require a standard of care other than what is usual. As Mr. Justice Stuart stated in the Gonder decision, the elements of proof concerning standard practice is just one of the important elements of this criterion. The ultimate criterion is that of the degree of diligence required given the circumstances of the case.

Accord to this decision, the degree of care warranted in each case is governed mainly by the following factors:

(a) the gravity of potential harm;

(b) alternatives available to the accused;

(c) likelihood of harm;

(d) degree of knowledge or skill expected of the accused;

(e) extent underlying causes of the offence are beyond the control of the accused (pp. 332-333 of the Gonder decision). [...]

1 [1978] 2 S.C.R. 1299.

2 (1981) 62 C.C.C. (2d) 326.

3 (1993) CAT File No. C-0225-50 and (1998) CAT File No. W-1536-50.

[...]

PENALTY

The purpose of a monetary penalty is:

  1. to ensure aviation security;
  2. to prevent any subsequent offence;
  3. to serve as a deterrent; and
  4. to allow for rehabilitation.

Secondly, the Tribunal refers to the Wyer case,[2] in which the member states on pages 4 and 5 of his ruling the principles that must guide the Tribunal when assessing a sanction:

[...]

Arriving at an appropriate penalty, then, involves not only knowing the sentencing principles and the relevant facts and circumstances that give them meaning in an individual case; it may also involve the high art of balancing various policy considerations implicit in the principles and in the facts of the case.

Certainly there are a number of factors which exist in finding the proper balance within the principles of sentencing the assessment of a penalty or other sanction. These factors will be considered, some in aggravation and others in mitigation.

Without attempting to limit what such factors may include, the following may be considered:

1. Aggravating factors:

  • infractions involving dishonesty,
  • planned breaches,
  • premeditated breaches,
  • extent of harm to victims of the offence,
  • past record of similar offences,
  • prevalence of the offence.

2. Mitigating factors:

  • no previous offences,
  • time since last offence,
  • degree of remorse,
  • whether or not an admission of the offence,
  • degree of co-operation with authorities,
  • delay between the commission of the offence and the time of the sentence,
  • conduct (involvement) of any "victims,"
  • restitution,
  • type of operation (commercial or private flight),
  • impact on aviation community,
  • special factual circumstances,
  • relevance of enforcement manual recommendations,
  • effect of a monetary v. suspension penalty on individual,
  • occurrence impact on aviation safety,
  • manner of proceeding by authorities.

Ultimately, the principles enunciated and the factors affecting the level of penalty must be considered on an individual basis in the context of the circumstances of the specific occurrence. The list noted above is not intended to be in any particular prioritized order nor is the list necessarily complete.

Thus, the Tribunal considers that the respondent, while being an experienced pilot and an instructor, co-operated throughout the investigation, has a clean record and his rehabilitation is assured.

For these reasons, the Tribunal cannot accept the aggravating factors and upholds the amounts of the respective fines of $250 and $500.

CONCLUSION

The Tribunal therefore confirms the decisions of the Minister of Transport to assess the two monetary penalties and the amounts thereof.

Michel Larose, M.D.
Member
Civil Aviation Tribunal


[1] Minister of Transport and Air Satellite Inc., CAT File No. Q-1901-37, 2000-03-27, Caroline Desbiens.

[2] CAT File No. O-0075-33 (Appeal).


Appeal decision
Faye H. Smith, Michel G. Boulianne, Suzanne Racine


Decision: July 19, 2001

TRANSLATION

The appeal is dismissed. The appeal panel confirms the minister's decision to assess the two monetary penalties of $250 and $500 for counts 1 and 2, respectively. The total penalty of $750 is to be made payable to the Receiver General for Canada and sent to the Civil Aviation Tribunal within fifteen days of the receipt of this determination.

An appeal hearing on the above matter was held Wednesday, September 27, 2000, at 13:00 hours at the Federal Court of Canada in the Palais de justice in Québec City, Quebec.

BACKGROUND

On June 23, 1999, the Minister of Transport sent the appellant a notice of assessment pursuant to section 7.7 of the Aeronautics Act for having contravened sections 602.100(b) and 602.114(d)(I) of the Canadian Aviation Regulations (CARs). The two (2) charges filed against the appellant are as follows:

COUNT #1

Canadian Aviation Regulations 602.100(b), in that at around 20:34 UTC, on or about February 22, 1999, at or near Swift Current, Saskatchewan, while you were the pilot-in-command of a VFR aircraft, namely, a Hughes 369D helicopter bearing Canadian registration markings C-FBVY, departing from an uncontrolled aerodrome that lies within an MF area, namely, the Swift Current airport, you failed, before take-off, to ascertain by radiocommunication that there was no likelihood of collision with another aircraft or a vehicle during take-off, specifically, you left the Swift Current airport without communicating with the Regina flight service station.

[...]

The sum of $750 is to be paid in full by July 26, 1999, to the regional manager responsible for Enforcement of the Act, Transport Canada, at the above address. [...]

If the penalty is not paid in full by July 26, 1999, a copy of this notice will be sent to the Civil Aviation Tribunal. [...]

COUNT #2:

MOREOVER, at around 20:34 UTC, on or about February 22, 1999, at or near Swift Current, Saskatchewan, you operated an aircraft, namely, a Hughes 369D helicopter, bearing Canadian registration markings C-FBVY, in VFR flight in controlled airspace, namely, the Class E control zone of Swift Current, Saskatchewan, when the reported ground visibility was less than three miles, specifically, you left the Swift Current airport when the reported ground visibility was 2½ statute miles, a contravention of Canadian Aviation Regulations 602.114(d)(I).

APPLICATION OF THE PENALTY:

COUNT #1 =  $250

COUNT #2 =  $500

TOTAL:        $750

The Civil Aviation Tribunal, upon application for review, rendered its decision June 12, 2000, and confirmed the decisions of the Minister of Transport to assess the two monetary penalties for contravention and the amounts thereof.

On June 29, 2000, the appellant appealed the decision of the Civil Aviation Tribunal, and expressed its disagreement with the Tribunal's interpretation of the analysis and its reasoning. This appeal gave rise to the hearing of September 27, 2000.

GROUNDS OF THE APPEAL

Although the appellant expressed no grounds in its original appeal document of June 29, 2000, other than its disagreement with the interpretation, its counsel at the appeal hearing, Michel St-Pierre, alleged, in the facts, that the grounds of the appeal concerned the interpretation of the terms used in the ruling and the enactments themselves in determining whether or not the aircraft was airborne. The matter concerns the interpretation of the word "take-off" and the determination of whether the fact of having taken off is equivalent to an aircraft being airborne. It is also a matter of determining whether the fact of stating, in the second count, that the appellant had left the Swift Current airport was equivalent to saying that he had become airborne (taken off), since the appellant disagreed with the Regina station, which had the authority to issue him clearance.

THE APPELLANT'S ARGUMENTS

Counsel for the appellant asked us first of all to interpret sections 602.100 and 602.114 of the CARs.

The content of these sections is as follows:

MF Reporting Procedures on Departure

602.100 The pilot-in-command of a VFR or IFR aircraft that is departing from an uncontrolled aerodrome that lies within an MF area shall

[...]

(b) before take-off, ascertain by radiocommunication and by visual observation that there is no likelihood of collision with another aircraft or a vehicle during take-off;

[...]

Minimum Visual Meteorological Conditions for VFR Flight in Controlled Airspace

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,

[...]

Counsel drew our attention to certain parts of the testimony. In his view, it is clear that the aircraft, though it had lifted off the ground, was not airborne strictly speaking, and this, in his view, is established by the following testimony:

Examination of Mr. Jean-François Laflèche, pages 98 to 100 of the stenographic notes:

[...]

The helicopter was parked here. It had spent the night in the hangar, which is there. The small building here, that's the building where there are telephones and everything, the room where you can telephone, and so on, the coffee shop. The direction I was going in was this direction here, heading to Moose Jaw and Regina. I have a map to show that that's the angle that corresponds ... if you want you can see on the map. When I was ready for take-off, I had people who were with me outside ... other pilots who were there ... they helped me push the aircraft outside, we got all that ready. I started up, then took off. I advanced here, I made an initial radio call, while taxiing, and I advanced. It took a first attempt, fruitless, and a second attempt that he finally answered me, he asked me to wait. Which I did. He got back to me. At that point, I said to him: "I'm at Swift Current, and the weather is nice. I'm leaving." Which in normal conditions is sufficient and meets the requirements. So, I was outside of ... Here, the manoeuvring area which corresponds to the runways here. At that point I was over the apron. I wasn't yet in position over the manoeuvring area. At the point he told me it takes special VFR ... we'll pick up the more precise conversations shortly, I'm just giving it roughly. At that point, I was a little surprised at his response because the weather was nice and the weather was definitely above the VFR minima, there were no problems. Also, he had spoken rather quickly so I asked him to repeat it. Then, he asked me where I was. I told him: "I'm in the air over the airport." He said to me: "Sir, I suggest you air taxi." So that's what I did, I responded: "I am taxiing" and waited for my special VFR clearance.

[...]

He then referred to document I-6, which is a map of the airport, placing the helicopter directly south of the airport, that is, well off the runways and main ramps.

Counsel also drew the Tribunal's attention to pages 132 et seq. of the stenographic notes of Jean-François Laflèche's testimony and a discussion with the chair of the Tribunal.

Examination of Jean-François Laflèche, cross-examination (Mr. Béland) pages 132 and 133:

[...]

THE CHAIR: I understand that you were not over the buildings; you were not over the runways. You were here, in this area here.

MR. LAFLÈCHE: I was over the ramp area then the grassy field, which is right here beside the hangar, which is there.

BY MR. BÉLAND:

Q. Mr. Laflèche, you said you were circling and everything. Can it be said you had circled over the ramp area?

A. Well, if you go back to the text here, what I said is ... "I am circling" - that means I was doing a circle ... so, I said "I am circling" and I did a circle ... and I was where I showed on the diagram.

Q. Yes, that's my question, it's: You were over the ramp area?

A. The ramp, then the field next to it here.

Q. Mr. Laflèche ...

A. ... in the field I think there is parking for aircraft ... when there's no snow ... they put the aircraft there. There weren't any there ... but ...

Q. Mr. Laflèche, you will agree with me that a helicopter that lifts its ...

A. Its skids.

Q. Its skids, thank you. That lifts its skids from the ground is airborne.

R. Yes, a helicopter is in hover taxi and in air taxi. Air taxi, that's why I brought the definitions, because, in fact, there is some lack of clarity, I would say, when you read about leaving the surface. Right? You have to be careful because a 'copter, at that point, would be airborne as soon as it leaves the hangar. Right?

[...]

According to counsel, this clearly shows that it is not lifting off the ground over the apron that constitutes take-off. The appellant would have been in pre-take-off, confirmed out by G. Marcil's testimony on page 111 of the stenographic notes.

Examination in chief of Mr. G. Marcil, page 111:

[...]

A. Okay, what we did at that time of your departure was I, myself, had ... The airport has a hand-held radio which the person in charge at that time carries with him. So what you did, preparing for take-off to Regina, was that you lifted off and over to the south-west corner of the airport there is a small field off to the side of the runway, where you were holding position while you were talking to Regina at that time. I believe that you were requiring a special VFR because you were well within the limits that day, at that time, getting ready for your departure to Regina, which you did follow through after talking with Regina tower.

[...]

The facts as such do not seem to have been disputed. Moreover, at the review the parties agreed on certain facts, admitting certain "de facto" situations, including the fact that the airport in question is an uncontrolled aerodrome within an MF area with a mandatory frequency of 122.3 MHZ in relay with the Regina flight service station (FSS).

The points that should be examined are as follows: the legislature's intention, internal coherence, the need for clear terms, the pragmatic arguments, and penal legislation.

These points of law are set out by counsel referring to the volume by Pierre-André Côté, a full professor at the Faculty of Law, Université de Montréal, The Interpretation of Legislation in Canada, 3rd edition, published by Les Éditions Thémis.

1- Legislature's intention:

Statutory interpretation should, rather, be defined as the intellectual operation which, from a legislative text, seeks to establish the meaning of a legal rule or norm, such that this rule or norm is the best possible one given the entire range of considerations that the interpreter must consider. According to this definition, that which polarizes the interpretation is the meaning of rules and not the meaning of texts. This meaning is not given to the interpreter, rather it is constructed by the interpreter and what is sought is less the real meaning of the text than the best meaning of the rule.

[...]

Though it is perhaps self-evident, it is nevertheless worthwhile stressing: the role of the statutory interpreter is to arrive at the meaning of the legal rule and not simply the literal meaning of the text. What is of interest to the interpreter is the content or meaning of the rule or norm, which is established necessarily by considering the text, as well as numerous other factors. The text is the means and the rule is the end. Although the text is the most important element in the elaboration of the rule (or at least the starting point), it would be wrong to confuse it with the rule itself.

[...]

Counsel thus urges us to be very cautious by avoiding rigidity in the application of the rule in favour of seeking the real meaning of the law.

2- Internal Coherence:

That the law is presumed to be coherent and systematic has long been recognized by the authorities. In the Lincoln College Case, Coke wrote:

". . . the office of a good expositor of an Act of Parliament is to make construction on all the parts together, and not of one part only by itself; nemo enim aliquam partem recte intelligere potest antequam totum iterum atque iterum perlegerit . . ."

[...]

And Justice Kellock, in R. v. Assessor of the Town of Sunny Brae, stated the principle this way:

"A statute is to be construed, if at all possible, "that there may be no repugnancy or inconsistency between its portions or members"."

3- Clear terms:

The courts may be justified in setting aside a meaning that seems clear and precise at first glance, if in so doing the internal consistency of the statute is re-established. The "Golden Rule" allows the judge to dismiss the ordinary sense of a word or expression in the interests of a coherent interpretation of the law as a whole.

This approach is perhaps best illustrated by cases relating to the meaning of "may": although the word can be construed as simply bestowing a discretionary authority, often it must be read as creating a duty to act.

[...]

In Doré v. Verdun (Ville), Gonthier J. explained the relative nature of an argument which is derived from the common meaning of the two versions:

"[. . .] the principle of preferring the interpretation that leads to a shared meaning is, in any event, not absolute. The Court can reject that meaning if it is contrary to the legislature's intention in light of the other principles of interpretation."

In several cases, the courts have preferred the wider meaning, or even one of the possibilities of an ambiguous version that was not confirmed by the unambiguous one. The shared meaning is only one guide among many in the search for Parliament's real intent. This was confirmed unequivocally by the Supreme Court of Canada in R. v. Compagnie immobilière BCN Limitée.

[...]

4- Pragmatic elements:

Pragmatic arguments, common in statutory interpretation are likewise in the interpretation of civil law. Thus were they invoked to reject an interpretation which would have led to a rule "which is uncertain in its application, likely to encourage litigation and to make the resolution of cases difficult", which would have led to illogical consequences, which would have emptied the statute of its meaning and rendered the protection which it sought to provide ineffective or, again, which would have rendered the interpretation of the text "absurd or deprived of all utility".

In order to avoid absurd consequences, it is even permissible to depart from plain words: this is the only case where the classic canon of literal interpretation permits avoidance of a provision whose meaning seems obvious:

". . . the literal meaning should not be departed from except in the case of ambiguity or absurdity."

[...]

5- Penal Legislation:

Penal statutes, that is, those creating offences and their sanctions, are strictly construed. If a real difficulty arises in determining their meaning or scope, and general principles of interpretation are unable to clarify the question, the courts are justified in adopting the interpretation favouring the accused.

[...]

In Turcotte v. The Queen, Justice Pigeon (dissenting) recalled that it is "a fundamental principle that penal enactments are strictly construed", and in Paul v. The Queen, Justice Lamer wrote that ". . . when dealing with a penal statute the rule is that, if in construing a statute there appears some reasonable ambiguity, it be resolved by giving the statute the meaning most favourable to the persons liable to penalty."

[...]

In referring to these enactments, counsel wished to lead the Tribunal to a wider interpretation of the terms used.

The documents filed by the appellant at the review hearing contain certain important definitions.

"manoeuvring area" means that part of an aerodrome, other than an apron, that is intended to be used for the take-off and landing of aircraft and for the movement of aircraft associated with take-off and landing.

"movement area" means a part of an aerodrome that is intended to be used for the surface movement of aircraft, and includes the manoeuvring area and aprons.

"apron" means a part of an aerodrome, other than the manoeuvring area, that is intended to be used for the loading and unloading of passengers and cargo, the refuelling, servicing, maintenance and parking of aircraft and the movement of aircraft, vehicles and persons engaged in services necessary for those purposes.

"take-off" means

(a) in respect of an aircraft other than an airship, the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding and following the leaving of that surface;

(b) in respect of an airship, the act of freeing the airship from restraint, and includes the acts immediately preceding and following the freeing of that airship from restraint;

The appellant claims that the definition of manoeuvring area for the movement of aircraft associated with take-off and landing, implies that the association with take-off therefore dissociates certain movements from the take-off itself in the legal sense. It is crucial, however, to determine whether leaving the supporting surface constitutes a pre-take-off manoeuvre or whether the mere fact of leaving the supporting surface itself constitutes take-off and therefore would be a phase included in take-off and its definition.

The appellant also challenges the member's assertion on page 15 of the ruling being appealed that it seems obvious to him that the appellant was not above the manoeuvring area nor at an altitude of 1,200 feet, and that article 4.6 of the A.I.P. Canada does not apply to air taxi and hover taxi, as these are standards for a controlled aerodrome, which is not the appellant's case.

This assertion would be contrary to documents I-3 and I-4. Let us say straightaway that this assertion must be regarded with reticence since I-3 refers to helicopter operation at controlled airports, which obviously does not apply in this case. As for I-4, it refers to air taxi or low-altitude flight across runways and taxiways where collisions might occur. It is true, however, that there is no provision for hover taxi at an uncontrolled airport. It is simply stated in I-3 that there are two (2) methods of air taxiing for helicopters at controlled airports, which implies that there is provision in I-4 for only one method, namely, air taxi and not hover taxi.

Counsel further maintains that the air traffic controller knew of this and suggested he air taxi, and to do this, he obviously had to leave the ground. Counsel's contention is that it is the equivalent for a plane with clearance to taxi to leave its private hangar or its location at the airport before pulling out onto what is commonly called the "ground" or active runways.

THE RESPONDENT'S EVIDENCE

It is clear to the respondent that the appellant had been airborne when he contacted the Regina FSS for at least five (5) minutes, although at the time ground visibility was 2½ miles, and this is mentioned in exhibits M-2, M-4, M-15, in the testimony of Mr. Donald Findling and on pages 19-24, 28, 31-33, 43 and 44, as well as in the reasons on page 15 of the decision being appealed.

The respondent reminds the Tribunal that findings of fact or credibility must not be overturned unless they are unreasonable, or when the review member's ruling is based on a complete lack of evidence. He cites to this effect rulings already known to the Tribunal. Inter alia, in the decision Thomas Ritchie Phillips v. Minister of Transport, file no. C-0014-33, January 26, 1987 (Appeal), the Tribunal states at page 4:

The hearing officer is in the best position to be able to determine which evidence on the record he prefers; which evidence when in conflict with or inconsistent with other evidence he is prepared to accept. Unless the findings of the hearing officer are patently unreasonable and cannot be supported by the testimony - under oath - the Appeal Tribunal should be reluctant to substitute its findings. That is, the determination of the credibility of witnesses is best left with the trier of fact at first instance.

The definition of "take-off" is clear and precise. If the legislature that made a distinction between the take-off of a plane and that of an airship had wanted to do likewise for the helicopter, it would have. As the legislature does not speak in order to say nothing, the words "leaving a supporting surface" are to taken literally. Otherwise, it would be impossible to determine at what point a helicopter has taken off.

Moreover, the pilot acknowledges this in the radiotelephone exchanges mentioned in exhibit M-3. (See page 3 of the ruling, appellant's testimony, p. 98, lines 18 and 19).

The respondent further reminds us that the provisions of A.I.P. Canada should be viewed with much caution with regard to the definition of hover taxi and air taxi.

In the decision Minister of Transport v. Michael Kelly Friesen, File No. C-1889-33, June 28, 2000 (Appeal), the Tribunal concluded:

The information in the AIP can be helpful in the interpretation of regulations but that information is not in itself regulatory. One must comply with the aviation regulations as published in the Aeronautics Act and the CARs. This is noted in the AIP itself in the General Section 1.1.3 where it states:

1. 1.3 Aeronautical Information Publications

[...]

The rules of the air and air traffic control procedures are, to the extent practical, incorporated into the main text of A.I.P. Canada in plain language. Where this was not possible, the proper CARs have been incorporated verbatim into the Annexes; however, editorial liberties have been taken in the deletion of definitions not considered essential to the understanding of the intent of the CARs. This has been done to enhance comprehension of the rules and procedures essential to the safety of flight. The inclusion of these rules and procedures in this format does not relieve persons concerned with aviation from their responsibilities to comply with all Canadian aviation regulations as published in the Aeronautics Act and CARs. Where the subject matter of A.I.P. Canada is related to CARs, the legislation is cited. (Emphasis added)

The respondent argues that this is a guide and does not release the appellant from its obligations to comply with the CARs.

While the appellant has not elaborated on this point on appeal, the respondent argues that there is no evidence of due diligence or particular difficulties in this case that would have prompted it to be in flight, either because he understood he had been given clearance or because he had experienced some communication problems. He was within an MF area and had to make the required calls; this is stipulated in the statute, it is mandatory and it is impossible to get around this obligation by claiming not to have taken off.

ANALYSIS

In light of all the exhibits filed in this case, the analysis of the testimony, the study of the relevant legislation, it seems that all the confusion surrounding this offence arises from the significance and wide or narrow meaning to be given the word "take-off" and the various definitions of a manoeuvring area, an apron.

The appellant claims that he was not airborne and the respondent claims that he was. The appellant's claim, based on the interpretation to be given the statutes, that enactments are to be given a liberal interpretation, is in itself laudable. Obviously, more and more enactments must be precise overall and must allow the user and the person subject to the enactment to clearly understand the import. Yet, the particular provisions of the enactments must contain an ambiguity apt to have misled the user. Is this the case?

The appellant does not argue ignorance of the legislation, but rather the ambiguity of the legislation.

Let us look again at the definition of "take-off" since the appeal hinges on it.

The CARs state explicitly that, in respect of an aircraft other than an airship, the act of leaving a supporting surface constitutes a take-off, and the operations immediately preceding and following this act. One can therefore deduce, by analysis, as follows:

  1. This definition covers all aircraft with the exception of airships, including, therefore, any aircraft likely to become airborne.
  2. The only exclusion is that of the airship, which is defined separately. It is important to note that even if there is a supporting surface and the airship has not left the ground, it will be considered to have taken off if it is freed from any restraint. One can see right away that the legislature doubtless wanted to refer to a control because once released from its restraint, obviously the airship could rise off the ground on its own, even just a little, or could even travel sideways while remaining on the ground. The desire was therefore to stipulate in this case, for greater safety, that it has taken off once its tie-downs have been removed. This airship could therefore not release its tie downs until it had been cleared for take-off.
  3. Reference is made to the "act" of leaving the supporting surface; act, therefore, means that something has been done to cause the helicopter to leave its supporting surface, such as, but not limited to, increasing engine power and activating the control levers.
  4. Reference is made to the operations that immediately precede and follow this act. Now, the act referred to is not the take-off run but the fact of leaving a supporting surface. Obviously, before leaving its supporting surface, the aircraft has been taken outside, prepared and perhaps even taxied, if fitted with wheels, onto its manoeuvring area. The appellant's explanations cannot slip through this definition of take-off. If one compares the well-known operations of a controlled airport, the owner of a private aircraft, from his parking area, must ask the ground controller for clearance to taxi on the ground onto the taxiways from his private lot, which clearance he is or is not given depending on the ground traffic, and from the ground he will be cleared to the active runway, according to the particular layout of this aerodrome.
  5. He responded to the Regina air traffic controller: "Affirmative sir. Right now I'm circling around close to the airport waiting for special VFR but the weather is here very very nice." This statement of the appellant, on its face, shows that he was circling near the airport; one can assume he was high enough to perform this manoeuvre and that he was not necessarily over his manoeuvring area.
  6. The appellant mentions that the Regina air traffic controller suggested he air taxi. This manoeuvre obviously involves the aircraft no longer having contact with the ground, so it has taken off. Is the fact, as argued by the appellant, of this single statement of the Regina air traffic controller clearing him for air taxi equivalent to a take-off clearance? The Tribunal cannot come to this conclusion, although no explanation has been provided to this effect. The fact remains, however, that every user must abide by the law, and the fact that an air traffic controller acquiesces to the already existing manoeuvre does not make the manoeuvre more consistent with the law. It is also evident that the purpose of the relevant legislation, requiring clearance before leaving the supporting surface, is intended to ensure there is no risk of collision whatsoever. In the present case, given the uncertain weather which necessitated a special VFR flight clearance, which the appellant requested moreover, it was still extremely important for the latter to communicate before take-off, from his aircraft on the ground or even from a land telephone, to make sure he had the required clearance. We share the view of the appellant's counsel that the enactments must be clear, must not constitute a conflict for the user, owing to their ambiguity; but nevertheless, in the present case we feel that the definitions are precise enough to conclude that the member correctly maintained that the aircraft operated by the appellant had legally taken off from the Swift Current airport at the time he requested flight clearance.

The Tribunal agrees with the elements of law raised by counsel concerning the six (6) points for a liberal interpretation urging that one not rigidly latch onto the shared meaning, look for pragmatic arguments, and so on. However, the decision rendered by the member and his interpretation of the word "take-off" does not conflict with the interpretation of the statutory elements as a whole and is not an isolated case. On the contrary, while it was strict, it is not incoherent or in conflict with other elements of the CARs. It is this incoherence which, were it shown, could justify deviating from the enactment. To deviate from the shared meaning, one would have to adopt another interpretation, which would seem contrary to the legislature's intent. The Tribunal agrees that the shared meaning is but one guideline among others. However, if this shared meaning is construed such that it is not contrary overall to the other provisions of the same law, the shared meaning must prevail. As Mr. Côté said, one must not deviate from the literal meaning except in the case of ambiguity or absurdity. This is not the case here. It is conceivable, as the witness Laflèche pointed out moreover, that it makes no sense to believe that once one lifts off from the ground, one is deemed to have taken off. The discussion is interesting; in effect, how could a plane that is taxiing be thought to have taken off if it has not yet left the supporting surface? It is for this reason that the definition included the take-off run and the manoeuvres prior to the act of leaving its supporting surface.

The practical meaning of the word "take-off" and its definition in the CARs, derives probably from the fact that the legislature wanted any aircraft, once subject to the ambient force of the air, to [be deemed to] have taken off. The testimony cited and the documentation provided explain moreover that for some helicopters, it is impossible to hover taxi while remaining a few feet above the ground. Some of these aircraft must rise as high as 25 feet to avoid turbulent air. The Tribunal finds it difficult to conceive that an aircraft that has risen as high as 25 feet off the ground has not taken off as defined in the enactments. As we said earlier, the comparison with the airship that is deemed to have taken off when it is no longer attached to its supporting surface, that is to say, once it is freed from its restraints, and thus becomes subject to the air element with no possibility of being held to the ground, says a great deal in itself.

The second offence obviously arises from the first and concerns the weather conditions. According to the respondent, the appellant left the Swift Current airport and the word "left" ensues, according to the Tribunal, from "take-off." Is one to deduce that it can have taken off but not left the airport? Again, the interpretation favours a link between the use of the two (2) terms. The member, to whom the evidence was submitted, states there may have been a real danger, since another aircraft was taxiing in the area. Mr. Marcil's statement that the appellant was within the tolerable limits from the standpoint of weather is merely an opinion and cannot substitute for the official report of the Regina air traffic controller. The appellant, moreover, told the Regina air traffic controller that he was taxiing near the airport. The evidence has therefore been sufficiently established on the two (2) counts, and the appeal panel cannot reach conclusions other than those maintained in the member's determination.

The appeal panel therefore considers that the member rightly upheld the Minister's decision and found that the appellant had taken off within the meaning of the CARs and had therefore left the Swift Current airport without clearance.

CONCLUSION

The appeal is dismissed; the appeal panel confirms the Minister's decision to assess the two monetary penalties of $250 and $500 for counts 1 and 2, respectively, for a total penalty of $750.

Reasons for the appeal determination:

Me Faye Smith, Chair

Concurring are:

Me Suzanne Racine, Member
Me Michel Boulianne, Member