Decisions

TATC File No. C-2810-41
MoT File No. RAP5504-48240

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Farm Air Ltd., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, subparagraph 602.14(2)(a)(i)


Review Determination
Sandra Lloyd


Decision: February 3, 2004

The Minister has proved all elements of the offences alleged and the sanction of $250.00 for each of the five counts is upheld for a total of $1,250.00. That amount is to be made payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within fifteen days of service of this determination.

A Review Hearing on the above matter was held Wednesday, October 15, 2003 at 10:00 hours at the Provincial Court Building, in Regina, Saskatchewan.

BACKGROUND

The Notice of Assessment of Monetary Penalty (Notice of Assessment) in this matter alleged five counts contravening subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations (CARs) against Farm Air Ltd. ("Farm Air"). Each count arose from complaints made by a resident of Sherwood Forest Country Club (Sherwood), a golfing community located a few miles north of Regina, Saskatchewan. The Notice of Assessment alleges that Air Tractor Inc. AT-401 aircraft N7311C (N7311C) flew at a low altitude over Sherwood on a number of occasions in June and July 2002. Transport Canada Aviation Enforcement (Enforcement) assessed a monetary penalty of $250.00 per count against Farm Air, for a total penalty of $1250.00.

PRELIMINARY MOTION

Prior to the hearing, the Minister of Transport (Minister) submitted a motion requesting an amendment to some of the times specified in the Notice of Assessment. The Minister withdrew the motion at the outset of the hearing.

EVIDENCE

The Minister called witness Inspector Richard Gagnon of Aviation Enforcement in Winnipeg. He was assigned the investigation of this matter in August of 2002. In the course of his investigation he spoke with a number of persons, including the complainant Mrs. Donna Bovee and her husband Mr. Doug Bovee; another Sherwood resident Mrs. Hillier; the Manager of Sherwood, Mr. Murray Loosen; and Mr. Norman Colhoun, the principal of Farm Air. Mr. Gagnon also obtained during the course of his investigation a number of documents from Transport Canada and the U.S. Federal Aviation Administration (FAA). Mr. Gagnon searched the records of Transport Canada Business and Commercial Aviation in Winnipeg and found no record of Farm Air having applied for, or received, any special authorization for low flying over a built-up area. Mr. Gagnon identified a number of documents which were submitted and accepted as exhibits at the hearing. The documents showed, among other things, that Farm Air operated N7311C, and that N7311C was owned by Skynorth Aviation Ltd. Mr. Gagnon's evidence was that Mr. Colhoun, the principal of Farm Air, is also the principal of Skynorth Aviation Ltd. A copy of a Special Airworthiness Certificate specified that N7311C had FAA approval for agriculture and pest control operations.

Mr. Gagnon identified a computer index of photos which he said he printed out from Mrs. Bovee's computer. The index showed the dates and times that the photos were taken by Mrs. Bovee.

Mr. Gagnon also gave evidence that he and another Enforcement Inspector, Mr. Kalushka, had rented an airplane on September 25, 2003 in order to fly over the Sherwood area. Mr. Kalushka took a number of photos, from the rental airplane, of Sherwood and its surrounding area, which were entered as exhibits.

Inspector Gagnon testified that within the treed areas of Sherwood are about 200 residential lots that are mostly occupied in the summer months. He said most of the lots are adjacent to the river; there are several bridges across the river; and that most of Sherwood is in a bowl that is about 100 feet lower than the surrounding prairie.

Inspector Gagnon also identified a photo that he had taken on the grounds of Sherwood on September 29th, 2002. This photo depicted the Sherwood clubhouse and adjacent lawn and treed areas. He further identified a diagram of the Sherwood development, which he said the Sherwood manager had given him.

Under cross-examination, Inspector Gagnon agreed that if Sherwood was about 100 feet below the prairie, one could not see the surrounding agricultural land well. He confirmed that Sherwood is a few miles north of Regina and that most of the Sherwood residents are temporary summer residents who leave in the winter. Also under cross-examination, Mr. Colhoun for Farm Air showed Mr. Gagnon a Regina VFR chart which Mr. Gagnon recognized and confirmed would be used by VFR pilots. Photocopied portions of it were filed as an exhibit. Mr. Gagnon agreed that Sherwood is not marked on the VFR Chart and is not shown as a built-up area or named as a village, town or city. Mr. Gagnon pointed out that a different branch of Transport Canada from his makes the charts. His evidence was that the VFR charts are issued every couple of years and are often out of date with respect to towers and obstacles when they are issued. He said he did not have a responsibility to bring concerns about what is marked on a VFR chart to the chart-makers, and he has not tried to have the chart-makers mark Sherwood, or any other area, as a built-up area on charts.

Mr. Gagnon said there is no definition of what is a built-up area except what is contained in the jurisprudence.

Mr. Colhoun also showed Inspector Gagnon a copy of a Transport Canada Policy Letter No. 145 dated April 24, 2002 dealing with the subject of "Helicopter landings and take-offs within the built-up areas of cities and towns" (the "Policy Letter"). Inspector Gagnon was not sure if he had read the Policy Letter before. Nevertheless, Mr. Colhoun asked Inspector Gagnon a number of questions about the Policy Letter and about its possible application to the issue of whether Sherwood could be classified as a built-up area. Inspector Gagnon explained that he deals with the jurisprudence on that issue and noted that the Policy Letter also refers to a significant body of jurisprudence on built-up areas. The Policy Letter was filed as an exhibit of the document holder Farm Air.

Inspector Gagnon further under cross-examination confirmed that the occupation of Sherwood Forest by residents is temporary (that is, there are mainly summer-only residents there), but he said that the homes in Sherwood are not temporary buildings. The residences are travel trailers and mobile homes, some with a deck attached. He did not know if any of the trailers were moved when the creek floods. He agreed there are no schools or grain elevators in Sherwood. He did not know if there was a service station.

Inspector Gagnon agreed that if an aircraft was working in the Sherwood area there was no need to call Regina Tower but that it would be prudent to do so. He also agreed that an Air Tractor aircraft (such as N7311C) is noisy and that he suspected one would need good communication in the airplane in order to be able to talk to a control tower. He said he did not request audio tapes from Regina Tower in the course of his investigation. However, he admitted he had requested Regina Airport Control Tower NAV CANADA Aircraft Movement Statistics (NCAMS) report and that these had been part of the disclosure package that he had sent to Farm Air. Inspector Gagnon admitted that an aircraft's pilot would have to communicate with Regina Tower (or Flight Service Station when the tower is closed) in order to be shown on these NCAMS reports. The witness agreed that for at least 4 of the 5 counts alleged in this matter, the NCAMS report times showing calls from aircraft N7311C correlated with the alleged time of the contraventions.

Under cross-examination by Mr. Colhoun, Inspector Gagnon identified his own notes of an interview he had done with Mr. Colhoun. He reiterated that there is no definition of what is a built-up area except that contained in jurisprudence, and said that before he would allege a contravention involving flying over a built-up area he would consult with his manager about whether the area would be considered to be built-up.

Inspector Gagnon also admitted he had asked Mr. Colhoun for a journey log for N7311C although they are not required by the FAA. However, he noted that a journey log must be kept for an FAA registered aircraft operating in Canada.

Mr. Colhoun also asked Inspector Gagnon a number of questions about whether or not Mr. Colhoun cooperated during the investigation.

Inspector Gagnon admitted that when he first interviewed Mr. Colhoun, Inspector Gagnon had alleged that the pilot of N7311C had not been wearing a helmet.

When asked about his interview with Sherwood manager Mr. Loosen, Inspector Gagnon said that Mr. Loosen had told him someone had telephoned Sherwood and talked to the receptionist there about crop spraying in the area. However, Inspector Gagnon said he could not find any confirmation that Sherwood had authorized the over-flying, and was unable to determine who had made the telephone call or when. He agreed that his understanding was that the aircraft was not actually spraying when it flew over Sherwood.

Mr. Colhoun also had Inspector Gagnon identify notes of an interview with Mrs. Bovee and e- mails he received from Mrs. Bovee.

Under re-examination Inspector Gagnon further explained that while the occupation of the trailers and mobile homes at Sherwood was temporary, the buildings themselves were permanent. Referring to the photocopied portions of the VFR chart submitted by Mr. Colhoun, he pointed out that the chart legend does not show how a built-up area, as such, would be depicted. He said that he was familiar with some of the small towns shown on the chart and said some of those are built-up areas, while some are not – they may just consist of one grain elevator.

Also under re-examination, Inspector Gagnon noted that a pilot is not required to call Regina tower if he is not flying through the control zone, but he may or may not call if he is working nearby. Inspector Gagnon further stated that except for counts 3 and 4, the NCAMS verified that N7311C was flying at the times alleged in the Notice of Assessment. He said that if an aircraft was flying from Colhoun's airstrip to Sherwood, it would not be flying through a control zone, so there may or may not be a NCAMS record of the flight.

The Minister next called Mrs. Donna Bovee. She testified that in the winter she lives in Regina and in the summer at Sherwood. In the summer of 2002 she was living at Sherwood. She grew up on a farm and had some experience observing crop spraying. Mrs. Bovee testified that Sherwood consists of travel trailers and permanent mobile homes. It is about 160 acres in size and includes a golf course, a swimming pool, and about 200 trailers. She said about 160 trailers stay on the site all year long. She said her own residence there is permanent. It consists of a mobile home with an attached deck and skirting.

Mrs. Bovee testified that at about 6:00 p.m. on June 25, 2002 she was on her trailer deck barbecuing when she heard a noise and saw a shadow across her deck. She looked up and saw a yellow airplane flying overhead. She ran across the road to a bridge to observe the aircraft. She did not see the letters or numbers on the airplane at first, but the aircraft flew over 20 times that day and she saw the registration marks "N7311C" on the aircraft.

Mr. Welwood for the Minister showed Mrs. Bovee a diagram of Sherwood. She marked upon it in red the spot where she had been standing on the bridge and in blue the path of the aircraft. Mrs. Bovee's evidence was that on this occasion the airplane was at times below tree level, flying over trailers that were four lots away from her. Mrs. Bovee took no photos that day but identified a photograph that she took on July 12, 2002 that showed the perspective she had when she stood on the bridge watching the over flying aircraft on June 25, 2002. She testified that at 6:00 p.m. on June 25, 2002 the aircraft was over residences at the edge of Friar Tuck and Greenwood neighbourhoods and was definitely below the edge of the nearby cliff.

Mrs. Bovee said that later that evening at about 6:30 p.m. local time, the aircraft again, twice, came over the bridge and came below the tree line and at one point waved his wings. Mrs. Bovee did not see the aircraft doing any spraying on that day, although she said it could have been. She had checked with Sherwood, however, and found out that the aircraft had not been spraying the golf course. Mrs. Bovee said she had seen aircraft spraying the area before but had never seen an aircraft fly over Sherwood in the manner of this aircraft.

Mrs. Bovee testified that at 6:30 p.m. the aircraft came over her trailer and she saw the registration marks N7311C on the aircraft. Mrs. Bovee marked another diagram with the aircraft's flight path.

Mrs. Bovee also testified that on July 12, 2002 at about 7:00 p.m. she was again on her deck when she heard an aircraft. She grabbed her camera and ran to the bridge. She took several photos on that occasion of the aircraft flying low overhead and said she stopped counting once she had counted 17 passes by the airplane. Mrs. Bovee identified several photos of the aircraft which were entered as exhibits, and again marked diagrams showing the aircraft path when it flew over Sherwood that day.

Mrs. Bovee also described the aircraft flying over Sherwood on several occasions on July 26, 2002. On that day, Mrs. Bovee was golfing with her husband and a friend. She said a yellow airplane flew low over their head eight times while they were on the #1 fairway. She said the aircraft came below the roof of the clubhouse, between the house and a line of trees, and on one occasion flew over the swimming pool. Mrs. Bovee marked a diagram showing the path of the aircraft on that occasion.

Mrs. Bovee testified that later that day, while on the third hole, she went home on her golf cart and got her camera. The aircraft returned later that day. Mrs. Bovee submitted several photographs and diagrams depicting the aircraft flying low overhead on that day.

Mrs. Bovee testified that she saw the registration on the aircraft several times, and she wrote it down.

Under cross-examination, Mr. Colhoun asked Mrs. Bovee a number of questions about the permanence of the Sherwood development. Mrs. Bovee denied that trailers at Sherwood were ever moved because of flooding. She said there was no mail delivery at Sherwood. There was no underground sewer, but septic tanks, sometimes shared by a few trailers. There was no security or police, no schools, no elevators, and no service stations, although gas was available at the Quonset hut on the property. There was occasional snow removal. Mrs. Bovee said she lives full-time at Sherwood for six months of the year, and part-time in the winter.

She reiterated that she had not seen the aircraft spraying Sherwood, but said it could have been spraying the surrounding area.

Mr. Colhoun also asked Mrs. Bovee a number of questions apparently intended to undermine her credibility. These included questions about the location of the registration marks on the aircraft, whether or not she had said the pilot was not wearing a helmet, and whether or not the aircraft had been "dive-bombing" Sherwood or done "knife-edge" turns, as she had alleged in earlier correspondence with Inspector Gagnon.

Under re-examination, Mr. Welwood showed Mrs. Bovee a photo on an overhead screen that showed N7311C's registration marks on the fuselage, not placed directly below the pilot's window. The marks were at a level lower than the pilot's window, but behind it; most of the marks were aft of the window, although the first part of the registration marks could perhaps be described as being directly below the window.

After seeing the photo, Mrs. Bovee reiterated her position that the registration was below the window, and said she was positive she got the registration right.

Mr. Welwood called Mr. Doug Bovee as a witness. He was present when his wife Donna took photos of N7311C flying overhead. He also confirmed some of Mrs. Bovee's evidence about the aircraft flying low overhead, and said he also saw the aircraft registration marks, N7311C.

Under cross-examination, Mr. Bovee confirmed that he thought the aircraft was not crop spraying when he saw it.

Mr. Colhoun called pilot Bruce Nuttall as his only witness. Mr. Nuttall is an experienced spray pilot who instructs other spray pilots and does regular simulator training to stay current. He said he has sprayed the Sherwood Forest area several times. He provided some photocopied pages from his personal logbook that showed he was crop spraying a field beside Sherwood (the "Harle" field) on June 25, July 13, and July 26, 2002. He also identified a municipal map that showed the location of Sherwood and the Harle field. Mr. Nuttall further identified work orders and invoices that confirmed that he had been crop spraying the Harle field on the days in question.

Mr. Nuttall explained that he usually contacts Regina tower when spraying the Harle field, because it is in line with runway 13 at Regina airport. He explained that it would take three trips to spray that field. It would take him about 35 minutes to reload between spraying. When he left the area, he would tell the tower he was leaving. He said the NCAMS records showed approximately when he sprayed those fields.

Mr. Nuttall explained that he always over flies a field before spraying and does a risk assessment, taking note of any obstacles or other issues of concern. He said he knows the Sherwood area well since he lives near there. He said he uses GPS when spraying. Mr. Nuttall drew a large chart of the Harle field and explained that he would fly an east-west race track pattern when spraying that field, because he would have to do many more turns if he flew a north-south pattern. He said an east-west pattern would save a lot of time and therefore a lot of fuel.

Mr. Nuttall said that he assessed the risk of flying over Sherwood as an "8" out of "10". However, flying a north-south pattern in order to avoid Sherwood would take twice as long. Also, there is a ravine through the Harle field. If Mr. Nuttall had flown north-south, he would have had to turn the spray off and on many more times as he would have crossed the ravine many more times.

Mr. Nuttall explained that by using the GPS, every turn is the same and an accurate pattern can be flown. In this case the GPS calculated that the field required 36 passes, 18 each direction, with a spray width of 70 feet. He said the terrain rises slightly to the north of the field but this he gave a risk factor of only "1".

Mr. Nuttall said at all times when spraying this field he could have made a successful forced landing if required. He also said he never "dive-bombed" or wiggled his wings when spraying this field. He said typically he would be at 150 feet when he turned, although he may have been at 250 feet when he flew over Sherwood since it was in a valley. He said at times he would be lower than that as he was heading into the Harle field.

Mr. Nuttall said he has never flown without a helmet because noise cancelling and communications are built into the helmet. He also said he telephoned the Sherwood Clubhouse to advise that he would be spraying, but he could not remember the name of the person to whom he spoke, nor the date of his call, although he did ask her to advise the golfers.

Mr. Nuttall said he has worked the Sherwood area over the last nine years and doesn't consider it to be a built-up area. He referred to some of Mrs. Bovee's diagrams and said he could not have flown the aircraft in as small a radius as she described. He referred to many of her photos and said they looked like pictures of an aircraft spraying normally.

Under cross-examination Mr. Nuttall admitted he flew over Sherwood while spraying and that he did not get authorization from the Minister of Transport to do so. He reiterated that his turns were usually at 150 feet and therefore he would be at 250 feet over Sherwood. Mr. Nuttall did not know how many trailers were at Sherwood. He said although he rated flying over Sherwood as a risk factor of "8", when he considered all other factors such as obstacles, wind, and the number of turns, he would rate it as a "4".

In conclusion, under cross-examination, Mr. Nuttall admitted that he flew low over Sherwood because he thought that was the best way to safely and economically spray the Harle field, and that he thought Sherwood was not a built-up area.

LAW

Sections 602.14 of the CARs:

602. 14 (1) For the purposes of this section and section 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons where that built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon; or

(b) 2,000 feet from an aircraft other than a helicopter or balloon. [subsection repealed 2003-03-01]

(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,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

Sections 602.15 of the CARs:

602. 15 (1) A person may operate an aircraft at altitudes and distances less than those specified in subsection 602.14(2) where the aircraft is operated at altitudes and distances that are no less than necessary for the purposes of the operation in which the aircraft is engaged, the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated

(a) for the purpose of a police operation that is conducted in the service of a police authority;

(b) for the purpose of saving human life;

(c) for fire-fighting or air ambulance operations;

(d) for the purpose of the administration of the Fisheries Act or the Coastal Fisheries Protection Act;

(e) for the purpose of the administration of the national or provincial parks; or

(f) for the purpose of flight inspection.

(2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

(a) paragraph 602.14(2)(a), where operation of the aircraft is authorized under Subpart 3 or section 702.22; or

(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

(i) aerial application or aerial inspection,

(ii) aerial photography conducted by the holder of an air operator certificate,

(iii) helicopter external load operations, or

(iv) flight training conducted by or under the supervision of a qualified flight instructor.

Section 702.22 of the CARs:

702. 22 (1) For the purposes of subsection 602.13(1), a person may conduct a take-off, approach or landing in an aircraft within a built-up area of a city or town at a place other than an airport or a military aerodrome, if the person

(a) has an authorization from the Minister or is authorized to do so in an air operator certificate; and

(b) complies with the Commercial Air Service Standards.

(2) For the purposes of paragraph 602.15(2)(a), a person may operate an aircraft over a built-up area at altitudes and distances less than those specified in paragraph 602.14(2)(a), if the person

(a) has an authorization from the Minister or is authorized to do so in an air operator certificate; and

(b) complies with the Commercial Air Service Standards.

(3) For the purposes of subsection 602.16(2), a person may operate a helicopter that is carrying a helicopter Class B, C or D external load over a built-up area or in an aerial work zone, if the person

(a) has an authorization from the Minister or is authorized to do so in an air operator certificate; and

(b) complies with the Commercial Air Service Standards.

Section 722.22(1) of the Commercial Air Service Standards (Standard):

722.22 Built-up Area and Aerial Work Zone

(1) For air operator authority to operate an aircraft over a built-up area at altitudes and distances less than those specified in section 602.14 of the Canadian Aviation Regulations, an aerial work zone plan shall be submitted to the Transport Canada Aviation Regional Office in the region in which the flights are to take place at least five working days in advance of the operation and include:

(a) certification that the governing municipality has been informed of the proposed operation;(amended 1998/09/01)

(b) purpose of the flights;

(c) dates, alternate dates and proposed time of day of the operation;

(d) location of the operation;

(e) type of aircraft to be used;

(f) altitudes and routes to be used depicted on a map of the area;

(g) procedures and precautions to be taken to ensure that no hazard is created to persons or property on the surface including locations of forced landing areas in the event of an emergency; and(amended 1998/09/01)

(h) name of the responsible air operator person to contact.

Six cases were provided by the Minister:

  • R. v. Crocker, (1977) 33 N.S.R. (2d) 177

Civil Aviation Tribunal Decisions

  • Minister of Transport v. Delco Aviation Limited, O-1918-41, Review Determination
  • Minister of Transport v. Denis Vincent, Q-2531-33, Review Determination
  • Minister of Transport v. Sean Brian Rice, O-0327-33, Review Determination
  • Minister of Transport v. Kelly Dean Dube, W-0200-33, Review Determination
  • Minister of Transport v. Jeffrey Schroeder, C-1584-33, Review Determination

SUBMISSIONS

Mr. Welwood submitted that all elements on the offence were proven. N7311C had operated over Sherwood on five occasions and the witnesses and documents established this was done at low altitude. The defence witness admitted he flew the aircraft low over Sherwood, and although he thought he had a reasonable explanation for doing so, the Minister did not agree.

Mr. Welwood pointed out that CARs 602.15(2)(a) and 702.22 and Standard 722.22 provide a procedure for air operators to get authority for low flying during their operations. Farm Air did not apply for such authority and no authorization was issued.

Mr. Welwood argued that Sherwood is a built-up area, because it has a clubhouse, pool, over 200 homes, and many permanent buildings. Mr. Welwood noted that the low flying took place at the height of the summer season, when most homes were occupied.

Mr. Welwood also noted that the policy letter provided by Mr. Colhoun does not establish a definition for built-up area, but references other jurisprudence. Mr. Welwood provided copies of one Nova Scotia County Court and five previous Civil Aviation Tribunal decisions dealing with the issue of what is a built-up area.

Mr. Colhoun argued that CARs 602.15(2)(b) provides an exception to a charge under CARs 602.14(2)(a)(i). He also argued that the contraventions in this case, if any, were officially-induced errors, because Sherwood was not shown as a built-up area on any chart. His position was that built-up areas should be depicted on aviation charts. He thought the failure of the Minister to ensure built-up areas were marked on charts was negligent and perhaps bordered on entrapment. Mr. Colhoun relied on the policy letter he had provided as support for his position that Sherwood was not, in any case, a built-up area.

Mr. Colhoun pointed out that the complainants in this matter were not representing Sherwood Forest Country Club. He also argued that Mr. Nuttall had exercised due diligence because he advised the golf club that he was going to spray and because he contacted the tower when spraying the area. Mr. Colhoun questioned the credibility of the Minister's witness Mrs. Bovee, as she described impossible turns and flying behaviour that Mr. Nuttall would not have undertaken while flying his GPS pattern. Mr. Colhoun also questioned Mrs. Bovee's credibility as at one point she had alleged the pilot was not wearing a helmet. He also said that the pictures did not show that the pilot was negligent or reckless or careless, but that he was just doing his job as he had done for many years in the area.

Mr. Colhoun provided a Webster's definition of built-up area. In his view, the Sherwood development does not meet that definition. He complained that the definition of "built-up area" seems to be left to the discretion of the inspector.

In reply, Mr. Welwood pointed out that CARs 602.15(2)(b) exception applies to a charge under 602.14(2)(b), not to 602.14(2)(a). He said that in order for an operator to be allowed low flying while crop spraying, he needs to apply for an authorization as set out in Standard 702.22(2) and Standard 722.22(1).

Mr. Welwood also pointed out that aviation charts are produced by Nav Canada, not by the Minister of Transport. He noted that charts depict villages and large towns, and while they show the approximate limit of urban sprawl, they do not show all built-up areas.

Mr. Welwood also submitted that the Minister was lenient in assessing only the individual recommended penalty of $250.00 per count, rather than the corporate recommended minimum of $1250.00 per first offence. He said that the Minister had proceeded against the corporation because during their investigation, Farm Air did not divulge the name of the pilot involved.

Mr. Colhoun's position was that the sanction was excessive, suggested that the Minister's witnesses were inadequate, and thought that costs should be awarded to Farm Air.

DISCUSSION

Credibility

Mr. Colhoun raised issues as to the credibility of the Minister's witnesses in this case. All the witnesses at the hearing appeared to me to be honest and forthright in answering the questions put to them on the stand. There were a few discrepancies in Mrs. Bovee's evidence - such as whether or not the pilot was wearing a helmet, the exact position of the registration marks on the airplane, the radius of the aircraft's turns when it flew over Sherwood, and whether or not the pilot was wagging his wings or "dive-bombing" Sherwood. I do not find, however, that these discrepancies undermine her credibility as to the determinative issues in this case.

Mrs. Bovee could simply have been mistaken as to whether the pilot was wearing a helmet. She is not a pilot herself and I would not expect her observations about what a pilot was wearing in a cockpit as he flew overhead to be accurate as to details. Also, whether or not it is accurate to describe N7311C's registration marks as being "below the pilot's window" is a matter of opinion or semantics. Certainly the marks, although placed on the fuselage and mainly behind the window, were below the level of the window; and it appeared from the picture shown on the overhead at the hearing that at least the "N" was directly below the aft part of the window.

Some of the marks Mrs. Bovee drew on maps of Sherwood showing the path and turns of the aircraft may have shown impossibly tight turns. However, I do not think these errors reflect a lack of credibility. Mrs. Bovee is not a pilot. She observed the low-flying aircraft usually from an angle, and from the ground; and I would not expect her drawings of the aircraft path and its radius of turns to be exact, but only generally showing the path of the aircraft.

I also think Mrs. Bovee's probable mistakes about the manner in which the aircraft was flown do not affect her credibility on the relevant issue of whether she saw a particular aircraft flying low over Sherwood. As a non-pilot, the normal flying manoeuvres required of crop spraying, at low level, perhaps in some convective turbulence on a hot summer's day, may have mistakenly looked to her like intentional pilot antics. In any case, whether or not the pilot handled the aircraft in a reckless manner is not relevant to the outcome of this matter.

Mrs. Bovee provided many photos of the low-flying aircraft to back up her testimony and she gave clear and confident evidence, supported by Mr. Bovee's evidence, as to the registration of the aircraft she observed. The pilot of the aircraft involved has admitted he flew and turned low over Sherwood on the occasions alleged by Mrs. Bovee, because he was crop spraying the adjacent field.

Built-up Area

To make out the alleged violations of CARs 602.14(2)(a), the Minister must prove that Farm Air operated an aircraft over a built-up area at an altitude that was lower than 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the airplane. The evidence is undisputed that Farm Air operated N7311C over Sherwood on the days and times alleged at an altitude considerably less than 1,000 feet. The only remaining issue for me to decide, with respect to whether or not the elements of the offence have been proven, is whether Sherwood is a built-up area.

The CARs do not define what is a built-up area. Transport Canada's Policy Letter 145 notes that:

There is a significant body of jurisprudence regarding the interpretation of what constitutes "built-up".

Mr. Colhoun suggested that all the items contained in the following sentence from Policy Letter 145 must be present in order to find that an area is a built-up area:

In general, "built-up" means a group of structures that are erected or built by man and includes private dwelling residences, schools, elevators, service stations and so forth...

I do not agree with Mr. Colhoun's suggestion. The foregoing list suggests some items that will indicate that a built-up area exists. The Policy Letter does not suggest that all of those must be present, or that there are no additional kinds of structures that may indicate a built-up area. For example, Policy Letter 145 states that even

...a dock could be considered such a structure, particularly if it can be shown that there is a risk of damage to property or injury to persons...

In any case, a Transport Canada policy letter is not "law" that must be followed by a Transportation Appeal Tribunal hearing officer. Rather, whether or not an area is "built-up" within the meaning of CARs 602.14(2)(a) is a matter for the hearing officer to decide based on the facts in each case.

In R. v. Crocker the Nova Scotia County Court found that the wording of the Air Regulations (at that time) suggested that the legislature did not want to be confined to areas within incorporated or recognized cities, town or urban districts, but was dealing with the factual situation on the ground. Further, that court found that the Air Regulations were designed for aircraft pilots and would undoubtedly be made with the fact in mind that built-up areas should be recognizable from the air. In Minister of Transport v. Sean Brian Rice, the Civil Aviation Tribunal found that a sports field containing a soccer pitch, tennis courts and a playground, and surrounded by buildings in addition to trees approximately 50-60 feet in height, was a built-up area.

In the Civil Aviation Tribunal decision Minister of Transport v. Jeffrey Schroeder the hearing officer referred to R v Stoesz (1983), Man. Prov. Ct. S.534(2)(a) where it was said that

...built up suggests to me structures that are, especially those that are not abandoned, erected or built by man and includes such structures as private dwelling residences, schools, elevators, service stations and so forth...

The hearing officer in the Schroeder decision found that the community of Red Sucker Lake, which included dwelling houses, a Band Hall and a school amounted to a built-up area for purposes of section 602.14 of the CARs.

My Oxford English Reference Dictionary, 2d Ed. 2002, defines "built-up" as follows: "1 (of a locality) densely covered by houses etc." (emphasis mine). "Dense" is defined in the same dictionary as "crowded together". "Build" means to "construct (a house, vehicle, fire, road, model etc.) by putting parts or material together." I conclude that the plain meaning of "built-up area" is an area covered by houses and other man-made things, crowded together.

In the Civil Aviation Tribunal decision Minister of Transport v. Denis Vincent the hearing officer expressed her view that a water or oil tank as well as telephone poles are structures erected by man which form part of an environment constituting a built-up area. Further, she noted that the CARs "...must be given a broad and liberal interpretation that lend it its true meaning and ensure the accomplishment of its purpose. In aeronautics, safety is paramount". I agree with this view.

The municipal map provided and identified by Mr. Nuttall shows that Sherwood occupies a quarter section of land. The aerial photos of Sherwood provided by Inspector Gagnon show trailer homes placed close together in treed areas along the river, a golf course, a large clubhouse, another large building adjacent to the clubhouse, a large Quonset hut, at least one bridge across the river running through the property, roads, a baseball field, and a barn on the far side of the baseball field from the rest of the buildings. The diagrams of Sherwood identified by Mrs. Bovee and Inspector Gagnon also show a pool, change rooms, dump, and the organization of the property along the river into small lots placed quite closely together. Mrs. Bovee's evidence was that there were some 200 trailer homes contained in Sherwood.

I have no difficulty in coming to the conclusion that Sherwood is a built-up area within the meaning of the CARs. Clearly, from the aerial photos it is apparent that there is a development here with many homes placed close together along the river, surrounded by a golf course and other facilities that indicate the presence of a large number of people in a relatively small area.

Defence of Officially Induced Error or Entrapment

Mr. Colhoun argued that aviation charts should mark areas considered to be built-up in order that unsuspecting pilots may avoid flying over them. In his opinion the failure of the authorities to do so amounts to officially induced error or perhaps even entrapment.

Where an unsuspecting pilot, unfamiliar with an area, blundered over a built-up area mistakenly, in bad weather, I may be able to find that the pilot was not liable for a low-flying offence on the basis of due diligence or the stress of weather defence. But here, the pilot was very familiar with the area. He flew over Sherwood repeatedly, at low level, with knowledge of the existence of the homes, golf course and other development. The failure of Nav Canada to attempt to show built-up areas on a map would not be sufficient to find officially induced error or entrapment.

Due Diligence

The evidence showed the pilot to be an experienced and knowledgeable crop spray pilot. The pilot did not consider Sherwood to be a built-up area. He thought he could safely force land the aircraft at any time. He had sprayed many times in that area, so believed it was permissible to do so. However, there is no evidence that he or his employer attempted to find out if Transport Canada held a different opinion as to whether Sherwood was a built-up area, nor did they apply for, or inquire, as to whether perhaps they should apply for an authorization to over fly Sherwood. The fact that Mr. Nuttall advised an employee of Sherwood that he was going to spray is not relevant, since only the Minister has the authority to grant permission to fly low over a built-up area.

The pilot and his employer were, in my view, honestly mistaken in their opinion that Sherwood was not a built-up area within the meaning of the CARs. However, neither that nor the fact that apparently no one had complained in the past about low flying over Sherwood, provides a defence of due diligence or changes the conclusion that a violation of CARs 602.14(2)(a) took place. With a strict liability offence, intent to commit the offence need not be proven.

Sanction

The Minister has been lenient by assessing only the individual recommended fine instead of the corporate recommended minimum for each offence, which is much higher. I see no reason to interfere with the Minister's decision as to the amount of the sanctions and hope that they are sufficient to encourage this operator to take care to avoid similar violations in the future.

DETERMINATION

The Minister has proved all elements of the offences alleged and the sanction of $250.00 for each of the five counts is upheld for a total of $1,250.00.

Sandra K. Lloyd
Member
Tranportation Appeal Tribunal of Canada


Appeal decision
Allister W. Ogilvie, E. David Dover, William D. Nicholson


Decision: June 4, 2004

We deny the appeal and uphold the member's determination as to contravention and sanction. The total amount of $1,250.00 is to be made payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within fifteen days of service of this determination.

An appeal hearing on the above matter was held Thursday, April 29, 2004 at 10:00 hours at the Provincial Court Building in Regina, Saskatchewan.

BACKGROUND

The Notice of Assessment of Monetary Penalty (Notice of Assessment) in this matter alleged five counts contravening subparagraph 602.14(2)(a)(i) of the Canadian Aviation Regulations (CARs) against Farm Air Ltd. ("Farm Air"). Each count arose from complaints made by a resident of Sherwood Forest Country Club (Sherwood), a golfing community located a few miles north of Regina, Saskatchewan. The Notice of Assessment alleges that Air Tractor Inc. AT-401 aircraft N7311C (N7311C) flew at a low altitude over Sherwood on a number of occasions in June and July 2002. Transport Canada Aviation Enforcement (Enforcement) assessed a monetary penalty of $250.00 per count against Farm Air, for a total penalty of $1,250.00.

A review of that decision was held before a single member on October 15, 2003 in Regina Saskatchewan.

The Hearing Officer, Ms. Sandra Lloyd, found that the Minister had proved all elements of the offences as alleged and upheld a sanction of $250.00 for each of the five counts for a total penalty of $1.250.00.

GROUNDS OF APPEAL

Farm Air disagreed with that determination. By letter dated February 9, 2004 it appealed the determination. Two grounds of error were contained in the letter of appeal:

  1. Minister's Abuse of Process under Vicarious Liability
  2. Lack of Disclosure

At the appeal hearing, the Appellant also stated that he would address:

  1. Perjury of witnesses,
  2. Zoning as regards a built-up area.

MOTIONS

1) In advance of the hearing the Appellant, Farm Air, submitted to the Registry a motion to admit new evidence. The new evidence was to consist of the minutes of a meeting of the Rural Municipality of Sherwood, Saskatchewan, held on February 11, 2004. That meeting addressed the presence of mobile homes that may have been in violation of a municipal bylaw. Those mobile homes were also the mobile homes that were found to be a "built-up area" at the review hearing.

The motion was denied on the grounds of section 14 of the Transportation Appeal Tribunal of Canada Act (TATC Act). The panel did not consider that the "new evidence" was necessary for the purposes of the appeal.

2) The Respondent, Minister of Transport, wished to enter the affidavit of Inspector James Welwood, dealing with the issue of missing disclosure documentation.

This motion was denied. The transcript revealed that the substance of the motion was dealt with by the Member at the hearing and the appeal panel need not revisit the issue. (Transcript p.15-19)

3) The Appellant wished to submit new evidence at the outset of the appeal hearing. This evidence was to be a statement from the Rural Municipality of Sherwood stating that the complainants in the case were not tax payers in Sherwood, contrary to their evidence given at the hearing.

The motion was denied on the grounds that the tax rolls were irrelevant to the question on appeal. Further the panel found that this would not constitute "new evidence", as the tax rolls were available prior to the hearing, so were not new evidence as envisioned by section 14 of the TATC Act.

THE FACTS

The facts of the case as found by the hearing Member are not in dispute. The Appellant does not challenge the decision on error of fact but rather on several legal questions as indicated in the Grounds of Appeal.

REPRESENTATIONS OF THE PARTIES

Appellant

Mr. N. Colhoun, representative of Farm Air, argued that the Minister's decision to pursue it for the alleged contravention by way of vicarious liability under subsection 8.4(1) of the Aeronautics Act is an abuse of process.

When the Transport Canada inspector approached Mr. Colhoun at his farm he was preoccupied with a farm machinery breakdown problem. In spite of being busy with the harvest and its attendant problems he did suggest that the inspector return after its completion to talk about the alleged incident. There was no return visit. The inspector had noted that Mr. Colhoun was prepared to cooperate.

Neither of Transport Canada's inspectors ever asked for the identity of the pilot. Farm Air never withheld the pilot's identity. It just was not requested. However, one inspector suggested that had the identification been known Transport Canada would have pursued the pilot rather than Farm Air.

The Appellant wished to pursue a line of argument regarding the possible perjury of the complainants' testimony. However, such argument was premised upon the submission of new evidence. The motion to enter new evidence, made at the commencement of the hearing, was denied. Thus, this line of argument was not undertaken.

In a similar vein the Appellant wanted to make submissions regarding the possible contravention of zoning bylaws as it might apply to a built-up area. The motion to enter new evidence on that point was also denied at the outset.

Farm Air submits that it was denied fairness and natural justice as it did not receive full disclosure from Transport Canada prior to the review hearing. That came to light at the hearing where a representative of the Minister admitted to losing an item of evidence, an e-mail with a depiction of the pilot.

Not only does fairness and natural justice require full disclosure but Transport Canada's own Enforcement Procedure Manual requires them to give full and complete disclosure. As they did not do so they were in violation of their own procedures, according to Farm Air.

Mr. Colhoun asks that the appeal be allowed on those grounds.

Respondent

Ms. Laperle on behalf of the Minister submitted that there was no abuse of process. The proceedings were not unfair to the point that they were contrary to the interests of justice.

Transport Canada had used its prosecutorial discretion when it decided to proceed against Farm Air. In her view Tribunal jurisprudence clearly allowed Ministerial discretion to choose one type of offence over another. In this case the Minister chose to proceed against Farm Air rather than the pilot. Such action is explicitly provided for pursuant to subsection 8.4(1) of the Aeronautics Act. She submits that the Tribunal should be reluctant to interfere in the exercise of that discretionary power.

Ms. Laperle pointed out from the record that Inspector Welwood acknowledged that a document which included a depiction of the pilot had been lost. He went on to state that the identification of the pilot was not to be an issue since Transport Canada was not proceeding against the pilot.

The hearing Member proposed that, after the evidence had been heard, Farm Air could make an argument if the lack of disclosure affected the outcome of the proceedings. However, the Appellant did not do so.

The Minister concedes that it has an obligation to disclose all relevant material that is not privileged but argues that the information in issue was not relevant as it could not be used by Farm Air in meeting the Minister's case.

The fact that the document had not been disclosed could not have affected the outcome of the matter. Therefore, the Minister did not fail to provide full disclosure to the Appellant. For these reasons the Minister asks that the appeal be denied.

THE LAW

Paragraph 602.14(2)(a) of the CARs:

(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,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

[...]

Subsection 8.4(1) of the Aeronautics Act:

(1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

DISCUSSION

Ground 1

We deny this ground of appeal. The exercise of the Minister's discretion in the choice of proceedings is not an abuse of process.

Jurisprudence from the Civil Aviation Tribunal recognized that the Minister has discretion with regard to the charges it brings and against whom it brings them.[1]

The rationale for the use of vicarious liability proceedings has been addressed in jurisprudence as well. It may be used as a form of coercion to persuade the registered owner to divulge the name of a pilot of aircraft alleged to have been involved in a contravention. It can also be used to encourage owners or operators to exercise effective supervision over pilots in their employ.[2]

Mr. Colhoun has stressed that the inspectors never asked for the name of the pilot. However, once the registration of the aircraft in question became known to Transport Canada they were within their right to allege a contravention against the owner or operator pursuant to section 8.4.

The language of section 8.4 clearly allows one person to be pursued for the act of another. For vicarious liability to be imposed there must be a nexus between the offence and the person to be held vicariously liable. In this instance the offence is in relation to the aircraft for which another person is subject to be proceeded against. The pilot of the aircraft could also have been proceeded against but Transport Canada in the exercise of their discretion made a decision not to do so.

Ground 2 - Lack of Disclosure

We deny this ground of appeal.

Mr. Colhoun illustrated from the transcript at page 17, that the Minister's representative admitted to losing a document. It was said to be an e-mail with a "depiction" of the pilot. As it had been lost, it was not provided to Farm Air in the disclosure package.

It has been recognized by the courts that the Minister has an obligation to disclose all relevant information to the defence. Information should not be withheld if there is a reasonable possibility that withholding it would impair the right of the accused to make full answer and defence.[3] In this instance the disclosure was not withheld. The Minister's representative declared that it had been lost.

As it was lost, it was no longer available to the Minister nor to the defence. Mr. Colhoun submitted that, as the document in question was started as an e-mail, there could have been alternate methods of retrieving it, such as, from the sender's computer.

We concur that full disclosure should be made, but note that the jurisprudence addresses all relevant information. The identity of the pilot was not an issue. We find that a picture or "depiction"of the pilot would not have been relevant evidence as the contravention was alleged against Farm Air not the pilot. In any case, Farm Air was aware of the identity of the pilot as he was its employee and witness at the review hearing. We do not see how not getting in disclosure a picture of their own pilot could impair Farm Air's ability to make full answer and defence to the alleged contravention.

CONCLUSION

We deny the appeal and uphold the member's determination as to contravention and sanction.

Reasons for Appeal Decision by:

Allister Ogilvie
Vice-Chairperson

Concurred:

David Dover
Member

W. D. Nicholson
Member


[1] Minister of Transport v. Stephen Décary - CAT File No. Q-2089-39; Peter J. Lubig v. Minister of Transport - CAT File No. C-0105-02.

[2] Minister of Transport v. Linbergh's Air Service - CAT File No. O-0025-10.

[3] R. v. Stinchcombe [1991] 3 S.C.R. 326.