Decisions

TATC File No. C-2886-33
MoT File No. RAP5504-47473 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Rob Eykelbeysh, Respondent

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


Review Determination
E. David Dover


Decision: December 30, 2003

The Minister has proven the elements of the offence relating to paragraph 602.114(a) of the CAR's. Mr. Rob Eykelbeysh, by his own testimony, substantiates the Minister's allegations, and I uphold the Minister's decision to issue a sanction of $750.00 against Mr. Rob Eykelbeysh. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within thirty-five days of service of this determination.

A review hearing on the above matter was held Wednesday, November 5, 2003 at 10:00 hours, at Meyer Compucourt Reporting in Saskatoon, Saskatchewan. There were no pre-hearing conferences held between the Applicant and the Respondent.

BACKGROUND

On June 9, 2003, a monetary penalty of $750.00 was assessed against Mr. Eykelbeysh, the Respondent, pursuant to section 7.7 of the Aeronautics Act by the Minister of Transport alleging that Mr. Eykelbeysh had contravened the following provisions(s):

Canadian Aviation Regulation 602.114(a) in that, at approximately 1500 hours UTC, on or about June 18, 2002, at or near Saskatoon, Saskatchewan, you did operate a Piper Aircraft Corporation PA24-180 bearing Canadian registration marks C-FOIB in VFR flight within controlled airspace when the aircraft was not operated with visual reference to the surface.

THE LAW

Paragraph 602.114(a) of the Canadian Aviation Regulations (CARs):

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

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

Opening Statements

The case presenting officer, Mr. Jim Welwood, stated that on June 18, 2002 Mr. Rob Eykelbeysh operated a Piper aircraft registration C-FOIB in the vicinity of the Saskatoon International Airport in controlled airspace on a VFR flight plan. While operating the aircraft he entered cloud and did not operate the aircraft with visual reference to the ground, as required in VFR flight conditions.

Mr. Eykelbeysh offered no opening statement.

FOR THE APPLICANT — The Minister of Transport

Mr. J. Welwood presented one witness, Inspector Richard Gagnon. The witness was sworn. Mr. Gagnon stated that he was a civil aviation inspector employed by Transport Canada and based in Winnipeg, Manitoba.

He testified that he received a Civil Aviation Daily Occurrence Report (CADORS) in July of 2002, and issued by NAV CANADA.

This report indicated that a PA24-180 Piper aircraft registration C-FOIB was operated on a VFR over-the-top (OTT) flight plan when the weather was not suitable for this type of operation. This flight occurred in the vicinity of John Diefenbaker Airport at Saskatoon, Saskatchewan at 1500 hours on June 18, 2002.

Mr. Gagnon testified that he sent a letter of investigation to Mr. Rob Eykelbeysh, the pilot-in-command, on or about October 15, 2002.

Mr. Eykelbeysh disagreed with the findings communicated by Inspector Gagnon and a Notice of Assessment of Monetary Penalty was issued by the Minister of Transport against Mr. Eykelbeysh for $750.00.

Mr. Gagnon entered a number of exhibits.

M-1 Notice of Assessment of Monetary Penalty

M-2 Confirmation of document delivery by Canada Post

M-3 Official Canadian Civil Aircraft Register

Inspector Gagnon stated that this report indicated that the aircraft C-FOIB belonged to Cobob Pumps & Services (1998) Ltd., an organization controlled by Mr. Eykelbeysh.

M-4 Air Personnel Licensing

This document indicates that Mr. Eykelbeysh holds a current private pilot licence with a night and VFR OTT endorsements.

M-5 Flight Plan for C-FOIB with a routing CYWG direct to CYXE

M-6 Aircraft Journey Log

The underlined entry shows the journey from Winnipeg to Saskatoon with Mr. R. Eykelbeysh as the pilot-in-command.

M-7 CADORS Number 2002C0677

Inspector Gagnon testified that this report indicates that the aircraft C-FOIB was enroute from Winnipeg to Saskatoon at 6,500 feet ASL when it entered reduced weather conditions. It was determined that the aircraft was IFR certified but the pilot was not. The pilot requested assistance from the Saskatoon terminal controller and was vectored for a landing on runway 09. The aircraft descended through approximately 2,800 feet of cloud and landed safely. There was no disruption to other traffic and the pilot landed at 1555Z.

M-8 Enroute Low Altitude Chart effective 13 June 2002 – 8 August 2002

Inspector Gagnon stated that the initial contact with C-FOIB placed the aircraft within the white circle surrounding the Saskatoon Airport and thus the aircraft was within controlled class C airspace.

M-9 Day to Day weather briefing log.

This report indicates that the pilot of C-FOIB received a weather briefing at 1131 hours on 02 06 18

M-10 Tape recording of transmissions from Saskatoon terminal controller for June 18, 2002.

The tape recording was played at the hearing and Inspector Gagnon as backup evidence entered a written transcript entered as Exhibit M-10A

M-l0A Transcript of tape recording, M-10

Inspector Gagnon testified that on page 3 of the transcript of the tape entered as M-10 Mr. Eykelbeysh confirms that he is 29.9 miles from the Saskatoon Airport and is in cloud. "Actually, I'm in it." This would place the aircraft within the Saskatoon terminal zone and the pilot flying without visual reference to the ground. Inspector Gagnon stated that pages 26 to 28 indicate the localizer descent through roughly 2,000 feet of cloud made by C-FOIB for an eventual landing at Saskatoon Airport. This descent was accomplished without visual reference to the ground.

M-11 Weather reports for the route flown by C-FOIB

The report outlined on page 5 indicates that the forecast weather for Saskatoon was not suitable for OTT flight at the planned arrival time of C-FOIB.

M-12 CARs document containing section 602.116

Cross-examination

Mr. Eykelbeysh referred to M-5.

Inspector Gagnon stated that there was no "over-the-top" flight plan but rather a "VFR" flight plan. To be able to fly OTT a pilot had to have certain qualifications and the destination weather had to meet certain criteria.

Inspector Gagnon was unable to state that Saskatoon tower could hear if Mr. Eykelbeysh was flying at 1,500 feet above ground and 35 miles from the Saskatoon tower.

THE RESPONDENT — Rob Eykelbeysh

Mr. Eykelbeysh was sworn and testified that he filed a VFR flight plan from Winnipeg, Manitoba to Saskatoon, Saskatchewan. He stated that he obtained a weather briefing prior to his departure and that he was aware of the forecasted low ceilings at Saskatoon but he determined that he could still arrive in VFR or special VFR conditions. He indicated that it was not his intention to fly the trip with VFR OTT because of the forecasted low ceiling at his destination.

While en-route he started to encounter weather in the Yorkton, Saskatchewan area and descended to approximately 700 feet above ground. At approximately 26 nautical miles (NM) from Saskatoon he observed the clouds went right to the ground and he turned around 180 degrees but the weather had deteriorated behind him.

He testified that he had no option but to climb through cloud breaking out at 5,000 feet ASL and above cloud. On the way up he was talking to Saskatoon terminal and stated in M-10A, page 4, line 11 he stated "actually, I'm in it."

Mr. Eykelbeysh stated that he discussed a number of options with the Saskatoon terminal controller and because his passenger was becoming nervous he agreed to declare an emergency and fly a vectored approach for runway 09 at Saskatoon.

He testified he descended through cloud and landed safely at the airport complimenting the controller for his help.

Exhibit D-1 Mr. Eykelbeysh entered a document titled Recommended Sanctions.

Mr. Eykelbeysh testified that he disagreed with the comments made by the author of the report (D-1) that he had tied up a controller for a substantial period of time and inconvenienced Saskatoon local arrivals when the CADORS report (M-7) clearly stated that this was not the case.

Cross-examination

Mr. Welwood questioned Mr. Eykelbeysh about the performance of his aircraft and the weather at Yorkton. Mr. Eykelbeysh stated that he was not conducting a VFR OTT flight but rather a VFR flight when he ran into deteriorating weather.

As there was no further evidence the evidentiary record was closed.

FINAL ARGUMENTS

Mr. Welwood reviewed the evidence that had been presented by the Minister. He stated Mr. Eykelbeysh operated a VFR flight from Winnipeg, Manitoba to Saskatoon, Saskatchewan on July 18, 2002. He stated that Mr. Eykelbeysh was rated for OTT flight but was not IFR rated.

Mr. Welwood stated that the Minister had proven that Mr. Eykelbeysh was in fact in cloud without visual reference to the ground on a number of occasions. He indicated that Mr. Eykelbeysh did the right thing by declaring an emergency but he had enough training to know he should not have been in the bad weather in the first place.

ANALYSIS

Section 602.114 of the CARs states:

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

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

The issue is whether Mr. Eykelbeysh operated his aircraft without visual reference to the ground in controlled airspace.

Had he filed a VFR OTT flight plan, as he was certified to do, he would have been legal. However by his own testimony he clearly states that he was not flying a VFR OTT operation and thus he had to remain in visual contact with the ground.

The issue of the legality of flying into Saskatoon with lower than OTT weather conditions is not an issue because he is not charged with this infraction.

By his own admission he admits to flying in cloud (M-l0A) page 4 line 11, page 18 lines 5 and 6, pages 20 and 21. His testimony places his aircraft in controlled airspace (M-8).

I concur with the Minister's observation that Mr. Eykelbeysh should not have been in the area and should have terminated his flight at a VFR airport prior to entering deteriorating weather.

DETERMINATION

The Minister has proven the elements of the offence relating to paragraph 602.114(a) of the CAR's. Mr. Rob Eykelbeysh, by his own testimony, substantiates the Minister's allegations, and I uphold the Minister's decision to issue a sanction of $750.00 against Mr. Rob Eykelbeysh.

E. David Dover
Member
Transportation Appeal Tribunal of Canada