Decisions

TATC File No. C-2888-33
MoT File No. RAP5504-49465 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Peter Suderman, 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
Philip D. Jardim


Decision: September 12, 2003

Mr. Suderman did contravene paragraph 602.114(a) of the CARs as alleged by the Minister. However, in the light of mitigating circumstances, I reduce the fine to $375.00. 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 Thursday, August 28, 2003 at 10:00 hours at the Federal Court of Canada, in Winnipeg, Manitoba.

BACKGROUND

On November 16th 2002, Peter Suderman took off in his Cessna 150L from Gilbert Plains to Morden, Manitoba, on a VFR flight, a distance of some 159 nautical miles. Mr. Suderman is a private pilot, and does not have an instrument rating, a VFR over-the-top rating, or a night rating. Shortly after take-off from Gilbert Plains, Mr. Suderman encountered deteriorating weather, lost visual reference to the ground, and in effect became lost. He contacted Winnipeg Flight Service Station (FSS) who handed him over to Winnipeg Centre. They successfully guided him by radar to an area where he regained visual contact with the ground. Winnipeg Centre gave him his position, and Mr. Suderman visually located Killarney and made a safe landing there, just before nightfall. Mr. Suderman was properly licensed, and his aircraft C-GEHU was properly registered and had a valid Certificate of Airworthiness.

A civil aviation daily occurrence report (CADORS) of the incident was written by NAV CANADA, the FSS provider. Transport Canada Enforcement Branch initiated an investigation and fined Mr. Suderman $750.00 for allegedly contravening paragraph 602.114(a) of the Canadian Aviation Regulations (CARs). The fine was not paid, and the Minister applied to the Tribunal for a Review Hearing.

THE LAW

Paragraph 602.114(a) of the CARs reads as follows:

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;

EVIDENCE

There is an agreed statement of facts dated August 20, 2003 between the Minister and Mr. Suderman. He acknowledged that he did agree to this statement. In effect, Mr. Suderman admits to the alleged contravention in this statement.

Further, the Minister adduced evidence through Mr. Welwood, the only witness, which clearly establishes that the alleged infraction did occur. This evidence includes a tape recording and accompanying transcript (Exhibit M-4) of Mr. Suderman's radio exchanges with air traffic control (ATC), and associated telephone contacts between the different air traffic controllers, as they sought to help Mr. Suderman, and guide him to a safe landing. Mr. Suderman acknowledged the accuracy of both this recording and the transcript.

Exhibit M-5 is a handwritten recording of notes taken by Mr. Welwood during a conversation he had with Mr. Suderman on February 19, 2003. During this conversation, Mr. Suderman describes how he got into trouble. He did not check the weather with FSS prior to departing; he merely called home and was told that it was clear there. He attempted to return to his point of departure, Gilbert Plains, when he encountered deteriorating visibility and cloud, but found that the weather had closed in behind him. When this happened, he decided to climb out of the cloud over a layer into clear air, being aware of high ground beneath him. He thought and hoped that it was going to clear up later as he proceeded towards his intended destination, Morden. When this did not happen, he became disoriented and lost, and called ATC for assistance.

Mr. Suderman said during his conversation with Mr. Welwood that he would be reluctant to call for assistance in the future, since, had he not called and made ATC aware of his situation, no one would have known and no sanction would have been issued against him.

During the hearing, I had to advise Mr. Suderman on the procedure of a Review Hearing. His attempt to cross-examine Mr. Welwood was in effect a protest against the way he felt that Transport Canada had handled the infraction. While readily admitting repeatedly that he had "made mistakes" and contravened the regulations, he is of the opinion that Transport Canada should have "put him on probation" and counselled him, rather than applying a fine of $750.00. He considers this harsh and excessive, and not conducive to encouraging pilots to obey the regulations.

I advised Mr. Suderman on the procedure for giving evidence and making a statement to the hearing. I additionally advised him that by agreeing to be sworn, would give his statement and any evidence he gave, full weight. I also pointed out, however, that he was not bound to do so. He readily agreed and was affirmed.

In his sworn statement, he again admitted to the infraction, describing how he decided to "drift above the cloud," after attempting to return to Gilbert Plains on encountering bad weather. He realized that he should be penalized, but expressed concern at Transport Canada's conduct. He feels that an adversarial situation has developed, which he thinks is not conducive to safety, remarking that he has never seen Transport Canada at the flying school. This infers that he may be blaming shortcomings in his training for this incident. He appreciates that there is a price to pay, but says that $750.00 is excessive. He said that he is very safety conscious, particularly when it comes to his aircraft, and that he intended no infraction of the regulations.

Mr. Gagnon's summary pointed out that other infractions had been committed, but that Transport Canada had only proceeded against Mr. Suderman in respect of one. The resulting fine was the minimum sanction recommended in the CARs. Mr. Suderman had endangered not only himself, but other air traffic. He had crossed six airways during his flight, which potentially could have resulted in near misses or mid-air collisions. He felt that Mr. Suderman was lacking in responsibility and good airmanship, and relied upon others (ATC), to save him from disaster.

In his summary, Mr. Suderman was contrite, but still felt that he was being persecuted. He feels that Transport Canada Enforcement was wrong in the way they conducted themselves. I asked him to explain this: He explained that he found the penalty harsh, and that Transport Canada should have put him on probation for two years. He readily acknowledged, however, that this would be difficult and time consuming to administer.

DISCUSSION

There is no doubt that Mr. Suderman contravened the regulations as charged by Transport Canada. In an effort to ensure that he understood the gravity and potential consequences of his actions, I recommended him to seek further instruction in flight planning and to make himself more aware of the CARs, and the absolute necessity to ascertain the weather before flying. It would appear that Mr. Suderman appreciates this advice, in that he realizes the consequences of his actions, and that in the future he will not hesitate to seek the assistance of ATC, rather than say nothing for fear of being sanctioned. Mr. Suderman is contrite, and never sought to hide the details of his infraction from the investigation.

While Mr. Suderman has displayed a positive attitude, I am concerned that he finds Transport Canada's position to be "confrontational and harsh." I find this criticism unwarranted, and it may indicate that he does not appreciate that Transport Canada Enforcement is there to keep our skies safe. Enforcement of the regulations is the only practical way they can achieve this. Had he not called ATC that day, seeking guidance, the outcome of this incident may have been tragic.

Mr. Suderman is inexperienced, and it is evident that this landed him in this unfortunate and potentially dangerous situation, rather than any deliberate attempt to contravene the CARs. His cooperative attitude with Mr. Welwood's investigation is indicative of this. He has learned from this experience, and in the light of his positive attitude, cooperation with Transport Canada in this matter, and his final acceptance that calling for assistance was the right thing to do, I shall reduce the fine to $375.00, while still impressing upon him the gravity of his actions on that day. I further urge Mr. Suderman to always check the weather with FSS before departing on any flight. It is also strongly recommended that he should also seek additional instruction in aviation law, flight planning, navigation, map reading, and the use of the VOR in his aircraft.

DETERMINATION

At the conclusion of this hearing I have determined that Mr. Suderman did contravene paragraph 602.114(a) of the CARs as alleged by the Minister. However, in the light of mitigating circumstances, I reduce the fine to $375.00.

Philip D. Jardim
Member
Transportation Appeal Tribunal of Canada