Decisions

CAT File No. O-1469-33
MoT File No. 6504-P-746762-28606

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Charles B. Gregoire, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 7.7
Air Regulations,C.R.C. 1978, c.2, s. 534(2)(a)

Low Flying


Review Determination
Suzanne Jobin


Decision: October 8, 1997

The Respondent, Charles B. Gregoire, did not contravene paragraph 534(2)(a) of the Air Regulations. Accordingly, the Minister's assessment of a monetary penalty of $250.00 for contravention is cancelled.

The Review Hearing on the above matter was held Wednesday, September 17, 1997 at 10:00 hours, in the Standard Life Building, at Ottawa, Ontario.

BACKGROUND

On April 28, 1997, Transport Canada sent the Respondent a Notice of Assessment of Monetary Penalty:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Air Regulations, s.534(2)(a), in that on or about July 21, 1996, you, as pilot-in-command of Cessna 150 identified as C-GEEU, flew over the built-up area of a settlement at an altitude less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft. Specifically, you flew over the Heron Lake Estates subdivision, located in Goulbourn Township, Ontario, at an altitude of less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft.

A monetary penalty of $250.00 was assessed against the Respondent. On the deadline for the stated payment, Transport Canada reported that payment had not been received. The Minister of Transport therefore brought the matter before the Civil Aviation Tribunal, pursuant to subsection 7.8(2) of the Aeronautics Act.

THE LAW

Section 7.7 of the Aeronautics Act provides 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).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Subsection 534(2) of the Air Regulations provides in part:

(2) Except as provided in subsections (4), (5) and (6) or except in accordance with an authorization issued by the Minister, unless he is taking off, landing or attempting to land, no person shall fly an aircraft

(a) over the built-up area of any city, town or other settlement or over any open air assembly of persons except at an altitude that will permit, in the event of an emergency, the landing of the aircraft without creating a hazard to persons or property on the surface of the earth, and such altitude shall not in any case be less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft; or

(...)

THE FACTS

Mrs. Joyce Allen Acton lives at Heron Lake Estates subdivision in Goulbourn Township, Ontario. On July 21, 1996, between 13:00 and 16:00 hours local time, Joyce Allen Acton saw an aircraft flying over her property at an altitude less than 150 feet. She was able to identify the aircraft and reported the incident to the proper authorities.

Ms. Elliott, an inspector responsible for aviation enforcement at Transport Canada, was put in charge of the investigation.

Those facts are not disputed.

ARGUMENT

Transport Canada maintains that, on July 21, 1996, the Respondent, acting as the pilot-in-command of an aircraft registered C-GEEU flew at an altitude below that permitted by the regulations. The representative of the Minister argues that the evidence presented at the Review Hearing proves that the alleged contravention did take place and that the aircraft and the pilot-in-command were properly identified. Consequently, the Applicant is asking the Tribunal to uphold the Minister's decision and to confirm the assessed monetary penalty.

The Respondent claims that he did not commit the alleged infraction. While he acknowledges acting as the pilot-in-command of an aircraft registered C-GEEU the day of the infraction, he maintains that he did not overfly the property of Joyce Allen Acton July 21, 1996 and never flew below 2,500 feet that day except for landing at Carp Airport. He also maintains that the day of the incident the aircraft was on the ground at the airport from 13:30 hours to 18:30 hours local time. The Respondent is asking the Tribunal to dismiss the Minister's decision.

DISCUSSION

The Minister of Transport has proven, on a balance of probabilities, that an incident occurred in the afternoon of July 21, 1996 when an aircraft flew over the built-up area of the Heron Lake Estates subdivision in Goulbourn Township, Ontario at an altitude less than the one authorized by the Air Regulations. While the Minister of Transport has successfully proven the above fact, it is the Tribunal's opinion that the evidence presented by the Applicant relating to the identification of the aircraft and the time of the incident is far from being conclusive. The Respondent's testimony and its corroboration by credible witnesses confirmed the Tribunal's opinion.

Mr. Gregoire has testified that the day of the incident he was acting as the pilot-in-command of the aircraft registered C-GEEU. He and his wife Heidi Brault had left Iroquois Airport at 12:44 hours local time and landed at Carp Airport at 13:31 hours local time. According to their testimony, the aircraft was flown during that flight at an altitude and within a radius consistent with the regulations. Following the landing at Carp Airport the aircraft was on the ground until 18:30 hours local time. Mr. Paul Porter confirmed the testimony of Mr. Gregoire and Ms. Heidi Brault on that point. The evidence presented by the Respondent was well documented and credible. The Tribunal has no reason to doubt the veracity of the evidence presented by the Respondent.

DETERMINATION

The Respondent, Charles B. Gregoire, did not contravene paragraph 534(2)(a) of the Air Regulations. Accordingly, the Minister's assessment of a monetary penalty of $250.00 for contravention is cancelled.

Suzanne Jobin
Member
Civil Aviation Tribunal