Decisions

CAT File No. O-1480-33
MoT File No. PAP6504-P-143932-029187

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Eugene Kocsis, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s.602.126(1)(c)

Take-Off Below Minimum Visibility


Review Determination
Samuel J. Birenbaum


Decision: November 14, 1997

I confirm the Minister's decision to assess a monetary penalty, but I reduce the amount of that penalty from $250 to $125. The payment shall be made to the Receiver General for Canada and sent to the Civil Aviation Tribunal within fifteen days of service of this determination.

A Review Hearing on the above matter was held Wednesday, October 29, 1997 at 11:00 hours at the Waterloo Regional Airport, in Breslau, Ontario.

BACKGROUND

At the onset of the Review Hearing I was presented with a pre-hearing agreement of facts signed by both the Respondent and the Applicant. The facts agreed to by both parties are the following:

  1. Mr. Kocsis was the pilot-in-command of Cessna 414, C-GDLC
  2. Mr. Kocsis conducted a takeoff on runway 07 at approximately 1227 UTC (0727 Local)
  3. The control tower reported the ground visibility just prior to takeoff to be 3/8 sm (statute miles).

The Notice of Assessment of Monetary Penalty for $250.00 reads in part:

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):

Canadian Aviation Regulations, s.602.126(1)(c) in that on or about November 6, 1996 at or near the Kitchener/Waterloo Regional airport you, as the pilot-in-command of aircraft, registered C-GDLC, conducted a take-off on runway 07 when the take-off visibility was less than one-half a mile.

THE LAW

Subsection 602.126(1) of the Canadian Aviation Regulations (CARs) reads as follows:

602.126 (1) No pilot-in-command of an aircraft shall conduct a take-off if the take-off visibility, as determined in accordance with subsection (2), is below the minimum take-off visibility specified in

(a) the air operator certificate where the aircraft is operated in accordance with Part VII;

(b) the private operator certificate where the aircraft is operated in accordance with Subpart 4; or

(c) the Canada Air Pilot in any case other than a case described in paragraph (a) or (b).

(2) For the purposes of subsection (1), the take-off visibility is

(a) the RVR of the runway, if the RVR is reported to be at or above the minimum take-off visibility specified in a document or the manual referred to in subsection (1);

(b) the ground visibility of the aerodrome for the runway, if the RVR

(i) is reported to be less than the minimum take-off visibility specified in a document or the manual referred to in subsection (1),

(ii) is reported to be fluctuating above and below the minimum take-off visibility specified in a document or the manual referred to in subsection (1), or

(iii) is not reported; or

(c) the visibility for the runway as observed by the pilot-in-command, if

(i) the RVR is not reported, and

(ii) the ground visibility of the aerodrome is not reported.

EVIDENCE

Ms. K. Richter for the Minister of Transport provided Exhibit M-l, a copy of the Pre-hearing Agreement which the Respondent agreed that he had signed. Mr. Kocsis wished to enlarge on the third statement in the agreement, namely that the control tower reported the ground visibility just prior to take-off to be 3/8 statute miles.

The first witness for the Minister, Mr. James Corbett, the investigating officer, was sworn. He stated that he received an Air Traffic Services Aircraft Occurrence Report that C-GDLC aircraft, the Cessna 414, departed runway 07 with a visibility of 3/8 miles at 12:27 Universal Time on November 6, 1996. The Canada Air Pilot states that departures must be conducted with the ground visibility of one-half mile. The witness requested a copy of the aircraft journey log and had a meeting with the Respondent, before which he cautioned the Respondent of his rights, and took a statement. After reviewing the air traffic control (ATC) audio tapes, he determined a violation had occurred, namely that the take-off had been conducted at less than the required one-half mile of visibility.

He introduced into evidence the Air Traffic Services Aircraft Occurrence Report labelled Exhibit M-2, the Aerodrome Chart in the Canada Air Pilot pertaining to the Kitchener Waterloo Regional airport labelled Exhibit M-3 and the notes taken at the time of the interview of the Respondent entered as Exhibit M-4. A copy of the audio tapes of the communications between the aircraft and the tower was entered as Exhibit M-5, and a transcript of this tape was entered as Exhibit M-6.

On cross-examination Mr. Corbett agreed that there may be differences between the ground visibility as reported by ATC and actual visibility, especially in the presence of ground fog. These differences may occur at different parts of the runway.

The next witness was Mr. Edward Wilson Homeyer, Manager of the Kitchener Waterloo Regional Airport control tower who was in the cab of the tower overhearing the transmissions between the pilot and the air traffic controller on November 6, 1996. Subsequently, he discussed the events with the air traffic controller on duty, and the report was filed immediately. He stated that he was asked to secure the tapes, to make copies of the tapes, and these were then introduced as evidence identified by his initials.

On cross-examination, he stated that he had twenty-seven and a half years of ATC experience. He agreed that varying visibilities are possible under different conditions depending on how the observations are made. In the absence of a runway visual range, the reported visibility by a weather observer is accepted. If there are no such reports available, only then would the pilot observations be accepted as the official visibility.

The witness was asked the question: what would happen if the official weather observation was greater than a half-mile, whereas the pilot in his aircraft on the threshold could only see a quarter mile? He replied that this might be officially legal, but it was nonetheless unsafe, and that, in his entire experience, he had never encountered such a situation.

The Respondent stated that the runway was lit at the time with lights at 200-foot intervals and that he was able to clearly see the VOR hut located a half-mile down the runway, and thus he concluded he had at least a half-mile of visibility. He agreed that he was confused by the various definitions of visibility such as take-off visibility, official visibility, tower visibility, weather observers' visibility, etc. He felt that, in the interest of fairness and natural justice, he should be able to substitute his own observations. He further stated the minister had failed to prove the allegation beyond a reasonable doubt. He added that, since this was a single pilot operation, he did not have a copilot to testify on his behalf.

In her closing remarks Ms. Richter reminded me that the Tribunal operates on a balance of probabilities, not on the criminal principle of beyond a reasonable doubt. She stated that the Pre-hearing Agreement confirmed by the audio tapes indicated that this experienced pilot knowingly took off with reported visibilities below acceptable ones.

She further introduced prior determinations by the Civil Aviation Tribunal. These determinations included reference to the fact that the flight service centre observations are paramount over that of the pilot's and that the Canada Air Pilot definitions and regulations should apply preferentially.

In his closing remarks the Respondent stated that he was certain the visibility was not as reported and that there was genuine confusion about types of visibility. He felt that in the interests of truth and justice, his observation of adequate visibility should be taken into consideration. It was done in the Review Determination of Minister of Transport v. Garry David Majerle[1].

At this point, at the request of the Respondent, witness J. Corbett was recalled and was asked to explain Exhibit M-2, the Air Traffic Services Aircraft Occurrence Report. Specifically, on line two is noted aircraft identification FBHH, Cessna 421, departing runway 07 at 13:12 ZULU with one-quarter mile visibility at the same airport. A light line has been drawn through this information, and Mr. Corbett was asked to explain what this meant. He stated that the line indicated that this information did not apply to this case, and represented another aircraft that had departed at a later time with reduced visibility. I asked Mr. Corbett what happened with the second aircraft, and he stated that the pilot of that aircraft was given verbal counselling, and no further action was taken. I asked why one aircraft pilot would receive an oral counselling while another was given a sanction. He stated that there are many considerations, not the least of which is to ensure future compliance.

Ms. Richter requested to speak to sanction and advised me that the $250 penalty was recommended in the procedures manual for a first offence. Under worse situations a suspension of a licence might have been requested. She stated that there were no mitigating factors and that this penalty was necessary to ensure future compliance.

The Respondent stated that he was not concerned about the amount of money, but rather about the consistency of the law and that it should apply to all cases equally.

DISCUSSION

Operational visibility minima for aircraft are essential to ensure safety. The fact that the reported visibilities cannot be measured with exactness is all the more reason the minimum take-off visibility should be observed meticulously.

Section 602.126 of the CARs clearly defines minimum take-off visibility and gives the order of preference to various methods of obtaining this measurement. Clearly, the pilot's observations are not to be substituted for reported observations on the aerodrome. This principle has been confirmed in the Review Determination of the Minister of Transport v. Joseph P. René Savard[2], as well as the Minister of Transport v. Jerry Wilkins[3], the latter being an Appeal Determination.

The evidence presented clearly indicated that the events had occurred, whereas the Respondent offered in his own defence that his own observations should take precedence, and that official observations are sometimes inaccurate. In the interest of aviation safety I cannot accept this position, though I have great sympathy for this pilot who behaved in a very professional manner, and in his testimony expressed a keen awareness of the need to ensure safety in aviation. It is also significant that in the hourly weather report following the take-off by about thirty-three minutes, the visibility had declined to one-quarter mile.

DETERMINATION

Mr. Kocsis, in his testimony, indicated that he learned from this experience, and thus I feel no further deterrent is necessary. I confirm the Minister's decision to assess a monetary penalty, but I reduce the amount of the assessed monetary penalty from $250 to $125.

Dr. S. Birenbaum
Member
Civil Aviation Tribunal


[1] CAT File No. C-0149-33.

[2] CAT File No. A-0012-33.

[3] CAT File No. Q-0453-33.