Decisions

CAT File No. O-1507-02
MoT File No. 6504-P-010142-028575

CIVIL AVIATION TRIBUNAL

BETWEEN:

George William Trelford, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 6.9
Air Regulations, C.R.C. 1978, c. 2, s.101(1), 521.1, 529, 534(2)(b), 536(2)(3)(4)(5)
Transport Canada Flight Training Manual, 3rd ed.

Take-off Phase, Float-Equipped Aircraft, Climb-out Phase


Review Determination
Allister W. Ogilvie


Decision: January 15, 1998

Mr. Trelford has contravened paragraph 534(2)(b) of the Air Regulations. In the result, I must confirm the Minister's seven-day suspension of his Commercial Pilot Licence. Said suspension will commence on the fifteenth day following service of this Determination.

A Review Hearing on the above matter was held Thursday, December 18, 1997 at 10:00 hours in Courtroom #5 of the Federal Court of Canada, in the city of Toronto, Ontario.

BACKGROUND

On July 14, 1996, an amphibious floatplane, a Cessna 180 departed Boshkung Lake taking off to the south from the north end of the lake. After take-off, it reversed course to fly in approximately a northerly direction while maintaining flight over the surface of the lake. Nearing the north end of the lake, the aircraft turned toward the southwest, crossing the western shore of the lake.

This flight resulted in the following allegation:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

Air Regulations, s.534(2)(b), in that at or near Boshkung Lake, in the Township of Stanhope, County of Haliburton, Ontario, on July 14, 1996, you as the pilot-in-command of a Cessna 180, registered C-FJOC, flew at an altitude of less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

EVIDENCE

There is no issue that on July 14, 1996 Mr. G. Trelford was the pilot-in-command of Cessna 180 C-FJOC, on the flight in question. This fact was established by correspondence from Mr. Trelford to Mr. Corbett of Transport Canada dated October 31, 1996 and entered as Exhibit M-5.

Mr. Trelford testified to having flown for 38 years, in a variety of positions, including being a chief pilot in northern bush operations. He has a great deal of experience in operating float-equipped aircraft. As well, he was familiar with Boshkung Lake itself, having flown into and out of it on numerous occasions over the last few years.

In the vicinity of Boshkung Lake on July 14, 1996 around 5:20 p.m. the temperature was in the low twenties, and the winds were from the west at 5 to 7 knots (Exhibit D-2). Expert testimony revealed that, due to the topography, the wind would have flowed around the hills, which could give the effect of the wind coming from the south.

Mr. Trelford stated that he taxied out onto the lake, the length of which lies roughly in a north-south direction. Having assessed the situation, he proceeded to take off in a southerly direction.

After the take-off run, he commenced a left-hand turn in the long part of the lake and then flew on roughly a northerly heading, back up the lake, staying over the water. He stated that this was the most prudent direction as there were hydro wires to the south, and he needed to gain altitude due to the surrounding hills. He continued to climb closer to the north end of the lake, gaining altitude. Then he turned left once again, crossing the western shore near the north end, heading in a southwesterly direction toward his home base of Markham, Ontario.

Upon cross-examination, it was suggested that the proper procedure on take-off was to climb straight ahead to 500 feet. Mr. Trelford answered that that procedure did not apply to float-equipped aircraft. He asserted that the procedures for wheeled aircraft operating from airports did not apply to float aircraft.

When it was suggested that the take-off ends when the first turn commences, he declared that the take-off continued until a safe altitude was reached, and he could proceed into cruise. Regarding this specific flight, when asked what altitude he had when leaving the lake, Mr. Trelford could not state an altitude but said it was considerable.

Evidence given by two witnesses to the flight differs from Mr. Trelford's.

Ms. Pelletier and Mr. Sexsmith occupy a property which adjoins that which Mr. Trelford visited on July 14, 1996.

Ms. Pelletier testified that, on that late afternoon, she and her young son were on their dock, which extended about 50 feet into Boshkung Lake. She witnessed an aircraft take off, fly down the lake and then come back flying low directly over herself and her son. This caused her great distress. The aircraft then disappeared over the trees which she estimated to be about 30 to 50 feet in height.

Ms. Pelletier's husband Mr. Sexsmith, a retired engineer, was also a witness to the flight. He stated that he saw an aircraft leave an adjoining cottage, go toward the centre of the lake and take off in a southerly direction into wind. It then climbed, turned to the right back toward the north, descended somewhat and flew up the lake close to shore where it flew directly over his wife and son who were on the dock which extended into the lake. Mr. Sexsmith estimated that, when the aircraft cleared the shore, it would have been about 20 feet over the trees. These trees, he said, were mature cedars about 30 to 40 feet in height.

I note that Mr. Sexsmith's testimony has the aircraft making a right turn after take-off, whereas Mr. Trelford testified to having turned left. I believe Mr. Sexsmith was truthful in what he perceived to be the flight path, but I find it more probable that he was mistaken and that Mr. Trelford did commence a left turn after take-off.

Cross-examination of these two witnesses revealed that neither had any experience with aviation, nor of float operations.

Evidence regarding float operations was provided by Mr. Stephen Wilcox, a pilot of 20 years experience much of the time being on float aircraft. His career included being the proprietor and pilot of a bush operation. As such, he was accepted as an expert witness able to give opinion evidence regarding float-equipped aircraft operations.

Mr. Wilcox provided insight into the field of flying float-equipped aircraft. He described float operations and the environment in which they take place comparing them to operations of wheel-equipped aircraft. He spoke to the many vagaries of operating from bodies of water. Water, by nature, accumulated in low areas, and thus was often surrounded by higher terrain, whereas airport sites are selected to ensure lack of obstacles, he explained. The water surface was subject to constant change, whereas an airport's surface remains fairly constant.

Mr. Wilcox explained the different techniques required of floatplane pilots as compared to their land-based counterparts. He testified that it was very important to remain over the water surface, circling if necessary, until a safe altitude was reached, before departing. It was his opinion that the take-off phase of floatplane flight finished when the aircraft reached cruise altitudes. When tested on cross-examination, Mr. Wilcox reiterated that a take-off would be completed when the aircraft attained sufficient altitude to go in the direction that the pilot desired to go.

THE LAW

The Minister has alleged that Mr. Trelford violated the following provision:

Paragraph 534(2)(b) of the Air Regulations:

(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

(...)

(b) elsewhere than over the built-up area of any city, town or other settlement or over any open air assembly of persons at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

Other pertinent reference is found at subsection 101(1) of the Air Regulations:

"aerodrome" means any area of land, water (including the frozen surface thereof) or other supporting surface used or designed, prepared, equipped or set apart for use either in whole or in part for the arrival and departure, movement or servicing of aircraft and includes any buildings, installations and equipment in connection therewith; (Emphasis added)

"taking-off", in respect of an aircraft, means the act of abandoning a supporting surface and includes the immediately preceding and following acts and, in respect of an airship or balloon, means the act of freeing the airship or balloon from restraint and includes the immediately preceding and following acts

ARGUMENT

On behalf of the Minister, Mr. Binder stated that Mr. Trelford was identified as the pilot-in-command of the aircraft in question on July 14, 1996. The witnesses attested to seeing the aircraft take off, climb and then fly at a low altitude over the persons on the dock.

The testimony indicated that the flight was low, as the aircraft just cleared the tree line. Mr. Binder submitted that the pilot was unable to state the altitude at which that portion of the flight took place. He argued that, when the aircraft flew over the witnesses, the aircraft was no longer in the take-off phase of the flight. Therefore, he asked that the suspension be upheld.

Mr. Trelford, on his own behalf, maintained that, although the witnesses felt a genuine concern, they had no knowledge of aviation nor float flying.

Further, the take-off as described was standard for float operations. He argued that, by subsection 101(1) of the Air Regulations, the definition of "take-off" supported his view. In sum, he argued that paragraph 534(2)(b) of the Air Regulations had not been violated.

DISCUSSION

A succinct description of the scheme of section 534 of the Air Regulations is found in the Appeal Hearing of Minister of Transport v. Gordon E. Boklaschuk[1]. There it states:

Section 534 must be read as a whole and the grammatical and ordinary sense of the words adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the regulations.

Section 534(2)(a) and (b) cover the altitude at which a pilot is permitted to fly. Subsection (a) specifies the altitude a pilot may fly over a built up area of any City, Town or other settlement or over an open air assembly of persons. Subsection (b) specifies the altitude a pilot may fly elsewhere. The cumulative effect of the two subsections is that together, they provide a rule covering flying altitudes everywhere. Subsections (4), (5) and (6) are merely exceptions to the rule.

If Transport allege a contravention of either subsection (a) or subsection (b) and establish on a balance of probabilities that a contravention has occurred, in absence of any other evidence, the case has been proven.

The legislation, however, recognizes that there are circumstances where a breach of 534(2)(a) or (b) is permitted.

The legislation spells out the circumstances in which a pilot may fly lower than the altitudes specified in 534(2)(a) and (b) without contravening that section. Those circumstances are:

(a) an authorization issued by the Minister

(b) taking off;

(c) landing;

(d) attempting to land;

(e) operating in the service of a police authority if

(i) the flight is necessary for the purpose of saving human life or

(ii) the aircraft is flown for firefighting or air ambulance operations.

(f) the flight is conducted

(i) without creating a hazard to persons or property; and

(ii) the aircraft is flown in a special purpose operation and

(iii) the special purpose operation is of a nature that necessitates the flight at such lower altitude.

A further exception is provided in Section 534(a) and (b) where the flight is over non populous areas or over open water.

If Transport proves a breach of the rule, the onus shifts to the Respondent to establish that he falls within one of the exceptions. It is not up to Transport to prove the exception.

In dealing with an allegation of a breach of either 534(2)(a) or (b), the Hearing Officer must be satisfied 'on a balance of probabilities' from the evidence adduced by Transport that a breach occurred. If the Hearing Officer is satisfied, then in order to dismiss the complaint, the Hearing Officer must be satisfied again 'on a balance of probabilities' from the evidence adduced by the Respondent that the Respondent falls within one of the exceptions to the rule.

To prove that a breach occurred in this instance, the Minister must show that all elements of the offence have been made out. In this case he must show:

  1. the identity of the person flying the aircraft;
  2. that the aircraft in question flew "elsewhere" than over the built-up area of any city, town or other settlement or over any open air assembly of persons;
  3. that the aircraft was at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet of the aircraft.

The first element has been established as the Minister proved that Mr. Trelford was the pilot-in-command of the aircraft in question on July 14, 1996.

The testimony shows that the aircraft took off from and flew over Boshkung Lake. There was no evidence lead to suggest that the area in which the flight took place was a built-up area of any city, town or other settlement or over any open air assembly of persons. Therefore it must have occurred "elsewhere", as it is known in paragraph 534(2)(b) of the Air Regulations, and the second element has been made out.

Regarding the third essential element, the evidence of two witnesses places the flight at somewhere around 20 feet over trees of a 20-50' height. The pilot-in-command does not contend that he was above 500 feet, only that his altitude was considerable. It is then established that he was below 500 feet.

As all elements of the offence have been made out, the Minister has proven on a balance of probabilities that an offence has occurred. As enunciated in the Boklaschuk Appeal, once a breach of the rule is proven, the onus shifts to the Respondent to establish that he falls within one of the exceptions. Mr. Trelford attempts to do just that claiming that, in this instance, he was excepted from the restriction because he was taking off.

THE ISSUE

The issue to be decided is whether he was taking off when flying over the shoreline above the witnesses to take up his heading back toward home base.

Mr. Trelford and Mr. Wilcox both stated that, for a float-equipped aircraft, the take-off continued until a safe altitude was reached. Mr. Wilcox's expert testimony showed that the operation and characteristics of a float aircraft differ from its wheel-equipped counterpart. Is this difference also reflected in the regulatory regime?

A perusal of the Aeronautics Act and Air Regulations reveals that float-equipped aircraft are not addressed directly but addressed by inference or inclusion. For instance, at section 101 of the Air Regulations, Interpretation, the terms "making way" and "under way" both address manoeuvring "on the surface of the water", and thus pertain to float-equipped and amphibious aircraft. As the definition of "aerodrome" includes any area of water used for the arrival or departure of aircraft, regulations which address the use of aerodromes equally apply to float-equipped aircraft.

Section 521.1 of the Air Regulations:

Before taking off from, landing at or otherwise operating an aircraft at an aerodrome, the pilot-in-command of the aircraft shall, in so far as is practicable, satisfy himself of the suitability of the aerodrome for the intended operations.

Some Regulations specifically include aircraft or vessels on the water.

Section 529 of the Air Regulations:

Where an aircraft is in flight or manoeuvring on the ground or water, the pilot-in-command shall give way to other aircraft landing or about to land.

Similarly, subsections 536(2), (3), (4) and (5) of the Air Regulations address the rights-of-way of aircraft on the water.

What I do not find is any exception, exemption or variation from the regulations for float-equipped aircraft.

The Transport Canada Flight Training Manual[2], provides information and direction regarding the performance of flight training manoeuvres. Exercise Twenty-six deals with floatplanes. The section on "Taking off" includes at p.183:

... As a general rule in selecting the take-off path, when you feel you have sufficient distance, double it. The climb-out path must be planned prior to starting the take-off, with hills, valleys and downdrafts being taken into account.... (Emphasis added)

Both Mr. Trelford and Mr. Wilcox gave evidence that a prudent floatplane pilot needed to plan the exit-path from a lake with the local topography and current conditions in mind. This paragraph seems to be in accord with their view but for one essential element. It distinguishes between the take-off path and the climb-out path.

The use of the term "take-off path" in the Flight Training Manual is also used in section 536 of the Air Regulations, but it is not defined in either.

Subsection 536(5) of the Air Regulations provides:

The pilot-in-command of an aircraft landing on or taking off from the water shall ensure that the landing or take-off path is clear of all vessels and aircraft. (Emphasis added)

If, as Mr. Trelford submits, the take-off continues until cruise is reached, the path followed by the aircraft during that phase of flight must necessarily be the take-off path. To be in compliance with subsection 536(5) of the Air Regulations, the pilot taking off to the south would be required to ensure that the path to the north behind him was clear of all vessels and aircraft as well. I believe that such an interpretation would put a strain on the plain language of that section. I would conclude that the take-off path for an aircraft, even on floats, would be that area which is visible to the pilot in front of the aircraft when the take-off sequence commences.

This finding is also consistent with the definition of "taking-off" in section 101 of the Air Regulations. In part, it states: "... means the act of abandoning a supporting surface and includes the immediately preceding and following acts ..." (Emphasis added). New Webster's Dictionary and Thesaurus of the English Language[3], defines immediately as "at once, with no intervening lapse of time". Thus once abandoning the water's surface, the immediately following acts, e.g: flap retraction, power reduction, climb straight ahead, constitute part of the take-off. Although Mr. Trelford proposes to use the definition to support his argument, it does not do so. It cannot be that the take-off continues until reaching cruise altitude, as the intervening acts of turning crosswind, reversing course, climbing and again turning to the final heading all take time and thus have lost the state or quality of being immediate.

Another recent Civil Aviation Tribunal case, Minister of Transport v. Glen William Lockey[4], has addressed the question of an alleged violation of paragraph 534(2)(b) of the Air Regulations by the pilot of a float-equipped aircraft.

In addressing "take-off" defined in subsection 101(1) of the Air Regulations, the member stated:

Subsection 101(1) of the Air Regulations is dismissed, as the flight was no longer in the take-off phase of the flight. In fact once the flaps were retracted and the power reduced, the enroute climb had been entered. After levelling, the cruise phase came about. When a descent commenced, yet the next legal phase had begun.

I believe that this finding is consistent with the definition of take-off.

CONCLUSION

The expert evidence of Mr. Wilcox and a review of the Flight Training Manual regarding floatplanes illustrate that the environment in which floatplanes operate, and the techniques required to handle them, differ substantially from the environment and the techniques required of land plane pilots. It may be that this segment of aviation would be better served if such differences were recognized in the regulations, but my task is to interpret the regulations as they stand. A review of the legislation does not reveal any exception or variation to accommodate such differences.

In the result, the provisions of paragraph 534(2)(b) of the Air Regulations apply equally to pilots flying aircraft whether they are land planes or floatplanes. Terminology such as take-off and take-off path applies to aircraft without reference to their configuration.

When Mr. Trelford, as pilot-in-command, flew aircraft C-FJOC at an altitude of less than 500 feet over the shore of Boshkung Lake to take up a heading toward his home base, he was no longer taking off as it is defined in section 101 of the Air Regulations. Therefore, he is not entitled to that exception provided in paragraph 534(2)(b) of the Air Regulations.

DETERMINATION

In the result, I must confirm the Minister's seven-day suspension of Mr. Trelford's Commercial Pilot Licence.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1]Gordon E. Boklaschuk – CAT File Nos. C-0141-33/C-0142-33

[2]Transport Canada Flight Training Manual, Third Edition.

[3]New Webster's Dictionary and Thesaurus of the English Language (New York: Lexicon Publications, Inc., 1991) at 484.

[4]Minister of Transport v. Glen William Lockey – CAT File No. C-1169-33.


Appeal decision
Faye H. Smith, Pierre Rivest, Samuel J. Birenbaum


Decision: June 30, 1998

The appeal is dismissed. The appeal panel confirms the seven-day suspension assessed by the Minister of Transport. The said suspension will commence on the fifteenth day following service of this determination.

An appeal hearing on the above matter was held before three designated Tribunal Members on Wednesday, April 29, 1998 at 10:00 hours at the Federal Court of Canada, in the city of Toronto, Ontario.

BACKGROUND

On July 14, 1996 at approximately 5:20 p.m. Mr. Trelford operated an amphibious float plane, a Cessna 180. He departed Boshkung Lake taking off to the south from the north end of the lake. After take-off he reversed course to fly in approximately a northerly direction while maintaining flight over the surface of the lake. Nearing the north end of the lake, the aircraft turned toward the southwest, crossing the western shore of the lake.

Mr. Trelford is appealing a ruling handed down on January 15, 1998 by Mr. Allister Ogilvie, Vice-Chairperson of the Tribunal, following a request for review by Mr. Trelford of the Minister of Transport's decision to suspend his commercial pilot licence for a period of seven days for an alleged contravention of paragraph 534(2)(b) of the Air Regulations.

The Notice of Suspension issued per section 6.9 of the Aeronautics Act alleges that Mr. Trelford at or near Boshkung Lake, in the Township of Stanhope in the County of Haliburton, Ontario, on July 14, 1996 as pilot-in-command of a Cessna 180, registered C-FJOC, flew at an altitude of less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft. In his determination of January 15, 1998 the Tribunal Member at review confirmed the contravention as well as the seven-day suspension.

GROUNDS FOR APPEAL

The Appellant cites the following grounds for appeal:

  1. The Hearing Officer mis-directed himself as to the meaning or definition of "taking off"as used within Paragraph 534(2)(b) of the Air Regulations.
  2. The Hearing Officer failed to consider that the flight took place over non-populous areas and open water.
  3. Such further and other grounds as counsel may advise.

THE LAW

Paragraph 534(2)(b) of the Air Regulations states:

(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

(...)

(b) elsewhere than over the built-up area of any city, town or other settlement or over any open air assembly of persons at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

Subsection 101(1) of the Air Regulations defines taking-off as:

"taking-off", in respect of an aircraft, means the act of abandoning a supporting surface and includes the immediately preceding and following acts

APPELLANT'S ARGUMENT

At the commencement of the appeal, counsel for the Appellant indicated his intention to proceed on the first ground only. He also indicated that Mr. Trelford admits that he was the pilot of the Cessna 180, C-FJOC on the date in question and he also admits that the aircraft was flown by him at an altitude of less than 500 feet.

Appellant's counsel submits that the Tribunal Member at review erred in that he mis-directed himself as to the meaning or definition of "taking off" as used within paragraph 534(2)(b) of the Air Regulations. He further submits that the review determination errs on the issue of transition of take-off to climb out or enroute climb. He states that the analysis of this issue is confusing in its reference to the Flight Training Manual at page 7 of the determination regarding transition to take-off path or climb-out path. Further he states that at page 8 of the determination in comparing the evidence of Inspector Wilcox and Mr. Trelford, the Member distinguishes between take-off and climb-out and that this is not so.

Mr. Trelford states that the aircraft is in take-off configuration until cruise is reached. In his reasons, the Tribunal Member does not agree and states that take-off would be that area visible in front of the aircraft where take-off commences and that in turning, Mr. Trelford discontinues his take-off, that is when he turned cross-wind he was no longer taking off. Counsel for the Appellant asserts that this aspect of the determination is based on the evidence of Inspector Wilcox given in response to Mr. Ogilvie's questions regarding circuit patterns, specifically in response to the question of whether the aircraft had to turn cross-wind and then turn downwind.

Counsel for the Appellant states that either you are in the take-off configuration to minimum altitude or you are not. He states that on the date in question what Mr. Trelford did was reasonable in that he kept the aircraft over water while he gathered airspeed and both Mr. Trelford and Inspector Wilcox stated that the aircraft was a poor performer. Appellant's counsel stated that the Tribunal Member appeared to be concluding that the aircraft should have gone south; however, Mr. Trelford said that he did not want to go south because of the hydro tower and the height of the land, which evidence is uncontradicted.

In concluding, Appellant's counsel submits that Mr. Trelford commences his take-off in lee shore and gets to the open part of the lake and takes a turn on the widest part and continues up and makes a left turn over the Sexsmith property. He asserts that it does not matter that he made a turn as he decided to go that way with raised nose to get over the hills as that was his assessment of how it was to go that day. Counsel posed the question of what else could Mr. Trelford have done and answered that he could not have gone south and there was no other route available.

RESPONDENT'S ARGUMENT

The Minister responded citing the phases of take-off, climb and cruise submitting that these phases are different and all have different requirements depending on which phase one is in. He further referenced the take-off phase citing pages 27 and 28 of the transcript of the review hearing indicating that the aircraft took off in a southerly direction, climbed to a reasonable altitude and then descended to just about 40 feet over the end of the dock.

The Respondent also argued that the defence of due diligence was not made out. He alleges that Mr. Trelford should have kept his flight straight. He refers to Exhibit M-3 which demonstrates the flight path over the lake. This lake is approximately 15,000 feet long and therefore the Respondent argues that Mr. Trelford had enough distance to make a take-off and to go south. He asserted that the hills to the south and the hydro poles would not have proved an obstruction and there were other lakes which Mr. Trelford could have used in case he had to land in an emergency.

DISCUSSION

The facts of this case are not in dispute nor is there any real question of credibility of witnesses on those facts, given the admission of the Appellant at the outset of this appeal.

The issue to be resolved is the definition of the word "take-off", and whether on the facts of this case that definition provides the defence asserted by the Appellant that he was in the take-off mode and thus is excepted from compliance with the prohibition of flight below an altitude of 500 feet as set out in paragraph 534(2)(b) of the Air Regulations.

This panel agrees with the Tribunal Member at review that the regulatory regime does not differentiate the operation and characteristics, and particularly the take-off phase, of a float aircraft from a wheel-equipped aircraft. We further agree that the provisions of paragraph 534(2)(b) of the Air Regulations apply equally to pilots flying aircraft whether they are land planes or float planes and that terminology such as take-off and take-off path applies to aircraft without reference to their configuration.

It was the evidence of Mr. Trelford that one is in the take-off mode until cruise is reached. The definition of "taking-off" as set out above "in respect of an aircraft, means the act of abandoning a supporting surface and includes the immediately preceding and following acts...". In his reasons at page 8 the Tribunal Member cites the New Webster's Dictionary definition of "immediately" as "at once, with no intervening lapse of time." It is the view of the panel that once abandoning the water's surface, the immediately following acts, e.g. flap retraction, power reduction, aircraft flight configuration, constitute part of the take-off and we conclude that it cannot be that the take-off continues until reaching cruise altitude, as the intervening acts of climbing, turning crosswind, and again turning to the final heading all take time and thus have lost the state or quality of being immediate.

CONCLUSION

The appeal panel has not been persuaded to reject the foregoing interpretation of "taking-off" and we therefore conclude that on the evidence and arguments presented we are in agreement with the review determination and reasons given. If as has been submitted, paragraph 534(2)(b) of the Air Regulations does not accommodate necessary exceptions as demonstrated by the factual situation of this case, then it is up to the legislators to rewrite or modify the law, a task which is outside the mandate of this Tribunal.

Additionally, this panel rejects the defence of due diligence in the circumstances of this case and concurs with the Respondent's submission that the Appellant should have climbed straight ahead and taken all the length of the lake instead of making this turn at low altitude. This conclusion is further supported through a careful review of Exhibits M-2 and D-1 which depict the surrounding terrain.

DETERMINATION

The appeal is dismissed. The appeal panel confirms the seven-day suspension assessed by the Minister of Transport. The said suspension will commence on the fifteenth day following service of this determination.

Reasons for appeal determination by:

Faye Smith, Chairperson

Concurred:

Pierre Rivest, Member
Dr. Samuel Birenbaum, Member