Decisions

CAT File No. O-2077-33
MoT File No. PAP-5504-41074

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Tariq Hossenbux, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.07

Weather conditions, Flight in icing conditions, Duty of pilot, Due diligence, ATC, Aircraft operating limitations


Review Determination
Philip D. Jardim


Decision: October 10, 2000

Mr. Hossenbux did contravene section 602.07 of the Canadian Aviation Regulations. The fine of $250 is confirmed. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within 15 days of service of this determination.

A review hearing on the above matter was held Friday, September 29, 2000 at 10:00 hours at the Federal Court of Canada, in Toronto, Ontario.

BACKGROUND

On February 10, 2000, Mr. Tariq Hossenbux was pilot-in-command of a Cessna 172 aircraft registered C-GLUX, on a flight from Carp to Toronto Island Airport. On arriving in the vicinity of Toronto, Mr. Hossenbux reported that he was encountering ice on his windshield, and sought clearance from air traffic control (ATC) to reverse his course. A series of conversations ensued between Mr. Hossenbux and ATC, who, realizing his predicament, were trying to be helpful. Eventually, he landed at Buttonville, after a considerable effort by ATC to see him safely on the ground. The incident was published in the "Aviation Daily Incident Reports."

Transport Canada investigated the matter and fined Mr. Hossenbux $ 250 for an infraction of section 602.07 of the Canadian Aviation Regulations (CARs)—Aircraft Operating Limitations. This, in essence, applies to operating an aircraft in known icing conditions when it is not equipped, and when the flight manual specifically prohibits such operation. Mr. Hossenbux did not pay the fine, and the Minister brought the matter before the Tribunal.

THE LAW

Section 602.07 of the CARs states:

602.07 No person shall operate an aircraft unless it is operated in accordance with the operating limitations

(a) set out in the aircraft flight manual, where an aircraft flight manual is required by the applicable standards of airworthiness;

(b) set out in a document other than the aircraft flight manual, where use of that document is authorized pursuant to Part VII;

(c) indicated by markings or placards required pursuant to section 605.05; or

(d) prescribed by the competent authority of the state of registry of the aircraft.

EVIDENCE

The Minister's case was presented by Mr. Mike Wilcox, who called one witness, Ms. Oonagh Elliott, Civil Aviation Inspector with the Enforcement Branch of Transport Canada.

Ms. Elliott was duly sworn and testified that she investigated this incident. Eight exhibits were presented to the hearing:

  • M-1 Flight Plan C-GLUX
  • M-2 Weather Forecast for Southern Ontario for February 10, 2000
  • M-3 A tape recording of C-GLUX—ATC Transmissions and a transcript thereof
  • M-4 Type Certificate 172-L
  • M-5 172-L Owner's Manual extract—Page 3 deals with flight in icing conditions
  • M-6 Canadian Civil Aircraft Register Printout of C-GLUX
  • M-7 Daily flight sheet of Westair Aviation
  • M-8 C-GLUX's journey logbook extract

Ms. Elliott read from the weather forecast of February 10, 2000. This forecast was available to Mr. Hossenbux, and clearly predicts icing within the route of the flight, and severe clear icing in freezing rain.

Exhibits M-1, M-7 and M-8 clearly establish that Mr. Hossenbux was flying C-­GLUX, a blue/white Cessna 172L on the day, and at the time in question.

Exhibit M-3 , with a transcript of the ATC tape, clearly sets the scene that transpired on that day. Mr. Hossenbux did not question the authenticity of the tape; indeed, he made comments throughout it on what was happening. The tape was played in its entirety, and it was readily understood with the help of the transcript, which is some 10 pages long.

Salient points arising out of M-3 reveal that Mr. Hossenbux flew into icing conditions, which had been predicted in the forecast (M-2), as he descended into Toronto Island, City Centre Airport.

He advised ATC of the ice in freezing rain, and they cleared him to reverse course and gave him the weather at all the neighbouring airfields, which were below limits at the time. They made suggestions, including a strong one that he proceed to Oshawa, as a Navajo had just landed there. He flew back out of the icing conditions, and endeavoured to scrape the ice off the windshield with his control lock. (A procedure recommended in the Cessna Manual.)

Meanwhile, Mr. Hossenbux contemplated the situation, descended to try to melt the ice, and eventually elected to return to City Centre, despite having encountered ice on his initial descent into that field. ATC was ever helpful, giving him new reports as they became available, and radar navigation assistance.

While he was on course back to City Centre Airport, ATC gave him a new weather report from Buttonville, which showed an improvement. He then elected to follow their advice and made a successful approach and landing at Buttonville.

During his cross-examination of Ms. Elliott, Mr. Hossenbux sought to establish that there had been no ice en route to City Centre, that other aircraft had not reported ice. He sought to discredit the efforts of ATC at helping him out of his difficult and potentially fateful situation. He further criticized ATC for not advising him of an Air Georgian aircraft's report that the ceiling at Buttonville was 2,400 feet.

In redirect, Mr. Wilcox pointed out that having once encountered ice on approach into City Centre, he flew out of it, but then elected to return there again, in further contravention of section 602.07 of the CARs.

Mr. Hossenbux's evidence

He was duly sworn. He had checked the weather with flight service on the phone, he said, and they did not mention any icing.

He said that the weather was good all the way until he approached City Centre. There had been no ice, and he was in visual contact with the ground.

On encountering the ice he observed the advice in the pilot's manual and reversed course. He scraped the ice off the windshield using the control lock, as suggested therein. The ATC suggestion of Oshawa was a last resort for him as he was unfamiliar with the airport, it was below limits, and his windshield was iced up. He claimed that the controller was not up to date on the weather at Buttonville, and was generally highly critical of the controller's attempts to help him.

He said that after encountering the ice and then flying out of it by reversing course, he was generally in visual conditions, or at worse, marginal VFR. He maintains that by refusing to go to Buttonville, he made the safest decision in the circumstances, as far as he was concerned. He is familiar with City Centre and Buttonville, not with Oshawa.

In cross-examination by Mr. Wilcox, he said that he was given no information on icing at his briefing and that he had not reviewed the weather prognosis before departure (M-2), and was therefore not aware of the weather. He was in VFR conditions right up to the time that he encountered the ice.

DISCUSSION AND DETERMINATION

The evidence is clear that Mr. Hossenbux flew his aircraft into icing conditions on February 10, 2000. These conditions were accurately forecast in the prognosis, which he did not review before departure. It was his responsibility to do so, and, had he done so, he would have realized that significant icing had been forecast for the period and the area into which he was flying.

Section 602.07 of the CARs is breached if one knowingly flies into an area where icing is forecast, since the aircraft is not equipped to deal with it, should it actually occur. Unfortunately for him, it did occur and created a dangerous situation, which he was fortunate to come out of unscathed.

There was a long period during which ATC, realizing his predicament, did their level best to help him, and finally steered him towards a successful landing at Buttonville.

It is unfortunate that Mr. Hossenbux's attitude to ATC is one of some resentment and hostility, rather than appreciating their efforts to assist him in a potentially life-threatening situation. His statements during the hearing give the impression that he expected them to be all things to him and to steer him towards the airport of his choice. In these circumstances ATC can only advise and provide information to pilots. They cannot make decisions for pilots. Toronto Centre went out of its way to assist him to make the safest decision to extricate him from this potentially lethal situation, and they finally succeeded in doing so. They gave him the best information available to them at all times, but left the final decision to him as to where to land.

The question here is not what decisions Mr. Hossenbux made or did not make after the fact, or during the flight, but that he did fly his aircraft into icing conditions, which had been forecast.

I have tried to find some way of seeing Mr. Hossenbux's point of view in all this, but I have to admit that his attitude is one of arrogance and being wrong and strong. Winter flying in marginally equipped aircraft requires careful planning and reviewing all of the weather information available. Mr. Hossenbux admits to not reviewing the weather prognosis before departure. Had he done so, he would have judged the icing forecast to be unacceptable and awaited an improvement in the weather.

The fact that conditions were good right up to the last 20 miles or so are certainly tempting to "give it a go," but the flight is not over until the aircraft has safely landed. Mr. Hossenbux should learn from this experience and appreciate that he is alive and well. Clear ice is the most severe form of icing, and has defeated many an aeroplane properly equipped, let alone one which is not.

Notwithstanding that the fine imposed is less than could have been levied in this case, $250 is a considerable sum. Had Mr. Hossenbux been more accepting of his mistake, I may have given consideration to reducing it, but in the circumstances I shall have to let it stand, in the hope that a lesson is learned here.

At the conclusion of this hearing I have determined that Mr. Hossenbux did contravene section 602.07 of the Canadian Aviation Regulations. The fine of $250 is confirmed.

Philip D. Jardim
Member
Civil Aviation Tribunal