TATC File No. O-3037-33
MoT File No. PAP 5504-54018
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Maurice Prud'homme, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(b)
Decision: February 1, 2005
The Minister has proved, on the balance of probabilities, the offence alleged in the Notice of Assessment of Monetary Penalty, served on August 6, 2004. The monetary penalty of $250 is upheld. The amount of $250, payable to the Receiver General for Canada, is to be received by the Tribunal within thirty-five (35) days of service of this determination.
A review hearing on the above matter was held on November 9, 2004, at 10:00 hours, at 333 Laurier Avenue, 18th Floor, Ottawa, Ontario.
Witnesses were excluded from the hearing.
On August 6, 2004, the Minister served the applicant, Mr. Maurice Prud'homme, with a Notice of Assessment of Monetary Penalty in the amount of $250 pursuant to section 7.7 of the Aeronautics Act for having contravened paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs).
The Minister alleges that, on or about June 16, 2004, at about 11:25 local time, the applicant, as pilot-in-command of an Ultravia Pelican aircraft registered as C-GTDZ, did fly said aircraft at a distance of less than 500 feet from a vessel and its passengers on board this vessel at Dunrobin Shores on the Ottawa River or its vicinity.
On August 12, 2004, Mr. Prud'homme filed a request with the Transportation Appeal Tribunal of Canada (hereinafter called the Tribunal) for a review of the Minister's decision, pursuant to subsection 7.9(1) (sic) of the Aeronautics Act. Further to this request, the Tribunal duly scheduled this hearing.
Section 7.7 of the Aeronautics Act stipulates as follows:
7. 7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.
(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate
(a) the designated provision that the Minister believes has been contravened;
(b) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and
(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed.
Paragraph 602.14(2)(b) of the CARs stipulates as follows:
602.14 (2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft
(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than
(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane,
(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or
(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and
(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.
Anticipating the fact that the applicant's defence would be based on one of the exceptions set out in paragraph 602.14(2)(b), for instance, conducting an approach, Mr. Villemure asked the Tribunal to call Mr. Stephenson as an expert witness regarding the movements of the Ultravia Pelican C-GTDZ as observed on June 16, 2004 at Dunrobin Shores by the main witness, with a view to determine whether these movements would qualify under this exception.
When examined, Mr. Stephenson stated that he was a professional pilot with more that 3,500 hours logged on float planes, such as Cessnas (180, 185 and 206) and Beavers. He did some research on the Ultravia Pelican, which he had seen only in photos. In his opinion, this aircraft would be flown the same way as the other float planes.
In cross-examination, the witness admitted that he had never flown an Ultravia Pelican and, apart from his research the night before this hearing, he was not familiar with this type of aircraft.
The Hearing Officer concluded that Mr. Stephenson had enough experience with float planes to give his opinion regarding the manoeuvre performed on June 16, 2004 by the Ultravia Pelican C-GTDZ, also equipped with floats, even though he may not have any experience with this particular type of aircraft.
Minister's Evidence, Respondent
The Minister's representative called Ms. Elliot, employed for 15 years with Transport Canada in the aviation enforcement branch. Ms. Elliot has a pilot licence and 6,000 flying hours. She has also been a flight instructor.
On June 16, 2004, she and her spouse were spending their day off on the Ottawa River aboard their boat, a Crestliner. A photograph of the boat she was on has been entered as Exhibit M-1. Her spouse was at the helm near the bow on the right. She testified that the day was clear and sunny. There was no wind and the river was totally calm.
Ms. Elliot first saw a small aircraft as they were heading northwest toward Quyon at a speed of 22 miles per hour. She entered as Exhibit M-2 a black and white photograph she took in 2003 showing the wave produced by their 90 horsepower motor at 20 miles per hour. After they turned southeast, Ms. Elliot first saw a small aircraft similar to the one shown in Exhibit M-3 flying at a low altitude very close to shore. It turned left near the boat at an angle she estimated as 30 degrees and then turned right a little later, still flying at a low altitude. It was around 11:25 a.m. The aircraft then landed on the river a mile or two away.
According to the witness, the aircraft was at an altitude of 50 or 75 feet but "definitely less than 100 feet" when it passed to the right of the boat (at 2 o'clock) and about 100 or 150 feet away, "maybe less", when it did its first turn. The black lines on Exhibit M-4 show the path of the boat the witness was on and the red lines show the path of the aircraft. The red "X" shows the approximate spot where she saw the aircraft land on the river and then take off again, turning sharply left as it headed for a boat house, which is shown by a green line on the chart entered as Exhibit M-4. The witness entered, as Exhibit M-5, a colour photograph that she took from the boat of the boat house where the aircraft was headed (the approximate location is marked with black "Xs" on Exhibit M-4).
According to Ms. Elliot, the aircraft was a white float plane and it was easy for her to identify the call letters C-GTDZ on its fuselage behind the wing. She noted that the aircraft had its flaps up and that its speed was quite fast but pretty constant. The aircraft did not appear to her to be in trouble. The witness was very surprised by this manoeuvre, which appeared to use the vessel as a target.
In cross-examination, it was confirmed that the call letters C-GTDZ identified by the witness were indeed on the fuselage, along with a light teal green line. Ms. Elliot said she did not see the call letters that she photographed from the boat while she was about half a mile from shore. She said she had never flown a float plane but had flown in one as a passenger several times. She did not hear the aircraft immediately as their 90 horsepower boat motor is quite loud. She heard the aircraft when it was passing to the right of their boat. The witness reiterated that the boat was travelling 22 miles per hour, which corresponds to 35 or 40 kilometres per hour. She maintained that she had enough knowledge and experience with light aircraft to know how to judge distances, even on surfaces like glassy water. In addition, she submitted that a 30 degree turn at an altitude of 50 to 75 feet, such as she witnessed, is dangerous because it increases the risk of crashing, since the pilot has no flexibility, not to mention the risk of colliding with a boat.
Ms. Whorley was the next witness. She is employed with Transport Canada in the aviation enforcement branch and is a pilot who has logged 4 00 [sic] flying hours on various types of aircraft. She was appointed to investigate the low altitude flying incident reported by her colleague, Ms. Elliott. Ms. Whorley entered the following documents as exhibits:
- An extract from the Official Canadian Civil Aircraft Register, which shows that Ultravia Pelican C-GTDZ belongs to Mr. Maurice Prud'homme (Exhibit M-6);
- Personal information from Mr. Prud'homme's pilot licence (Exhibit M-7);
- A statement (following a warning) that she obtained from Mr. Prud'homme at their meeting on July 6, 2004. Ms. Whorley's written statement was signed by Mr. Prud'homme who also initialled the warning, thereby indicating that he had read and understood it (Exhibit M-8).
Ms. Whorley said that there was an error in the third line of the statement entered as Exhibit M-8; it should read June 16, not July 16, 2004.
In cross-examination, Ms. Whorley added that Mr. Prud'homme had been very cooperative with Transport Canada. She reported that he appeared very surprised by Ms. Elliot's complaint because he did not remember having committed the alleged offence.
Mr. Stephenson told the Tribunal that, whether the aircraft was a float plane or not, a pilot on a landing approach must first of all do an inspection circuit before doing his final approach. In his opinion, an altitude of 50 to 75 feet would be unusually low for this purpose.
In cross-examination, the witness added that it is vital to maintain a high altitude during an inspection circuit whose purpose is to identify visual reference points when landing on calm waters, as calm waters render the manoeuvre more difficult. The manoeuvre described at the hearing by the main witness is to be avoided, since it increases the risk of a "nose dive".
Mr. Prud'homme lives in Luskville on the shore of the Ottawa River. He stated that he flew every day and was very careful. He always started his approach when landing on the Ottawa River from a mile and a half away, at an altitude of 400 feet. He knew two other people that fly in the area, Mr. Grant and Mr. Esty, and both of them own an Ultravia Pelican the same colour as his. Mr. Esty's aircraft is a 1983 model and does not have flaps. The witness pointed out that the call letters C-GTDZ for his Pelican have never been on the fuselage, but rather on the tail. To support his contentions, he entered the following exhibits: Exhibit D-1, his business card showing his aircraft in the water; Exhibit D-2, a colour copy of a photograph of his aircraft on floats; Exhibit D-3, a colour copy of a photograph of his Pelican on skis, and Exhibit D-4, a colour copy of a photograph of his aircraft on wheels.
The witness stated that he had a hangar on the shore of the Ottawa River for parking his Pelican. This hangar, marked in green on the chart M-4, was initialled by Mr. Prud'homme. Putting his Pelican in the hangar takes at least half an hour, according to Mr. Prud'homme, which is why he puts the aircraft away only at night. It is, therefore, rare to find the aircraft in the hangar during the day.
In cross-examination regarding his outing on June 16, 2004, Mr. Prud'homme first said he did not remember flying that day. But after checking his pilot log book, he noted that he had done two flights that day from his residence – the first one lasting 30 minutes at 8:05 a.m. and the second lasting 2 hours and the take-off had taken place at 11:30 a.m.
He stated that he was the only person who flew the aircraft registered as C-GTDZ. He is known to a number of people in his community and has the reputation of being a careful pilot. He was stunned when Ms. Whorley informed him that she was investigating him further to a complaint about low level flying. He does not remember seeing any boats on the river or doing such a manoeuvre on that day.
Mr. Prud'homme informed the Tribunal that the photograph in Exhibit D-2 was 4 years old. The photograph in Exhibit D-3 was taken in 2002 and the photograph in Exhibit D-4 was 8 years old. In addition, he said that the Ottawa River is about a mile wide at the site of the alleged offence. He testified that he flew at 400 to 500 feet from the shore and at an altitude of 500 feet whenever he performed an inspection circuit prior to landing on the river and took note of the presence of any boats.
In redirect, the witness specified that his Ultravia Pelican, 1987 model, had a quiet 4 stroke engine, whereas Mr. Esty's aircraft had a 2 stroke engine and was 2 to 3 times noisier than his.
Mr. Villemure argued that the Minister had met the burden of proof that was incumbent on him, and had proved all elements of the offence. The testimony of Ms. Elliot, who is a pilot and is used to estimating distances, is clear and meaningful. Mr. Prud'homme offered in his defence that he had no recollection of the events that took place on June 16, 2004. He merely said that the aircraft might have belonged to someone else. His testimony was vague and inconsistent.
In view of the contradictory testimony on the facts of the case, the Minister's representative argued that the Tribunal must consider as evidence the most credible testimony, which in this case is Ms. Elliot's testimony. The low level (less than 100 feet) manoeuvre she observed from the boat she was on is not an approach that was being conducted in a reasonable and safe manner. This conclusion is supported by Mr. Stephenson who stated that an approach should be preceded by an inspection circuit at a considerably higher altitude than Ms. Elliot observed.
Mr. Villemure reminded the Tribunal that paragraph 602.14(2)(b) of the CARs must not be interpreted in such a way as to give the pilot immunity from legal action on the grounds that he was conducting a so-called approach. The manoeuvre must be conducted in a professional manner. Such was not the case in this instance. The Minister's representative suggested that the Tribunal uphold the $250 monetary penalty, which was deemed adequate since this was a first offence and there were no aggravating circumstances.
THE APPLICANT'S ARGUMENTS
The applicant's representative, Mr Garceau argued that the aircraft observed by Ms. Elliot on the day in question was probably not Mr. Prud'homme's.
Ms. Elliot stated that the call letters were written on the Pelican's fuselage. In fact, the call letters of Mr. Prud'homme's Pelican are on the aircraft's tail. Ms. Elliot photographed the aircraft in a hangar shortly after it landed a second time on the Ottawa River, about 5 to 10 minutes later. However, according to Mr. Prud'homme, it takes at least 25 to 30 minutes to anchor the aircraft in the hangar. According to his pilot log book, Mr. Prud'homme apparently left the vicinity of his residence on June 16, 2004 at around 11:30 a.m. for a two-hour flight. Mr. Prud'homme's representative said he doubted Ms. Elliot's ability to judge distances; she judged the hearing room to be 35 to 40 feet wide whereas it is only 28 feet.
According to his representative, the applicant is a careful pilot who plans his approaches reasonably and safely. Mr. Prud'homme simply could not believe that Transport Canada was investigating him in connection with low level flying. He pointed out that his client was prompt to cooperate with the authorities.
REASONS FOR THE DETERMINATION
Ms. Elliot, the main witness, clearly reported a low level flying incident that occurred on June 16, 2004 at around 11:25 a.m. As for Mr. Prud'homme, he initially admitted, quite candidly, that he had no recollection of such an incident. However, he stated, both in direct examination and in cross-examination, as well as in his statement to Ms. Whorley (M-8), that he used his aircraft registered C-GTDZ every day and therefore on June 16, 2004 as well. "I'm always in the air," he stated. He then referred to his pilot log book and noted that he had flown from his home twice on June 16, 2004 – once at 8:05 a.m. and again at 11:30 a.m. According to Ms. Elliot, the low level flight occurred at around 11:25 a.m. on the Ottawa River, near Dunrobin Shores, northeast of Mr. Prud'homme's residence, an area where he stated he flew every day.
The Minister's main witness "easily" identified the call letters C-GTDZ on the fuselage of an aircraft that looked like the aircraft illustrated in Exhibit M-3, that is an Ultravia Pelican. Exhibit M-6 shows that the aircraft registered as C-GTDZ belongs to Mr. Prud'homme, who stated that he was the only person who flew the aircraft. According to Mr. Prud'homme, the call letters C-GTDZ are on the tail of his aircraft, not on the fuselage, as stated by Ms. Elliot. This aspect leads him to believe that the Minister's witness may have mistaken another aircraft for his, since there are two other people in the area who also fly Ultravia Pelicans that are the same colour as his.
The Tribunal can see from Exhibits D-3 (copy of a photograph taken in 2002) and D-4 (copy of an 8-year-old photograph) that the call letters are indeed on the tail and not on the fuselage, without, however, being able to identify all of the characters. No current photograph or copy of a current photograph showing the call letters C-GTDZ on the aircraft belonging to Mr. Prud'homme in their entirety was entered in evidence. The business card (Exhibit D-1) does not meet the criteria and, by the applicant's own admission, does not depict the aircraft as it actually is. In spite of some vagueness in his evidence, the Tribunal has no reason to doubt the applicant's honesty in this regard.
Furthermore, the Tribunal does not have any reason to believe that Ms. Elliot invented the entire story about an Ultravia Pelican registered as C-GTDZ, call letters she stated she was able to see quite easily from the boat she was on, flying over the boat on June 16, 2004 at around 11:25 a.m. in the vicinity of Dunrobin Shores on the Ottawa River.
There is also the teal blue line on the fuselage. Regarding the flaps that were up, Mr. Esty's aircraft has no flaps and Mr. Prud'homme's does. The Hearing Officer was surprised to note that the applicant did not think, either during the investigation or at this hearing, to present any evidence that would support the thesis that the Minister's witness was mistaken regarding the events, nor did he present his pilot log book as evidence of the times of the flights he executed on June 16, 2004.
The Minister has proved, on the balance of probabilities, the date and the place of the offence, as well as the time it occurred, the identity of the pilot-in-command and the identity of the aircraft.
Paragraph 602.14(2)(b) of the CARs stipulates that no person shall operate an aircraft at a distance less than 500 feet from any vessel except where conducting a take-off, approach or landing. This distance of 500 feet can be illustrated by a safety dome that covers the vessel and its passengers, and is intended to prevent any intrusions.
Mr. Prud'homme argued that he normally executes a circuit at an altitude of 500 feet with a view to locate any boats on the river before conducting his landing over a distance of about a mile and a half. Ms. Elliot did not see this scenario on June 16, 2004. Quite the contrary. Ms. Elliot, who is also an experienced pilot, saw the applicant's aircraft approach the boat she was on from the right at an altitude of less than 100 feet and a lateral distance of less than 150 feet before landing. Mr. Prud'homme did not have any valid reason for approaching the boat and its passengers in this manner. His aircraft was not in trouble. This manoeuvre served only to needlessly increase the risk of crashing and jeopardizing safety.
The exceptions set out in paragraph 602.14(2)(b) should not be interpreted as permission for a pilot or any other operator to execute dangerous or potentially dangerous manoeuvres without a valid reason, on the grounds that such manoeuvres are sanctioned by the CARs by virtue of these exceptions.
The Minister has proved, on the balance of probabilities, the alleged offence in the Notice of Assessment of Monetary Penalty, served on August 6, 2004. The monetary penalty of $250 is upheld.
Ms. Suzanne Racine
Transportation Appeal Tribunal of Canada
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