Decisions

CAT File No. P-1107-37
MoT File No. EMIS 026383

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Alpen Helicopters Ltd, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss 7.7, 8.4(1)
Air Regulations, C.R.C. 1978, c.2., ss 506a), 521g), 534(1) (2)a), 534(4)(b)

Special purpose operation, Low Flying, Built-up area


Review Determination
Ken Clarke


Decision: February 12, 1996

The Tribunal concludes that Alpen Helicopters Ltd. did contravene paragraph 534(2)(a) of the Air Regulations. The Minister's decision to assess a monetary penalty of $250.00 is confirmed. The Civil Aviation Tribunal must receive this payment, made to the order of the Receiver General for Canada, within 15 days after service of the present determination.

The Review Hearing on the above matter was held Tuesday, January 30, 1996 at 10:00 hours, at Langley City Hall, in Langley, British Columbia.

NOTICE OF ASSESSMENT OF MONETARY PENALTY

Transport Canada sent a Notice of Assessment of Monetary Penalty, dated July 24, 1995, to Alpen Helicopters Ltd. The notice 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):

Alpen Helicopters Ltd., being the owner of an aircraft bearing Registration Marks C-FRBO, by virtue of section 8.4(1) of the Aeronautics Act, R.S.C. 1985, c. A-2, as amended, committed a violation of section 534(2)(a) of the Air Regulations, in that the aircraft was flown at approximately 11:30 hours on or about March 23, 1995, at or near 68 Avenue and 198 Street in Langley, British Columbia over the built-up area of the city of Langley at an altitude of less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft.

The total assessed penalty of $250.00 was not paid as required on or before August 23, 1995. Consequently, a Review Hearing was held.

Paragraph 534(2)(a) of the Air Regulations reads:

(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

BACKGROUND

Mr. Houlton, a resident of Langley, was concerned by the apparent low flight of a helicopter on the day of note. Langley Control Tower was contacted, and subsequently Transport Canada launched an investigation. Upon discovering that no "waiver" was in force for the "special purpose operation" that Alpen Helicopters Ltd. was engaged in, enforcement action was taken. Alpen had been subcontracted to patrol a pipeline running through several municipalities to the USA border.

No pre-hearing agreements or conferences were brought to my attention. Prior to giving evidence, it was agreed that the witnesses need not be excused. Each person giving evidence was sworn prior to testimony.

EVIDENCE

Mr. Jeff Houlton was introduced as the first witness for the Minister of Transport, the Applicant. It was noted that he has been an Air Traffic Controller at Vancouver tower since 1989, and his duties include aircraft height estimation. Mr. Houlton stated he was a resident of Langley, and described the location. Exhibit M-1, a photograph from his backyard looking northward, and Exhibit M-2, a set of three maps, were introduced.

He then described his observations concerning the alleged incident. Distance from himself was described as an estimated 700 feet to the subject helicopter. Height was given as 100 to 200 feet. Direction of flight was from east to west. No turns were observed. The helicopter was in view for approximately two minutes. Mr. Houlton was unable to read the helicopter registration. It was stated the windows of his home were rattling. He had previously seen helicopters patrolling the nearby gas pipeline at 300 to 500 feet higher. He became concerned that the helicopter may be making a forced landing. A telephone call was made to Langley Control Tower. Great detail was made exploring Mr. Houlton's observations, actions, and neighbourhood. His home was marked on the first map.

The next witness was Mr. S. Baxter. He described himself as the controller in Langley who took the telephone call from Mr. Houlton on the morning in question. The control zone for Langley and the nature of his duties were described. A general notation of a single helicopter in the local area had been made. Logged departure was recorded as 1117 (11:17 a.m.). He was uncertain of the exact nature or altitude of the flight, except that it was a pipeline control.

Mr. G. Ostafiew then testified that Transport Canada had assigned him to investigate the alleged infraction. In the course, he spoke twice with Mr. Owens, with Mr. Baxter, and both Mr. and Mrs. Houlton. He examined the site, logbook, tower records, and other documents. The logbook was received as Exhibit M-3 in copy form, and a copy of the Certificate of Registration as Exhibit M-4. A photograph was taken at Mr. Houlton's home and is referred to as Exhibit M-1. It was noted that time down for the helicopter C-FRBO was 1303, as entered in the logbook.

Mr. Ostafiew explained that because the operation was over a built-up area, an exemption was required. When he discovered that such an exemption was expired, a violation was registered. The original authority had been issued to Alternative Air and had lapsed. A business arrangement between Alternative Air and Alpen Helicopters had been entered into. The authority had been valid at the commencement of the understanding. He added that the area of Mr. Houlton's home was probably populated with one thousand houses. There was no recollection of any discussion of altitude.

534(5) A person may fly an aircraft at a lower altitude than that specified in paragraph (2)(b) where

(a) (. . .)

(b) the aircraft is flown in a special purpose operation of a nature that necessitates the flight of the aircraft at such lower altitude. (underlined for emphasis)

534. (1) (. . .)

"special purpose operation" means an operation in which

(a) an aircraft is flown for the purpose of spraying, dusting, seeding, crop fertilizing, inspection of crops or livestock, pipeline or powerline patrolling, . . . (underlined for emphasis)

Mr. J. Wicks was the first witness for the Respondent. He identified himself as a BC Gas Pipeline Patrolman. A document entitled "A Guide to Using Gas Pipeline Rights of Way" was introduced as Exhibit D-1. Other exhibits were a BC Gas map entered as Exhibit D-2, and a copy of a Pipeline Patrol Report was marked Exhibit D-3. Mr. Wicks stated that he was a passenger of Mr. Owens on March 23. He explained they first flew (southeastward of Langley) to Huntingdon and then commenced patrol. He estimated the earliest they were in the vicinity of 198 Street in Langley was 12:15 hours. At that time they circled at 400 to 500 feet in order to examine a fishpond illegally built over the pipeline. The location of the pond was marked on the map. It was stated that the nature of his inspection was to ensure human safety. He said that he inspects this particular pipeline on a weekly flight, and had been doing this work for two years. Under cross-examination he stated that, after circling the fishpond, they proceeded westbound. The total flight time was about 1.8 or 1.9 hours. Mr. Wicks stated that the flight to Huntingdon was at normal speed, and then the patrol commenced.

The next witness was Mr. J. Binette. He was identified as an experienced pilot of helicopters and pipeline patrol. In testimony he estimated that it would take 20 to 25 minutes to fly from Langley to Huntingdon, and then 30 to 40 minutes to return. He said the outbound flight would likely fly at a speed of 120, and return at 40 to 50 "miles per hour." Mr. Binette did not know that a waiver was required. It was stated that a purpose of the patrol is to locate any unusual activity on the pipeline. Under the instruction of the patrolman, investigation had even required landing on occasion.

Mr. R. Owens was called as a witness, and identified. It was noted that he is an experienced helicopter pilot with no accidents, and the owner and Operations Manager of Alpen Helicopters Ltd. He stated that he had departed Langley to the east at 11:17 hours for the pipeline. Speed was 100 – 110 "miles per hour." Langley return was said to be between 12:15 and 12:30 hours. Noting the concern on the pipeline, Mr. Wicks gave instructions to circle. They were at 500 feet, north of the pipeline, and circling left to afford the best view for the patrolman. When questioned by the Hearing Officer, Mr. Owens stated the altitude was above ground level, as Langley is only 37 feet above sea level. He went on to explain that Alpen was on "rental" to Alternative Air and had BC Gas approval.

A copy of the business agreement was entered as Exhibit D-4. A copy of a "waiver" granted to Alternative Air and valid until January 4, 1995 was entered as Exhibit D-5. Upon receipt, Mr. Owens "threw it in the back of the logbook." Exhibit D-6 is a copy of a request for a waiver by Alternative Air to Transport Canada, dated April 3, 1995. Mr. Owens said he ceased to fly as soon as Mr. Ostafiew pointed out the waiver had expired. In addition, Mr. Owens had not remembered the "fishpond" incident until last week. It was stated that total air time for the flight in question was 1.7 hours.

SUMMATION

Mr. Hardie summarized that Mr. Houlton was an Air Traffic Controller and should therefore have a reasonable degree of accuracy. Mr. Houlton had seen a helicopter an estimated 700 feet from where he was standing and an estimated 200 feet above the houses. He had been unable to see the registration. The time was thought to be around 11:30 hours. He then called the Langley Control Tower.

Mr. Baxter was the controller who received the call. He checked his records and was certain that the aircraft was C-FRBO, and he relayed that information to the caller. This information was then passed to the Compliance Section of Transport Canada.

Mr. Houlton had lived there quite some time and was familiar with patrols going by. However, the difference that day was that the helicopter appeared to be lower and made the windows rattle. The aircraft was not observed to be circling nor going from west to east.

Mr. Ostafiew was assigned to investigate the case. At the end of that investigation, a recommendation for assessment of monetary penalty was made. He said that Mr. Owens had offered explanations why he flew below 1,000 feet. The explanations were not accurate in that the circling of the fishpond had not been mentioned until this hearing. The fishpond was reported to be a threat to human life. Mr. Ostafiew visited the area and said it was a built-up area. Recommended reading was referred to if there existed any doubt as to the definition of a "built-up area."

Mr. Hardie said that passing directly over the built-up area was not necessary for the helicopter. He said there was some vagueness about the clearance when in the control zone. It was logical to Mr. Hardie that pipeline patrols are done for the reasons given. The Minister does not contest that it is done to ensure the pipeline integrity. He added that this was a routine patrol, and that no immediate threat was observed. By his calculations it would take about 10 minutes for a helicopter to go to Huntingdon Station, and about 20 minutes back. This time would depend on winds and route, but it is about one half the time Mr. Owens said it took. He added that the helicopter type and the company owning it were read into the record. A check indicated there were no exemptions to permit this type of operation, and thought that was agreed to by Mr. Owens. It was noted that the penalty was assessed against Alpen Helicopters, and not the pilot. Additionally, Mr. Wicks was quoted as not seeing or hearing any other helicopters on the radio, while a passenger that day. He had heard clearance from Langley Tower. Mr. Hardie said that with reference to the BC Gas map, Mr. Houlton's view is less than one half the total distance. Further, he added that the first segment of the flight is at a normal cruising airspeed. Taking a total air time of 1.7 hours and then taking an hour to get to Mr. Houlton's house was not reasonable. Mr. Hardie thought it unfortunate that some witnesses were not present.

Mr. Fiorante opened by saying he and his client wished to set the record straight, and make it abundantly clear that Mr. Owens was not involved in any low flying near Mr. Houlton's home at the time of 11:30 a.m. He said that, when Mr. Baxter checked his records, a departure of 11:17 hours was shown. This was not a transit time. Continuing, he said that Messrs. Wicks, Owens, and Binette said it takes between 20 and 30 minutes to fly to Huntingdon. Consideration must be given to clearing Abbotsford control zone and necessary zigzagging, and circling Huntingdon prior to starting back to Langley. According to Mr. Wicks, it would take at least 45 minutes to be anywhere near Mr. Houlton's house, by Mr. Owens' estimation 45 minutes to an hour, and Mr. Binette's a similar time. It was pointed out that the helicopter Mr. Houlton observed was not identified and was not circling. Mr. Fiorante suggested dismissal on that evidence alone.

Later that day Mr. Owens reentered the Langley control zone and requested clearance at 500 feet. This he said was customary. Reference was made to section 506 of the Air Regulations.

506. The pilot-in-command of an aircraft shall

(a) comply with and acknowledge receipt of all air traffic control instructions directed to and received by him; and . . .

It was stated that the pilot must follow such instructions from Air Traffic Control, and it overrides any regulatory prohibition. Therefore, he said Mr. Owens was lawfully flying at 500 feet in the control zone. Continuing, he said there is no evidence the flight was ever below 500 feet. While circling Mr. Houlton's home, any descent below 500 feet would have been justified due to the illegal construction. Referral to subsection 534(4) was made.

(4) A person may fly an aircraft at an altitude lower than those specified in subsection (2), but not lower than is necessary for the purpose of the operation in which the aircraft is engaged, . . . , and

(. . .)

(b) the flight is necessary for the purpose of saving human life;

(Referral to paragraph 534(7)(c) of the Air Regulations was made, but it is not applicable as it addresses takeoff and landing.) Mr. Fiorante said that the actions were fully justified because of illegal construction activity. The helicopter observed was at treetop level going in an east to west direction; however, when in the vicinity of Mr. Houlton's home, flight by Mr. Owens was west to east and nowhere near treetop level.

Turning to the waiver, any foul up was a paperwork foul up, and Alpen had no involvement according to Mr. Fiorante. He added that a waiver was not required, because there was clearance to fly at 500 feet. Should the Minister still contend that a waiver is required, the Respondent did nothing to contribute to the lapse of such a waiver. In fact there were assurances that such a waiver existed. As soon as it was known that one was not valid, flying ceased. According to counsel, due diligence had been used. Mr. Owens had been told the waiver was in place for the duration of the contract. Final reference was made to paragraph 521(g) of the Air Regulations:

521. The pilot-in-command of an aircraft operated on or in the vicinity of an aerodrome shall

(. . .)

(g) where the aerodrome is a controlled airport, obtain from the appropriate air traffic control unit, . . . clearance for his movements, . . .

ANALYSIS

By virtue of Mr. Houlton's employment, I accept his estimates of aircraft distance and altitude. I allow for some error due to the environment. I also am willing to take the time of 11:30 hours as an approximation.

I note Mr. Baxter's certainty of the aircraft registration.

In my view the fishpond was not an immediate threat to human life. I acknowledge that it is located in a built-up area. I too note certain vagueness in the clearance, but my decision is not affected by that. The area to the north and west of Mr. Houlton's home is built-up to a lesser extent, but most likely would also be classed as the same. Therefore, it may have proven less disconcerting to fewer people, but would not be solved by flight beside the pipeline. In any event the occurrence was in a control zone and over a built-up area.

I concur with Mr. Hardie's calculations of elapsed time. In fact his are slightly more generous than mine, but similar. It should be noted that, in testimony, speeds varied a small amount, and some were in "miles per hour." My calculations are converted to the most favourable. Of further significance is the fact that the exemption or waiver authority was expired. When a new request was made, it was for a different aircraft type. As to Mr. Wicks not seeing or hearing another helicopter, I find that not to be expected as he had other distractions. It would be more noteworthy if he in fact noticed another aircraft. I too was concerned with the relationship to total air time, time overhead, and distance to go. Working the numbers through or in reverse, they do not allow the flight to fly the whole route and be overhead at 12:15 hours or later. The report written by Mr. Wicks and entered as Exhibit D-3 shows another area of concern after the fishpond. This would presumably take additional time. I agree that it would have been less "complicated" if other witnesses had given evidence; however, I suggest they need to be subpoenaed if they are critical to the case.

Mr. Fiorante made several legal points that require an address. I have therefore written my response to the issues as raised. Regarding the time issue, I estimate that being overhead the fishpond at 11:44 hours with a minor variance is possible. Clearing the Abbotsford control zone may require additional time; however, there are two other major airports later on the route. One of these fields is a busy international airport and requires crossing either the arrival or departure path.

Again I mention a second pipeline concern after the fishpond. Time spent circling or zigzagging would most probably have been greater on the later portion of the route. I find therefore "on a balance of probabilities" that the helicopter observed by Mr. Houlton was C-FRBO. It should be noted that the fishpond is east of Mr. Houlton's home. When the circling was complete, the helicopter would fly westward. Due to significant rising terrain marked on the map, the helicopter would be in a climb to clear the hill if it were low. At 500 feet, the hill would have been easily cleared.

Referring to section 506 of the Air Regulations, a pilot is not obliged to accept a clearance, only instructions. It was customary for such a clearance due to the pipeline patrol. It is the responsibility of the pilot and not the controller to ensure regulatory adherence. The controller would not be aware that the flight was operating without valid authority for special purpose operations, particularly when it was held in the past. The onus is on the pilot-in-command to adhere to regulations. The function of the controller is to regulate traffic.

Without a waiver in effect the flight should not have been at 500 feet in the control zone and over a built-up area. By his own admission, Mr. Owens was at 500 feet without a valid waiver. In fact, this altitude is less than 500 feet above ground level, the difference being above sea level. Nowhere do regulations justify descent below the limit due to illegal construction. Certainly, human life was not being saved.

Being Operations Manager and owner, Mr. Owens should have been aware of any special requirements, especially for a special operation. There are numerous documents and time requirements in aviation. The responsibility was his and not that of someone else. Due diligence was not exercised.

Paragraph 521(g) of the Air Regulations is addressed in the same response as section 506 above.

I thank all participants for their meaningful and well presented evidence.

DETERMINATION

After careful review of the law and all evidence submitted, the Tribunal concludes that Alpen Helicopters Ltd. did contravene paragraph 534(2)(a) of the Air Regulations. The decision of the Minister to assess a monetary penalty of $250.00 is confirmed.

Ken Clarke
Member
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Linda P. Thayer, Robert L. Mortimer


Decision: November 18, 1996

The Appeal Panel dismisses the appeal and upholds the member's confirmation of the assessment of monetary penalty. The Civil Aviation Tribunal must receive the payment of $250.00, made to the order of the Receiver General for Canada, within 15 days after service of this determination.

An Appeal Hearing on the above matter was held before three designated Tribunal Members, Friday, September 27, 1996 at 10:00 hours at the Sinclair Centre, in the city of Vancouver, British Columbia.

BACKGROUND

Alpen Helicopters Ltd. ("Alpen") is appealing the Tribunal's Review Determination of February 12, 1996. In that Determination, the Tribunal Member confirmed the Minister's decision and assessment of a $250 monetary penalty.

The events giving rise to the appeal occurred on March 23, 1995. On that date, Alpen was inspecting a portion of B.C. Gas pipeline running through several municipalities to the U.S. border. It was alleged that Alpen Helicopters contravened paragraph 534(2)(a) of the Air Regulations when, at approximately 11:30 hours, it flew over a built-up area at an altitude of less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft. The waiver for the special purpose operation of pipeline patrol had expired.

GROUNDS FOR APPEAL

The grounds for appeal can be summarized as follows:

  1. The Tribunal Member erred in concluding that Transport Canada had proven its case on a balance of probabilities because Transport Canada failed to prove that it was Alpen's aircraft that was low flying at 11:30 hours on the day in question.
  2. The Tribunal Member erred by ignoring critical evidence including that from the Complainant and the Air Traffic Controller which established that Alpen's helicopter had not yet transited the Langley control space at 11:30 hours.
  3. The Tribunal Member erred in preferring his own assumptions and calculations as to the aircraft's position, over the uncontradicted evidence of three witnesses.
  4. The Tribunal Member erred in concluding that air traffic clearance did not override the requirements for a low flying waiver.
  5. The Tribunal Member erred in concluding that the Alpen flight was not undertaken for the purpose of saving human lives.
  6. The Tribunal Member erred in concluding that Alpen did not exercise due diligence in the circumstances.

REPRESENTATIONS BY THE PARTIES

Appellant's Position

The Appellant's position is essentially as set out in the first three grounds for appeal above. Although the Appellant does not abandon its other three grounds for appeal, its focus throughout is on the first three grounds. The Appellant's position is that the Minister of Transport failed to identify Alpen's helicopter as the helicopter that was low flying in the vicinity on the date and time set out in the Notice of Assessment of Monetary Penalty ("the Notice of Assessment"). The Appellant's position is that the evidence before the Member did not place Alpen's helicopter in the vicinity at the time of the allegation. Alpen says that the Tribunal Member failed to give weight to evidence that Alpen's helicopter could not have been in the vicinity at 11:30 a.m. and that the Member preferred his own calculations which were never tested by cross-examination. Alpen says that natural justice was denied as a result of the change in the time alleged from approximately 11:30 to another time because Alpen came to the hearing prepared to meet the case against it: a contravention allegedly committed at 11:30 hours.

Alpen says that the Member erred when he confirmed the Notice of Assessment based only on a finding that Alpen's helicopter "could have been in the vicinity by 11:44 a.m." on March 23, 1995. Alpen says that finding was insufficient to confirm the Notice of Assessment.

Alpen does agree, however, that its helicopter (C-FRBO) was flying on March 23, 1995 at or near 68th Avenue and 198th in Langley at sometime between 11:17 and 13:03 hours, and that its helicopter C-FRBO, at some point during that time period, was cleared and did descend to below 1,000 feet without a valid low flying waiver.

Without abandoning grounds 4, 5 or 6 of the Appeal, Alpen does not rely on those grounds. Alpen's position on ground 4 is that Air Traffic Control clearance would not override the need to have a valid low flying waiver. However, Alpen pointed out that the pilot did obtain clearance to transit the zone at 500 feet for pipeline inspection.

Alpen's position on ground 5 is that the purpose of pipeline inspection is to investigate the integrity of the B.C. Gas pipeline: ultimately Alpen's purpose, in descending to inspect the pipeline, was for saving human life.

Alpen's position on ground 6 is that due diligence was exercised because the pilot, Mr. Owens, believed he had a valid waiver. Mr. Owens ceased pipeline inspection as soon as he learned that the waiver had expired. Alpen says that because Mr. Owens honestly believed that he had a waiver and because he did in fact obtain clearance from the Langley control zone to descend to 500 feet, due diligence is established.

REPRESENTATIONS BY THE MINISTER OF TRANSPORT

The Minister's position is that Alpen's helicopter was identified as the helicopter flying low over Mr. Houlton's home. The evidence established that Mr. Houlton telephoned Air Traffic Controller Baxter within five minutes of observing the helicopter near his home. The evidence also established that the only helicopter in the vicinity at that time on that date was Alpen's helicopter. The Minister says, therefore, that identification was established before the Tribunal Member.

The Minister says that, because the Notice of Assessment of Monetary Penalty alleges that the infraction occurred at approximately 11:30 a.m., exact time is not crucial to identification. The Minister says he proved the allegation that at approximately 11:30 a.m. on the day in question, Alpen's helicopter was low flying in the vicinity of 68th Avenue and 198th Street in Langley, near Mr. Houlton's residence.

The Minister says that he was not required to amend the Notice prior to hearing because the Minister's evidence proved the allegations as set out in the Notice of Assessment, namely that at approximately 11:30 a.m. on the date in question, the aircraft owned by Alpen was low flying. The contravener, therefore, received adequate notice of the allegations against it. The Minister says there is no violation of the principles of natural justice because the Notice was sufficient to allow Alpen to know the case it was required to meet.

In response to ground 4 of the Appeal, the Minister says that the Member was correct in concluding that Air Traffic Control clearance did not override the need for a valid waiver. The Minister's submission is that it is up to the pilot to accept a clearance issued only if it is legal in accordance with the Air Regulations. Air Traffic Control is not bound to ensure that a "special purpose" waiver is in force. An Air Traffic Control clearance does not exonerate the pilot if he does not have the necessary waiver.

In response to ground 5 of the Appeal, the Minister says that paragraph 534(7)(c) only applies where there is a landing or takeoff. As there was no landing or takeoff in this case, this is not an appropriate case for application of paragraph 534(7)(c).

In response to ground 6 of the Appeal, the Minister says that the Respondent did not establish on a balance of probabilities that he exercised due diligence. The test of due diligence is the test of what a prudent, professional pilot would do in the circumstances. Because Mr. Owens merely put the waiver in his log book and did not inform himself as to its expiration date, the Minister says that the Member was correct in finding that due diligence was not established.

In short, the Minister claims that none of the errors put forward by Alpen either independently or taken together, are sufficient to merit reversal of the Member's determination.

CONCLUSION AND REASONS FOR DETERMINATION

The Appeal Panel dismisses the Appeal and upholds the Member's confirmation of the Assessment of Monetary Penalty.

The jurisdiction of the Appeal Panel is set out at subsection 8.1(4) of the Aeronautics Act which states:

(4) The Tribunal may dispose of the appeal by dismissing it or allowing it and in allowing the appeal, the Tribunal may substitute its decision for the determination appealed against.

The Appeal Panel finds that the Member did not err in concluding that Alpen Helicopters contravened paragraph 534(2)(a) of the Air Regulations. The record shows that the evidence before the Member was sufficient to establish the factual elements of the infraction as set out in the Notice of Assessment on a balance of probabilities.

The Notice of Assessment reads in part as follows:

Alpen Helicopters Ltd., being the owner of an aircraft bearing Registration Marks C-FRBO, by virtue of section 8.4(1) of the Aeronautics Act, R.S.C. 1985, c. A-2 as amended, committed a violation of section 534(2)(a) of the Air Regulations, in that the aircraft was flown at approximately 11:30 hours on or about March 23, 1995 at or near 68 Avenue and 198 Street in Langley, British Columbia over the built-up area of the city of Langley at an altitude of less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft.

Paragraph 534(2)(a) 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

(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;

In deciding whether or not Alpen Helicopters had committed the infraction as alleged in the Notice of Assessment, the Member required proof on a balance of probabilities of the factual elements of the alleged contravention, namely that:

(a) Alpen Helicopters Ltd. was the owner of an aircraft bearing registration marks C-FRBO;

(b) the aircraft C-FRBO was flown at approximately 11:30 hours on March 23, 1995, at or near 68 Avenue and 198 Street in Langley, British Columbia;

(c) at that date and time, the aircraft C-FRBO was flown at an altitude of less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft.

The evidence on the record before the Member establishes that Alpen Helicopters was the owner of C-FRBO, and that C-FRBO did fly below 1,000 feet at some time between 11:17 and 13:03 on March 23, 1995, at the location set out in the Assessment Notice. The evidence on the record also establishes that no other traffic was reported in the vicinity by any witness. The facts necessary to establish the allegation were therefore proven on a balance of probabilities before the Member. The Appeal Panel finds that the evidence and circumstances before the Member are consistent with a finding that it was Alpen's Helicopter that was low flying on March 23, 1995, at approximately 11:30 a.m.

The Member did not err in concluding that Transport Canada had established on a balance of probabilities that Alpen's helicopter was low flying at approximately 11:30 hours. The evidence on the record placed Alpen's helicopter at the location between 11:17 and 13:03 on March 23, 1995. It was not incumbent on the Minister to establish that Alpen's helicopter was at the location at exactly 11:30 hours, but rather that it was in the vicinity at approximately 11:30 hours, as set out in the Notice.

The Appeal Panel is not satisfied that the Member ignored critical evidence, nor does the Appeal Panel find that the Member committed a reviewable error.

We are satisfied that the record supports a conclusion that the Minister has met the burden of proof on a balance of probabilities. While the Member ought not to have relied on his own assumptions and calculations without putting those to Alpen's witnesses, the Appeal Panel is satisfied that this is not fatal to the decision, because the record reflects a sufficient factual basis upon which the Member could find that the Minister proved the infraction on a balance of probabilities.

The Appeal Panel finds the Member did not err in concluding that Air Traffic clearance did not override the need for a valid waiver. An Air Traffic Control clearance cannot override the regulatory requirement of a valid waiver for a special purpose operation. While pipeline patrol is included in the definition of a "special purpose operation" under subsection 534(1) of the Air Regulations, a valid waiver must be in effect to permit low flying for inspection. The record shows that the "waiver" valid only until January 4, 1995, had expired, and had been placed in the back of the logbook where it was forgotten.

The Appeal Panel finds that the actions were not undertaken for the purpose of saving human lives pursuant to paragraph 534(7)(c) of the Air Regulations. That paragraph states as follows:

(7) Except in accordance with an authorization issued by the Minister, no person shall cause any aircraft to take off or attempt to take off from, land or attempt to land on, any surface within the built-up area of any city or town unless

(...)

(c) the take-off or landing is necessary for the purpose of saving human life.

The evidence before the Member does not indicate that the pilot was landing or attempting to land, taking off or attempting to take off. Neither does the evidence indicate that if there was such landing or take off or attempt to do so that such action was necessary for saving human life. The Appeal Panel therefore finds that the Member did not err in concluding that the Alpen flight was not undertaken for the purpose of saving human life.

The Appeal Panel upholds the Member in his finding that due diligence was not exercised in the circumstances. The record shows that a waiver had been granted, but had expired at the time of the infraction. The pilot, Mr. Owens, had placed it into the back of the log book, and had not realized that it expired. Such conduct does not meet the test of due diligence. The test of due diligence was set out by this Tribunal in the determination of Richard Noël and Minister of Transport (CAT File No. Q-0435-33). The test in that case is what a prudent, professional pilot would have done in the circumstances. The Appeal Panel finds that the Member did not err in finding that Mr. Owens' conduct did not meet the test of due diligence.

Reasons for Appeal Determination by:

Linda P. Thayer, Member

Concurred:

Faye Smith, Chairperson
Robert L. Mortimer, Member