Decisions

CAT File No. P-1614-33
MoT File No. EMIS 030212

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

James Devlin, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.114(b), 602.117

Defences, Controlled Airspace, Due Diligence, Minimum Visibility, VFR Clearance


Review Determination
Sandra Lloyd


Decision: September 15, 1998

The Applicant, the Minister of Transport, has not proved, on a balance of probabilities, that the Respondent, James Devlin, contravened paragraph 602.114(b) of the Canadian Aviation Regulations as alleged. It follows that the assessed penalty of $2000.00 is dismissed.

A Review Hearing on the above matter was held Monday, August 17, 1998 at 10:00 hours at the Federal Court of Canada in Vancouver, British Columbia.

BACKGROUND

The allegation in this case rises from West Coast Air Ltd. ("WCA") DHC-6 Twin Otter flight 109 from Vancouver Harbour to Victoria Harbour on August 27, 1997. The aircraft involved bore registration marks C-GQKN and was registered to WCA. The aircraft was float-equipped. WCA holds a Department of Transport Air Operator Certificate which authorizes it to operate DHC-6 aircraft carrying passengers and cargo on Day VFR flights only.

The pilot-in-command on the flight was the Respondent, Mr. James Devlin. Mr. Dan Hickey was his co-pilot. The flight carried twelve passengers, including Mr. Robert Ogden, a Transport Canada Inspector. The flight departed Vancouver Harbour at 0802 Pacific Daylight Saving Time (1502 UTC) and arrived in Victoria Harbour at 0834 (1534 UTC).

The flight routing was from Vancouver Harbour over the Lions Gate Bridge, past Point Atkinson, across the Strait of Georgia, through Active Pass, over the water just east of the Victoria Airport, west of Sidney Island, around the southeast corner of Vancouver Island, then into Victoria Harbour. The flight path and altitude took the aircraft through three control zones: Vancouver Harbour, Victoria Airport and Victoria Harbour. The Victoria Harbour control zone is a control zone established without an operating control tower. There is a Flight Service Station ("FSS") at Victoria Harbour.

Mr. Ogden was seated about half way back in the aircraft. From his passenger seat, he observed through adjacent cabin windows weather conditions that caused him concern for the safety of the flight, in particular, as the flight proceeded through the Victoria Harbour control zone. When the other passengers deplaned at Victoria Harbour, Mr. Ogden confronted the Respondent with his concerns. Later, Mr. Ogden spoke by telephone to Mr. Peter Bachinsky, an Inspector with Transport Canada Enforcement in Vancouver. Mr. Bachinsky met with Mr. Devlin in Victoria on September 4, 1997 to discuss the flight. Ultimately, a Notice of Assessment of Monetary Penalty dated April 22, 1998 was issued to Mr. Devlin which stated, in part:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Canadian Aviation Regulation 602.114(b) in that, at approximately 08:30 hours PDT on August 27, 1997 at or near Victoria, B.C. you did unlawfully operate a DeHavilland DHC - 6 aircraft bearing Registration Marks C-GQKN in VFR flight within controlled airspace when the existing flight visibility was less than three miles.

The total assessed penalty of $2000.00 must be paid on or before May 22, 1998 to the Regional Manager, Civil Aviation Enforcement, Transport Canada.

If the full amount of the penalty has not been received on or before May 22, 1998 a copy of this Notice will be forwarded to the Civil Aviation Tribunal.

EVIDENCE

The Applicant called as its first witness Mr. Robert Scott Ogden, an Inspector with Transport Canada. He has been a pilot for twenty-three years and has logged 5,000 flying hours, including 500 hours on the DHC-6. He has been with Transport Canada for sixteen years, in Vancouver since 1986. He flew low level pollution patrol for the Coast Guard for 1½ years on the west coast of Canada, including in the Vancouver, Victoria and Georgia Strait areas.

Mr. Ogden said it was his experience that in this area there is a wide variety of weather that is often localized.

Mr. Ogden was a passenger on the flight because he was required to attend a meeting in Victoria. He was seated on the right-hand side of the aircraft under the wing next to a window. When the flight departed Vancouver Harbour, the weather was dull, grey and overcast. Mr. Ogden testified that the ceilings were reasonably low but the visibility in the area was acceptable. After the Lions Gate Bridge, he sensed that the aircraft descended to about 500 feet. He could see Point Atkinson from Lions Gate Bridge. Then, the ceiling became ragged, and he could see areas of lower cloud.

After Active Pass, Mr. Ogden thought that the aircraft descended to about 300 feet. He could see the Victoria Airport and Sidney Spit as they passed. The visibility was deteriorating. At Gordon Head, Mr. Ogden lost reference to land. He sensed that the aircraft slowed and descended. The flaps were extended. The aircraft descended further. Glassy water conditions prevailed. He estimated that the visibility was ¼ to ½ mile. He thought perhaps the pilots were going to land the aircraft and taxi into Victoria Harbour.

Mr. Ogden testified that when he observed the poor visibility, he considered going to the front of the aircraft to "rescue" the flight. However he did not, due to concerns that he might create greater problems in so doing by distracting the pilots. He said that from his seat he could see out the side and he had some forward view. In his opinion, the visibility from the front of an aircraft is often worse than that out of the side. He did not believe that the forward visibility significantly differed from what he observed outside. He said that nothing obscured his view out the window. He said the environment was very homogenous and the wind was calm.

Mr. Ogden saw a green and white buoy and a small rock island outcropping. When the flight emerged from the fog bank, he could see the coast where the land rises and there were some houses. He said the aircraft was the same height as the houses. When he saw the houses, he estimated the aircraft height to be about 100 feet. The weather then improved quite rapidly.

Mr. Ogden testified that prior to this point, throughout the flight, the weather had been gradually declining.

Mr. Ogden referred to the Vancouver VFR Terminal Area (VTA) Chart dated February 26, 1998 which was marked as Exhibit M-l. Mr. Ogden made an "x" with a black pen on the map at the point where the weather improved, just west of the Trial Islands. He also drew an arrow representing the path of the aircraft from that point. He also made angular marks, with a black pen, on Discovery Island and the Trial Islands, where he said there were antennas as high as 240 feet.

Mr. Ogden testified that the aircraft landed in Victoria Harbour at about 0830. The landing was uneventful and the aircraft taxied up to the dock. He remained on the aircraft while the other passengers got off. Then he went up to the cockpit and spoke to the Captain. He introduced himself as a Transport Canada Inspector. He asked the pilot what the heck he was doing. He asked him "what did you get down to, 100 feet? ½ – ¼ mile?"

Mr. Ogden noted that there was no weather radar in the aircraft. There was a portable global positioning system (GPS) on the yoke. He asked the pilot how he navigated. Mr. Ogden said the pilot told him that he was flying a preprogrammed route on the GPS.

Under cross-examination, Mr. Ogden admitted that out his window he could see the wing strut, landing gear, flaps, floats, and the large Twin Otter engine nacelles. He said, however, that he felt the visibility he observed was comparable to that which the pilots would have had. He admitted that his window was smaller than the pilots' cockpit windows, but he said he could see through not only the window beside him but also through the windows forward and aft of his position. He admitted that the pilots had a 180-degree unobstructed view. He admitted that the pilots' windows would have had defrost, while his did not, and he admitted that the cabin was lit. However he did not think that on the day in question there was any moisture on the windows nor did he think cabin lighting would have restricted his view.

Mr. Ogden could not say how much the weather deteriorated from Point Atkinson to Active Pass, although he thought it deteriorated somewhat. He noted that there were no reference points available as they flew over the water between Point Atkinson and Active Pass.

When shown the VTA Chart, and asked to measure the distance from Sidney Spit to the shoreline, Mr. Ogden did so and said it was just short of three miles — the shortest distance was 2½ miles. Under cross-examination, Mr. Ogden said that at the point where the weather improved just west of the Trial Islands, the aircraft was higher than some of the houses and the same height as others. The houses were the reference he used to determine aircraft altitude. Mr. Ogden admitted that he did not know what the official weather in Victoria Harbour or Victoria Airport had been at the time of the flight. He also admitted that there are many reasons why the pilots could have been flying at low level. He agreed that the flight transited the Victoria Airport control zone.

Mr. Ogden also admitted that using an aircraft weather radar to navigate by ground mapping was not an approved method of navigation. So, there was no disadvantage in not having such equipment. However, he said a pilot could add it to his tools. Mr. Ogden also agreed that he had said that the pilots had been using GPS. He said he had mentioned this because he thought that the pilots had lost visual reference so that they must have had a means of navigation.

The Applicant called Mr. Robert Reid who was qualified, and accepted by me, as an expert witness in airspace classification and structure. He works in this field with NAV Canada. He is familiar with the airspace in the Lower Mainland and Victoria areas.

Mr. Reid identified photocopied pages from the Designated Airspace Handbook defining controlled airspace, control zones, and the Victoria Harbour control zone. These pages were marked as Exhibit M-2.

Mr. Reid marked the Victoria Harbour control zone on the VTA Chart by printed letter and marked it as Class E airspace. He also said that it goes from the surface to 2,500 feet. He noted the "x" and arrow marks made on the chart just west of the Trial Islands by Mr. Ogden and said that they are in controlled airspace (the Victoria Harbour control zone). He said that airspace is controlled to provide separation between aircraft. He said it is possible to have aircraft flying in cloud in that airspace.

The Applicant then called Mr. Peter Bachinsky, a thirty-year pilot with military background who has been with Transport Canada since 1988. He has been with Enforcement since 1997. He became involved in this case on August 27, 1997 when Mr. Ogden called him from Victoria and told him that he had observed an aircraft flying in low weather. Subsequently, Mr. Bachinsky was appointed to investigate this matter.

In the course of the investigation Mr. Bachinsky obtained the area forecast for the south coast and north coast regions for 12-24Z (1200 to 2400 UTC) on August 27, 1997. A copy of this forecast was marked as Exhibit M-3. Mr. Bachinsky also identified a copy of the WAC E-15 chart (World Aeronautical Chart), Exhibit M-4. He marked on M-4 the forecast position of the upper low at 24Z and noted that its 12Z position had already been plotted on the chart. Exhibit M-3 showed, among other things, that the forecast weather for the south coast at the time of the flight in question included visibilities as low as ¼ – 2 statute miles in fog and mist over the sea and adjacent inlets and valleys. Mr. Bachinsky said that this would include the Victoria Harbour area and vicinity.

Mr. Bachinsky testified that he met with the Respondent, Mr. Devlin, in Victoria on September 4, 1997. He warned Mr. Devlin that there was a possibility of a charge being laid or a penalty being levied. Mr. Devlin had just done a flight. Mr. Bachinsky asked Mr. Devlin to describe the occurrence. Mr. Devlin explained WCA's philosophy and his own attitude to flying and safety. He told Mr. Bachinsky that he felt he was not compelled to fly into unsuitable weather.

Mr. Bachinsky also testified that during the September 4, 1997 meeting, Mr. Devlin brought out a GPS and said he would show Mr. Bachinsky how the flight from Vancouver Harbour to Victoria Harbour was depicted on the GPS. The display showed that the path went between Vancouver Island and Discovery Island and the Trial Islands, corroborating Mr. Ogden's description of the flight path to Mr. Bachinsky.

Mr. Devlin had told Mr. Bachinsky that after Active Pass they had descended to 500 feet as instructed by Victoria Airport tower. He said the visibility at that point was 3 – 5 miles. He said he had discussed the weather at the southeast corner of Victoria with the pilot of a northbound aircraft. As he approached Gordon Head, he said he had to descend to see. He said at that point he could see about 6 miles. But as he came around Discovery Island, he was unable to see Trial Island. At that point, he said he was unable to say what the visibility was because his eyes were in the cockpit. Mr. Bachinsky testified that at that point in their conversation, he asked Mr. Devlin why he did not turn back. Mr. Devlin told him that he felt it was safer to continue on a known track, referring to the GPS, rather than to turn to an unknown area. Mr. Devlin said that the co-pilot had been looking outside.

Mr. Bachinsky testified that Mr. Devlin had told him that special VFR flight clearance was not required because the Victoria Harbour weather was reported to be VFR (at least 1000-foot ceiling with three miles visibility). Mr. Bachinsky said that Mr. Devlin had told him that between Discovery Island and the golf course (a green patch on the VTA Chart on the southeast corner of Victoria just north of the Trial Islands), he could not see Trial Island. He had said he could not see the towers on Trial Island.

Mr. Bachinsky also testified that there is an IFR approach procedure for Helijet Airways for use at Victoria Harbour. He said there is a routing from Darcy Island that connects to the approach procedure. Mr. Bachinsky thought the procedure was not restricted to use by Helijet.

Mr. Bachinsky identified further documentary evidence: an excerpt from C-GQKN's Journey Log; the Weight and Balance for the flight; a copy of the flight's Passenger Manifest; C- GQKN's Certificate of Registration; an excerpt from the Air Personnel Licencing System database, showing information regarding the Respondent's pilot licence; and WCA's Operating Certificate, showing they are authorized for day VFR flight only.

Mr. Bachinsky testified that WCA has no authority to fly in visibilities less than that required by regulation.

Under cross-examination, Mr. Bachinsky admitted that area forecasts cover the worst possible weather that could be effective. They refer to expected conditions, not actual. He admitted that he had not contacted air traffic control (ATC) or FSS people with respect to August 27, 1997 aircraft movements, and agreed that traffic reports are usually kept for thirty days.

When showed a copy of a fax that was apparently sent from Victoria Harbour FSS to Mr. Devlin after the flight on August 27, 1997 at Mr. Devlin's request (Exhibit D-2), Mr. Bachinsky said the conditions reported on the fax indicate weather that was less than VFR. Special VFR flight conditions existed. However, Mr. Bachinsky said that Mr. Devlin had told him that he had not operated the flight under special VFR because the weather at Victoria Harbour was VFR.

Mr. Bachinsky agreed that if the weather was below VFR, an aircraft would only be allowed to fly into a control zone if the pilot had received special VFR flight clearance. Mr. Bachinsky explained the procedure that would be used when the weather is below VFR at a control zone such as Victoria Harbour. When the pilot first makes contact with the agent at the control zone (in this case, the FSS at Victoria Harbour), the FSS would give the pilot the weather. The FSS has to declare the conditions when the weather is reported to be less than either a 1000-foot ceiling or three miles visibility. The FSS would then ask the pilot what his intentions were. If the pilot then asked for special VFR flight, the FSS would call the Area Control Centre (ACC) in Vancouver. The ACC would then decide if the aircraft requesting special VFR flight would conflict with any other traffic. If the aircraft entered the control zone when special VFR flight conditions existed, without a special VFR flight clearance, the FSS would file an incident report. Mr. Bachinsky said that no such incident report was filed by the FSS with respect to the flight.

Mr. Bachinsky was shown a copy of Exhibit D-3, a fax apparently sent from the Vancouver FSS to WCA on August 27, 1997. This fax showed pilot weather reports (PIREP) filed with various FSS stations, including Victoria Harbour FSS, on that date. Mr. Bachinsky read from Exhibit D-3, a PIREP filed at 1534 UTC by the pilot of a DHC-6, apparently filed by Mr. Devlin himself. I note that that PIREP indicates that there was a "LG (large) HOLE" about one mile south of the Victoria Harbour mouth, and that the golf course was "MGNL (marginal) AT BEST." Another PIREP filed at Victoria Harbour by the pilot of an SK76 at 1452 UTC (42 minutes earlier) indicates that "AROUND THE CORNER" the ceiling was 300 feet overcast. That PIREP also says that the visibility at 200 feet was marginal, tops were at 700 feet, the weather "OPENS UP AT DISCOVERY IS (Island)" and the "E SIDE OF CITY AND HARRO STRTS" were visible. Exhibit D-3 also shows a PIREP filed at 1442 UTC by the pilot of another DHC-6 aircraft. That PIREP states that there was a "HOLE OVER YYJ HBR (Victoria Harbour) (estimated 1000 broken) ... AROUND THE CORNER (estimated 200 broken visibility) 3 – 4 (statute miles). OPENS UP AT DISCOVERY IS (Island)." Mr. Bachinsky said that if a pilot requested weather, he would be given the most recent observed weather plus the PIREPs.

Under cross-examination, Mr. Bachinsky said he was not sure if he had actually asked Mr. Devlin on September 4, 1997 if he had requested special VFR flight. He did recall that he had asked Mr. Devlin about the weather conditions. He said he had mentioned Helijet IFR routes because he was concerned that a dangerous situation could exist if an aircraft operated VFR in an area where IFR aircraft may also be operating.

On re-examination, Mr. Bachinsky said he had no firsthand knowledge of what the Victoria Harbour weather was on August 27, 1997. He said it was possible that the weather in that control zone could be significantly different in one area than in another. At Victoria Harbour, the official weather is observed from the FSS station there. There is no observation taken at Trial Island. Mr. Bachinsky said that Mr. Devlin had not shown Mr. Bachinsky the fax from Victoria Harbour FSS regarding the weather (Exhibit D-2) during the course of the investigation. He did not know why not.

The Respondent, Mr. James Devlin, testified on his own behalf. In giving his direct testimony, Mr. Devlin read from and embellished upon some notes that he had prepared shortly before the hearing. Later in the hearing, at the Applicant's request, these notes were entered as an exhibit and marked as Exhibit D-6. Mr. Devlin also filed as exhibits two flight reports: Exhibit D-4, which he said was completed and signed by himself, and Exhibit D-5, which he said was completed and signed by his co-pilot, Dan Hickey, on the flight.

Mr. Devlin said he is 54 years old and has been a pilot for 35 years. He has flown commercially for 32 years. He has flown the DHC-6 on charter and scheduled flights since 1980. He has over 28,000 hours and is married with four children. He said his co-pilot on the flight is 55 years old, has 16,000 hours, and is a retired RCMP officer who served in the Air Division. Mr. Devlin said that Mr. Hickey was not available at the hearing because he had since retired from WCA and was up the coast somewhere on a boat.

Mr. Devlin said his flight report was completed immediately following the flight. He said that his report started at Active Pass because he assumed that nothing north of Active Pass would have been a problem. Mr. Devlin's flight report (Exhibit D-4) states that south of Active Pass they were cleared special VFR through the Victoria Airport control zone at 500 feet. That report also says, and Mr. Devlin gave evidence that, prior to leaving the Victoria Airport control zone, they obtained the current weather for the Victoria Harbour. Mr. Devlin testified under cross-examination that the weather they obtained at that time is contained in the fax from Victoria FSS (Exhibit D-2). The weather shown on the fax shows, in part, a ceiling of 300 feet broken and three miles visibility in rain and fog. Mr. Devlin said that the fax regarding the weather (Exhibit D-2) was the result of a telephone request made after Mr. Ogden confronted him on August 27, 1997.

Mr. Devlin testified that before entering the Victoria Harbour control zone, he was cleared special VFR flight through that zone. His flight report also says that Victoria Harbour cleared him special VFR flight by 10 Mile (Cadboro) Point, although that statement on the report is written below his signature.

Mr. Devlin's flight report states that from Sidney Island (roughly abeam Victoria Airport), they could see Discovery Island. Mr. Devlin in testimony noted that looking at the VTA Chart, the distance from Sidney Island to Discovery Island is fifteen statute miles. Mr. Devlin said that after passing 10 Mile (Cadboro) Point, they could see the Oak Bay golf course. His flight report says that was about three miles away. It goes on to say that conditions deteriorated at the golf course. Mr. Devlin then extended flaps and slowed the aircraft to 85–86 knots. Mr. Devlin testified that flying a DHC-6 over water allows the added precaution of configuring the aircraft for landing. This in turn allows for slow flight and should it become necessary to land, to do so if further weather deterioration occurs. However, Mr. Devlin's flight report says that landing was not an option because of islands, boats and tidal rapids. His report also says that a 180-degree turn was not an option because of radio antennas. Mr. Devlin's evidence is that at this point, he, the pilot flying, maintained the course established on the GPS while his co-pilot watched the shore. Further, his evidence is that about one mile east of Clover Point (a point immediately to the left of the arrow drawn on the VTA Chart by Mr. Ogden), visibility improved to 3 to 5 miles and was similar to the weather reported to them by the Victoria Harbour FSS.

Mr. Devlin testified that he and his co-pilot thought that while flying through the Victoria Harbour control zone, they remained in sight of the ground with at least one mile forward visibility. He said he and his co-pilot, after descending to 150 feet over the water, observed the weather to be within the parameters of their special VFR flight clearance. He said (I am paraphrasing here) that it is their experience that ceiling and visibility over Juan de Fuca Strait is considerably better than over the Peninsula, (that is) the land they usually fly around. A passenger sitting on the right-hand side of the aircraft would have a view of the peninsula during a southbound flight. It would be weather not associated with their flight path. The DHC-6 passenger windows are small and low and offer a restricted view. Also, parts of the aeroplane such as nacelles, wings, floats can further restrict the passengers' view. The passengers are sitting in a lighted compartment. Also, the cabin tends to be stuffy with high humidity causing condensation on the windows. Mr. Devlin said that he and his co-pilot in the DHC-6 have a 180-degree unobstructed view from the cockpit.

Mr. Devlin noted that flying in reduced visibility over calm water results in a lack of visible horizon. Under these conditions it can be disorienting for a pilot to look back and forth between his flight instruments and the flight path. He said that their two crew member situation allows pilots to take advantage of Cockpit Resource Management ("CRM") techniques whereby one pilot can concentrate on flying the aircraft while the other focuses on navigation. Mr. Devlin said that even if there was 10 miles visibility at 150 feet with overcast conditions and glassy water, there is no horizon. The top looks the same as the bottom, the sky and ground are the same colour. In Mr. Devlin's opinion, with two crew members it only makes sense for both not to be doing the same thing. He says the CRM courses mention that this type of thing can be disastrous. So he tries to divide the workload between two crew members and keep a dialogue going and so both are monitoring. Mr. Devlin said the GPS is not carried for primary navigation; it is an aid to their visual navigation. Mr. Devlin also testified that when Mr. Hickey was looking out the window, Mr. Hickey was navigating and visually confirming what Mr. Devlin, the pilot flying, was doing.

Mr. Devlin also said that part of the flight's path from Vancouver to Victoria covers 30 miles over open water. The GPS allows for accurate positioning of mandatory waypoints enroute, the positioning of the aircraft over large areas of water, and tracking.

Under cross-examination, Mr. Devlin admitted that he did not check the weather before the flight. He knew that the possibility of ¼ mile visibility and ceilings from 0–800 feet were in the area forecast for the time and date of the flight. After the flight, he had requested that Victoria Harbour FSS fax him a copy of the weather data that he had received from them as he passed Sidney Spit. When questioned on the point, Mr. Devlin said he did not know why 07:49 was at the top of the fax. He admitted that 1537 UTC corresponds to 0837 local (PDT). He said he thought maybe the 07:49 time on the fax machine was incorrect.

When questioned about his flight report, Mr. Devlin said he wrote it as best he could standing in the back office after a flight. He wrote it the same day, maybe at lunch or maybe right after the flight because they cancelled the next flight. Mr. Devlin said he cancelled the next flight because the weather had been different from what he experienced on the previous flight and different from what the PIREPs said. If the weather was deteriorating, he did not want to be involved in it.

Mr. Devlin said he did not know why he had not mentioned in his report what the minimum visibility was that he had observed on the flight. The minimum visibility that he saw was in the golf course area. He said it would have been less than three miles but "it was certainly good enough to navigate ... a mile ... we could see across the water ... we could see the shoreline." He agreed he had said his head was in the cockpit in that general area, and he had also said that that was standard procedure. Mr. Devlin agreed that under VFR rules the principal means of navigation is a pilot's visual reference to the ground. He also said that GPS is a secondary means of navigation, a backup, used as a safety factor, but he did not agree that weather radar was suitable for those purposes. Mr. Devlin agreed that he had showed Mr. Ogden the GPS when Mr. Ogden visited the cockpit after the flight. He said the visit "did not involve an atmosphere of discussion."

Mr. Devlin explained that the reason his comment about special VFR flight was at the end of his report, after his signature, was because when he first wrote the report, he assumed that it would be understood that special VFR flight would be part of the operation. He said he added that note possibly because Mr. Ogden indicated there could be questions about visibility. He said he did not bring that up with Mr. Ogden because "Mr. Ogden was not listening."

Mr. Devlin said that he first saw the Trial Islands after he descended to 150 feet from 300 feet. He said that he probably saw them from more than a mile away but he did not know. He admitted he was flying between the Trial Islands and Vancouver Island. He was quite sure that he and Mr. Hickey would have discussed during the flight whether or not they could do a 180-degree turn, but he could not recall their specific conversation about landing not being an option.

Mr. Devlin said that while enroute, they had talked to a company pilot who was flying northbound at the other end of their route, as they usually do, so that they know the weather.

Mr. Devlin also said that they had requested special VFR flight for the Victoria Harbour from Victoria Harbour FSS at Zero Rock. He said that Zero Rock is a shoal marker beacon three miles north of Cadboro ("10 Mile") Point. Mr. Devlin marked Zero Rock on the VTA Chart. He drew a line representing the path of the aircraft from Active Pass to Zero Rock.

Mr. Devlin was shown weather reports from Victoria Airport for August 27, 1997 which were then marked as Exhibit M-11. The Victoria Airport weather at the relevant time is contained in the hourly weather observation at 1500 UTC and the special observation at 1512 UTC. Mr. Devlin noted that neither of these met VFR requirements (due to ceilings). I note that they both show three miles visibility.

During cross-examination, there was briefly an issue raised as to whether Mr. Devlin had received special VFR flight clearance to proceed through the Victoria Airport control zone. There was confusion over the question asked. When further questioned, Mr. Devlin did not agree that he had said earlier in the cross-examination that he had not obtained special VFR flight through Victoria Airport control zone. Mr. Devlin's flight report does say that special VFR flight clearance was obtained for that control zone. Exhibit M-11 shows weather that would have required a special VFR flight clearance.

I am satisfied that special VFR flight clearance was obtained through the Victoria Airport control zone and that this was not a real issue between the parties.

Mr. Devlin agreed that the Captain is responsible for the safety of the flight. He said that if ATC cleared or instructed him to do something unsafe, he would advise the controller of the safety concern he had and request further clearance. When asked whether he was concerned about the visibility with respect to the safety of the flight, he said "regardless of conditions, there is always a concern. The concern increases or decreases as conditions deteriorate or improve. But it remains a concern." He said it was not normal practice within his airline to fly 150 feet above the water in the landing configuration. He did it that day because conditions were abnormal. The visibility was restricted. He said he would use that procedure when he suspected conditions might get worse immediately ahead. He said that turning around or doing a 180-degree turn occurred to him. He was considering it at Sidney Spit. That is why they called FSS so early. Based on the report from FSS and the report from his company aircraft and the flight he had made earlier, he decided to continue the flight. He said the pilot in the other company aircraft had said "it was passable."

Mr. Devlin admitted he had remarked to Mr. Bachinsky that the company had included a new waypoint on the GPS routing to accommodate turning around, a waypoint that was not included at the time of the flight.

When questioned about the exact visibility in the golf course and the Trial Islands area, Mr. Devlin said the following: He could see Discovery Island from Sidney Spit. He could see the golf course on the southern tip of the peninsula from Cadboro Point. After they descended to 150 feet and lost sight of the golf course, they could see from a shoal just off the golf course abeam Oak Bay Marina to the Trial Islands. Then at the Trial Islands the visibility picked up substantially. Shortly thereafter they could see to the lagoon. Then he reported that there was improved visibility south of the Harbour.

THE LAW

Paragraph 602.114(b) of the Canadian Aviation Regulations (CARs) reads as follows:

602.114 No person shall operate an aircraft in VFR flight within controlled airspace unless

(...)

(b) flight visibility is not less than three miles

Section 602.117 of the CARs provides:

602.117 (1) Notwithstanding paragraph 602.114(b), an aircraft may be operated in special VFR flight within a control zone if

(a) weather conditions preclude compliance with paragraph 602.114(b)

(b) flight visibility is not less than

(i) one mile, where the aircraft is not a helicopter, or

(...)

(c) the aircraft is operated clear of cloud and with visual reference to the surface at all times; and

(d) authorization to do so has been requested and obtained from the appropriate air traffic control unit.

(2) Where aerodrome traffic permits, an air traffic control unit shall authorize a pilot-in-command to operate an aircraft in special VFR flight within a control zone if

(a) the pilot-in-command requests authorization to operate the aircraft in special VFR flight;

(b) when reported, ground visibility within the control zone is not less than

(i) one mile, where the aircraft is not a helicopter, or

(...)

(c) the aircraft is equipped with radiocommunication equipment capable of maintaining communication with the appropriate air traffic control unit; and

(...)

"Flight visibility" is defined in section 101.01 of the CARs:

"flight visibility" means the visibility forward from the cockpit of an aircraft in flight

Section 8.5 of the Aeronautics Act provides:

No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

ISSUES AND FINDINGS

There is no question that the Respondent operated an aircraft in VFR flight through controlled airspace, that is, through the Victoria Harbour control zone, with flight visibility of less than three miles. However, section 602.117 of the CARs allows operation in controlled airspace under special VFR flight notwithstanding paragraph 602.114(b), provided certain conditions are met. I must therefore determine whether the Applicant has proven on a balance of probabilities that the Respondent failed to meet the requirements of section 602.117.

In making my determination I have given no weight to either Exhibit D-5, Mr. Hickey's flight report, or Exhibit D-6, Mr. Devlin's notes. Exhibit D-5 is hearsay evidence, and Mr. Hickey was unavailable for cross-examination on his report; therefore, I could not consider it to be reliable evidence. I did not rely on Mr. Devlin's notes because he gave direct evidence regarding the flight. Also, these notes were prepared just a day before the hearing, so could not add to the direct evidence nor assist me in assessing the other evidence presented at the hearing.

  • 1) Did the Respondent obtain special VFR clearance to fly through the Victoria Harbour control zone?

Section 602.117 of the CARs allows an aircraft to be operated in special VFR flight within a control zone notwithstanding paragraph 602.114(b) provided, among other things, that authorization to do so has been requested and obtained from the appropriate ATC unit.

Mr. Bachinsky testified that Mr. Devlin told him on September 4, 1997 that he had not required special VFR clearance to fly through the Victoria Harbour control zone because the weather was reported VFR. However, in cross-examination, Mr. Bachinsky admitted that he could not recall if on September 4, 1997 he had actually asked Mr. Devlin if he had requested special VFR flight, though he did recall asking him about the weather.

The Respondent testified at the hearing that he did obtain special VFR flight clearance.

No official weather reports from the Pacific Weather Centre were put into evidence regarding the reported weather at Victoria Harbour at the time of the flight. However, the Respondent testified that the fax (Exhibit D-2) from the Victoria Harbour FSS accurately transcribes the weather as reported to him by the Victoria Harbour FSS while he was enroute to the Victoria Harbour control zone. That exhibit shows a ceiling of 300 feet. According to Mr. Bachinsky's evidence with respect to special VFR flight practices, if the Respondent had proceeded into the Victoria Harbour control zone without special VFR flight clearance with such reported weather conditions, one would expect that an infraction report would have been filed. No such report was filed in this case.

In submissions, the Applicant advised me that the relevant air traffic services (ATS) tapes had been requested and that the Applicant had been advised that the tapes were secured. However, it was later realized that the wrong tapes had been secured and, at that point, the appropriate tapes had been re-recorded over. Thus, through no fault of the Applicant, there were no ATS tapes to confirm or dispute the Respondent's evidence that he had received special VFR flight clearance. Radar tapes were similarly lost.

Considering all the evidence on this point, I find on a balance of probabilities that the Respondent had requested and obtained special VFR flight clearance to operate the flight through the Victoria Harbour control zone.

  • 2) Did the Respondent maintain during the flight the required one mile flight visibility?

Section 602.117 of the CARs also requires that in order for an aircraft to be operated in special VFR flight in a control zone, notwithstanding paragraph 602.114(b), the flight visibility must be not less than one mile.

Mr. Ogden testified that from his passenger seat, he observed that the visibility was as low as ¼ to½ mile in the area of the Trial Islands. However, Mr. Ogden also testified that the environment in this area was homogenous. His evidence was that he lost sight of land at Gordon Head. He did say that he saw a green and white buoy and a small rock or outcropping before seeing the houses west of the Trial Islands. However, I am able to infer from his evidence that he had little reference from which to accurately estimate visibility in the golf course and Trial Islands areas.

Further, Mr. Devlin's evidence was that he thought he had at least one mile visibility. In cross-examination, he said the minimum visibility was in the golf course area. He said he first saw the Trial Islands after descending to 150 feet coming up on the golf course. He thought that the Trial Islands were probably more than a mile away at that time but he did not know. Also, when asked what the definite visibility was that he observed in the golf course and Trial Islands areas, he said he could see from a shoal abeam the Oak Bay Marina to the Trial Islands. However, he did not say what that visibility was in statute miles.

There is no reported weather available from the Trial Islands area. The weather for the Victoria Harbour is observed from some distance away. The most relevant PIREP filed by a pilot other than the Respondent indicates merely that the visibility in the area was "marginal." The PIREP previous to that, filed some 40 minutes prior to the flight's passage through the Trial Islands area, reports visibility of 3 to 4 miles. There is no PIREP stating that the visibility in the area was less than one mile. In cross-examination, Mr. Devlin said that during the flight, a northbound pilot had advised him by radio that "it was passable."

The definition of flight visibility in the CARS is plain. It means the visibility forward from the cockpit. Mr. Devlin was the only witness who could observe the visibility forward from the cockpit.

Considering all the evidence on this point, I find on a balance of probabilities that the Respondent maintained the required visibility of one mile throughout the flight.

  • 3) Did the Respondent operate the aircraft clear of cloud and with visual reference to the surface at all times?

Section 602.117 of the CARs further requires that in order for an aircraft to be operated in special VFR flight in a control zone, the aircraft must be operated clear of cloud and with visual reference to the surface at all times.

No evidence was put before me as to whether the aircraft was operated clear of cloud. However, in cross-examination Mr. Ogden said that he had thought the pilots had lost visual reference.

Mr. Devlin testified that he and his co-pilot thought that while flying through the Victoria Harbour control zone, they remained in sight of the ground. He said they observed the weather to be within the parameters of their special VFR flight clearance. In cross-examination, his evidence was that in the area of minimum visibility, the golf course area, they could see the shoreline. Also in cross-examination, he said that after he descended to 150 feet and lost sight of the golf course, they could then see from a shoal off the golf course abeam Oak Bay Marina to the Trial Islands.

Mr. Ogden's evidence was that he lost reference to land at Gordon Head, but he did not say that he lost reference to the water surface.

Mr. Devlin admitted that while flying through the area of lowest visibility, he had his head in the cockpit. He did this so that he could maintain control of the aircraft in conditions of reduced visibility over calm water under which a pilot can get disoriented. He also admits he used the GPS as an aid to visual navigation. However, his evidence was that his co-pilot maintained visual reference with the ground for him, navigating visually and confirming what Mr. Devlin, as the pilot flying, was doing. Mr. Devlin describes this as an application of CRM techniques whereby one pilot can concentrate on flying the aircraft while the other focuses on navigation. In effect, Mr. Devlin is saying that he used the eyes of his co-pilot to ensure that the flight remained safe and within the parameters of section 602.117 at all times.

I am satisfied from the evidence that the flight was operated clear of cloud and with visual reference to the surface at all times.

  • 4) Did the Respondent exercise due diligence to prevent the alleged contravention?

Given that I have found that the Respondent had special VFR flight clearance and otherwise operated within the parameters of paragraph 602.117, I need not decide this point. However, evidence was tendered by both parties as to whether the Respondent conducted his flight in a wise manner. In his submissions, the Applicant pointed out that Mr. Ogden's evidence was that the weather gradually deteriorated throughout the flight. The Applicant submitted that the Respondent should not have been trapped by unsuspecting flight conditions, such as those encountered by the flight in the Trial Islands area.

The aircraft journey log shows that within an hour and a half prior to operating the flight through the Victoria Harbour control zone, the Respondent had completed a flight from Victoria Harbour to Vancouver. While flying through the Victoria Airport control zone, Mr. Devlin got the latest Victoria Harbour weather from the Victoria Harbour FSS. This weather included reported visibility of three miles. Also during the flight, Mr. Devlin got a report from a northbound pilot who said it was passable. Mr. Devlin considered turning around while within the Victoria Airport control zone, but based on the information he had gathered, he made the decision to continue. Entering the Victoria Harbour control zone, he could see the golf course about three miles away. Mr. Devlin's evidence is that conditions deteriorated at the golf course, well inside the control zone. He slowed the aircraft and configured it for landing, but he then decided that turning around or landing were not options in the circumstances. Shortly thereafter, the weather did improve, as expected, and he landed the aircraft uneventfully in the Victoria Harbour.

I am satisfied that if I had had to decide the point, I would have found that the Respondent in this case conducted his flight with all due diligence to prevent the contravention alleged. That is, even if it had been shown that the Respondent did not, in the area of lowest visibility, precisely meet the conditions of section 602.117, in my view the Respondent would not be liable for a contravention of paragraph 602.114(b) because he exercised all reasonable care to stay within the parameters of his special VFR flight clearance and to thereby prevent a contravention of paragraph 602.114(b).

DETERMINATION

I have found that the flight was conducted according to the special VFR flight rule enunciated in section 602.117 of the CARs. Therefore, I have determined that the Applicant, the Minister of Transport, has not proved, on a balance of probabilities, that the Respondent Mr. James Devlin contravened paragraph 602.114(b) of the CARs as alleged in this case. It follows that the assessed penalty of $2,000.00 is dismissed.

Further, had I found that the flight had been conducted outside the parameters of section 602.117, I would have found that the Respondent was not liable for a contravention of paragraph 602.114(b) because he exercised all due diligence to prevent the contravention.

Sandra Lloyd
Member
Civil Aviation Tribunal