Decisions

CAT File No. P-1728-33
MoT File No. EMIS 030883

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Arthur G. Wagstaff, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss. 7.7, 37(1)
Canadian Aviation Regulations, SOR/96-433, s. 602.114(c)

Low Flying, VFR, Controlled Airspace, Cloud


Review Determination
Ken Clarke


Decision: April 6, 1999

I find for Captain Arthur Grant Wagstaff, and dismiss the allegation.

A Review Hearing on the above matter was held Tuesday, March 2, 1999 and Monday, March 29, 1999 at the Toronto Dominion Bank Building and the Sussex Building, respectively, in Victoria, British Columbia.

ALLEGATION

A Notice of Assessment of Monetary Penalty dated November 6, 1998 was forwarded to Captain Arthur Wagstaff by the Minister of Transport.

An attached schedule described the allegation as follows:

Canadian Aviation Regulation 602.114(c) in that on March 10, 1998 at approximately 17:05 UTC at or near Victoria, B.C., you did unlawfully operate a DeHavilland DHC-6 aircraft bearing Registration Marks C-GGAW in VFR flight within controlled airspace when the distance of the aircraft from cloud was less than 500 feet vertically and one mile horizontally.

The total assessed penalty of five hundred dollars ($500.00) was payable on or before December 6, 1998.

BACKGROUND

A telephone complaint led to an investigation by the Minister of Transport. It was alleged two opposite direction IFR (instrument flight rules) helicopters had witnessed a VFR (visual flight rules) Twin Otter (DHC-6) passing through cloud within the Victoria Harbour control zone.

PRELIMINARY MATTERS

In a letter dated February 5, 1999, Captain Wagstaff sought a hearing postponement until the end of April or May. By way of Access to Information he sought reports and complaints that Helijet Airways had filed against DHC-6 operators. I ruled the hearing would proceed on March 2, 1999. In my opinion, there had been sufficient time to prepare an adequate and relevant defence. Subsection 37(1) of the Aeronautics Act "... all such matters shall be dealt with by the Tribunal or members as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit" (my underlining). Counsel indicated at the outset of the hearing they no longer required that information.

The Tribunal received a second request dated February 24, 1999. This was now from counsel for Captain Wagstaff. Reasons given were the unavailability of counsel, counsel's continued attempts to contact witnesses, and response to the above noted Access to Information request. Again I ruled we would proceed as originally scheduled. I noted the Tribunal was not prepared to accommodate counsel who had just been retained a few days prior to the hearing. Moreover, numerous other persons would have been affected and the Access to Information issue had already been dealt with.

There were no other preliminary matters except for the Minister's request for Mr. Reid to remain in the room while other witnesses were excluded. As he had no first hand information in his testimony, was scheduled first, and counsel for Captain Wagstaff did not object, Mr. Reid was allowed to remain.

THE LAW

Section 602.114 of the Canadian Aviation Regulations (CARs):

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

(...)

 (c) the distance of the aircraft from cloud is not less than 500 feet vertically and one mile horizontally; and

(...)

ELEMENTS TO BE PROVEN

Based on the Notice of Assessment of Monetary Penalty, I identified the following elements requiring to be proven by the Minister in order to satisfy his case:

(a) date,

(b) place,

(c) pilot (operator),

(d) operated aircraft registration,

(e) within controlled airspace, and

(f) distance of the aircraft from cloud.

Inspector Hardie and Mr. Goulden made opening remarks to introduce their positions.

FOR THE MINISTER

Inspector Hardie presented himself as the first witness. He detailed his inspection of the events alleged in a telephone complaint on March 13, 1998. Documentary evidence M-1 through M-4 was presented to prove Captain Wagstaff as the pilot-in-command of the only Twin Otter (DHC-6) departure from Victoria Harbour at the time and date of the alleged incident. Inspector Hardie testified the flight crew said they had no recollection of any unusual events during the week in question.

During cross-examination it was revealed the radio tape recording had been secured but the radar tape was not available. Different agencies were involved for the separate tapes, and there was also a time discrepancy involved.

Mr. Reid was qualified and accepted as an expert regarding "airspace." He identified controlled airspace around Victoria on a Vancouver VTA (VFR Terminal Area Chart), submitted as Exhibit M-5.

Mr. Howes, a Flight Service Specialist at Victoria Harbour, described his normal duties and the events surrounding the time of the alleged incident in question. He testified, and marked on M-5, a visual interruption in the "celestial dome" of as much as seventy degrees due to buildings. He continued to testify depth perception is reduced at a distance of three to five miles, and at that distance one could not tell whether an aircraft was going into or behind clouds. A past incident was described where an aircraft was clear of cloud but appeared to be in cloud. It was testified that from 1623 until 1713, Mr. Howes handled at least six other aircraft, and there were no reports of difficulties regarding clouds. He described the usual routes flown by West Coast Air. A weather record was submitted as Exhibit M-6. Mr. Howes said he could not determine where the three-tenths of cloud existed. A transcript of a radio tape was received as Exhibit D-1. Cross-examination revealed Mr. Howes had no first hand knowledge of the alleged incident.

Due to witness time constraints, it was mutually agreed to allow the next witness to testify on behalf of Captain Wagstaff. In the interest of continuity in this decision, I have included that testimony, being that of Captain Clayards, first for the document holder.

Captain Liscombe was next called to testify. He identified himself as one of the inbound helicopter pilots on the day in question which he stated to be March 16, 1998. Photocopies were submitted as Exhibits M-5 and M-5A. Captain Liscombe then proceeded to mark his position indicating a passing of one thousand feet and commencement of climb to five thousand five hundred feet. He testified he knew from the inbound trip the cloud stopped north of Trial Island (Vancouver side). He received a radio call from an opposite direction company flight that reported seeing a Twin Otter entering cloud. Captain Liscombe testified being approximately six minutes into his flight and manoeuvring his aircraft for a better view. He said he saw a Twin Otter on top of the clouds, an estimated three to five miles away. Exhibit M-5A was marked to show the approximate position of the Twin Otter. He stated seeing no holes in the cloud, and there was no reference to the earth, thus making depth perception difficult. The Twin Otter's registration marks were not seen. Although there were no specifics, it was stated other aircraft had climbed through the clouds.

Both parties listened to a real time radio tape re-recording of the time surrounding the alleged infraction. The tape was of all transmissions and receptions made on the mandatory radio frequency. Inspector Hardie had submitted a written transcript into evidence of that same recording. Due to the somewhat difficult understanding of what was being said, minor corrections were made to the transcript and recorded. There was no contest to these corrections. The outcome of this hearing was not influenced or affected by those minor modifications.

First Officer (F/O) Phil Sevensma was next called to testify for the Minister. At the time of the alleged incident he was the F/O of the inbound "reporting aircraft." He testified his flight was VFR and had not entered cloud on descent. Further testimony evidenced his flight was at seven hundred feet, north of Discovery Island, when he saw the flight in question. F/O Sevensma stated the aircraft was coloured white with blue trim and was seen to depart the harbour. The sighting was reported by radio to the flight service station (FSS). Testimony continued, the Twin Otter entered cloud when approximately three miles distance from F/O Sevensma's flight.

On cross-examination, F/O Sevensma stated he had not made reference to aircraft colour in the incident report he completed after landing. He also acknowledged the Twin Otter was seen northbound but had not included that in his statement. F/O Sevensma confirmed he had mentioned cloud at twelve hundred feet, but not that it was seven tenths coverage. He further testified he had not flown over the same area as the Twin Otter; and it was difficult to verify if the other aircraft was at a different altitude, or to differentiate if an aircraft was in or behind cloud. On re-direct, F/O Sevensma testified the incident report was completed for safety and not punitive reasons. He also said the Twin Otter did not appear to go behind cloud.

OBJECTION AND AFFIDAVIT

Mr. Goulden strongly objected to my acceptance of a sworn statement from Captain Steve Toews. I noted his concern and overruled the objection. Furthermore, I said, the Minister had presented the witness in good faith on day one of this hearing. Unfortunately time did not permit his testimony that day, and he is now flying in Asia. I said his submission would be given due weight, and reminded Mr. Goulden this was an administrative hearing. The document was entered as Exhibit M-10.

The affidavit from Captain Toews is notarized. His statement does confirm the routing Captains Wagstaff and Golinowski swear they flew on the day in question. The critical distance of the aircraft from each other is not consistent with other testimony, and in particular, that of F/O Sevensma who was operating with Captain Toews. Generally the statement supports testimony by other witnesses for both parties, and does not provide any significant new revelations. I prefer the testimony of attending witnesses. I have given this document little weight as the inconsistencies with other testimony cannot be cross-examined. Subsequently, the statement by Captain Toews has not changed the outcome of this hearing.

FOR THE DOCUMENT HOLDER

I was particularly impressed by the credibility of this next witness, and the fact he was employed by a third competing carrier on the same route. He appeared to be so confident in his answers he twice had to be slowed down for the benefit of the reporter.

Captain Clayards testified as to his considerable experience. He described routings and minimum altitudes used in the area. The difficulty identifying an aircraft at a distance of three to five miles was stated in testimony. As well, Captain Clayards explained under oath it was "almost impossible" for an individual to discern at that distance if an aircraft was behind or in cloud. To illustrate his point of depth perception, a distant flag was identified through the window. Inspector Hardie, Mr. Goulden, and I agreed we were looking at the same object. Captain Clayards then testified he estimated it to be one mile away. In closing, Captain Clayards testified he had always known Captain Wagstaff to be a professional pilot. In cross-examination Captain Clayards testified there was never any deviation from policy regarding arrivals and departures at the subject aerodrome.

Captain Wagstaff was next sworn. He testified as to his job function as Chief Pilot with West Coast Air and his experience. He then described the company departure procedure (Exhibit D-3), and alternate procedure (Exhibit D-4). Captain Wagstaff explained the company weather checking procedure and that his was the second flight to Victoria that day; and also that he had just come from Vancouver. An explanation of the earth's non-uniform heating and the relationship to cloud formation was made. I took judicial notice of the nature of stratocumulus cloud. Captain Wagstaff stated the cockpit crew are afforded the best view regarding clouds encountered. He then testified how flying less than two thousand feet over the city would be "cutting their own throats,"and no complaint calls were made. He continued to explain the departure followed on the day in question; and that he was the non flying pilot on this particular flight. In the testimony of Captain Wagstaff, a particularly significant point was raised; that is how approximately seven other flights "went to terminal, indicating no weather problem." He explained how changing to terminal radio frequency is not mandatory until a higher altitude. Further, he testified, flight into cloud is undesirable from a customer comfort perspective, and the importance of keeping this particular market happy. Exhibit D-5 was submitted which describes the altitudes specified in the Water Aerodrome Supplement. It was further testified that Captain Wagstaff's employer had requested the radar tapes. Finally, it was said in testimony, one cannot tell whether another aircraft is in or behind cloud.

Inspector Hardie cross-examined Captain Wagstaff rather thoroughly including the point no other Twin Otters were seen at the time. He then explored what piloting response could be expected under various weather conditions. The official observation was confirmed as seventy percent. The point was revisited that weather is different in the vicinity of buildings, and would account for different pilot and FSS observations. With reference to D-1, Captain Wagstaff said he was not where he was alleged to be. Referring to D-5, which requires an altitude above the reported first cloud base, he stated other traffic did not have difficulty in compliance. Captain Wagstaff also said that the first reporting helicopter was converging with fifteen hundred feet difference and at three miles, while the other aircraft had probably ten seconds to look, locate, and to know what was transpiring. On re-direct, Captain Wagstaff testified he was at two thousand two hundred feet.

Captain Golinowski testified he was the operating first officer on the flight in question. He did say he had not seen D-3 previously, but the route depicted was preferred and had been flown on March 10, 1998. He confirmed the previous testimony of Captain Wagstaff. Under cross-examination, Captain Golinowski said he was able to remember the flight in question because they had flown at twenty-five hundred feet all day, and if they had been at thirty-five hundred they would have been communicating with Vancouver Terminal. On redirect, the route flown was confirmed with certainty. This witness also impressed me by his credibility.

VIEWING

Inspector Hardie, Mr. Goulden, the official reporter, and I travelled around the harbour to a location adjacent to the FSS. When an approaching aircraft was first seen, I asked both parties the distance. Inspector Hardie estimated two miles, and Mr. Goulden suggested one to two miles. Both men agreed the colour of the aircraft was indistinguishable when first seen. The background to the aircraft was a cloud overcast. As the aircraft came closer for a landing nearby, we were able to see it was a Twin Otter, white with blue trim. Weather appeared different over the water than over the city.

SUMMATION

Inspector Hardie reviewed the elements as made out. He did acknowledge the lack of first hand witnesses and the expertise of Captain Clayards, but did note the certainty of cloud entry by witnesses testifying for the Minister.

Mr. Goulden summarized by stating Captain Wagstaff was not required to "take charge" of the flight, was alleged to be north when he was eastbound, and suggested Captain Liscombe's testimony has little credibility. He also reviewed the positive testimony, and stated that due diligence had been exercised as all reasonable steps had been taken as evidenced by the preferred witnesses for Captain Wagstaff. Of special interest, he reminded the Tribunal of the requirement to be two thousand feet over the shoreline.

ANALYSIS

A conflicting date had been testified to by Captain Liscombe, but others have corrected that. There is also a real possibility another aircraft may have been reported. However, on the balance of probabilities, I accept it was Captain Wagstaff's aircraft that was sighted. In consideration of the testimonies made regarding the witnesses' distance from the alleged event, the significant point of difficulty judging cloud entry, depth perception, and official weather reported, I am satisfied one cannot say if the flight entered cloud with certainty unless one were there. The official weather observation provided the ability to avoid cloud below seven thousand feet. There was no evidence of a PIREP (pilot report) stating the weather was different from reported. During the period surrounding the alleged breach of regulations the weather was rapidly improving. I am convinced weather can be very different at two different yet close positions. This was evidenced during the viewing. Weather was apparently different over the water than over the city. Another significant point in favour of Captain Wagstaff is the operation or intended operation of several other VFR flights above the lower cloud base close to the same time. Exhibits D-1 and M-1 record at least three other aircraft operating or planning to fly above the first reported cloud layer. I believe that a Chief Pilot would not blatantly violate the law in such a dangerous manner, especially in front of his first officer, otherwise he/she should not be in that position. In consideration of the above and evidence on record, I find the Minister has not made out all the elements of the allegation since he has not proven the distance from cloud to be less than that prescribed.

DETERMINATION

I find for Captain Arthur Grant Wagstaff, and dismiss the allegation.

Ken Clarke
Member
Civil Aviation Tribunal