Decisions

CAT File No. P-2061-33
MoT File No. EMS - 041429

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Arnis Albert Veideman, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)b)

Low Flying, Helicopter, Expert Witness, Due Diligence


Review Determination
William Thornton Tweed


Decision: January 4, 2001

On a balance of probabilities the Respondent did not contravene the Canadian Aviation Regulations as alleged. The monetary penalty assessed by the Minister is cancelled.

A Review Hearing on the above matter was held Friday, October 13, 2000 at 09:00 hours at the Kelowna Law Court in Kelowna, British Columbia.

DISCUSSION

It was admitted by the Respondent that he was, on March 29, 2000, the pilot-in-command of a Bell 212 aircraft Canadian registered C-GAHO (AHO) and that he was flying the aircraft in the area of the alleged offence. The area was known as the "Blanket Ridge" area of the Monashee Range, British Columbia, more precisely described as the ski area known as the "Vortex."

EVIDENCE

The Tribunal heard evidence from three skiers and a guide that AHO flew over the area referred to as the "Vortex up track" on several occasions throughout the day. The three skiers all felt that AHO was flying at approximately 100 feet above the mountain slope. The guide said he could not determine the altitude of AHO from his vantage point.

One witness said AHO flew directly over his head on two occasions. The second witness said AHO flew over his head on three occasions. The third witness, a former safety officer in the oil exploration activities, said he was familiar with helicopter operations, considered the operations of AHO on the day in question unsafe, estimated the helicopter was 50' to 100' above the mountain slope, and indicated AHO flew directly over his head on several occasions. On the strength of that evidence I find that the helicopter AHO was operated at a distance of less than 500 feet from a person as it climbed to the top of the ski runs to disembark its passengers.

I do not accept that the operation was unsafe as alleged. In saying that, I acknowledge and respect the testimony given; however, this witness is not an expert on helicopter mountain flying. His opinion is therefore not persuasive.

The Respondent, Arnis Albert Veideman, gave evidence on his own behalf. He indicated that he had accumulated 7,000 hours in Heli-skiing operations and operated in the particular area for ten years.

Mr. Veideman stated that on the day in question there were skiers all over the ski run, including the Vortex up track which is his normal route up the mountain. He further stated that every time he flies to that area he follows the same route as it is in his opinion the only safe route. He also indicated on two occasions that he made an approach to land at a marked site and could not land as there were skiers on the approach. He aborted his landing and went elsewhere to let off his skiers. In both cases he acknowledged he would have passed over the skiers at approximately 100 feet.

Mr. Veideman used the photograph (Exhibit M-4) to explain that he followed the ridge line, staying close to the ridge for safety reasons. This practice gives him a constant visual reference which is essential to maintain reference. He advised that in that area all landing sites and approaches were marked with flags to provide additional reference for the landing.

Mr. Corrigan, a professional mountain guide, was also called on behalf of the Respondent. He confirmed that in the hundreds of times he has been flown in the Vortex area, the helicopter pilots always followed the same route. He cannot recall ever not following the route. He also advised that he was involved in setting out approach landing area flags (red flags on black stakes).

Mr. Jan Paul Rustad was called by the Respondent as an expert witness. He was accepted by the Minister as an expert on flying helicopters in the mountains. His experience was impressive, and I have no hesitation in accepting his expert opinion. Mr. Rustad was not present during the testimony of any of the other witnesses.

Upon examining the photographs of the ski area (M-4), he pointed out what he felt was the only safe route for the area in question, a route that followed the ridges, the same route that all the witnesses said that AHO was following. He explained the reason for the particular route was to maintain good visual reference and the need to avoid the potential for encountering whiteout conditions. He also explained the need to be close to the mountain face, to stay within the "boundary layer" airspace close to the face of the mountain that is less susceptible to winds. He said the wind outside the boundary layer could be significantly different and difficult to predict.

He further stated that flying in the mountains is unlike flying in flat terrain. One cannot take off, climb to altitude, then descend to land on a snow-covered surface surrounded by terrain. He said that if a pilot did that there was a risk that he would lose visual reference resulting in an unsafe situation. The only safe way to operate is to follow the terrain maintaining a constant visual reference. The safe method of operation described by Mr. Rustad matches exactly with the description given by all the witnesses as to the operation of AHO carried out by Mr. Veideman on the day in question.

There was a suggestion, but no evidence, that Mr. Veideman's operations were intended to harass skiers that chose to hike into the area rather than ride in on a helicopter.

THE LAW

Paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs):

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

(i) for aeroplanes, 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane,

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

(iii) for an aircraft other than an aeroplane or a balloon, 1,000 feet above the highest obstacle located within a horizontal distance of 500 feet from the aircraft; and

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

Clearly at least two of the incidences complained of fall within the exception set out in paragraph 602.14(2)(b). The evidence indicates there were at least two circumstances when AHO passed overhead skiers on approach to land. The evidence did not clearly show how many different times AHO flew overhead skiers at less than 500 feet. Based on the evidence there was at least one occurrence when AHO passed overhead of one or more skiers at less than 500 feet when it was not on approach to land. Although on the face that is clearly an infraction of paragraph 602.14(2)(b) of the CARs, the Aeronautics Act provides that if a document holder is duly diligent he is released of the consequences of his or her actions.

The Marsh case[1] defines due diligence as:

'the attention and care legally expected or required of a person.' The determination of what diligence would be due in a specific instance depends on the circumstances that prevail. In routine or normal circumstances, certain actions would suffice as due diligence, but in unusual or exceptional circumstances additional or different actions would be required to constitute due diligence.

The Norris case[2] sets out circumstances that cause a document holder to be relieved of the consequences of a contravention of the CARs:

To succeed with a due diligence defence the Appellant has to prove one or more of the following:

  1. That the document holder took reasonable steps to obtain all relevant information necessary for the discharge of his or her obligations set out in the CARs;
  2. That notwithstanding the document holder's obligations as set out in the CARs he or she was not in control of the events that led to the infraction;
  3. That the appropriate exercise of the authority and responsibility given the document holder did not prevent the infraction;
  4. That the document holder did not have a reasonable opportunity to discover an error made by another document holder from whom he or she accepted responsibility;
  5. That an equipment failure prevented the document holder from discharging his or her duty.

In the circumstances Mr. Veideman was not in a position to control or know if skiers were going to be on the mountain slope along his route. He was not in a position to control the events that led to the infraction. In making this finding, I am not in any way suggesting blame or intent on the part of the skiers. They had no way of knowing the needs of the helicopter operator. It is however clear that but for the presence of the skiers along the route flown by the document holder the operation of AHO on the day in question could have been in compliance with the CARs. At the time of take-off the document holder could not have seen or known that there would be a person on his route. When he discovered the person on his route he could not be expected to alter his route and compromise the safety of his passengers, which according to expert testimony is exactly what he would have done, had he changed his route.

The document holder's obligation to see to the safe operation of the aircraft exceeds his obligation to comply with the regulations.

It is not reasonable to expect, nor mandated by regulation, that the helicopter's operations should have been suspended because the pilot anticipated a skier might be on his required route.

For the reasons given I find that to the extent the flight operations of the Respondent were contrary to the CARs, the Respondent has proven on the balance of probabilities that he exercised all due diligence to prevent the contravention.

DETERMINATION

On a balance of probabilities the Respondent did not contravene the CARs as alleged.

William T. Tweed
Member
Civil Aviation Tribunal


[1] Leslie G. Marsh v. Minister of Transport, CAT File No. C-1095-02, Appeal Determination.

[2] John Henry Norris v. Minister of Transport, CAT File No. W-1931-39, Appeal Determination.


Appeal decision
Allister W. Ogilvie, Samuel J. Birenbaum, Suzanne Racine


Decision: April 5, 2001

We find that the review Member's finding of fact was unreasonable and that he did err in the application and interpretation of due diligence. Therefore, we allow the appeal and reinstate the monetary penalty of $500.00. This amount is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.

An Appeal Hearing on the above matter was held Wednesday, March 21, 2001 at 10:00 hours at the Standard Life Building at Ottawa, Ontario.

BACKGROUND

On March 29, 2000, Mr. Arnis Veideman was the pilot-in-command of a Bell 212 helicopter registered C-GAHO (AHO) flying in the Blanket Ridge area of the Monashee Range, South of Revelstoke, in British Columbia.

The purpose of the flights was a heli-ski operation whereby Mr. Veideman would transport a group of skiers (the heli-skiers) to the top of certain slopes where the skiers would disembark and then ski down the mountain.

Another group of skiers in that area on March 29th accessed the area by skiing in rather than by any mechanized means. These skiers put skins on their skis which enabled them to ascend slopes. The pathway utilized during the ascent is called an up track. At the Vortex location the up track was on the east side of the ski run.

At some points during the day of March 29, while ascending into the area known as the Vortex, Mr. Veideman's helicopter encountered some of the group on the up track. The Vortex up track is also the normal route for the helicopter to fly up that particular slope.

These skiers complained that the helicopter flew in close proximity to them on several occasions, perhaps as low as 50 to 100 feet above them. The complaints led to an allegation by the Minister of Transport that Mr. Veideman had violated paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs):

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

[...]

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

A hearing of that matter was held October 13, 2000 in Kelowna B. C. by Tribunal Member Mr. Tweed. He found that on a balance of probabilities Mr. Veideman did not contravene the regulations stating:

For the reasons given I find that to the extent the flight operations of the Respondent were contrary to the CARs, the Respondent has proven on the balance of probabilities that he exercised all due diligence to prevent the contravention.

From that determination the Minister has appealed on the following grounds:

  1. The Member erred in law in interpreting the law of due diligence;
  2. The Member erred in law in applying the law of due diligence to the facts of the case;
  3. The Member erred in law in interpreting the ratio decidendi of the Norris case, alternatively, [the] Member erred in law in relying on the Norris Case which does not properly state the law of due diligence;
  4. The Member's finding of fact that, 'Mr. Veideman was not in a position to control or know if skiers were going to be on the mountain slope along his route', was patently unreasonable.

REPRESENTATIONS OF PARTIES

Mr. Hector for the Minister of Transport argued that Member's application of due diligence did not correctly reflect the defence as it was enunciated in the seminal Sault Ste. Marie[1] case. Further the Member erred in his reliance upon the Norris[2] case as the restatement of due diligence found in it is not reflective of the definition set forth in Sault Ste. Marie and it should be restricted to the facts of that particular case.

The requirement in Sault Ste. Marie is that due diligence must be directed to avoiding the event rather than the establishment of one or more of the factors enunciated in Norris, according to Mr. Hector.

Mr. Jenner argued on behalf of Mr. Veideman. He asserted that there was no evidence of the flight being unsafe; rather the breach was one of strict liability. The pilot, whose testimony regarding the safe route to the Vortex was confirmed by the expert witness, stated that the route flown was the safe and proper route for a helicopter to climb to the top of the Vortex area.

Mr. Jenner suggests that the defence of due diligence, as stated in Sault Ste. Marie, is the general rule, applicable to all, but the rule for aeronautics is section 8.5 of the Aeronautics Act. It should be applied as it was in the case of Air Satellite[3] in which the air carrier was held to have established due diligence in spite of having flown numerous flights while in contravention of a regulation.

He maintains that the regulation must be viewed reasonably. It would be unreasonable to interpret the regulation as requiring you to put yourself out of business. If Mr. Veideman were forced to move that would force him to be out of business. Mr. Jenner also contends that it is not at all clear that the regulation was meant to be absolute in nature, given its many exceptions.

FACTUAL FINDINGS

The testimony of the witnesses regarding the number of times that the helicopter overflew their party at low altitude varied. However, the Member made a finding of fact that there was at least one occurrence when the helicopter passed overhead of one or more skiers at less than 500 feet when it was not on approach to land. It is this occurrence that was the subject of the review.

DISCUSSION

The issues on this appeal are whether the Member erred in the interpretation and application of the law of due diligence and whether certain findings of fact were unreasonable. We find his finding of fact was unreasonable and that he did err in the application and interpretation of due diligence. Therefore, we allow the appeal.

The hearing Member found that there was clearly an infraction of paragraph 602.14(2)(b) of the CARs on at least one occasion but that the pilot was not in a position to control or know if skiers were going to be on the mountain slope along his route. He further stated that it was not reasonable, nor mandated by regulation, that the helicopter's operations should have been suspended because the pilot anticipated a skier might be on his required route.

The Minister has argued that such finding of fact was unreasonable. We agree with that assertion. Although the evidence of the number of ascents varies, it is clear that the helicopter flew over the up track on several occasions. The pilot and expert witness testified that the route taken was the only safe and proper approach to Vortex area. The helicopter should be flown within the boundary layer, thus necessitating the relatively low altitude above the terrain. The Member found that the pilot when discovering someone on his route could not be expected to alter his route and compromise the safety of his passengers which is what would happen if he did change his route. On the first ascent the pilot could not have known that skiers would be beneath him. On all the subsequent ascents of that afternoon Mr. Veideman knew or should have known that the non heli-skiers were accessing the Vortex via the up track which was situated under his proposed flight path.

The Member found that to the extent the flight operations were contrary to the regulations, the pilot would not be found to have been in contravention as he exercised all due diligence to prevent the contravention.

We were perplexed at the application of due diligence in the circumstance. The Member relied upon the Norris case to set out the circumstances that could cause a document holder to be relieved of the consequences of a contravention. According to the finding in that case, in order to succeed with a due diligence defence the Appellant has to prove one or more of the following:

  1. That the document holder took reasonable steps to obtain all relevant information necessary for the discharge of his or her obligations set out in the CARs;
  2. That notwithstanding the document holder's obligations as set out in the CARs he or she was not in control of the events that led to the infraction;
  3. That the appropriate exercise of the authority and responsibility given the document holder did not prevent the infraction;
  4. That the document holder did not have a reasonable opportunity to discover an error made by another document holder from whom he or she accepted responsibility;
  5. That an equipment failure prevented the document holder from discharging his or her duty.

Mr. Tweed then stated that Mr. Veideman was not in a position to control or know if skiers were going to be on the mountain slope along his route. We take that statement to relate to the second of the circumstances noted in the Norris case above, where it says that notwithstanding the regulatory obligation he or she was not in control of the events that led to the infraction.

We take issue with his findings on two grounds. The offence in the Norris case was an infraction by an air traffic controller of traffic separation standards. We find that due diligence requirements set out in that instance are specific to that case, and are not of general application. A perusal of the case shows that the due diligence described fits the particular factual circumstances of that case alone. In this instance due diligence would be those actions taken to prevent the contravention; that is what was done to avoid having flown within 500 feet of persons on the slope that day.

Secondly if the Norris case were to apply, we do not think that it would relieve Mr. Veideman of the consequence of his actions here. The second proposition states that the document holder could not be in control of the events that led to the infraction. Here the event is the overflight of persons on the slope. Mr. Veideman, after having inadvertently encountered the skiers on his first overflight, continued to make several more flights knowing he would likely encounter the skiers again. He, as the pilot-in-command, was the only one who could control the event.

The concept of due diligence was enunciated in Sault Ste. Marie and codified in section 8.5 of the Aeronautics Act:

8.5 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.

The Shermet case[4] establishes that once the constituent elements of a strict liability offence are proven the onus shifts to the alleged offender to prove that he exercised all due diligence to avoid the commission of the offence.

In this instance the offence is operating an aircraft at a distance less than 500 feet from any person.

We have rejected the finding of Mr. Tweed that the pilot had exercised all due diligence. That begs the question of what the pilot could do in this circumstance to properly engage the defence. The testimony shows that the route utilized was the only safe route for a helicopter to access the Vortex. It also reveals that the helicopter had been engaged in flying the heli-skiers to other slopes during that day. Various testimony shows that weather was not an impediment to flight that afternoon.

To avoid flying within 500 feet of those persons on the Vortex slope, the pilot could have chosen to go elsewhere whether to any other of the adjacent slopes or even return to home base. Mr. Jenner has strongly resisted that option in his arguments.

He insists that to accept that proposal is tantamount to putting the heli-ski operator out of business and that is not a reasonable conclusion. As authority for his argument, Mr. Jenner relies upon the case of Air Satellite[5].

In Air Satellite regulations were being changed so as to require aircraft of a certain description to be equipped with cockpit voice recorders (CVR). The industry resisted the change. Several delays in implementation of the regulations were sought and granted. When it became apparent that the regulation would become effective Air Satellite made arrangements for CVR installation but knew that it could not be accomplished until after the regulation was in effect. The company flew the aircraft during the interim nevertheless. This seems to have given Mr. Jenner the impression that continued operation in the face of obvious contravention was sanctioned. Such is not the case.

The Member found that the behaviour of the Transport Canada inspector liaising with the company led Air Satellite to believe that Transport Canada would tolerate the lack of equipment. This factor was taken into account in assessing the company as being duly diligent. As stated in Sault Ste. Marie, the defence is available if the accused reasonably believed in a mistaken set of facts which, if true, would have rendered the act innocent. In short the company acted with due diligence as it believed that the flights were being made with the tacit approval of Transport Canada, not in defiance of it.

Mr. Jenner also seems to assert that Air Satellite stands for the proposition that, when a company is faced with not operating or operating in known contravention of a regulation (especially if it has a low safety impact), the company is entitled to opt for the latter. The case is not amenable to such an interpretation. The Member made a finding of due diligence even in light of the repeated flights, because of the actions of the Transport Canada inspector liaising with the company. The case does not have the broader proposition which Mr. Jenner argues.

The Aeronautics Act and regulations are designed to promote and enhance aviation safety. The permissible low altitude flight regulations are the epitome of safety regulations. In this instance the object of the section is to keep aircraft at a safe distance from persons (500 feet) on the ground. Although the safe operation of the helicopter and the safety of its passengers was the subject of much testimony, this regulation is in great measure to assure the safety of those on the ground. Scant attention was paid to that.

If we understand Mr. Jenner correctly, he would interpret the regulation as allowing the overflights, as to move the heli-ski operation would be to put it out of business. That argument puts economics over safety and is one with which we whole-heartedly disagree. Further such argument is greatly exaggerated. Mr. Veideman himself testified that in ten years of flying that area he could count on his hand[6] the number of times he had encountered other skiers.

Held: Given the above reasoning we grant the appeal and reinstate the monetary penalty of $500.00.

Reasons for Appeal Determination by:

Allister Ogilvie, Vice-Chairperson

Concurred:

Dr. Samuel Birenbaum, Member
Suzanne Racine, Member


[1] R. v. Sault Ste. Marie [1978] 2 S.C.R.

[2] John Henry Norris v. Minister of Transport, CAT File No. W-1931-39.

[3] Minister of Transport v. Air Satellite Inc., CAT File No. Q-1901-37.

[4] Harry Edward Joseph Shermet v. Minister of Transport, CAT File No. C-1021-02, Appeal.

[5] Air Satellite Inc., supra note 3.

[6] Page 46 of the transcript of the Review Hearing.