Decisions

CAT File No. A-2177-33
MoT File No. 5504-042560

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Dale Robert Langthorne, Respondent

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

Failure to Appear at Hearing, Low Flying


Review Determination
Ronald E. McLeod


Decision: March 9, 2001

I feel that the Minister's case has been proven. Mr. Langthorne was in violation of paragraph 602.14(2)(b) of the Canadian Aviation Regulations, and the assessed monetary penalty of $250.00 is warranted. The payment shall be made payable to the Receiver General for Canada and received by the Civil Aviation Tribunal within fifteen days of service of this determination.

A review hearing on the above matter was held Monday, February 19, 2001 at 10:00 hours at the Federal Court of Canada in the city of Halifax, Nova Scotia.

BACKGROUND

The Notice of Assessment of Monetary Penalty in this matter states:

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 Regulations, s. 602.14(2)(b), in that on or about the 17th day of August, 2000, while at or in the vicinity of Williamswood, in the province of Nova Scotia, and while acting as pilot in command of an aircraft, to wit: a Cessna 172M bearing Canadian registration marks C-GXVU, you did operate the aforementioned aircraft at a distance of less than five hundred feet from persons and/or structures.

A monetary penalty of $250.00 was assessed.

The hearing was scheduled to commence at l0:00 hours but was delayed to 10:15 hours to allow for the appearance of the Respondent Mr. Dale Robert Langthorne. Mr. Langthorne failed to appear for the hearing. Nevertheless, the hearing did proceed as the burden is on the Minister to prove the case.

All witnesses were sworn prior to giving testimony.

MINISTER'S CASE PRESENTATION

The first witness called was Mr. Larry Powell. Mr. Powell stated that he resided in Williamswood, Halifax County, Nova Scotia. On the night of August 17, 2000 at approximately 9:30 to 9:45, after it had gotten dark, he was standing in the doorway of his home when he first heard and then saw lights overhead coming towards the home. He could identify a white and a green light from a small aircraft. The engine noise was quiet as the plane passed overhead with the engine becoming louder once the aircraft had passed overhead. He stated that the aircraft was so low that he could see the wheels hanging down from the aircraft. He estimated that the aircraft was approximately 150 to 200 feet above the height of his home. He based his estimation on a neighbour's television aerial which is approximately 60 feet in the air and felt that the plane was two times higher than this. He stated that once the aircraft passed overhead the engine noise became louder and the aircraft made a hard right turn and proceeded on its way gaining altitude as it flew towards the Northwest Arm (a body of water between the Halifax Peninsula and Spryfield).

The next witness was Mrs. Tracy E. Powell who lives at the same address. She stated that on the night in question, August 17, 2000, she was inside the home when her husband yelled to her to come to the door to see this low approaching aircraft. She observed an aircraft which was quite low as it passed over their home so low that it woke their daughter from sleep. She stated that she was not exactly certain of the height of it but was certainly less than 500 feet. She stated she was concerned for her family's safety and was also concerned about the occupants in the aircraft as she felt it was so low she was worried it was in danger of crashing and because of this she dialed 911 and spoke to the nearest RCMP detachment at Tantallon, Nova Scotia.

Constable Phillip MacLellan, RCMP, testified that on the evening of August 17, 2000 at approximately 21:49 hours a call was received from Mrs. Tracy Powell which had been routed to them from 911. Entered in evidence at this time was Exhibit M-1 which was an RCMP incident report which had been faxed to the Transport Canada Enforcement Branch outlining the phone call they had received from Mrs. Powell about the complaint of a low flying aircraft. The call was received at the RCMP detachment at approximately 21:49 and Constable MacLellan estimated that the call to 911 would have been made two to three minutes prior to that which established the time of Mrs. Powell's call to 911 at approximately 9:45 p.m. local time.

Mr. Alan Coomber, Aviation Enforcement Inspector, Department of Transport, identified a preliminary report labelled as Exhibit M-2 which is a summation of a narrative given to the RCMP by Mrs. Powell. (Complainant stated to RCMP Tantallon Detachment that aircraft flew low over her house. The estimated altitude was 20 feet above their house. The aircraft was so low that cars stopped to look at it. It was a single engine aircraft and the engine was sputtering as it headed towards Shearwater.)

Mr. Terrill (Terry) Thompson, Civil Aviation Safety Inspector, Department of Transport, testified that he was the main investigating officer in this complaint. He stated that as the area adjacent to the Powells' home is a training area and the only Flying Club operating in the region is the Shearwater Flying Club. He contacted the Shearwater Flying Club and spoke to a flight dispatcher and asked if they had any aircraft in that region at that time of day. They stated yes, there was one aircraft in the region that was conducting training at that time, and the pilot-in-command was Mr. Dale Langthorne.

He then spoke with Mr. Langthorne who admitted that he was in that general area during that time period. Mr. Langthorne stated that he departed Shearwater at 21:18 hours local and returned at 22:37 hours local. He was teaching night flying to a student named Matthew Bradbury and he was showing him what a forced landing would look like at night. When asked at what altitude he overshot, he said at about 400 feet above ground level. When asked if he could remember what the altimeter reading was he said "no". This conversation was submitted as Exhibit M-3. Also submitted at this time was a document detailing Mr. Langthorne's aviation licences and credentials showing that he held a commercial pilot licence for single and multi-engine, an instructor rating Class 3, an instrument rating Group 1, and was medically fit. This was submitted as Exhibit M-4. A photocopy of the Shearwater Flying Club's daily log for August 17, 2000 was then submitted as Exhibit M-5. It was pointed out by Mr. Thompson that this identified the flight in question with Mr. Langthorne and the student Bradbury. It shows the times as up at 0018z and down at 0137z. It was agreed that these were probably zulu times and would correspond to local time of 9:18 p.m. to 10:37 p.m.. Air time was 1.3 hours, total time was 1.6 hours and this was also entered under the night column. This was submitted as Exhibit M-5. Submitted as Exhibit M-6 by Mr. Thompson is a photocopy of a certificate of registration for one aircraft C-GXVU, 172M owned by the Shearwater Flying Club. Submitted as Exhibit M-7 were photocopies of the local weather at that time as well as an activated flight plan for C-GXVU.

I asked Mr. Thompson why he contacted the Shearwater Flying Club as an initial attempt to identify the plane and the pilot. He stated that there was only one active flying club in that region, the Shearwater Flying Club. The area adjacent, across the road from where the Powells live, is a training area and it would sound from the type of incident that this was most likely a training flight and the most logical place to begin would be the Shearwater Flying Club. The fact that they had a plane in the area at that time carrying out night training and the admission by Mr. Langthorne that it was probably his aircraft responsible for the low flying, contributed to his belief that they had adequately identified the aircraft and the pilot. When asked whether any further attempt was made to identify any other aircraft in the region, he stated that no other attempt was made as he was fairly confident that the proper identification of aircraft and pilot had been made.

Offered by Mr. Thompson as Exhibit M-8 is a typed telephone conversation which he had with Mrs. Tracy Powell on August 23, 2000:

Spoke with Tracy ref case and she confirmed that it was pitch dark when the incident occurred. Her husband was out on the back deck at the time and seen the aircraft coming down. There were also three vehicles that stopped on the road. She said the aircraft woke her six year old daughter who was sleeping upstairs and she started crying. She said there is a what they call 'barrens' just across from their residence (perfect place to practice forced landing into) and the aircraft levelled off right over the barrens and travelled a ways down the field before it climbed away. Her husband stated that he could clearly make out that it was a single engine aircraft and that it was so low he could see the wheels even at night because their back yard is lit up by a security light. I asked her if she would be willing to testify if required and she said she would but her husband would be the best witness. I asked if she thought that he would be willing to testify and she stated she thinks so and she will check with him and call me back. His mother also witnessed the event and may be willing to give a statement. Husband works for Sambro fisheries offices.

Exhibit M-9, text of a telephone call in which arrangements were made for Mr. Powell to meet with Mr. Thompson.

Introduced as Exhibit M-10, is a photocopy of an interview that Mr. Thompson conducted with Mr. Powell on August 25, 2000. Mr. Powell indicated that he would be willing to testify at a Tribunal hearing if needed. He stated that on the evening of August 17, 2000 he witnessed an aircraft fly overhead his personal residence at 3057 Old Sambro Road. The aircraft came from the southeast heading towards the northwest and passed over his home at approximately 150 feet, plus or minus 50 feet. It was dark at that time but they do have an outside security light in the backyard which does provide lighting around the home. He stated that as the aircraft passed over the home the engine was operating but it was more like the sound a car would make with no muffler and as he passed over the top of the house he added power, and the engine became a lot louder causing his six-year-old daughter to wake from sleep. Mr. Powell said that, not only himself but also his wife and mother observed the aircraft as it passed over their home.

Mr. Thompson introduced a series of photos that he took of the Powell residence showing both the front and the back of the home as well as the adjacent area. Using the photographs, Mr. Thompson was able to point out the direction that the aircraft took as it passed over the house.

Mr. Thompson then asked to introduce Exhibit M-12 which is a copy of a telephone conversation that he had with Mr. Langthorne on August 30, 2000. In that conversation Mr. Langthorne stated that he was in agreement with the Canadian Aviation Regulations (CARs) because he was an authorized flight instructor and according to subparagraph 602.15(2)(b)(iv) of the CARs he was entitled to fly lower than the 500 feet for the purposes described. Mr. Thompson stated "I told him that I didn't disagree with this provided he did not create a hazard to person or property." Mr. Langthorne then stated that he would provide a written statement within the time frame allowed in the letter.

Submitted as Exhibit M-13 by Mr. Thompson was a conversation he had with Mr. Mike Whorley, Safety Inspector for Transport Canada, in which he asked Mr. Whorley as to whether it was prudent to be conducting night training for forced approaches. Mr. Whorley stated that it was certainly not prudent and that they would not condone such an action. It is simply not standard practice to teach students forced approaches after dark.

Exhibit M-14 is a letter received by Mr. Thompson from Mr. Dale Langthorne dated September 23, 2000. In that letter Mr. Langthorne admitted that, on the evening of August 17, 2000, he was conducting a training flight with a student beginning his night rating training. He stated that during the first flight of all night ratings he liked to introduce the student to all the emergencies that could possibly happen to them and the differences between night and day and what limited options were available. Mr. Langthorne stated that they did do a forced approach in the training area and the aircraft did descend to approximately 500 feet at which time he asked the student to apply power and do an overshoot, but admitted in the letter that by the time the aircraft had begun to climb it may have descended another 100 to 150 feet.

Mr. Mike Whorley, Safety Inspector for the Department of Transport, stated that his responsibility was flight training in the Atlantic Region. When asked a question regarding training areas he stated that it was not his responsibility to approve training areas used by local flying clubs. Offered as Exhibit M-15 is a copy of a Flight Instructor Guide[1] for aircraft, in particular Exercise 25, Night Flying. Mr. Whorley highlighted number (2) in the advice to instructors which states that when teaching emergency procedures, do not create situations that add risk to the flight. In other words, do not practice accidents. He also highlighted the section on Instruction and Student Practice number (l)(d) which is:

(1) Demonstrate and have the student practise simulated emergency situations including:

[...]

(d) Forced landing procedure while in the circuit;

Mr. Whorley also emphasized that it was not necessary to descend below 500 feet while doing a practice forced approach.

SUMMATION

Mr. Miles, on behalf of the Minister, summed up his case by stating that on balance Mr. Langthorne was in violation of paragraph 602.14(2)(b) of the CARs and warranted a monetary penalty. He stated that both Mr. and Mrs. Powell gave testimony that indicated on the night of August 17, 2000 a small single engine aircraft passed low over their home at probably less than 200 feet altitude. Subsequent investigation by Mr. Coomber and Mr. Thompson lead to the identification of the aircraft and the identification of the pilot-in-command as Mr. Dale Langthorne. Mr. Langthorne, in both a telephone conversation with Mr. Thompson as well as a written letter, indicated that it was most likely his aircraft that flew low over the Powells' home on the night in question. Mr. Langthorne felt that as the flight was a training flight that under subparagraph 602.15(2)(b)(iv) that he was allowed to descend below 500 feet. Mr. Miles stated that this is only applicable if the aircraft in question does so without causing a hazard to persons or property on the surface. As Mr. Miles stated, an accident does not need to occur for the hazard to exist.

DISCUSSION

It is unfortunate that Mr. Langthorne, or his student pilot Mr. Bradbury, chose not to attend the hearing.

Certainly the onus is on the Minister to prove that the violation did occur and the monetary penalty is warranted. The testimony of Mr. and Mrs. Powell confirm that there was an aircraft that flew very low over their home on the night of August 17, 2000. The actual altitude of the aircraft cannot be determined as there is some question as to the height of the aircraft but the general consensus of testimony is that the aircraft was probably at no more than 200 feet above ground level.

Although there was only limited investigation as to the identity of the aircraft, the flight log for C-GXVU shows that aircraft was in the immediate area at the time of the low flying incident. The pilot-in-command of that aircraft has been established as Mr. Dale Langthorne. Mr. Langthorne has admitted, both through a telephone conversation that was recorded by Mr. Thompson as well as in a written letter signed by himself to Mr. Thompson, that most likely the aircraft was the aircraft he was in command of and, yes, it is possible they did descend below 500 feet although they were engaged in a training procedure.

As pointed out by both Mr. Thompson and Mr. Whorley, training for forced landing approach at night should only be done in an airport circuit and not off the circuit. The fact that Mr. Langthorne allowed this type of training to be done off the airport exposed not only himself but also the student pilot as well as anyone on the ground to an unnecessary risk. As Mr. Whorley stated, it is not necessary for a training procedure to be carried out at less than 500 feet of altitude and it would appear that during this training procedure the aircraft did descend below an altitude of 500 feet.

For the above reasons I feel that the Minister's case has been proven. Mr. Langthorne was in violation of paragraph 602.14(2)(b) of the CARs, and the assessed monetary penalty of $250.00 is warranted.

Dr. Ronald McLeod
Member
Civil Aviation Tribunal


[1] Published by Transport Canada, TP 975.