CAT File No. Q-0453-33
MoT File No. NAP6504-P371541-24785
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Jerry Wilkins, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Air Regulations, C.R.C. 1978, c. 2, s. 555(1)(d), (2)
Take-off Below Minimum Visibility, Ground Visibility
Decision: October 8, 1995
I dismiss the Minister's allegation and the penalty of $200.00 for the alleged contravention.
The Review Hearing on the above matter was held for the entire day, starting at 10:00 hours on September 21, 1995, and for a part of the day on September 22, 1995, in the municipal hall at the City Hall, in Blanc-Sablon, Quebec.
Jerry Wilkins, a pilot, was accused of having contravened paragraph 555(1)(d) of the Air Regulations on June 16, 1994, at approximately 12:10 hours, when he was acting as pilot-in-command of a Piper PA-31 aircraft, C-GOVZ, by taking off from the Lourdes-de-Blanc-Sablon airport when ground visibility was below the limits specified in the Canada Air Pilot (CAP).
A penalty of $200.00 was assessed. When this penalty was not paid by the deadline (December 19, 1994), a Review Hearing was called. This hearing was initially scheduled for July 6 and 7, 1995 and subsequently postponed to September 21 and 22, 1995.
After the usual introductions, I summarized the allegation, explained the procedures that I planned to follow, and made sure that all the parties agreed to these procedures, including, among other things, the matter of simultaneous interpretation. Some of the witnesses were bilingual, but others were unilingual Francophones or Anglophones.
Mr. John Duff, a certified interpreter who had been sent to Blanc-Sablon by the Tribunal, was introduced. In this regard, all parties were satisfied with the way things went. As the hearing proceeded, I ensured that everyone continued to feel comfortable.
Mrs. Lucie Black acted as stenographer for the hearing.
Lastly, the parties confirmed to me that, with the exception of the documents that preceded this hearing, they had not exchanged any other documents or had any conversations between them.
All of the witnesses affirmed their testimony.
II. Examination of the Applicant's witnesses by the Applicant's representative, Umberto Tamboriello
The Applicant's representative started by saying that there would be 3 witnesses, rather than the 2 announced previously. In fact, there ended up being 4.
First witness : Daniel Loubier
Mr. Loubier is a flight service specialist at the Sept-Îles Flight Service Station (FSS). He was on duty at this FSS at the time of the alleged offence on June 16, 1994 and was in charge of air-ground communications.
The following points emerged from his testimony:
- The services provided by the Sept-Îles FSS are known as airport advisory services. They include providing information on runway conditions, the preferred runway, weather conditions, and other subjects.
The FSS provides this information on request or automatically if the weather is very bad (close to or below minimum required conditions).
- The witness then explained the contents and the purpose of a report entitled "Aircraft Occurrence Report" (Exhibits M-1, M-1A, and M-1B):
- this report is used when a contravention is alleged to have occurred;
- the first line of Exhibit M-1 identifies the aircraft involved in the occurrence as a Piper PA-31, registration C-GOVZ. The seventh column of this exhibit shows that ground visibility reported at Blanc-Sablon at 12:00 hours Universal Time (all times reported are Universal Time) was 1/8 of a mile in fog (symbol "F"); the next-to-last column, headed "INFO", contains the word "yes", which means that the information was transmitted to the pilot;
- Exhibit M-1A summarizes the facts and is signed by the technician, in this case the witness, Mr. Loubier;
- Exhibit M-1B is a copy of the official weather report for Blanc-Sablon for 12:00 hours on June 16, 1994; this report is transmitted to all Flight Service Stations.
- Lastly, the witness confirmed that communication between the pilot and the Sept-Îles FSS was established by radio after the plane had taken off.
In his cross-examination, the Respondent's representative, Jimmy Joncas, brought out the following points:
- Mr. Loubier does his work from Sept-Îles (which is about 600 kilometres to the west of Blanc-Sablon).
- Sept-Îles receives its information about weather conditions in Blanc-Sablon via telecommunication systems.
- At Sept-Îles, ground visibility is reported as follows:
- for runway 09-27, by means of an electronic instrument called the RVR (Runway Visual Range) placed in the axis of this runway;
- for runways 05-23 and 31-13, by means of visual reference markers.
- Here Mr. Joncas wanted to know whether, when ground visibility was close to the take-off limits as published in the CAP for runways 05-23 and 31-13 (where there is no RVR), pilots were authorized to take off after having themselves determined, on the runway, using their own reference markers, that visibility conditions were within the prescribed limits. The witness could not confirm this allegation, because only the control tower and the control centre record their radio communications. However, when the tower and centre are closed, after certain hours, the FSS takes over and establishes communications. Despite this somewhat contradictory fact, the witness was unable to answer the question.
- Lastly, the witness confirmed that weather observations for Blanc-Sablon are the responsibility of Environment Canada, that Environment Canada's observers follow the same procedures as are followed at the Sept-Îles FSS, and that there is no RVR on the single runway at Blanc-Sablon. The same is true for all the other airports equipped like the one at Blanc-Sablon.
IV. Highlights of this witness's testimony
- Following a take-off made from the Blanc-Sablon airport when ground visibility was below the limits specified in the CAP, an alleged contravention was reported by the Flight Service Specialist at the Sept-Îles FSS.
- Communication between the Sept-Îles FSS and the pilot at Blanc-Sablon took place after the take-off.
- The witness could not confirm whether pilots are authorized, from the Sept-Îles airport, to take off from runways where there is no RVR when they are sure of meeting the visibility limits once they are lined up on the runway.
- The weather observations made at Blanc-Sablon are sent to Sept-Îles by telecommunications.
V. Applicant's second witness: André Jones
André Jones is the chief observer at the Environment Canada weather station in Blanc-Sablon. He testified as an expert witness; he was not the observer on duty at the time of the incident on June 16.
Mr. Jones's qualifications were established and accepted by the Respondent and the Tribunal: he has 29 years of experience as a weather observer, has taken Environment Canada courses, takes periodic professional development courses, and so on.
The following points emerged from his testimony:
- Referring to Exhibits M-2, M-2A et M-2B (copies in three sections of a single original report, signed at the hearing at my request), the witness explained the various types of weather reports that are filled out at Blanc-Sablon.
- At 12:00 hours and 12:30 hours on the day in question, Special Reports (identifier: SP) were filled out. Special Reports are completed when the weather is very bad and falls below the prescribed limits for take-offs and landings.
- There are precise criteria that must be met before a Special Report is issued, and an example appears on the drawing submitted as Exhibit M-3. As long as ground visibility, or the ceiling, or both, vary within a block, no Special Reports are issued. But once it goes from one block to another, a Special Report must be issued. Exhibit M-3 is taken from the Environment Canada Manual of Operations. The parties agreed that they did not need to see the original.
- On June 16, 1994, starting at 10:00 hours, the reports were issued in accordance with the criteria just mentioned.
- Next, the witness used a map (Exhibit M-4) to show the location from which observations are made to determine ground visibility, and the positions of the reference markers used for this purpose:
- the observations are taken from the point marked with an X on the map (Exhibit M-4), which is at the west end of the terminal, where the Environment Canada weather station is located;
- if you can see the wind sock alongside runway 05 (read 06 and 24 on Exhibit M-4; the change to 05-23 is recent), then visibility is ½ mile. If you can see only as far as the wind sock alongside runway 23, then visibility is ¼ mile. If you can see only the red Transport Canada gasoline pump opposite the terminal, then visibility is 1/8 mile. (Note that the location of this gas pump and the observation point X were not originally shown on Exhibit M-4; the witness put them there during the hearing.)
- No other reference markers are used for these distances or for any other distances.
- The observer who was on duty on June 16, 1994 and who signed her initials (PH) in the rightmost column of the report (Exhibit M-2B) was then asked to testify. Her testimony was postponed until after lunch.
It was decided that before proceeding with the cross-examination of witness Jones, we would hear from the person who made the observations on June 16, Mrs. Pierrette Dumas-Hobbs.
VI. Third witness: Pierrette Dumas-Hobbs
As mentioned above, Mrs. Dumas-Hobbs was on duty on June 16, 1994, and it was she who took the observations and filled in the report (Exhibits M-2, M-2A, M-2B).
Mrs. Dumas-Hobbs's testimony was brief. She made the following points:
- Around 12:00 hours, ground visibility was 1/8 mile.
- The marker she used to make this visibility observation was the red gas pump opposite the weather station.
- The tower shown on Exhibit M-4 is no longer there (this map is over 11 years old).
- In the rest of her testimony, she confirmed everything that witness Jones had said about the method of making observations, including the distances for ground visibility.
VII. Cross-examination of witness Dumas-Hobbs
The Respondent's representative asked Mrs. Dumas-Hobbs whether she had good eyesight. She answered that she did, but no evidence could be produced to support this statement.
Note: This subject was not brought up again in the rest of the hearing.
When asked whether the observation office sometimes receives PIREPS (Pilot Reports) on the weather conditions prevailing at Blanc-Sablon, the witness answered that it does not.
VIII. Cross-examination of witness Jones
The following points emerged from the cross-examination of witness Jones:
- Mr. Jones is not an employee of Environment Canada but works under contract.
- He confirmed that about 10 years ago, the observation station was moved from the village to the airport, because from the village you could not see the runway (or even the airport).
- The Respondent's representative came back to the question of Mr. Jones's qualifications, but since he had already been accepted as an expert witness, the Tribunal did not question his qualifications.
- When asked what the observation station's elevation was above mean sea level, the witness did not know.
- When a wind sock is removed, the only other reference markers are much farther away: the mountains a few kilometres from the airport. On June 16, the wind sock was in place.
- The distance between the observation station and each of the reference points has never been measured. It is taken by eye, based on the airport's configuration.
- The runway lights are not necessarily lit when the observations are taken.
- When weather conditions are fluctuating, the following is done:
- the observers generally wait 15 minutes before issuing a Special Report;
- it takes 4 to 5 minutes to prepare the report and get it out;
- in bad weather, or in case of doubt, the observations, which are usually made from inside the station, are taken from outside instead.
- The witness confirmed that 2 other aircraft took off between 12:00 and 12:40 hours (see Exhibit M-1).
- The witness asserted that their observations are as constant and as frequent as an RVR's. This assertion is somewhat dubious, since an RVR is a very precise electronic instrument that operates continuously.
- He was never made aware of PIREPS.
IX. Additional questions by the Applicant's representative
- The Applicant's representative brought out the following points: the employee (Mrs. Dumas-Hobbs) who made the report on June 16 is checked regularly once or twice per month on technical and procedural questions.
- According to the report for June 16 (Exhibit M-2), between 11:00 and 16:00 hours on that day, ground visibility and ceiling conditions remained stable, especially as regards temperature and dewpoint (they were the same – see Exhibit M-2A – which results in fog).
- The observations for June 16 were made from outside the observation station, because the weather was bad.
X. Cross-examination by Mr. Joncas
Once again, in cross-examination, Mr. Joncas pointed out that though witness Jones might be an expert in weather observations, he is not a meteorologist. He also pointed out that the observer on duty was working alone for 12 hours in a row and that there was no rest room in the weather station. The rest room is in the terminal, next to the passenger's waiting lounge, which automatically means that observers must leave the station from time to time.
Lastly, Mr. Joncas again questioned the witness about the accuracy of the distances used to observe ground visibility. A bit of a disagreement followed.
At this point, Mr. Joncas asked the Tribunal whether it was possible to go to the airport to see what the real story was with the distances and the reference markers. I agreed to this request, and we scheduled the visit for the next morning at 8:30 hours.
XI. Highlights from witnesses Jones and Dumas-Hobbs
- The qualifications and professionalism of these two witnesses cannot be doubted, even though Mr. Jones should have known the answers to certain questions such as the elevation of the weather station (this question could have some importance, because not all the reference markers are at the same height).
- Some doubt can be raised, however, about the method of measuring ground visibility between the observation station and the reference points, because the distances have never been measured accurately. As the visit to the airport revealed, these distances were far from accurate.
- Both witnesses confirmed that they had never had any knowledge of PIREPS.
XII. Applicant's fourth witness: inspector Roger Ouimet
The purpose of inspector Ouimet's testimony was to explain to the Tribunal the procedures that Transport Canada follows after a report of an alleged contravention. The following points emerged from Mr. Ouimet's testimony:
- After the report (Exhibit M-1) was received from the Sept-Îles station, the situation was analysed. Transport Canada then checked the Air Regulations and the CAP and found that there were grounds for accusing the pilot of an offence: an official weather report, and a take-off when ground visibility was below the limit specified in the CAP.
- A confirmation of the pilot-in-command appears in the upper-right-hand corner of the copy of the aircraft journey log (Exhibit M-5).
- The most important part of the analysis consisted in using the approach chart for the Blanc-Sablon airport, as published in the CAP (Exhibit M-6).
- In the 2nd rectangle in the lower left portion of this chart, it is indicated that to take off from runway 23, visibility must be at least ½ mile.
- the 5th column of the report from the Sept-Îles station (Exhibit M-1) confirms that the aircraft in question took off from runway 23.
Thus it was on the basis of the report from the Sept-Îles station (Exhibit M-1) and the weather report (Exhibit M-2) that Transport Canada decided to accuse pilot Wilkins and to assess a $200.00 penalty.
XIII. Cross-examination of witness Ouimet
The questions focused chiefly on the fact that inspector Ouimet had obtained the information regarding the pilot of aircraft C-GOVZ thanks to the co-operation of the carrier, Trans-Côte inc., which was Mr. Wilkins's employer at the time.
In my opinion, these questions were not very relevant to the matter, because the carrier's co-operation has never been called into question. I therefore asked the Respondent's representative to move on to other questions.
The witness was asked one important question, however: whether the witness had ever heard of what are known as local weather effects.
Local effects turned out to have a certain importance in this case, and the question came up again many times later on. Inspector Ouimet hesitated before answering, and stated that he was more or less aware of this phenomenon.
This seems implausible to me, for a pilot who has a commercial pilot licence, considering that all pilots learn about local effects from the very start of their training.
There were no further questions.
XIV. Highlights of witness Ouimet's testimony
The steps and procedures required before accusing someone of a contravention seem to have been followed properly and logically and with the carrier's co-operation.
Except for the fact that he had used the approach chart for the Blanc-Sablon airport, as published in the CAP, in his investigation, this last witness's testimony did not add anything to this case.
However, this exception, the approach chart, took on major importance as the following witnesses testified.
XV. Examination for the defence, conducted by the Respondent's representative, Jimmy Joncas
Mr. Joncas called four witnesses: one pilot, two people who operate heavy equipment at the airport, and the Respondent himself, pilot Wilkins. The defence entered only one exhibit in evidence, Exhibit I-1: a letter in which the Respondent appoints Jimmy Joncas to represent him.
First witness: John Swallow, professional pilot
Mr. Swallow's testimony may be summarized as follows:
- He has been working as a pilot at Blanc-Sablon for over a year.
- He is familiar with weather reports.
- On occasion, he has given PIREPS to the Blanc-Sablon weather observation station, especially as regards ground visibility along the runway axis. He pointed out that often his own observations differed from those of Environment Canada's observation station, especially when there was fog and weather conditions were fluctuating (reference to local effects mentioned above in section XIII).
- His best references for judging ground visibility are the runway lights, which are spaced at equal distances of 200 feet on either side of the runway; 13 lights makes 2,600 feet or ½ mile, give or take a few feet.
XVI. Cross-examination by the Applicant
The following points emerged from the cross-examination:
- The witness believed that the PIREPS that he submits by radio are recorded, because fairly often they are passed along to other pilots, but he did not know by what means these reports are retransmitted.
- Fog comes into play in several ways. Sometimes, visibility and ceiling are 0/0 on one side of the runway, while on the other side the sun is shining. This fog can come and go in 5 minutes; sometimes it persists (local effects).
- When he uses the runway lights as a reference, he does so from the threshold of the runway. When he can see the red gasoline pump from the runway threshold, there is ½ mile of visibility. But this visibility runs laterally, not precisely along the runway axis. Sometimes visibility is acceptable down the runway axis even when it is unacceptable laterally.
- When preparing for a flight, he always checks the weather reports. He counts the runway lights only when there is bad weather and some doubt about the information in the reports. He then informs his own flight department.
XVII. Additional questions by the Respondent's representative
The following points emerged the second time this witness was examined by the Respondent's representative:
- Ground visibility varies a great deal at Blanc-Sablon, often because of fog.
- From the runway, it is not unusual to be unable to see the terminal, where the weather station is located, in one direction, but to be able to see the village of Blanc-Sablon, which lies about 3 kilometres below it in a straight line in the other direction.
- Trans-Côte inc's policy is to let the pilot decide for himself whether or not visibility is good enough to take off.
- When visibility is limited, the pilot always looks at the weather conditions at an alternate airport where he could set down in case of mechanical problems at take-off.
No additional cross-examination.
XVIII. Highlights of pilot Swallow's testimony
- The main point that emerged from this witness's testimony was that at Blanc-Sablon, fog was a common, highly variable and unpredictable phenomenon, resulting in conditions that often differed from those given in the weather observations.
- This witness partly contradicted witnesses Jones and Dumas-Hobbs on the matter of PIREPS, stating that he himself has submitted PIREPS in the past. However, he did not know whether they were passed on to the weather observation station, though they are passed on to other pilots by radio one way or another.
- For him, the best reference for determining ground visibility was still the number of runway lights.
XIX. Second witness for the Respondent: Gregory le Templier
Mr. le Templier has been working at the airport as a heavy-equipment operator for the past 25 years.
His testimony was fairly brief. He confirmed that at Blanc-Sablon, fog causes ground visibility to vary a great deal. Sometimes one end of the runway is in total fog, and you cannot see the weather observation station from it, while the other end is in full sunlight.
He has often seen pilots walk out to the runway to judge visibility, and he has even driven some pilots out to the end of the runway in his van.
Under cross-examination, the witness said that he did not remember where he was on June 16.
XX. Third witness for the Respondent: Jérôme Lavallée
Mr. Lavallée has been doing the same kind of work as the preceding witness for the past 20 years.
His testimony was basically the same as Mr. le Templier's. Though he was not as categorical about the fast changes in fog conditions, he did confirm that if you drive along the runway, you can sometimes see the village on one side when you cannot see the weather station on the other, and vice versa.
When cross-examined, the witness did not remember where he was on June 16. When asked whether he had a background in meteorology, he said that he did not, except that he had been a fisherman for a long time, and during that time he had learned how to judge various weather conditions.
XXI. Highlights of the last two witnesses' testimony
The testimony of these two witnesses mainly consisted of acknowledging that fog conditions at the Blanc-Sablon airport are highly changeable and vary greatly depending on where the observer is positioned.
When the weather is bad, the pilots walk out to the runway to check visibility, even going as far as the runway threshold.
Neither witness remembered where he was on June 16.
XXII. Fourth witness: the Respondent himself, pilot Jerry Wilkins
The following points emerged from Mr. Wilkins's testimony:
- The witness has had a professional pilot licence since 1986.
- Since that time, he has been working in this region, including the Labrador coast, as a pilot of single and twin-engine aircraft.
- The day of this incident was his first day as chief pilot for Trans-Côte inc.
- He has previously been involved in an aircraft accident, but it was not due to weather conditions (the causes of this accident have not yet been determined) and he had never been accused of a contravention before this one.
- He confirmed what witness Swallow (a pilot) had said about the company's policy being that each pilot is responsible for deciding whether or not he has the weather conditions that he needs and is legally required to have in order to take off.
- At the time of the incident on June 16, his co-pilot was Robert Hineman, who had just completed his training period as chief pilot for Trans-Côte inc. Pilot Hineman, who was described as being a strict sort ("a military type"), did not object to the take-off on June 16.
Note that pilot Hineman was not called to testify by either of the parties.
- Next the testimony dealt with the methods for assessing take-off distances with respect to ground visibility. The best method was still to count the runway lights: 13 lights makes 2,600 feet, or within 40 feet of ½ mile.
- Like the preceding witnesses, Mr. Wilkins described the variations in fog conditions at the Blanc-Sablon airport, stressing the obstacles between the weather station and the reference markers that might make it difficult to observe visibility: a metal fence, parked aircraft, and so on. The only real way to measure visibility would be to walk out across the apron to the runway.
- On June 16, because of the prevailing weather conditions, the Respondent walked out as far as the red gas pump, then drove out to the centre of the runway, turning on the runway lights as he went (you can turn on the runway lights by pressing the microphone switch on an aircraft or on a ground vehicle equipped for radio communications). It was then that he decided to go ahead with his flight.
- He also claimed that before taking off, he communicated with Sept-Îles (this contradicts the Applicant's first witness, Mr. Loubier, who said that communication was established after the aircraft took off).
When communication with Sept-Îles is impossible, which happens from time to time, the pilot transmits his intentions "blind". But on June 16, he was able to communicate with Sept-Îles.
- Mr. Wilkins concluded his testimony by stating that after he had taxied his aircraft, first to runway 05 and then to runway 23, the visibility being better in that direction, he counted the runway lights and made sure that he had ½ mile of take-off visibility, as specified in the CAP.
XXIII. Cross-examination of witness Wilkins
The Minister's representative returned to the questions of pre-flight procedures, company policy, and pilot responsibility. The following points emerged:
- On June 16, 1994, pilot Wilkins was chief pilot for Trans-Côte inc; it was his first day working in this capacity.
- The preflight procedures include checking weather conditions.
- The company's policies stipulate that no aircraft shall take off in weather conditions that fall below the specified limits, but that at all times and places, it is the pilot who decides whether or not conditions are acceptable and legal for take-off.
- On June 16, weather conditions seemed consistent with the observation reports, but after discussing them with other pilots, he decided to walk out to the middle of the apron, and from there, visibility seemed better. He therefore decided, 3 to 5 minutes later, to take off. He proceeded as described in section XXII, item 11 of this document. He claimed that while taxiing, he had radio communications with the Sept-Îles station, but he did not remember whether there was any further communication after take-off, because his co-pilot was handling the radio. He also does not remember whether he could see the terminal while he was taking off, because he was concentrating on the aircraft's forward path. Lastly, he was made to confirm that the flight had been scheduled for 8:00 hours, but that he had postponed it until he was satisfied with visibility conditions.
XXIV. Further examination by Mr. Joncas
The witness was asked whether he had ever cancelled any flights because of bad weather, and he answered yes. He also stated that three aircraft were parked opposite the observation station on the morning of June 16, and one of them was blocking his view of the red gasoline pump that is used as a reference marker for 1/8 mile visibility.
In light of certain contradictions and the difficulty of judging the reference markers from the maps placed in evidence (Exhibits M-4 and M-6), the Respondent's representative again asserted that the best way to judge was to go out to the airport itself. I had already granted this request and scheduled the visit for the next morning.
The first day's session of the hearing ended at 18:30 hours.
XXV. Visit to the airport in the presence of all parties
Here is what took place at the airport.
- Witness Dumas-Hobbs (the observer on duty on June 16) showed where she had positioned herself to measure visibility distances that morning.
- All the observation locations were indicated, as were all the methods used and all the reference markers. They were the same as had been described at the hearing the day before: the red gasoline pump on the south side of the apron, opposite the observation station (the 1/8 mile marker), and the two wind socks, one toward the threshold of runway 23 (the ¼ mile marker) and the other on the side toward runway 05 (the ½ mile marker).
- For his part, pilot Wilkins repeated all the actions that he had taken on the morning of June 16. First we followed him on foot up to the start of the runway. Then we got into a van, turned on the runway lights, and drove to the thresholds of runways 23 and 05, from which we could see all the way to the other end of the runway. This distance was much more than 13 lights. The observation point and the threshold of runway 23 are at 121 feet ASL (Above Sea Level), whereas the threshold of runway 05 is at 79 feet ASL.
- When we returned to the observation station, I personally noticed and pointed out that though the distance between this station and the red gas pump might be the 1/8 mile that the observers assumed it to be, the distance to the wind sock at runway 23, judging by eye, was at least three times as far as the first reference marker, or close to ½ mile, rather than the ¼ mile that the observers claimed. No one could contradict this observation.
- Lastly, it was again confirmed to me that the reference markers had never been carefully measured, or at least no one remembered whether they ever had.
XXVI. Return to the hearing room
When we returned to the hearing room, I summarized the observations that we had made at the airport.
Even though all the witnesses had been heard, the two parties' representatives got into a debate about subsection (2) of section 555 of the Air Regulations and the definition of "ground visibility" in these Regulations.
Mr. Joncas claimed that visibility must be interpreted according to subparagraph 555(2)(c)(ii) ("visibility ... as observed by the pilot-in-command"), because the Blanc-Sablon airport has no FSS as specified in paragraph (b) of the definition of "ground visibility".
The Minister's representative asserted that once there is communication with the Sept-Îles FSS, as there was on June 16, 1994, the observations become official.
Since the debate was getting into the substance of the issue, I asked both representatives to save these points for their closing arguments.
I. Applicant's arguments
Mr. Tamboriello argued as follows:
- At about 12:10 hours on June 16, 1994, a flight was made in a Piper PA-31 aircraft, registration C-GOVZ, with pilot Jerry Wilkins in command.
- This aircraft took off from the Blanc-Sablon airport with a ground visibility of 1/8 mile, which is below the minimum specified in the CAP.
- From this fact, proceeding by elimination, we come to paragraph (1)(d) of section 555 of the Air Regulations, the use of the CAP to determine the minimum ground visibility required for a take-off.
- Also, and still proceeding by elimination, in this case it is paragraph (b) of the definition of "ground visibility" that applies, because the weather observation was made via the Sept-Îles Flight Service Station after this station had received, by telecommunication, the weather information from the Environment Canada observer posted at Blanc-Sablon.
- To support his argument, the Applicant submitted as jurisprudence Exhibit M-7, the decision in Minister of Transport and Joseph Savard, dated April 16, 1987 (Halifax) (CAT File No. A-0012-33), and referred the Tribunal to the last paragraph on page 7 of this decision ("What we're dealing with ...").
This decision seems to establish the order of priority for the various means of determining ground visibility for take-off: first the RVR, then the weather report given by an observer, and finally the pilot in command on board the aircraft.
Note: I immediately pointed out that this decision does not mention what type of weather report is meant, nor where it originates (FSS, control tower, observation station, or wherever else). I will return to this point in my analysis.
- Contrary to what the defence would have us believe, weather conditions on June 16, 1994 were stable with regard to fog, as indicated by the weather observation report (Exhibits M-2, M-2A, M-2B) from 11:00 to 14:00 hours: visibility 1/8 mile, dew point equal to actual temperature, winds steady, cloud cover 10/10.
- With respect to the reference markers used to observe ground visibility, the visit to the airport confirmed:
- that they are still the same as on June 16;
- that they are easy to see;
- that there was no question about the weather observers' qualifications.
- Lastly, the Applicant pointed out:
- that the prime objective of the regulations is aviation safety;
- that the purpose of penalties is to discourage repeat violations;
- that as a chief pilot who was flying to Sept-Îles with another pilot so that pilot could take a Transport Canada qualifying test, pilot Wilkins should have set an example and shown better discipline and judgment.
- The penalty is provided for in the designated provisions. For subsection 555(1) of the Air Regulations, the penalty for a contravention by an individual can be up to $1,000.00, but since this is a first offence, the Minister feels that an amount of $200.00 is reasonable.
II. Respondent's arguments
Mr. Joncas made the following argument:
- The climate of the area must be taken into consideration: weather conditions change rapidly, and there are continual fluctuations in conditions that are hard to observe, in which there can be fog on one side of the runway and sunshine on the other.
- The paragraphs and subparagraphs of section 555 of the Air Regulations and of the definition of ground visibility must be regarded as alternatives to one another, since they are separated by the word "or". One can therefore adopt paragraph (2)(c) of section 555 instead of subparagraph (2)(b)(ii) as the Minister's representative has done. This is a matter of interpretation.
Note: I will return to this question of interpretation in my analysis.
- Moreover, there appears to be a conflict between the CAP, which speaks of "runway visibility" (see Exhibit M-6) and the visibility reported by an observer positioned somewhere other than on the runway.
- The CAP requires a minimum visibility of ½ mile for take-off from runway 23 at the Blanc-Sablon airport.
- Mr. Joncas reminded the Tribunal that at Sept-Îles, for the runways where there is no RVR, if ground visibility seems better than the weather reports state, pilots are allowed to go out to the runways and judge for themselves.
If a pilot who has gone out to the runway finds that visibility meets CAP requirements for runway visibility, he requests authorization to take off and, apparently, receives it.
Note that no one could prove this allegation.
- The visit to the Blanc-Sablon airport confirmed the following facts:
- the assumed distances between the observation points and the reference markers do not appear to be accurate;
- without wishing to attack the observers' credibility, we realized that these distances have not been measured, and that the markers are hard to see because obstacles get in the way. The question of accuracy arises here because the CAP requires a minimum visibility of exactly (Mr. Joncas's stress) ½ mile, and not some approximate distance. When the observations are contradictory, the pilot is entitled to examine the situation more closely and is the person best able to make the take-off decision after this closer examination, especially when the pilot has examined the situation out on the runway, where he will actually be taking off.
- As regards safety, in bad weather conditions pilots must always ensure that there is an alternate airport where they can put down in case of a mechanical problem at take-off, and in this case we are dealing with a serious pilot who does not take safety lightly.
Thus what we are dealing with here is a conflict between theory and practice.
In any case, if a mechanical problem occurs after a take-off is made under minimum weather conditions, returning to the originating airport is impossible and would be illegal, in light of the limits that the CAP imposes for circling the runway.
END OF ARGUMENTS
ANALYSIS BY THE TRIBUNAL
Once again we are dealing with a situation as old as aviation itself: the conflict between "bad" weather conditions and a pilot's desire to take off or to continue a flight.
Though this is a critical issue, it would take far too long to delve into it here. But the point to remember is that unfortunately, a striking number of pilots, often along with their passengers, have lost their lives because they decided to brave bad weather.
Since the earliest days of aviation, a great many weather instruments, observation methods, educational tools, and regulations have been introduced to combat this problem. Their number continues to grow, and they have helped to greatly reduce the number of accidents due to bad weather.
But as this case shows, none of this has eliminated the pilot/weather conflict, at least as regards the regulations.
At first glance, this would seem to be a typical case of failure to comply with regulations.
But is it really?
Through the testimony of his witnesses and the documents placed in evidence, the Minister's representative has clearly shown why, in his opinion, pilot Wilkins, the Respondent, has contravened paragraph 555(1)(d) of the Air Regulations by taking off from the Blanc-Sablon airport when ground visibility was reported as below the minimum required in the CAP.
Up to this point the Applicant's analysis seems logical and well-founded.
For his part, the Respondent's representative has clearly explained the weather conditions affecting the Blanc-Sablon area and the conflicts that might arise there between the official weather reports and actual conditions as observed by pilots and even by other individuals.
Despite his efforts to persuade the Tribunal of the problems due to difficult climate conditions in the Blanc-Sablon area and the conflicts that I have just alluded to, I cannot agree to exempt pilots from complying with the regulations.
If this were the only issue in this case, I would uphold the Minister's decision.
But what makes this case more complicated is the possibility that there may be a conflict within the regulations themselves. That is exactly what has happened in this case. Subsection 555(1) gives four methods of determining take-off visibility, specified in paragraphs (a), (b), (c) and (d). For the Blanc-Sablon airport, proceeding by elimination (as the Applicant has done), we find that paragraph (d), the use of the CAP, applies.
Again proceeding by elimination (and not choosing among alternatives, as the Respondent's representative claims can be done), with regard to the Blanc-Sablon airport, we must then refer to paragraph 555(2)(b), which specifies that:
(2) For the purposes of subsection (1), the take-off visibility for a runway is
(b) the ground visibility of the aerodrome for the runway, if
(ii) the ground visibility of the aerodrome is reported as set out in the definition "ground visibility"
The definition of "ground visibility" in the Air Regulations reads as follows:
"ground visibility", in respect of an aerodrome, means the visibility at that aerodrome as contained in a weather observation reported by
(b) a flight service station
Nowhere do the regulations mention a weather observation station or an observer.
On June 16, ground visibility at the Blanc-Sablon airport was reported not by a flight service station, but by an observation station.
As regards radio communication with the Sept-Îles flight service station, witness Loubier's testimony contradicts the Respondent's (pilot Wilkins's) as to whether this communication took place before or after take-off. However, the Respondent has confirmed in his testimony that he had checked the weather reports before the flight.
Hence it becomes difficult to apply subparagraph 555(2)(b)(ii) as well as paragraph (b) of the definition of ground visibility.
Another important point must be stressed.
The weather information transmitted for an FSS, as is the case at Blanc-Sablon, is received by telecommunication after an Environment Canada observer has transmitted it to the station in question.
Though the Tribunal does not question the competence of the observers at Blanc-Sablon, the method used at this airport to assess distances for ground visibility leaves much to be desired because, according to witness Jones's own testimony, these distances have never been measured accurately.
I am prepared to concede that the sightlines for viewing the reference markers from the various observation points are acceptable. However, when the wind socks are not in place (as apparently happens from time to time), it becomes impossible to measure ground visibility. This situation seems unacceptable to me, even though it has been confirmed that on June 16, the wind socks were in place.
During the visit to the airport, I was able to see for myself that the ratios assumed by the observers for the distances to the reference markers are impossible. Also, even though it is on a very small scale, a quick glance at the approach chart for the Blanc-Sablon airport (Exhibit M-6) shows that if it is 1/8 mile from the observation station (the terminal) to the red gas pump on the other side of the apron to the south, it is much more than ¼ mile from this station to the wind sock on the south side of runway 23.
This lack of accuracy on its own makes the entire argument break down, because where the CAP refers to ground visibility, it does so in terms of a precise number of feet: a distance of 2,640 feet is legal, but 2,639 feet is not. This is also the degree of accuracy provided by the RVR.
This is probably the reason that, in the decision mentioned in Exhibit M-7, the RVR was given first priority as a means of determining ground visibility for take-off. But the next means given in this order of priority is a weather observer, of which there is no mention either in section 555 or in the definition of "ground visibility".
Even if only because of the lack of precision in the ground visibility observations at Blanc-Sablon and in the definition itself, I would reject the Applicant's allegation, because if we are going to give enough credence to weather reports to rank them second in order of priority, these reports must be accurate beyond any possible doubt and, in the current legal context, they must be reported by a flight service station, which was not the case here.
But an even more serious problem arises here: the conflict between the observations, however careful, taken by an observer far from the runway (at a large airport, the observer may be as far as two miles from a runway threshold) and the requirements of the CAP. The CAP specifies the minimum visibility that a pilot must observe for take-off and uses the term "runway visibility".
In the course of his arguments, the Minister's representative cited an earlier decision (Exhibit M-7) that specified an order of priority for determining ground visibility: first the RVR, then the observer, and then the pilot. But he forgot to mention that the CAP requirements refer to ground visibility at a specific location ─ the runway ─ and not to visibility reported by an observer who is positioned somewhere other than on the runway and who is mentioned neither in section 555 nor in the definition of ground visibility.
The fact that the definition of ground visibility makes weather reports official when they are issued by a flight service station does not tell us where the observer must be positioned, which section 555 and the CAP do in part.
Still referring to section 555, not only is it therefore legal to use the CAP, but it also becomes mandatory.
If the CAP is mandatory (it is even mentioned in the allegation), every pilot must comply with it and apply the limits that it specifies for certain conditions such as visibility and ceiling.
With regard to take-off visibility, the CAP refers to "runway visibility". An observation made by a pilot on the runway therefore seems perfectly legal to me and even has priority over any other observation made by an observer who is not on or near the runway, except for an observation made with the RVR instrument, which is located on the runway. Where it refers to the RVR, section 555 even takes the trouble to allow for the possibility that its readings are fluctuating or at least temporarily inaccurate. Thus we see how much importance is given to accuracy.
This only makes sense, since it is the visibility on the runway that the pilot sees when he is taking off.
The inaccuracy of the ground visibility observations at Blanc-Sablon forces us to raise questions about the other airports where the same kinds of observations are made and where an attempt might be made to give priority to an observer over a pilot.
Notwithstanding the definition of ground visibility in the Air Regulations, I maintain that the limits prescribed in the CAP, as applied by a pilot, take priority over an observer who is not close to the runway, at least as regards take-off (and even landing), noting once again that this observer is not even mentioned in the regulations.
The CAP limits are even safer, because in the opposite case, where observations made from somewhere other than the runway indicated better visibility than there actually was (which, as we have seen, could easily happen), these observations could, in the case of a landing at least, mislead the pilot and endanger the flight.
So if a pilot can prove that he has taken every possible action to ensure that he is within the CAP- prescribed limits, which the Respondent has done in this case, I maintain that he is entitled to take off or land, as the case may be. Here, the only witnesses who could contradict pilot Wilkins's statements would be, for example, his co-pilot, Hineman (whom the Applicant could have called as a witness), or a passenger who was familiar with questions of visibility and who could see the runway from his seat, or the pilot of another aircraft that was taking off immediately after Wilkins's.
Observations taken from somewhere other than the runway should be considered indicative, and nothing more, and have lowest priority. In fact, this is the way that all pilots regard weather observations other than those made by RVR.
I am aware of the consequences that this decision may have. But there are too many contradictions and inaccuracies for me to find for the Applicant. I even recommend that Transport Canada take steps to correct this situation, which would be to everyone's benefit. If this is not done, we will continue to work under the current conditions, in which the pilot, who is responsible for everything, has less and less to say about the decisions that he must make, and conflicts will continue.
To correct the existing conflict between section 555 and the requirements of the CAP, observers must be identified somewhere in the regulations and must be given reference markers that they observe from the runway. Or else, replace the expression "runway visibility" in the CAP with "visibility as reported by the flight service station" or by a weather observer, in which case, rightly or wrongly, the observation would take priority over the pilot.
On the basis of paragraph 555(1)(d), I find that to determine take-off visibility for the runway, one must refer to subparagraph 555(2)(c)(ii) and not to subparagraph 555(2)(b)(ii), because it has not been proven beyond any doubt that ground visibility was reported in accordance with the definition of ground visibility. Furthermore, if the minimum limits specified in the CAP, which form an integral part of section 555, are to be complied with, then they also must be measured from the runway as this document requires. Finally, in the present case, greater care should have been taken to measure the distances of the reference markers accurately.
Consequently, I dismiss the Minister's allegation and the penalty associated with it.
Civil Aviation Tribunal
Guy Racicot, Michel Larose, Suzanne Jobin
Decision: July 4, 1996
We allow the appeal. The Minister's decision to assess a monetary penalty of $200.00 is restored. This amount is to be made payable to the Receiver general for Canada within fifteen days following service of this determination.
In accordance with the expressed wishes of the parties, only written arguments were submitted to the Appeal Panel in this case. The members assigned to review the first instance determination met on May 21, 1996, in the absence of the parties.
On November 18, 1994, the Minister of Transport issued a Notice of Assessment of Monetary Penalty to Mr. Jerry Wilkins. The Minister alleged that the Respondent had contravened paragraph 555(1)(d) of the Air Regulations.
According to the terms of said Notice, the contravention is alleged to have taken place on June 16, 1994 at approximately 12:10 hours while the Respondent was acting as the pilot-in-command of a Piper PA-31 aircraft registered as C-GOVZ. Said aircraft allegedly took off from the Blanc-Sablon airport when ground visibility was below the limits specified in the Canada Air Pilot (CAP).
The Minister assessed an administrative penalty of $200.00 which the Respondent refused to pay. A Review Hearing was scheduled to be held before the Civil Aviation Tribunal. The hearing was held at Blanc-Sablon on September 21 and 22, 1995 before Mr. Pierre Rivest, Member.
In his determination, the Member rejected the Minister's allegations, finding that the Applicant-Appellant had not proved beyond doubt that ground visibility had been communicated according to the provisions of the Air Regulations.
In rendering his determination, Mr. Rivest explained that the applicable provisions of the Air Regulations do not reference the mode of communication used at the Blanc-Sablon airport. In fact, on June 16, 1994, ground visibility at Blanc-Sablon airport had been communicated by an observation station or an observer and not by a flight service station, as stipulated in the regulations.
Furthermore, Mr. Rivest maintained that weather conditions had not been observed at the location prescribed by the regulations and that greater accuracy should have been demonstrated in the measurement of the distances used. Given the circumstances, Mr. Rivest maintained that the pilot's observations should take precedence over those of the weather observer.
Subsections 555(1) and (2) of the Air Regulations stipulate as follows:
555. (1) No pilot-in-command of an aircraft shall permit the aircraft to take off from a runway if the take-off visibility for the runway, as determined in accordance with subsection (2), is below the minimum visibility for the runway specified in
(a) the operations specifications for the operator of the aircraft where the operator is an air carrier;
(b) the operations manual of the operator of the aircraft where the manual is required under the Private Aeroplanes Passenger Transportation Order;
(c) the operations manual, or equivalent document, issued by the state of the operator of the aircraft and accepted by the Minister; or
(d) the Canada Air Pilot, in any case other than a case described in paragraph (a), (b) or (c).
(2) For the purposes of subsection (1), the take-off visibility for a runway is
(a) the RVR of the runway, unless the RVR is
(i) fluctuating rapidly above and below the minimum visibility for the runway as specified in a manual or other document under paragraphs (1)(a) to (d),
(ii) less than the minimum visibility referred to in subparagraph (i) because of a localized phenomenon, or
(iii) not reported by an air traffic control unit or a flight service station;
(b) the ground visibility of the aerodrome for the runway, if
(i) the RVR is as described in subparagraph (a)(i), (ii) or (iii), and
(ii) the ground visibility of the aerodrome is reported as set out in the definition "ground visibility"; or
(c) the visibility for the runway as observed by the pilot-in-command, if
(i) the RVR is as described in subparagraph (a)(i), (ii) or (iii), and
(ii) the ground visibility of the aerodrome is not reported as described in subparagraph (b)(ii).
The term "ground visibility" is defined as follows in subsection 101(1) of the Air Regulations:
"ground visibility", in respect of an aerodrome, means the visibility at that aerodrome as contained in a weather observation reported by
(a) an air traffic control unit,
(b) a flight service station,
(c) a community aerodrome radio station operated under the control and supervision of the territorial government of the Northwest Territories or the Yukon Territory,
(d) a COMMET station, or
(e) a radio station that is ground based and operated by an air carrier;
The CAP stipulates the following:
TAKE-OFF MINIMA/DEPARTURE PROCEDURES
The minimum visibility for take-off shall be determined by the pilot-in-command consistent with aircraft performance, navigation equipment limitations and the requirement for the pilot to ensure obstacle clearance.
Notwithstanding, and unless otherwise authorized in accordance with Air Regulation 555, IFR take-offs for all aircraft are prohibited when the visibility is below the applicable minimum visibility published in the Canada Air Pilot (CAP). IFR take-offs for rotorcraft are permitted when the take-off visibility is one-half the CAP values but not less than 1/4 SM.
Take-off visibility, in order of precedence, is defined as:
a) the reported RVR of the runway to be used (unless the RVR is fluctuating above and below the minimum, or less than the minimum because of a localized phenomena); of
b) the reported ground visibility of the aerodrome (if the RVR is unavailable, fluctuating above and below the minimum or less than the minimum because of localized phenomena. A local phenomenon is deemed to be occurring if the RVR readout is less than the reported ground visibility.); or
c) when neither (a) nor (b) above is available, the visibility of the runway of departure as observed by the pilot-in-command.
GROUNDS FOR THE APPEAL
The Minister of Transport appeals the above determination on the following grounds:
1. The Tribunal member erred in finding that the Minister had not proven the contravention. More specifically, that Mr. Rivest's conclusions were based on:
(a) ill-founded findings on the facts;
(b) misinterpretation of the Civil Aviation Tribunal's criterion in respect of proof;
(c) misinterpretation of subsections 555(1) and (2) of the Air Regulations; and
(d) the imposition of an inappropriate and ill-founded evidentiary burden on the Minister.
2. Any additional grounds as may be revealed by the transcript of the proceedings.
Transport Canada maintains that Mr. Rivest, misinterpreted the term "ground visibility" and contends that the strict application of the term is inappropriate in a case such as this.
In this respect, Transport Canada argues that, although the definition of "ground visibility" sets out the list of stations responsible for communicating adequate weather observations, this provision does not preclude the fact that said stations may turn to third parties to obtain the information they require.
In light of the evidence submitted at the Hearing, weather observations collected by the weather observation station at Blanc-Sablon had been communicated to pilot Wilkins on June 16, 1994, by the Sept-Îles flight service station.
Transport Canada maintains that this communication was sufficient to conclude that the information had been communicated within the meaning of subparagraph 555(2)(b)(ii) of the Air Regulations. In this connection, the Appellant maintains that the comments made by Mr. Rivest with respect to the accuracy and reliability of weather data were not relevant to the case.
Finally, Transport Canada reminds the Tribunal that the burden of proof in this instance must be established on a balance of probabilities.
Consequently, the Appellant asks the Appeal Panel to find that the Tribunal of first instance misinterpreted subsections 555(1) and (2) of the Air Regulations. The Appellant further asks the Appeal Panel to acknowledge that the Minister has proven, on a balance of probabilities, the alleged contravention.
On the other hand, the Respondent's representative claims that Mr. Rivest's determination is well-founded, both on the facts and in law, and points out that pilot Wilkins did not contravene the air regulations.
In this respect, the Respondent's representative maintains that pilot Wilkins was justified in acting as he did on June 16, 1994, as the "ground visibility" had not been communicated according the provisions of the applicable regulations.
Furthermore, said representative considers that the required burden of proof must be that which applies in penal affairs, thereby contending that Transport Canada was required to prove the contravention beyond a reasonable doubt. In this respect, the Respondent's representative contends that Mr. Rivest's evaluation of the evidence submitted at the Hearing was appropriate.
On these grounds and on those invoked by Mr. Rivest, the Respondent asks the Tribunal to uphold the determination in the first instance.
The Tribunal must determine whether the member who presided the hearing of first instance erred in finding that the Minister of Transport had not successfully met the burden of proof that rested on him. In this instance, Transport Canada was required to prove that pilot Wilkins in fact contravened the Air Regulations on June 16, 1994.
The Appeal is based in large part on the question of whether, on the date of the alleged offence, the "ground visibility" at the aerodrome had been communicated to the pilot in accordance with the regulations.
In this respect, the Tribunal is of the opinion that the position defended by Transport Canada must prevail over that of the Tribunal member, Mr. Rivest.
Subsection 101(1) of the Air Regulations stipulates that "ground visibility" means the visibility as contained in a weather observation reported by a flight service station. The Air Regulations do not require, as Transport Canada aptly points out, the flight service station to actually collect the weather observation data.
The formulation of this definition does not preclude the possibility that a flight service station might obtain weather data from third parties and subsequently communicate this information to pilots.
Thus, in light of submitted testimony and the evidence on record, the weather data had in fact been communicated to pilot Wilkins in accordance with subparagraph 555(2)(b)(ii) of the Air Regulations.
Pilot Wilkins nonetheless opted to dismiss this information and proceeded to take off, thereby contravening paragraph 555(1)(d) of the Air Regulations.
The comments, arguments or other contributions expressed by the Respondent and Mr. Rivest on the methodology used by the observer or on the veracity or accuracy of the data collected by the latter cannot serve to discharge pilot Wilkins from his responsibility or to justify his conduct.
The Air Regulations, and the CAP specifically, clearly establish that weather information communicated by a flight service station must be given paramount consideration over a pilot's observations.
Contrary to the claims of the Respondent, pilot Wilkins was not empowered to substitute his own observations for those communicated by the flight service station.
The law is silent on the criterion for evaluating evidence which the Civil Aviation Tribunal must apply. Over the years, however, the Tribunal examined this question many times and has reached the conclusion that the criterion for evaluating evidence should be that of the "balance of probabilities". We concur with prior opinions pronounced by the Tribunal on this question.
Having examined the evidence on record and considered all the arguments and submissions of the parties, we conclude that the Minister of Transport proved, on a balance of probabilities, that Jerry Wilkins contravened paragraph 555(1)(d) of the Air Regulations.
In conclusion, Mr. Guy Racicot adds the following:
I have read the notes written by my colleague, Ms. Suzanne Jobin and associate myself with her analysis and conclusions.
I would add that the regulations constitute a whole and that we cannot read one without considering the others to arrive at interpretations that give them meaning rather than to seek out their inaccuracies and, at times, their apparent contradictions; the latter objective makes no sense.
Though sections 555 and 101 of the regulations, when taken separately, raise certain questions, any confusion that may result disappears when reference is made to the CAP which, in its general provisions, establishes priorities with respect to the RVR, the reported visibility and the pilot's observations. One could also argue at length on the positive and negative aspects of this order of priorities, and it may be that amendments are in order, but such is not the responsibility of this Tribunal.
Pilot Wilkins acknowledged that he had been advised by the Sept-Îles FSS that the visibility at Blanc-Sablon was below that which is authorized for take-off. Having received this information, the pilot was bound by it. He could have asked for confirmation, verification and explained his situation, but he was certainly not empowered to dismiss the communicated message which prohibited him from taking off.
Therefore, we allow the Appeal. The Minister's decision to assess a monetary penalty of $200.00 on the Respondent is restored.
Reasons for Appeal Determination by:
Ms. Suzanne Jobin, Member
Mr. Guy Racicot, Member
Dr. Michel Larose, Member
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