Decisions

CAT File No. Q-1314-37
MoT File No. NAP6504-P386904-28207

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Robert Nault, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., c. A-2, ss 7.7, 8.4(1)
Air Regulations, C.R.C. 1978, c. 2, s. 534(2)(b)

Low altitude flight, Civil liability of the owner of the aircraft


Review Determination
Pierre Rivest


Decision: November 8, 1996

TRANSLATION

I dismiss the allegations of the Minister of Transport and the $750.00 monetary penalty assessed against the Respondent, Mr. Robert Nault.

The Review Hearing on the above matter was held Tuesday, October 22, 1996, at 10:00 hours, at the Federal Court of Canada in Montreal, Quebec.

All the witnesses were sworn in. I asked that the witnesses be excluded.

BACKGROUND

The Respondent, Robert Nault, is being proceeded against pursuant to subsection 8.4(1) of the Aeronautics Act, as the owner of the aircraft registered as C-GUBP. A $750.00 monetary penalty was assessed against him pursuant to section 7.7 of the Act and the Designated Provisions Regulations (Air Regulations, Series I, No. 3), for contravening paragraph 534(2)(b) of the Air Regulations on May 23, 1996, at about 20:27 hours (local time), at Vaudreuil-sur-le-Lac, Quebec.

As the monetary penalty was not paid by the deadline of July 29, 1996, the matter was referred to the Civil Aviation Tribunal for review.

THE LAW

Paragraph 534(2)(b) is considered a designated provision by which the Minister is entitled to assess a maximum penalty of $1,000.00 against an individual.

This paragraph states:

(2) Except as provided in subsections (4), (5) and (6), or except in accordance with an authorization issued by the Minister, unless he is taking off, landing or attempting to land, no person shall fly an aircraft

(a) (...)

(b) elsewhere than over the built-up area of any city, town or other settlement or over any open air assembly of persons at an altitude less than 500 feet above the highest obstacle within a radius of 500 feet from the aircraft.

Subsection 8.4(1) of the Aeronautics Act states:

8. 4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

INTRODUCTION

After the usual introductions and an explanation of the procedures of the Tribunal, the parties involved confirmed that, other than the documents and oral exchanges that preceded the hearing and pertain to it, there have been no other documents, oral or written exchanges between the parties.

However, the Respondent, Mr. Robert Nault, felt it necessary to fault Transport Canada for not providing him with a copy of the infraction report concerning him, although he had requested one. Later in the hearing, he was also critical of the fact that a document from the Mirabel Control Centre had not been delivered to him until very late on the eve of the hearing.

Regarding the first criticism, Umberto Tamborriello, representing the Applicant, explained that at the time in question it had been necessary to keep confidential the identity of the witnesses; he stated that he had orally informed Mr. Nault of the content of the report.

No valid explanation was given regarding the second criticism.

I then informed the Respondent that, if he believed he had been aggrieved, he could seek an adjournment. He did not consider such action necessary.

WITNESSES FOR THE APPLICANT

The first witness, Inspector Douglas Gough, merely produced and explained the report (Exhibit R-1) which he himself prepared on May 24, 1996, that is, the day following the incident.

The entry in the report, giving the time of the offence as "8:27", does not show whether this refers to the morning or evening. In his testimony, Mr. Gough stated that it was the morning, an assertion repeated in cross-examination, whereas the event occurred in the evening!

The other two witnesses are Mr. and Mrs. Vicinzo. Each describes in the same way the aircraft manoeuvres they observed near their house on May 23, 1996, at about 20:27 hours (local time).

In referring to certain reference points, including a 15-foot-high clothesline pole, a fence, their house, the dimensions of their lot and a tree in a nearby field (see photographs in R-2, R-3 and R-4), they confirm that the aircraft flew partly over their lot, that is, about 50 feet from their house, at an altitude three to four times higher than the clothesline pole, or at a maximum aboveground altitude of about 100 feet.

The two witnesses read the aircraft's registration, but it was Mrs. Vicinzo who wrote it down on a piece of paper and, the next day, gave it to Transport Canada over the telephone.

In cross-examination, the witnesses could not establish the speed of the aircraft other than to say it was moving fairly fast. They were, however, certain of the registration letters, seen underneath the wing, and the colours of the aircraft, white and yellow.

As additional evidence, Mr. Tamborriello submitted a copy of the Certificate of Registration for aircraft C-GUBP (Exhibit R-5), a Cessna 182P, registered to the name Robert Nault.

RESPONDENT'S TESTIMONY

Mr. Nault testified in his own behalf. At first, he again complained of Transport Canada's cavalier attitude, and was surprised at the version of events compared to the telephone conversations he had had; to see three witnesses instead of the two he had been led to expect; and to have not received an incriminating document until 16:00 hours on the eve of the hearing.

He also pointed out to the Tribunal that Inspector Gough had twice stated that the incident occurred in the morning, when it had in fact occurred in the evening.

I repeated my initial comment that he could request an adjournment, and he again declined to do so.

In his testimony, Mr. Nault simply stated that on May 23, 1996, neither he nor his aircraft had flown.

The following documents and comments were placed in evidence:

  • copy of the journey log for the aircraft (Exhibit I-1);
  • copy of the technical log (Exhibit I-2);
  • copy of the pilot's log (Exhibit I-3).

None of these three documents contained a flight time entry for May 23, 1996.

Note: I noticed that there was an entry for the flight of May 25, 1996, in the journey log and pilot's log, but not in the technical log for the aircraft. However, the total flight time was identical in all cases. Again, flight times from May 31 to June 26 are not compiled in the technical log, but are entered in the other two logs.

  • Although this bears no relation to the flight of May 23, a letter from the Aero Dynamic company (Exhibit I-4) confirms that as of May 27, the aircraft was undergoing a mechanical inspection.
  • Finally, the Respondent stated that on May 23, between 19:00 hours and 21:00 hours (local time), he was at a business meeting with a printer named Jean-Claude Crête.

In cross-examination, the Respondent, in answer to a question put by Mr. Tamborriello, confirmed that a second pilot uses his aircraft, but that on the date of the incident, that person was in Sept-Iles. He is positive of this, and repeated that on May 23, 1996, his aircraft was not flown.

Mr. Tamborriello then produced two documents. The first, from Statistics Canada, confirms that on May 23, 1996, an aircraft registered as C-GUBP made a Stop-and-Go flight at the Mascouche airport (identified as SK3 on the second page of the document). The time was 0012 (universal time), or 20:12 hours local time.

The second document was a letter sworn by a representative from the Mirabel control tower stating that the same aircraft, C-GUBP, had at that same time made a Stop-and-Go at Mirabel then to return to Mascouche.

In reexamination, the Respondent limited his comments to the following:

  • He questions the credibility of the reports submitted by the Applicant. To prove his argument, he cites the fact that at the top of page two, the Statistics Canada report mentions two movements at Mascouche, while the second document mentions a Stop-and-Go at Mirabel, coming from, then returning to Mascouche. Which is true?

On page 2 of another report (Exhibit I-7), dated May 6, 1996 (06056), it is stated that his aircraft, C-GUBP, allegedly left an airport identified as S7N at Dorval (YUL); on May 14, 1996, C-GUBP allegedly flew from Mascouche (SK3) to this airport, S7N. Now, there is no airport with this designation; there is, however, SN7, which is the Farnham airport (S7N has been corrected to SN7 on the report in question by the Respondent himself); the Respondent therefore attributes little credibility to the Statistics Canada reports. The Respondent states he has never been to Farnham.

  • Finally, Mr. Nault claims he could not have travelled from Mascouche (in the documents submitted by the Applicant, the aircraft allegedly departed from Mascouche) to Vaudreuil in the 15 minutes it would take to get there by 20:27 hours (local time), as the aircraft was not fast enough to do so (120 knots).

After an exchange of questions and comments, each party's position remained unchanged.

The second witness for the Respondent, Mr. Jean-Claude Crête, was the printer with whom Mr. Nault met on May 23, 1996, from 19:00 hours to 21:00 hours. Mr. Crête corroborated what was said earlier in this regard. He did not change his statement on cross-examination, and added that this meeting was recorded in his appointment book and he had even checked this date again when Mr. Nault telephoned him after being informed by Transport Canada of the complaint. Mr. Crête did not have his appointment book with him at the hearing.

This concluded the Respondent's evidence.

ARGUMENTS

Applicant's Argument

First, the Applicant repeated the applicable legislative provisions. He then stressed the fact that the witnesses who had seen the aircraft at a low altitude had not been contradicted.

He attributes little credibility to the logs placed in evidence by the Respondent, as they were compiled by the Respondent himself.

Rather, it is the documents submitted by Statistics Canada and the Mirabel air traffic control that prove that C-GUBP flew on May 23, 1996.

As for the Respondent's alibi, since the witness Crête did not have his appointment book with him at the hearing, attributing much importance to it is difficult.

Finally, it is realistic for an aircraft flying at 120 to 130 knots to cover a distance of 30 to 35 nautical miles in 15 minutes.

On a balance of probabilities, on May 23, 1996, at about 20:27 hours, at Vaudreuil-sur-le-Lac, aircraft C-GUBP did indeed fly over a residence at an altitude less than 500 feet and within a radius of 500 feet.

The purpose of the regulations is to maintain aviation safety, and the penalty assessed today pursuant to the regulation is intended to prevent offences from being repeated and to serve as an example to others.

Mr. Tamborriello went on to say that he reserves the right to make a written representation if, following the determination, the Tribunal decides to reduce the amount of the $750 monetary penalty.

Respondent's Argument

Mr. Nault reaffirmed that neither he nor his aircraft flew on May 23, 1996.

As for the eye witnesses, he doubts they would be able to read the five identification letters of an aircraft flying overhead at 120 knots, at an estimated altitude of 100 feet, especially when, at that time of day (20:27 hours), if facing the direction mentioned, they would be looking into the sun.

The documents of Statistics Canada and the Mirabel air traffic controller not only contradict each other, but state that somehow the aircraft allegedly returned to Mascouche or remained there; therefore, it could not have flown from Mascouche to Vaudreuil in 15 minutes.

SUMMARY AND CONCLUSION

The Applicant must show, on a balance of probabilities, four points:

  • that there was an infraction of paragraph 534(2)(b);
  • that this infraction was committed:
  • by an aircraft registered as C-GUBP;
  • at Vaudreuil-sur-le-Lac;
  • that this aircraft is registered to the Respondent.

On the first point, there is every reason to believe the eye witnesses as to the distance and altitude at which the aircraft flew on May 23, 1996, at about 20:27 hours contravening paragraph 534(2)(b).

As for the second point, evidence to the contrary notwithstanding, the same may be said of the witnesses Vicinzo as to the registration of the aircraft. The documents of Statistics Canada and the Mirabel control tower tend to confirm that a Cessna 182 aircraft, C-GUBP, flew that day, but these documents state that the aircraft either returned to Mascouche, or remained there after the Stop-and-Go. The credibility of these documents is diminished as they are not consistent with each other regarding where the flight was made before the alleged infraction.

Finally, no mention has been made of the flight to Vaudreuil-sur-le-Lac before 20:27 hours or about its return to Mascouche (radio communication) after 20:27 hours. No tape of radio communications has been placed in evidence. As no one from Statistics Canada nor the air traffic controller testified, knowing what to make of this is impossible. While a balance of probabilities is sufficient as to the identification of the aircraft by the eye witnesses, it is very weak as to where the flight was made.

Regarding the fourth point, there is no doubt that the aircraft registered as C-GUBP is owned by Mr. Robert Nault.

Now, in defence, the Tribunal has no reason not to believe the witness Crête, who stated under oath that he was with the Respondent, Mr. Nault, from 19:00 hours to 21:00 hours on May 23, 1996. Moreover, the logs submitted by Mr. Nault show no record of a flight on May 23, 1996. I find it difficult to believe that the owner of the aircraft would wait to find out whether he would be accused of an offence before entering his flight times in the appropriate logs to omit the flight of May 23, particularly as the aircraft flew on May 25, and as of May 27 was undergoing a mechanical inspection, long before he heard anything about Transport Canada. In any event, such an omission has not been proven or challenged.

In short, it is my opinion that while the Applicant has proven, on a balance of probabilities, that an aircraft violated paragraph 534(2)(b) of the Air Regulations, he has not sufficiently proven that it was aircraft C-GUBP, and even less so, where the flights were made. Even had this been sufficiently proven, the Tribunal, after hearing the Respondent and his witness, must conclude that aircraft C-GUBP had been flown without the knowledge of its owner.

Now, the end of subsection 8.4(1) cited by the Applicant states:

... unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent....

DETERMINATION

For the foregoing reasons, I dismiss the Minister's allegations and the $750 monetary penalty assessed against the Respondent, Mr. Robert Nault.

Pierre Rivest
Member
Civil Aviation Tribunal