Decisions

CAT File No. Q-1485-33
MoT File No. NAP6504-P389115-29140

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Michel Todd, Respondent

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

Low Flying, Open Air Assembly, Helicopter


Review Determination
Suzanne Jobin


Decision: August 13, 1997

TRANSLATION

After considering all evidence presented by the parties, the Tribunal upholds the Minister's decision and confirms the validity of the monetary penalty assessed. The payment of the $500.00 monetary penalty, to the order of the Receiver General for Canada, is to be received by the civil aviation tribunal within fifteen days after service of this determination.

The Review Hearing on the above matter was held July 21, 1997, at the Federal Court of Canada, in the city of Montreal, Quebec.

BACKGROUND

On April 29, 1997, Transport Canada sent a Notice of Assessment of Monetary Penalty to the Respondent. In this Notice, the Minister of Transport alleged that Michel Todd had contravened paragraph 534(2)(a) of the Air Regulations.

The Notice of Assessment of Monetary Penalty reads in part as follows:

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 paragraph 534(2)(a) of the Air Regulations.

On May 25, 1996, about 16:00 hours, local time, while at the controls of a helicopter C-GVNB, at the air show at the Montreal/Mirabel Airport, you flew over an open air assembly of persons at an altitude of less than 1,000 feet, contrary to the provisions of the aforementioned regulations.

The Respondent, as pilot-in-command, was then assessed a monetary penalty of $500.00. On the date on which the payment indicated was due, Transport Canada reported that payment of the monetary penalty had not been received. The Minister of Transport therefore referred the matter to the Civil Aviation Tribunal in accordance with subsection 7.8(2) of the Aeronautics Act.

THE LAW

Section 7.7 of the Aeronautics Act provides as follows:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Paragraph 534(2)(a) of the Air Regulations provides in part as follows:

(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) over the built-up area of any city, town or other settlement or over any open air assembly of persons except at an altitude that will permit, in the event of an emergency, the landing of the aircraft without creating a hazard to persons or property on the surface of the earth, and such altitude shall not in any case be less than 1,000 feet above the highest obstacle within a radius of 2,000 feet from the aircraft

THE FACTS

On May 25, 1996, Messrs. Omer Lemaire and Raymond Lambert, inspectors for Transport Canada, were on duty at Mirabel Airport. Their job consisted of enforcing the rules, standards and directives made to ensure public safety during the air show.

At the show, two helicopters were authorized to fly over the site carrying passengers. The Respondent, Michel Todd, was pilot-in-command of one of the two aircraft. A predetermined flight pattern had been set, and strict directives were to be followed by the pilots at the controls of the two aircraft.

At about 10:30 hours, the inspectors noticed that one of the two authorized helicopters was flying at low altitude, close to the spectators and outside the agreed pattern. They identified the aircraft and shortly after this incident went to meet with the pilot of the observed aircraft. They asked him to stop flying at low altitude and to comply with the regulatory requirements.

At or about 16:00 hours, when the show was barely over and the spectators were leaving the site, the inspectors again saw a helicopter flying at low altitude, above the crowd and outside the set perimeter. They followed the aircraft, without losing sight of it, until it landed. Messrs. Lemaire and Lambert immediately met with the pilot at the controls of the aircraft and discussed the alleged contravention.

These facts are not in dispute.

ARGUMENTS

The Respondent, although acknowledging that he was the pilot-in-command of a helicopter at the time of the alleged incident, denies that he was at the controls of the aircraft observed by the inspectors about 16:00 hours.

He maintains that this aircraft was not the one he was flying, but rather it was the other aircraft authorized to fly over the site. He claims to have met with inspectors Lemaire and Lambert when he arrived on the site at 10:40 hours, and again about 12:50 hours, but he does not remember the meeting at 16:00 hours and discussions.

He submits that Transport Canada has not proved that he was in fact at the controls of the aircraft that contravened paragraph 534(2)(a) of the Air Regulations on May 25, 1996 at about 16:00 hours. Accordingly, he is asking the Tribunal to dismiss the Minister's allegations and cancel the monetary penalty of $500.00 assessed in accordance with section 7.7 of the Aeronautics Act.

Transport Canada maintains that the Minister has proved, on a balance of probabilities, that helicopter registered as C-GVNB piloted by Michel Todd on May 25, 1996 at about 16:00 hours was in fact the aircraft identified by the two inspectors.

The Applicant claims that the evidence has shown that the aircraft registered as C-GVNB had, at about 16:00 hours on May 25, 1996, flown over an open air assembly of persons at an altitude of less than 1,000 feet, contrary to the provisions of the Air Regulations. Although the Applicant acknowledges that the testimonies are contradictory in that regard, he stresses that the inspectors categorically identified the Respondent as the person who committed the alleged infraction.

The amount of the monetary penalty assessed in this case is based on the conduct of the Respondent on May 25, 1996. The Respondent had been forewarned of the need to comply with the regulatory provisions. He disregarded that warning.

Consequently, and taking into account the seriousness of the alleged contravention, Transport Canada is asking the Tribunal to uphold the Minister's decision and confirm the monetary penalty assessed.

DETERMINATION

The evidence presented by Transport Canada clearly established that, on May 25, 1996, about 16:00 hours, the Respondent Todd, at the controls of the aircraft registered as C-GVNB, did in fact contravene paragraph 534(2)(a) of the Air Regulations. The Tribunal does not give any credibility to the arguments put forward by the Respondent or to his testimony as a whole in this case.

After considering all the evidence presented by the parties, the Tribunal upholds the Minister's decision and confirms the validity of the monetary penalty assessed.

Suzanne Jobin
Member
Civil Aviation Tribunal