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Amendment 1-3 (1988-91)

CAT and TATC Decision Amendments

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Services

CAT File No. W-0091-37

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport

- and -

Ville-Air Services Ltd.

C.R.C., c. 2, s. 519

Aeronautics Act, c. A-3, s. 7.3 (now s. 8.4)

Acrobatic Flying - Vicarious liability

It was alleged that the pilot made unusual flying practices namely a barrel roll which is considered an acrobatic flight. The Minister assessed a monetary penalty of $500.00 against Ville-Air as owner of the aircraft.

On review, the Tribunal re-affirmed the monetary penalty. The president of the company was on board and had an opportunity to prevent any contravention of the Air Regulations.

Note: See Minister of Transport and Peter Fry as the two cases
were heard together at the review level.

REVIEW DETERMINATION Jenson

November 20, 1989
Edmonton, Alberta

To confirm the Minister's decision and uphold the penalty of $500.00. Payment of $500.00 is to be made to the Receiver General for Canada and mailed to the Civil Aviation Tribunal office to be received on or before December 20, 1989.

Pre-Hearing Conference

With reference to CAT File No. W-0089-02, and DOT File No. SARB-6504-P160905-12054, the Notice of Suspension (section 7.3(1)(c) of the Aeronautics Act) regarding Mr. Peter D. Fry's private pilot licence, was withdrawn by the Minister of Transport.

By agreement of both the applicant and the respondent, the Minister of Transport v. Ville-Air Services Ltd. Review Hearing (CAT File No. W-009l-37 and DOT File No. SARB-6504-Z-11872) would be heard together with the Minister of Transport v. Peter D. Fry (CAT File No. W-0092-33 and DOT File No. SARB-6504-P160905-12054). The alleged contravention under section 7.7 of the Aeronautics Act, R.S.C. 1985 c. A-2 as amended by R.S.C. 1985 (1st Supp.) c. 33 applies to both parties.

The Notice of Assessment of Monetary Penalty was amended in both the Minister of Transport v. Ville-Air Services Ltd. and the Minister of Transport v. Peter D. Fry to read "an offence under section 7.7 of the Aeronautics Act rather than section 7.3(3) of the Aeronautics Act." All parties were in agreement.

By agreement of both parties certified copies of aircraft Journey Log and photocopies of A.T.C. movement records of aircraft C-GXUK would be used.

A discrepancy in the data of a local flight by Peter Fry was acknowledged and agreed by both parties. The flight should have been entered in the Journey Log book as May 6, 1989 rather than May 7, 1989.

It was agreed by both parties that written arguments on a possible breach of the Charter of Rights could be submitted at a later date.

Background and Overview

Aircraft C-GXUK owned by Ville-Air Services Ltd. and piloted by Peter David Fry was alleged to have executed acrobatic flying on or about the 6th day of May 1989, between the hours of 10:00 a.m. and 12:01 p.m. in the vicinity of Villeneuve Airport.

The Minister's first witness, Rick McFarlane, is an Enforcement Inspector with the Minister of Transport. Mr. McFarlane has an Airline Transport licence, approximately 6700 hours of flying time and 800 hours of instructing time.

Mr. McFarlane was at the Villeneuve Airport acting on a request by the unit manager of the control tower regarding unusual flying practices possibly in violation of the Air Regulations. As a result, surveillance actions were conducted in the morning of May 6th, 1989 from the control tower at the Villeneuve Airport.

It was noted at 10:35 a.m. two people took off in C-GXUK and proceeded westbound. At approximately 10:48, Mr. McFarlane observed the aircraft in a maneuver that was concerning. The aircraft gained altitude, prescribed a circle and recovered at the bottom of the circle about the same altitude it initiated. At the top of the circle the right wing appeared to be down and the left wing coming up in what appeared to be a barrel roll. After this manoeuvre, the aircraft went into a full spin for 2 revolutions then disappeared from sight. 

C-GXUK returned to the Villeneuve Airport at 11:25 a.m. Mr. McFarlane took pictures of the two people getting out the aircraft. These people were identified as Peter D. Fry and Stephen W. Watson and entered as exhibit number 1.

The Minister of Transport called Jaimie Roth, a civil aviation inspector as their second witness and asked that he be classified as an expert. Objections were given by Mr. Roddick with regard to Mr. Roth's previous conversations with Mr. McFarlane and the qualifications of Mr. Roth. I was prepared to accept Mr. Roth as an expert witness for the following reasons:

  • consultation was not to prejudge Mr. Fry but to interpret a description of an aircraft manoeuvre.
  • Airline Transport licence with a Class l instructor's rating.
  • Class 3 Aerobatics licence which allows him to teach aerobatics to licensed pilots.
  • conducts flight tests for aerobatics.
  • holds 1 out of 20-25 of these licences in all of Canada.
  • 3500 hours of flying time with 2700 hours instructional.

Mr. Jaimie Roth testified he was familiar with the type of aircraft of which C-GXUK was. The manoeuvre C-GXUK made, described by Mr. McFarlane would in his opinion be a barrel roll. A barrel roll falls within the definition of aerobatic flight. The spin of two complete rotations following the barrel roll is also considered acrobatic flight.

In cross-examination, Mr. Roddick suggested that the manoeuvre Mr. McFarlane witnessed was a Dutch Roll and is not classified as aerobatics. He also suggested that during the course of this manoeuvre a spin could have been accidentally aggravated.

Mr. Roddick called his first witness, Mr. Peter D. Fry. Mr. Fry testified he was the owner of C-GXUK leased to Ville-Air Services Ltd. He admitted flying C-GXUK on the sixth day of May, 1989 between the hours of 10:00 a.m. and 12:01 p.m. M.D.T. and that Stephen Watson was with him because there was some cross wind to the runway. Mr. Fry testified there was high cloud, blue sky and they went to the west practice area. Mr. Fry denied exercising any maneuvers such as inverted flight, rolls or intentional spins. When asked if anything specific stood out in his mind, Mr. Fry replied, "Yes, the control tower warned them of wind shear near the ground."

The second witness called by Mr. Roddick was Stephen Watson, president of Ville-Air Services Ltd. Mr. Watson was vague on the date, but testified he and Mr. Fry flew to the west practice area and practised slow flight, stalls and steep turns at 6,000 feet above sea level and they never were below 5,000 feet. The practice area is twenty miles from Villeneuve. Although Mr. Watson does practice aerobatics, he claimed that there were no barrel rolls done on the flight in question. Mr. Watson testified the first he had heard of any concern as to how C-GXUK was flown on May 6, 1989 was when he received a letter in the mail at the end of May, 1989.

On cross-examination, it was disclosed that Mr. Watson became aware of allegations of infractions when a warrant for the log books for C-GXUK was issued and seized by the R.C.M.P. on May 17, l989.

In the morning with the sun out of the east, a clear day and binoculars I am convinced Inspector McFarlane did not have difficulty in tracking C-GXUK to the west practice area and observing the exercise.

C-GXUK may not have travelled a great distance to the west for the following reasons:

  • Higher winds usually prevail with altitude (reported wind shear at lower levels indicated this)
  • Ground speed is reduced as a result of headwinds
  • Climb speed reduces ground speed

The distinctive paint job (yellow, red and white) and subsequent position report inbound for landing would all be factors in keeping C-GXUK under surveillance.

Regarding Inspector McFarlane's description from his observations, Inspector Roth came to the conclusion that a barrel roll was most likely performed.

I have been an active pilot for 30 years. Inspector McFarlane's description from his observations indicate to me that a barrel roll was indeed exercised rather than a dutch roll.

If a spin was the accidental result of a stall, I am convinced the recovery would have taken place before 2 revolutions of the aircraft.

  • Ville-Air Services Ltd. is the owner responsible for C-GXUK as stated in the Certificate of Registration (exhibit #8)
  • Mr. Watson, president of Ville-Air Services Ltd. was on board C-GXUK the morning in question. There was an opportunity to prevent any contravention of Air Regulations.
Date modified:
2010-03-31