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Amendment 4 (1992)

CAT and TATC Decision Amendments

Aeronautics Indexes

Services

CAT File No. O-0311-02

Civil Aviation Tribunal

BETWEEN:

Robert Maguire

- and -

Minister of Transport

Air Regulations, C.R.C. 1978, c. 2, as am., s. 534(2)(a)

Low Flying - Built-up Area - Aerial Photography

The applicant, as pilot-in-command, flew an aircraft at approximately 200 to 300 feet above a house in the town of Richmond while carrying on board a photographer who had been engaged in aerial photography. The Minister issued a 120 day suspension.

On review, the Tribunal upheld the Minister's decision, but reduced the suspension to 30 days. After considering the Minister's arguments with respect to sanction, the Tribunal concluded that it was too harsh in light of the circumstances of this case.

On appeal by the Minister, the Tribunal reinstated the 120 day suspension, noting that the pilot's compliance record and the gravity of the contraventions warranted such a penalty. Arguments with respect to the necessity of the pilot low flying to obtain photographs, were rejected.

Note: See Aéro-Cam Inc. v. Minister of Transport (CAT File No. O-0312-10) reported in this volume, as these two cases were heard together at the review and appeal levels.

REVIEW DETERMINATION Fortier

May 14, 1992
Ottawa, Ontario

The Tribunal finds that the offense pursuant to section 534(2)(a) and 534(3) of the Air Regulations was committed by Mr. Maguire and orders the suspension of Mr. Maguire's commercial pilot licence for a period of 30 days. The suspension comes into effect at 24:00 o'clock on July 5, 1992 and shall end at 24 on August 4, 1992.

REASONS FOR DETERMINATION

NOTICE OF SUSPENSION

This matter arises pursuant to section 6.9 of the Aeronautics Act, whereby the Minister of Transport decided to suspend the Canadian aviation document of Robert Maguire on the grounds that he had contravened the following provisions:

"the Air Regulations, s. 534(2)(a) in that on July 7, 1991, at approximately 2:45 p.m. local time, you flew a Piper J3C-65 registered C-FOIE over a built-up area of Richmond, Ontario, at an altitude of approximately 200 to 350 feet above ground."

Air Regulations, s. 534(2)(a) provides, in part, that:

"...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...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."

Air Regulations, s. 534(3) provides, in part, that:

"For the purposes of subsection (2), an aircraft shall be deemed to be over the built-up area of any city, town or other settlement...where that built-up area...is within a radius of 2,000 feet from the aircraft."

In the Notice of Suspension, the suspension was to come into effect on February 12, 1992 and to remain so until June 10, 1992. On February 3, 1992, a stay of the said suspension was granted by the Civil Aviation Tribunal until the present Review Hearing.

EVIDENCE

The evidence presented by Transport Canada demonstrated that aircraft C-FOIE flew over a built-up area of Richmond, Ontario, at an altitude of approximately 200 to 350 feet above ground and also flew over the house of Mr. and Mrs. Gauvin at that altitude.

In addition, Transport Canada was successful in demonstrating that C-FOIE is an aircraft and that the Applicant is the owner. The certificate of registration (Exhibit M-6) was admitted by Mr. Maguire. Copy of the log book filed as a true copy, disclosed a flight on July 7, 1991 with Mr. Maguire as pilot-in-command (Exhibit M-1), and based on photographic evidence, the town of Richmond, and area surrounding it, constituted a built-up area of a town in accordance with Air Regulations 534(3).

Mr. and Mrs. Gauvin testified that the aircraft in question C-FOIE flew over their house on July 7, 1991 at an altitude which they claim to be approximately 150 feet above their house (based on the height of an oak tree planted on the property), and that they were able to identify the registration letters on the wings of the aircraft as it was flying over and banking in a westerly direction to follow a Canadian National Railway track and pursue its flight.

None of this evidence was contested by Mr. Maguire. Mrs. Finlay, a witness presented by Mr. Maguire, testified that she was a photographer in the aircraft in question at the time of the flight and estimated that the aircraft was flying at approximately 200 feet above ground when she was taking pictures of a farm in the Richmond area. Mrs. Finlay also confirmed that it was difficult for her to notify whether the aircraft was flying over anyone's house, as the aircraft was turning regularly. She may have been, at a particular time in the process, changing the film in her camera, requiring her attention inside the aircraft.

Mrs. Finlay did however state that they were not taking any photographs of Richmond but rather of a farm house which is not included in the built-up area of Richmond. Mrs. Finlay confirmed that the standard height for taking pictures for the purposes of her assignment is usually between 200 and 300 feet of altitude.

In his evidence, Mr. Maguire confirmed that the flight took place and that he was flying at approximately 200 feet above the ground when he flew over the Gauvin's residence. He acknowledged making a left turn in a westerly direction when passing over the Gauvin's residence to follow the railway track at approximately the same altitude of 200 feet. However, Mr. Maguire stated that at no time was he flying over the area of Richmond where the built-up area was less than a radius of 2,00 feet from the aircraft.

Mr. Maguire did not otherwise explain or demonstrate what other route he could have followed to avoid flying over the built-up area of Richmond at the altitude of 200 feet.

It is clear from the evidence that the Gauvin's house forms part of the Municipality of Richmond even though the exact location of Mr. Gauvin's house and the surrounding built-up area, in relation to the location of the Richmond High School, is separated by a field and a railway track. The distance between the Gauvin's house and the High School, according to evidence presented by Transport Canada, is approximately 600 meters (1,800 feet), making it less than the required minimum under the regulations.

After completion of the evidence, the Tribunal required Transport Canada to make representations justifying the 90-day suspension of Mr. Maguire's commercial pilot licence as requested by Transport Canada.

Transport Canada put forward a series of arguments to justify the 90-day suspension of Mr. Maguire's licence, and among those, was a computer list where Mr. Maguire's prior infractions, extending over an 8 to 9 year period from 1982 to 1990, are disclosed and summarized. Several infractions for which Mr. Maguire was found guilty concerned low flying operations. The Tribunal understands that the operations carried out by Mr. Maguire may sometimes require that he be called to fly at low altitudes which may be close to the minimum required under the Air Regulations. Mr. Maguire himself has acknowledged that certain prior convictions were directly related to the nature of his operations, that is aerial photography.

It is important to note that for purposes of this hearing, the evidence presented by Transport Canada dealing with earlier convictions of Mr. Maguire did not have any impact on issue of this case. The evidence was only presented to justify the recommendation by Transport Canada that Mr. Maguire's licence be suspended for a period of 90 days.

CONCLUSION

Based on evidence presented at the hearing, the Tribunal has no difficulty in finding that Mr. Maguire did, on July 7, 1991, at approximately 2:45 p.m. local time, fly his Piper J3C-65 registered C-FOIE over the built-up area of Richmond, Ontario, at an altitude of approximately 200 feet above the ground thereby contravening sections 534(2)(a) and 534(3) of the Air Regulations.

However, the Tribunal is of the opinion that the 90-day suspension requested by the Minister of Transport is a harsh penalty in the circumstances. The Tribunal understands the purposes of Transport Canada in requesting a penalty of such nature due to Mr. Maguire's prior record of infractions.

In the present circumstances, the Tribunal finds that a 30-day suspension is more reasonable and commensurate with the infraction committed by Mr. Maguire.

Therefore, the Tribunal finds that the offense pursuant to section 534(2)(a) and 534(3) was committed by Mr. Maguire, and orders the suspension of Mr. Maguire's commercial pilot licence for a period of 30 days, such suspension coming into effect on June 15, 1992 and remaining so until July 15, 1992.

TRANSLATION APPEAL DETERMINATION  Richard, Jobin, Rouleau

December 4, 1992
Ottawa, Ontario

The appeal is allowed. The Minister's decision to suspend the respondent's pilot licence for a period of 120 days is upheld. The suspension will start on the fifteenth day following the date of service of this appeal determination on the appellant.

REASONS FOR APPEAL DETERMINATION

The Minister of Transport is appealing the determination made by Jean-Marc Fortier on May 14, 1992. The Review Hearing in this case was heard jointly with Aero-Cam Inc. vs. the Minister of Transport (CAT File No: O-0312-10 and DOT File No. 6404-C-5906-19139). The determination made was appealed by the Minister of Transport. The two appeals were heard jointly.

In the determination at first instance the Tribunal, while acknowledging that the Respondent had contravened subsections 534(2) and 534(3) of the Air Regulations, reduced the penalty assessed by the Minister.

The grounds for the appeal are as follows:

1. The Tribunal Member erred in reducing the suspension period from 120 days to 30 days in light of the evidence filed and submissions made by the representative for the Minister of Transport with respect to the sanction.

2. Such further and other grounds that the transcript of the proceedings may disclose.

REPRESENTATIONS OF THE PARTIES

The Appellant submits in his arguments that the Tribunal member assigned to conduct the review reduced the assessed penalty without proper justification. On the basis of his comments, Mr. Fortier did not take into account the seriousness of the offence and the Respondent's prior record. The Appellant further contends that the determination at first instance was based on erroneous data about the length of the penalty assessed by the Minister.

The Respondent explains in his arguments that the alleged contraventions are due to the exigencies of his professional activities as an aerial photographer. In this context, he deems that the period of suspension adopted by the Tribunal is more than adequate.

DISCUSSION

In his determination Mr. Fortier states the following:

"Transport Canada put forward a series of arguments to justify the 90-day suspension of Mr. Maguire's licence, and among those, was a computer list where Mr. Maguire's prior infractions, extending over an 8 to 9 year period from 1982 to 1990, are disclosed and summarized. Several infractions for which Mr. Maguire was found guilty concerned low flying operations. The Tribunal understands that the operations carried out by Mr. Maguire may sometimes require that he be called to fly at low altitudes which may be close to the minimum required under the Air Regulations".

Mr. Fortier concludes as follows:

"... the Tribunal is of the opinion that the 90-day suspension requested by the Minister of Transport is a harsh penalty in the circumstances. The Tribunal understands the purposes of Transport Canada in requesting a penalty of such nature due to Mr. Maguire's prior record of infractions.

In the present circumstances, the Tribunal finds that a 30-day suspension is more reasonable and commensurate with the infraction committed by Mr. Maguire."

After examining the record of the Review Hearing and considering the representations of the parties, the Tribunal finds that, in view of the Respondent's prior record and the seriousness of the alleged offences, the Minister's decision to assess a suspension of 120 days was well-founded. The arguments relating to the exigencies of the Respondent's professional activities could not, in the circumstances, be regarded as a factor mitigating the penalty assessed or justifying a contravention of the established regulations.

Further, the Appellant's submission to the effect that the determination at first instance is vitiated with errors is well-founded. The evidence clearly shows that the Notice of suspension issued by the Minister of Transport on January 13, 1992, provided for a suspension of the Respondent's pilot licence for 120 days and not 90 days as the member of the Tribunal suggests in his determination.

The appeal is allowed. The Minister's decision to suspend the respondent's pilot licence for a period of 120 days is upheld. The suspension will start on the fifteenth day following the date of service of this appeal determination on the appellant.

Date modified:
2010-03-31