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Amendment 5 (1993)

CAT and TATC Decision Amendments

Aeronautics Indexes

Services

CAT File No. O-0398-10

Civil Aviation Tribunal

BETWEEN:

Aéro-Cam Inc.

- 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 - Sanction Considerations

The applicant company was proceeded against vicariously, as owner of an aircraft flown at approximately 200 feet ASL near a built-up area while carrying on board a photographer engaged in aerial photography. The Minister suspended the company's Operating Certificate for 43 days.

On review, the Tribunal confirmed the Minister's decision, noting that the company's operating certificate does not provide an exemption from s. 534(2)(a), and that the company has a responsibility to ensure that its employees and agents perform their duties in accordance with the legislation.

NOTE: See Maguire v. Minister of Transport (CAT File No. O-0396-02) reported in this volume, as these two cases were heard together at the review level, and the suspensions were to run consecutively.

REVIEW DETERMINATION Jobin

September 24 1993
Oshawa, Ontario

I confirm the Minister's decision to suspend Aéro-Cam Inc.'s operating certificate for a period of forty-three (43) days. The suspension shall begin at 24:00 hours on the fifteenth day following the date of service of this determination.

REASONS FOR REVIEW DETERMINATION

This hearing arises from the suspension of Aéro-Cam Inc.'s Operating Certificate pursuant to subsection 8.4(1) of the Aeronautics Act.

The NOTICE OF SUSPENSION states in part that:

"on August 22, 1992, at approximately 13:19 p.m. local time, a Piper J3C-65 registered C-FOIE was flown at an altitude of approximately 150 feet above ground over vehicle traffic approximately 1000 feet northwest of the built-up area of a settlement known as Castle Harbour Estates, and at between 200 and 500 feet over or within very close proximity to the northwest edge of the built-up area of Castle Harbour Estates."

Schedule A, attached to the Notice of Suspension mentions that:

"Pursuant to the Aeronautics Act, s.8.4(1), Aéro-Cam Inc., as the registered owner of C-FOIE, is liable to the penalty provided as punishment for this contravention.

NOTE:

The settlement of Castle Harbour Estates is located on the western shore of Lake Scugog, approximately 2 kilometres north of Port Perry, Ontario."

A stay of the suspension was granted by the Civil Aviation Tribunal on February 4, 1993 until the Review Hearing consideration and determination.

It should be noted that this case was heard at the same time as the case involving Robert Maguire and the Minister of Transport (CAT File No. O-0396-02) (DOT File No. 6504-P-205947-020754(PAP)). The circumstances involved in both cases being essentially the same, the evidence given at the hearing served for both Review Determinations.

Prior to the Review Hearing, the parties agreed to the following: The Applicant was, at the time of the alleged infraction, the owner of Aéro-Cam Inc. and pilot-in-command of the aircraft registered C-FOIE.

THE FACTS

On August 22, 1992, Robert Maguire was the pilot-in-command of an aircraft bearing the registration C- FOIE. Mr. Maguire was at the time accompanied by Mrs. Ann Finlay who was engaged in aerial photography. The aircraft was sighted flying very low within close proximity of the built-up area of Castle Harbour Estates.

THE EVIDENCE

Mark Bayley, an off duty operational investigator for the Transportation Safety Board, testified for the Minister of Transport that on his way home August 22, 1992 at approximately 13:30 p.m. he saw, in the vicinity of Castle Harbour Estates, an aircraft registered C-FOIE flying 75 feet above ground level.

Mr. Bayley thought that the aircraft was experiencing some troubles and stopped to observe the situation. According to his testimony, the aircraft, during the period of observation, was flying at an average of 150 feet and at a lateral distance of approximately 200 feet from the built-up area of Castle Harbour Estates.

Mr. C.W. Shook, another eyewitness for Transport Canada also testified that the aircraft was flying low at a lateral distance of approximately 200 feet from the built-up area of Castle Harbour Estates.

Mr. Bayley also mentioned in his testimony that the way the aircraft was being operated that day created concerns for the safety of people in the aircraft. In cross-examination, Mr. Shook stated that he was not concerned at the time about the safety of the people in the aircraft.

Robert Maguire maintained that the aircraft was always 2,000 feet outside the built-up area of Castle Harbour Estates. He also maintained that the operating certificate of Aéro-Cam Inc. permits flying at an undetermined low altitude.

Mrs. Finlay could not remember being in the vicinity of Castle Harbour Estates that day, but testified that as a general rule, Mr. Maguire kept the aircraft at approximately 2,000 feet from any villages or built-up areas.

THE LAW

Subsection 8.4(1) of the Aeronautics Act states that:

"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."

Paragraphs 534(2)(a) and (b) of the Air Regulations provide in part that:

"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 ....... the landing of the aircraft without creating a hazard to persons or property ............. 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; or

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

Subsection 534(5) of the Air Regulations states that:

"A person may fly an aircraft at a lower altitude than that specified in paragraph 2(b) where

(a) the flight is conducted without creating a hazard to persons or property; and

(b) the aircraft is flown in a special purpose operation of a nature that necessitates the flight of the aircraft at such lower altitude."

Paragraph 534(1)(b) of the Air Regulations defines "special purpose operation" as an operation in which:

"a commercial aircraft is flown for the purposes of the execution, by an air carrier, of aerial photography, aerial survey."

DISCUSSION

After considering the evidence and the applicable legislation, I believe that Aéro-Cam Inc. is liable for the infraction and so is subject to the penalty provided in paragraph 534(2)(a) of the Air Regulations.

Aéro-Cam Inc. should remember that its operating certificate does not in any way provide an exemption from the application of paragraph 534(2)(a) of the Air Regulations, nor from the general duty regarding the safety and security of the public. As the registered owner of C-FOIE, Aéro-Cam Inc. is responsible for ensuring that its agents and employees perform their duties in conformity with all the pertinent laws and regulations.

Moreover, Mr. Maguire's position of authority and control in the said company and his record of infractions completely justify the penalty that the Minister imposed on Aero-Cam Inc.

For the above reasons, I confirm the Minister's decision to suspend Aéro-Cam Inc.'s operating certificate for a period of forty-three (43) days. The suspension shall begin at 24:00 hours on the fifteenth day following the date of service of this determination.

Date modified:
2010-03-31