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Amendment 6 (1994)

CAT File No. O-0439-33

 Civil Aviation Tribunal

BETWEEN:

Roger Hitchon

- and -

Minister of Transport

Air Regulations, C.R.C. 1978, c.2, ss. 534(2)(a), 210(1)(a)

Low flying - Built-up area - Certificate of Airworthiness - Acrobatic flying

The Respondent was alleged to have performed 2 rolls while in flight, resulting in the Certificate of Airworthiness ceasing to be in force, and to have flown at a prohibited altitude near a "built-up area." The Minister assessed a total monetary penalty of $1,000 (2 x $500).

On Review, the Tribunal confirmed the Minister's decision, as the Respondent admitted that he had performed the rolls and the eyewitness testimony and the climb characteristics of the aircraft proved the low-flying.

On Appeal, the Tribunal upheld the low-flying finding and reduced the penalty from $500 to $200, as safety had not been compromised. It could not ignore the eyewitness testimony of a Transport Canada Inspector who had extensive experience in estimating aircraft altitudes. Although the appellant admitted executing the rolls and did not raise the issue on appeal, the Tribunal did not agree that the Certificate of Airworthiness had ceased to be in force, relying on MOT v. Nimmo (CAT File No. C-0198-33) and dismissing the $500 monetary penalty on the grounds of fairness.

REVIEW DETERMINATION Eberhard

January 26, 1994
North York, Ontario

The penalty will be $500 for each offence, for a total of $1,000. This amount, payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal at the above address within six months of the date of Service of the present determination.

REASONS FOR REVIEW DETERMINATION

The Review Hearing on the above matter was held Wednesday, January 26, 1994, at 10:00 hours in the North York Community Centre, in the City of North York, Ontario.

ORAL REASONS FOR JUDGMENT

Together with my Determination, I delivered my Reasons orally at the end of the Review Hearing. The Reasons set out below are, for the most part, a direct transcription of those oral Reasons.

The Chairman: This is not an easy case, but I am prepared to provide my decision orally.

We are dealing here with two allegations: Offence 1 and Offence 2 in the Notice of Assessment of Monetary Penalty filed as Exhibit M-2 by the Minister. The Notice reads in part as follows:

"Offence 1:

Air Regulations, s.534(2)(a) in that, on or about September 12, 1992, at approximately 12:20 p.m. local time, you as pilot-in-command of a Schweizer aircraft registered C-GRPV, flew at an altitude of approximately 500 feet above ground level, over or in close proximity to the built-up area of the Town of Stouffville.

Offence 2:

Air Regulations, s.210(1)(a) in that, on or about September 12, 1992, at approximately 7:30 P.M. local time, you as pilot-in-command of a Schweizer aircraft registered C-GRPV, performed acrobatic or inverted manoeuvres (two "rolls"), thereby causing the certificate of airworthiness to be not in force because the aircraft was operated in acrobatic or inverted flight. Such flight is contrary to the aircraft type certificate, and to the placard, which according to the aircraft flight manual, must be displayed in the aircraft."

At the outset of the hearing, the Minister and Mr. Hitchon provided me with an Agreed Statement of Facts, which is filed as Exhibit M-1. The Statement of Facts essentially provided me with the assistance of several essential elements on both counts and, to the credit of both parties, has, as a result, saved a good deal of time in this hearing.

The Statement of Facts reads in part as follows:

"The parties agree that at all times relevant to the Notice

- that Mr. Roger Hitchon was the pilot-in-command on September 12, 1992 at or around 12:20 p.m. local time of a Schweizer G164A aircraft bearing registration C-GRPV at or near the Town of Stouffville;

- that Mr. Roger Hitchon was the pilot-in-command on September 12, 1992 at or around 7:30 p.m. local time of a Schweizer G164A aircraft bearing registration C-GRPV at or near the Town of Stouffville where he performed to [sic] inverted manoeuvres, namely, two rolls."

That having been submitted, Mr. Hitchon agrees that on Offence 2, (which is referred to in the second aspect of the Statement of agreed Facts) the allegation has been made out. In effect, he pleads guilty to that allegation and wants today to speak only to the sentence.

That leads me therefore to the requirement of coming to some factual conclusions concerning Offence 1. Most of the elements have been confirmed in the Statement of Facts. The one that is in dispute is the gravamen of the defence itself, namely that Mr. Hitchon flew the aircraft at about 12:20 p.m. at an altitude of approximately 500 feet above ground level, over, or in close proximity to, the built-up area of the Town of Stouffville.

Paragraph 534(2)(a) of the Air Regulations reads 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."

My decision has to be based on the question then: from a point 2,000 feet north of the built-up area, from which a witness made certain observations, was this aircraft a minimum of 1,000 feet above the highest obstacle in that built-up area?

The relevant facts come from viva voce evidence, first from Inspector Len Kaufman, who is the assigned Civil Aviation Inspector who took instructions to investigate the matter. He attended the area and, with Inspector Richard Pearce, took some photographs which were subsequently identified and tendered as Exhibits M-3 through M-6.

He describes the north boundary of the Town of Stouffville by reference to Exhibit M-7 and refers to the area in which the built-up area on the north side of the Town is located relevant to Mr. Pearce' residence At that point in his evidence, Mr. Hitchon agreed that indeed Stouffville and the area of the Pearce home are a built-up area.

Inspector Richard Pearce was the second witness called by the Case Presenting Officer, Mr. Jerry Loan. Mr. Pearce comes to us with impressive credentials: many years of flying experience as an instructor, both fixed-wing and helicopter. He has been flying helicopters since 1972, has been training in the area for several years, and is an instructor.

Of interest is that, during his experience as a helicopter instructor, he made "many hundreds" of observations of what he described as helicopters doing auto-rotation. Mr. Pearce said that normally aircraft would enter auto-rotation at or about 500 feet above the ground. He has much experience personally with that manoeuvre and suggested that the lowest safe altitude for pilots to enter into that manoeuvre would be at about 500 feet above the ground.

As a monitor of air shows for the department, his professional duties require him to be particularly alert to altitudes. Also, his experience as a balloonist has given him specialized knowledge of the height of balloons ("80 feet") as a reference.

Based on that experience, he could show that he had a more refined appreciation of judging distances and aboveground altitudes than perhaps others might. I agree with him on that point.

He also referred to his ballooning experience in the same context.

Mr. Pearce was present, obviously, on the day in question. He observed the aircraft in question making some passes in an east-west direction, in an area which was not built up, several thousand feet north of his home, which is on the north boundary of the Town of Stouffville.

His evidence in that regard is not entirely inconsistent with the evidence of Mr. Hitchon, although he places those east-west passes slightly south of the area in which the Respondent testified he made them. I will refer to that in a moment.

He saw the aircraft approaching once in a southerly direction, following a turn over the area in which the aircraft was doing aerial seeding at a low altitude. Mr. Pearce describes the aircraft as ascending overhead from the north, heading in a south-west direction, climbing, and when overhead his house was at approximately 500 feet above ground level.

He describes the flight path of that aircraft by reference to the map (Exhibit M-7) illustrated by the red dots which represent the direction of the east-west passes and then the red line, arrow and X, which described, in his own words, "the turn of the aircraft and its southerly flight plan."

He describes this south-west track as the one pass that enabled him to read the registration numbers on the underside of the aircraft. He said he had no problem in reading the call letters.

Mr. Pearce compared the height of the aircraft to the approximate height of six to seven balloons. According to his calculations, he estimated the height of each balloon to be 80 feet. The approximate altitude of the aircraft would be six or seven times 80 as it passed over the actual built-up area.

He testified that the aircraft went out of sight to the south.

In cross-examination, Mr. Hitchon did a good job of inquiring a little more thoroughly into some of Mr. Pearce's evidence. He had Mr. Pearce agree that helicopters in descent would appear to be different from aircraft, fixed-wing or otherwise, in a climb attitude, and consequently his judgment about the altitude ... Mr. Hitchon later argued that I might draw some conclusions from this that would throw the testimony of Mr. Pearce into some discredit.

During his cross-examination also, Mr. Pearce reiterated that the east-west passes were approximately 3,000 feet away from the back yard of the house. He said that the aircraft would be ascending from approximately 3,000 feet laterally before flying over the house in a southbound direction.

Mr. Pearce did confirm, however, in cross-examination, that, within a distance of 2,000 feet from the built-up area, he had no doubt that the aircraft was below 1,000 feet above ground level.

Finally, the Respondent, Mr. Roger Hitchon testified.

Mr. Hitchon is also a very experienced pilot, having served in a variety of positions since being licensed in 1965, with diverse responsibilities. At the moment he is the manager of a large flying school.

He is, during his leisure time and holidays, a pilot on hire. In 1992, at the time of this incident, he was doing some agricultural flying for "Farm Flying Service," a firm working out of Eganville.

He said that he had approximately 15 to 20 hours of "ag. flying", but lifetime low-level flying time of approximately 5,000 hours, with 10,000 hours total time to his credit.

He confirmed that he had been seeding fields on the day in question. Referring to the map, Exhibit M-7, he said he recollected he was flying east-west, slightly north of the area Mr. Pearce referred to. He described this by placing on the map some green hatch mark boxes which identify, in his recollection, the field he was last seeding that afternoon.

Mr. Hitchon said that he was flying from the field and, in the routine of his seeding that day, he would fly east from the field (from which he took off with a loaded aircraft), then north, to go around the east boundary of Stouffville to reach the fields on which he was working. He would then return, flying over Stouffville and, in his words, remembering specifically that he would "put 1,200 feet on the clock" or altimeter, to avoid the problem that he now faces.

He said he would elevate quickly and steeply descend to land and restock. He says he remembers specifically the time in question, because time was important to him, and "time meant money."

In cross-examination, Mr. Loan revealed through Mr. Hitchon some additional facts which became relevant. First, the aircraft in question has a powerful Pratt & Whitney 600 horsepower engine with a level cruise speed of approximately 110 miles per hour or 92.93 knots when empty.

Mr. Hitchon confirmed that the aircraft had a climb rate of 60 to 80 miles per hour. Initially in his evidence he said that he finished the run at 50 feet and then started the climb empty. However, that portion of his evidence conflicts with evidence that he gave in response to some of my questions toward the end of the hearing, when he said he had done "headland cover" and was very close to the ground before his ascent and, with the assistance of "ground effect", would have been elevating at a higher rate of ascent.

He did, in another part of his evidence, say:

"At 80 miles per hour it would take approimately 500 feet horizontal to reach 1,000 vertical above ground altitude"

That I take as a significant statement, because it really answers the question in my own mind about the point at which he would be 2,000 feet from a built-up area as can be seen on Exhibit M-7.

He went on to say that, at a cruise speed, ascending from 50 feet to 1,000 feet would take 5 to 10 seconds. That is not very helpful evidence, because there is a big difference between 5 and 10 seconds. Given the degree of precision which is necessary for me now to calculate how high he would have been when 2,000 feet from the highest obstacle of the built-up area leaves much less certainty in my mind than the direct evidence of Mr. Pearce.

Further in his evidence he said 20 seconds for 1,200 feet per minute of climb would put him at approximately 450 feet above ground level. That statement (if accurate) is significant because if, following his last ascent before Mr. Pearce saw him, that was the situation, he clearly would not have been above the 1,000-foot level when 2,000 feet north of the Town of Stouffville.

In the result, where Mr. Hitchon's evidence is inconsistent with Mr. Pearce's, I prefer and accept the evidence of Mr. Pearce. Based on the onus of a balance of probabilities, I can come to no other conclusion but that on all of the evidence before me, the Respondent must be found to have been in violation of the provision of 534(2)(a), and I so find.

I would like to hear from both parties as to the matter of the penalty.

(submissions by Mr. Loan for the Minister and by Mr. Hitchon)

CONCLUSION

The Chairman: I have made a finding in respect to the 534(2)(a) offence. In my finding I did not make any comment about motivation or the relative seriousness of the offence. I do not find the actual technical infraction to be one that was callously embarked upon without some regard yourself for the nature of the requirements of that section. You have a good understanding of the section. I had to find the way I found, but I do not find that it was an intentional or premeditated or 'hot-dogging' or dangerous type of manoeuvre. It was just part of the nature of the operation you were involved in.

I am reminded that under paragraph (2)(a) there is the qualifying feature, namely that the aircraft should be at an altitude that permitted: in the event of an emergency, the landing of the aircraft without creating a hazard to persons or properties on the surface of the earth.

I always have difficulty with that point, because I have absolutely no doubt in my mind that you would have been able to, safely and without hazard to yourself and others, land the aircraft, notwithstanding that you may not have been at the proper altitude.

However, I do not have any authority to change the penalty sections or the legislation itself when it comes to imposing the disposition that I have to impose. I am going to disregard the "Letter of Counselling" referred to by Mr. Loan, who has quite fairly suggested on behalf of the Minister that I disregard the previous conviction (in that it was a long time ago, and since you are not generally in the business of doing the kind of work that has resulted in that infraction today).

That all gives me more confidence to treat this as a first offence. I am going to confirm the Minister's position in respect of the minimum fine on Offence 1.

I am concerned about the paragraph 210(1)(a) occurrence. You are in a unique position of responsibility in your current role, quite different from the crop-spraying and seeding role. This position requires you to be a role model for those with whom you come in contact and to set an example of really impeccable airmanship. Accordingly, I am concerned about that, more so than I am about the low-flying conviction. Given that observation, I agree that the penalty has to have a general deterrent effect. The non-certified rolls in a non-aerobatic aircraft were an irresponsible manoeuvre.

The aviation community has to see that the implications of 'hot-dogging' have to be dealt with seriously, and because of the type of aircraft you were flying that such a manoeuvre results in the Certificate of Airworthiness disappearing. Even though the result may be seen to be technical in nature, the events that lead up to it are not, and accordingly I find it to be much more serious than Offence 1. I trust it will not happen again!

I wondered in that regard as well, as to whether or not there would be any implications to your job regarding the potential licensing aspect of the convictions. I am concerned for the appointment that you have in your present employment position.

Mr. Loan assures me that there are not likely to be any implications of that kind as a result of these convictions. I have much confidence, on the basis of what I have heard from Mr. Hitchon today, of his own abilities.

I also can tell you that I do have some discretion insofar as your concern over the economic impact of this. My judgment and the sentence cannot reflect one's ability to pay, but it can reflect the time you are granted to make the payment. I have no difficulty in extending the time of the payment to any reasonable period which you might require to make the payment of the two fines of $500 each, for a total of $1,000.

Mr. Hitchon: I have no way of telling when I am going to have $1,000. I do not know what is reasonable.

The Chairman: Does six months seem to you to be ...

Mr. Hitchon: That sounds reasonable, in the light of ...

The Chairman: The disposition will be $1,000: $500 on each count. There will be six months from the date of service of the present Review Determination for payment of that amount.

DETERMINATION

The penalty will be $500 for each offence, for a total of $1,000.

APPEAL DETERMINATION Lindop, Pultz, Spence

August 18, 1994
North York, Ontario

With respect to Offence #1, the Appeal is denied. The Tribunal reduces the sanction to $200. This amount, payable to the Receiver General for Canada, must be received by the Civil Aviation Tribunal at the above address within thirty days of the date of Service of the present Appeal Determination. With respect to Offence #2, no offence related to paragraph 210(1)(a) has occurred; therefore, the Appeal is granted and the monetary penalty cancelled.

REASONS FOR APPEAL DETERMINATION

An Appeal Hearing on the above matter was held Thursday, June 16, 1994, at 10:00 hours, at the North York Memorial Community Hall, in the city of North York, Ontario.

BACKGROUND

Mr. Hitchon was seeding a crop in a Schweizer Ag-Cat registered C-GRPV, just north of the town of Stouffville, Ontario on September 12, 1992. Upon completion of the work, he climbed over part of the town wherein resided Mr. Richard Pearce, a Transport Canada Inspector. Mr. Pearce believed Mr. Hitchon flew too low over the town. Later the same day Mr. Pearce saw the same aircraft carry out an acrobatic manoeuvre, that is, two rolls.

As a result of Mr. Pearce's observations, Mr. Hitchon was charged with two offences: low flying and operating the aircraft without a valid Certificate of Airworthiness. The Minister alleged that the Certificate of Airworthiness was not in force because C-GRPV was not certified for acrobatic flight. A monetary penalty of $500 was assessed for each offence.

A Review Hearing on the above matter was held before Civil Aviation Tribunal Member Mr. John Eberhard Wednesday, January 26, 1994, in North York, Ontario. Mr. Eberhard confirmed the Minister's decision on both offences, but gave Mr. Hitchon six months to pay the $1,000 monetary penalty.

In a letter to the Tribunal received March 1, 1994, Mr. Hitchon appealed this decision. An Appeal Hearing was held before three designated Tribunal Members Thursday, June 16, 1994 in North York, Ontario. These Reasons for Appeal Determination are a result of that hearing.

THE CONTRAVENTION

The Notice of Assessment of Monetary Penalty sent to Mr. Hitchon, dated August 17, 1993, reads in part:

"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 the following provision(s):

Offence 1:

Air Regulations, s.534(2)(a) in that, on or about September 12, 1992, at approximately 12:20 p.m. local time, you as pilot-in-command of a Schweizer aircraft registered C-GRPV, flew at an altitude of approximately 500 feet above ground level, over or in close proximity to the built-up area of the Town of Stouffville.

Offence 2:

Air Regulations, s.210(1)(a) in that, on or about September 12, 1992, at approximately 7:30 P.M. local time, you as pilot-in-command of a Schweizer aircraft registered C-GRPV, performed acrobatic or inverted manoeuvres (two "rolls"), thereby causing the certificate of airworthiness to be not in force because the aircraft was operated in acrobatic or inverted flight. Such flight is contrary to the aircraft type certificate, and to the placard, which according to the aircraft flight manual, must be displayed in the aircraft."

THE LAW

Sections of the Air Regulations which are relevant to this case are:

"534(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

210. (1) No person shall fly or attempt to fly an aircraft, other than a hang glider or an ultra-light aeroplane, unless there is in force in respect of that aircraft

(a) a certificate of airworthiness issued under this Part or under the laws of the country in which the aircraft is registered"

GROUNDS FOR THE APPEAL

The following letter was received by the Civil Aviation Tribunal on March 1, 1994:

"I wish to appeal the recent decision of the Tribunal on the following grounds:

1. I agreed to the facts of the contravention of Air Regulation 210 on the grounds that I would be given the opportunity to speak to the severity of the penalty, which I consider excessive. This opportunity was not granted.

2. The tribunal member made several errors in interpreting the evidence, and chose to ignore several points which were raise [sic] by me and by Mr. Richard Pierce [sic]. I will attempt to summarize these errors below.

a. Mr. Pearce agreed that there is a significant difference in both size and appearance between a helicopter in an autorotational descent and a large biplane in a climb. He also stated that he had "no idea" of the actual size of a Schweitzer [sic] Ag-Cat. This aircraft is the largest biplane in production in the western world, and is significantly larger than, say, a Boeing Stearman, or a Waco UPF-7, commonly used in airshows (one of Mr. Pearce's areas of expertise). The larger the aircraft, the closer it appears.

b. Mr. Pearce stated explicitly that the probability of error in estimating the height of an aircraft above the ground is much larger when the aircraft is more than one thousand feet in altitude. Since, at the time in question, I was flying at an altitude of 1200 feet AGL, the error made by Mr. Pearce can be easily understood.

c. Mr. Eberhard states in his summary of my evidence that my "ag. flying" experience totals 15 to 20 hours. I made the point at the time that my experience in 1992 was only some 15 or 20 hours, but that my total ag. experience is probably in excess of 5000 hours, accumulated as an agricultural pilot since 1972. I feel that the perception that I am an inexperienced ag. pilot had a negative effect on my credibility.

d. Mr. Eberhard's conclusion that I flew over the built-up area of Stouffville at an altitude of less than 1000 feet seems to ride on the perception that the aircraft was not capable of completing a climb to that height in the room available. This is based on a misinterpretation of the facts. I attempted to point out that the last pass over the field took place at a very low altitude, where the aircraft was in ground effect. The point was to emphasize that the climb began at an airspeed significantly higher than the best rate-of-climb speed which allows the rapid conversion of speed into height. This means that the steady-state climb did not occur until the aircraft had already made a rapid ascent to an altitude of several hundred feet. Furthermore, Mr. Pearce testified that I made a turn away from the town while climbing, before turning south to overfly Stouffville. An examination of Exhibit M-7 (which is, I believe, the map used during the Hearing), will confirm this fact. Measurement of the circumference of the flight path will confirm that there was adequate distance available to complete a climb to at least 1000 feet AGL.

e .I am quoted as saying that "At 80 miles per hour it would take approximately 500 feet horizontal to reach 1,000 vertical above ground altitude". This is clearly incorrect, implying as it does an impossible angle of climb. Nevertheless, great weight was attached to this purported statement. At no time did I concur that 20 seconds was the amount of time I spent climbing to the altitude at which I crossed the town, as stated in the judgement. Nevertheless, 30 or 40 seconds would have been sufficient to establish a legal altitude after converting my airspeed from the last pass into altitude.

f. Apparently no weight was given to the stipulation by Transport Canada that the weather on the day in question was clear and cloudless, with light and variable winds and unlimited visibility. The lack of obstructions to visibility, as is well known, makes objects appear closer than normal because of the lack of visual cues. Furthermore, the lack of significant wind, an unusual meteorological condition, means that sound reaches the ground with little attenuation. This is also significant, because the Ag-Cat at climb power is very noisy. The louder the aircraft, the closer it seems.

g. The "balance of probabilities" criterion appears to have been interpreted to mean that, if I could have violated the regulations, I probably did so. That probability has been construed as certainty, which flies in the face of natural justice.

h. While I have nothing but respect for all the parties involved in this procedure, the fact that the tribunal has confirmed the penalty when no infraction has taken place (of AR 534(2)(a)), and not allowed me to speak to the penalty (AR 210(1)(a)), leads to the conclusion that the procedure is seriously flawed."

On March 7, 1994 the Tribunal received the following material as an addendum to Mr. Hitchon's Grounds of Appeal:

"3.I wish to make the following additional points:

a. During the investigation of the alleged violation of AR 534, no success was met with in determining the purpose of the flights, the exact location in which they occurred, or even the location of the airstrip from which they originated. To my knowledge, neither the farmers or landowners involved, the loadmaster nor even the aircraft owner was contacted to provide corroborating or refuting evidence. No-one has looked at the aircraft to determine it's true size or to confirm the highly visible nature of the registration markings. The entire case rests upon the evidence of Mr. Pearce, who has made a mistake.

b. The complainant, Mr. Pearce, acted as his own expert witness, and was permitted to testify as to his own ability to judge the height of an aircraft above the ground. This is a significant departure from normal rules.

Early in the proceedings I attempted to introduce into evidence as part of my defense a definition of the meaning of 20-20 vision. I was attempting to prove that Mr. Pearce's ability to read the registration of the aircraft when it was overhead was understandable because at that altitude (1200 feet AGL) there is a requirement that the registration be legible to a person with normal vision (which Mr. Pearce professes to have). My evidence was rejected by the tribunal member and by Mr. Loan as too confusing, presumably because of their lack of scientific background. This subject was not revisited.

I hold a degree in physics granted in 1971 by the University of Western Ontario. I taught laboratory courses for two years at Western's Department of Physics. I have taught mathematics, physics and chemistry in the Academic Upgrading department of Humber College Lakeshore for three winter sessions, and have instructed a course in microprocessor theory and operation at Fanshawe College in London, Ontario. I would be pleased to supply references to substantiate these facts. Even without such a background, I should have been granted at least as much latitude to explain why a mistake has been made, as was Mr. Pearce in his evidence. I am the only expert in agricultural aviation who was present at the hearing, and have already pointed out that even this was denied by the tribunal member.

c. I am the manager of a company which owns a commercially registered helicopter. As such, Mr. Pearce, the complainant, has authority over that operation. I had hesitated, because of this pre-existing relationship, to make this clear to the Tribunal, trusting instead in the member's ability to sort the wheat from the chaff, so to speak. I did not, therefore, point out that it is ludicrous in the extreme to compare the height of a climbing aircraft (whose size is completely unknown) to the height of a helicopter in a descent, and even more ridiculous to equate i t to "balloon heights". I admit to being shocked that these assertions were made before the tribunal, and even more shocked that they were taken seriously by people who are supposed to have at least a passing familiarity with aviation. It has been taken as a given from the outset that no member of Transport Canada's staff is capable of error, and that an offense was therefore committed. I will be pleased to elaborate during the appeal proceeding.

d. Notwithstanding the apparently relaxed rules of evidence and procedure, I was not permitted to introduce into evidence the only item I had brought to the hearing for that purpose. It was a letter from the loadmaster who was responsible for the loading and servicing of the aircraft. He is both a pilot and a retired OPP officer, and as such his testimony should be considered above reproach, whether written or not. That letter was not returned to me."

THE ISSUES

The Minister's case centered on the testimony of Mr. Richard Pearce, an Inspector with Transport Canada who witnessed the events in question. Mr. Hitchon, in his defence, relied primarily on his own testimony. There was no corroborating evidence produced by either party for either Offence. There was, however, considerable conflicting testimony.

Offence #1, the low flying charge.

Mr. Pearce lives near the edge of town. He observed the aircraft across a field about a mile north of his home doing turns at a low altitude. He did not realize, at the time, that the aircraft was engaged in crop seeding. Following the last pass over the field, the aircraft began to climb, initially turning north away from town, and continuing to climb and turn to a southwesterly heading. This flight path took the aircraft over Mr. Pearce's house. Mr. Pearce testified that he estimated the airplane was about 500 feet above ground when it went over the built-up area.

According to low flying regulation, when climbing away from the field, Mr. Hitchon was required to adjust his heading and climb rate so the aircraft would remain at least 1,000 feet above any obstacle within a horizontal distance of 2,000 feet from any built-up area. There is a kind of "imaginary box" created around a built-up area, 1,000 feet high and extending 2,000 feet beyond the edge of the area, within which an aircraft should not normally intrude. The Tribunal understands that it is one thing for the aircraft to clip a small corner of the "imaginary box," which would be a minor offence, and it is quite another to arrive over the town at a high power setting in a very noisy airplane climbing through 500 feet.

There was evidence in the Record that either of the above scenarios could have occurred. Mr. Hitchon stated repeatedly that he was above 1,000 feet. He further stated that he was making this claim based on reading the aircraft's altimeter, rather than an estimate of altitude made from the ground, as with Mr. Pearce. On the other hand, Mr. Pearce's estimate must not be taken lightly. His background makes him very qualified to make an assessment of an aircraft's altitude.

Mr. Jerry Loan, the Minister's Case Presenting Officer, asked Mr. Pearce when he first saw the airplane. Mr. Pearce replied

"I observed a yellow biplane, approximately a quarter to half a mile northeast, over the Ninth Line, which would be up in this direction.... I observed the aircraft make three east-west passes and one north-south pass." (transcript p. 51).

Mr. Pearce later placed marks on the map to indicate the aircraft's location. These marks were some 3,500 feet north of his house (Exhibit M-7). Mr. Hitchon also placed marks on the map to show the aircraft's location. These marks were still further north, over 4,500 feet from Mr. Pearce's house. All of the marks on the map were significantly further from Mr. Pearce's house than the quarter to half a mile he originally estimated.

In cross examination, Mr. Pearce stated he was not very familiar with the Ag-Cat aircraft. When asked by Mr. Hitchon if he knew the approximate size of the Ag-Cat, Mr. Pearce replied

"I couldn't even begin to estimate it, because I'm not used to it at all." (transcript p. 76).

Also, he stated he did not know what type of engine was installed.

Mr. Hitchon made the point that it is impossible to accurately estimate an aircraft's height if you do not know its size. For a given set of conditions, a large aircraft will appear closer than a smaller one. This effect would be enhanced if the aircraft was very noisy. The Ag-Cat is a very large airplane with a powerful engine, but has the same configuration as several smaller airplanes. Mr. Hitchon argued that this lack of appreciation of the size and noise level of the Ag-Cat caused Mr. Pearce to believe the aircraft was lower than it actually was.

Mr. Pearce stated that he read the aircraft's registration letters from the bottom of the wing. Mr. Hitchon argued that the fact the letters were legible does not mean the aircraft was below 1,000 feet. He said the minimum prescribed size of the letters is sufficiently large that they can be read at 1,000 feet.

In the first paragraph of his Grounds for Appeal and again in paragraph 2h, Mr. Hitchon stated that he had not been given an opportunity to speak to the sanction with respect to Offence #2. An examination of the Transcript (Oral Reasons p. 27) reveals that Mr. Eberhard, when discussing sanction, asked Mr. Hitchon, what do you have to say? To which Mr. Hitchon replied

"I don't have $1,000 to begin with, that's why I'm here. I don't know anything about sanctions. I would hope some consideration would be given to the amount of time I've had to spend on this and that you could reduce the penalty from five hundred bucks to the minimum possible under the Regulations."

Later, when Mr. Eberhard was discussing the length of time required to pay the sanction, Mr. Hitchon again had an opportunity to present his views.

In paragraph 3d of his Grounds for Appeal, Mr. Hitchon stated that, at the Review Hearing, he was not permitted to introduce, as evidence, a letter from Mr. Carman Greer. This letter is, in fact, part of the Record as Exhibit D-8. Mr. Eberhard did not refer to the letter in his Reasons for Determination, presumably because it does not contain information which is directly germane to the charge against Mr. Hitchon.

Mr. Greer was with the auger truck and service vehicle a short distance south of town. He stated that he had observed the aircraft flying directly over the town of Stouffville on previous flights at an altitude which he estimated to be more than 1,000 feet. When the aircraft took off with the last load, that is for the flight which resulted in the charge, Mr. Greer departed with the equipment for a new location. He was therefore not in a position to witness the aircraft at the time Mr. Pearce made his observations.

There was considerable discussion in the Record regarding the climb capability of the aircraft and the distance it was north of town when it commenced the climb over Mr. Pearce's house. This was to determine if the airplane had sufficient climb performance to make it possible to reach an altitude of 1,000 feet above ground at a point 2,000 feet north of the built-up area. Mr. Eberhard appeared to rely heavily on these calculations in arriving at his determination. There are many variables involved in making this assessment, including the weight of the airplane at the time, the power setting used, the pilot's technique, the temperature, the wind, and particularly the initial climbing turn away from the town.

The Tribunal, sitting in Appeal, concludes that the airplane was capable of maintaining a rate of climb sufficient to meet the minimum altitude requirement of paragraph 534(2)(a) of the Air Regulations. The issue to be decided is not whether it was possible for the aircraft to reach a sufficient altitude, but whether it did.

Mr. Eberhard gave his Determination and oral reasons following the Review Hearing. Some three weeks later he provided a written Determination and Reasons. These documents were dated February 21, 1994.

In his oral Reasons for Determination, Mr. Eberhard stated

"I found Mr. Hitchon's evidence to be candid. I found that he attempted, to the very best of his ability, to recollect accurately the facts of the day. I found him candid and I found him straightforward. At the same time I have no reason to disbelieve Inspector Pearce. I have therefore only the statistics and the performance of the aircraft to base my judgment on, ... " (p. 13).

In his written Reasons he also said

"In the result, where Mr. Hitchon's evidence is inconsistent with Mr. Pearce's, I prefer and accept the evidence of Mr. Pearce.... I do not find that it was an intentional or premeditated or 'hot-dogging' or dangerous type of manoeuvre. It was just part of the nature of the operation you were involved in.... I have absolutely no doubt in my mind that you would have been able to, safely and without hazard to yourself and others, land the aircraft, notwithstanding that you may not have been at the proper altitude."

THE INVESTIGATION

According to Mr. Hitchon's evidence, he was first aware that the Minister was investigating the low flying charge when he received a Letter of Investigation from Mr. Kaufman dated March 22, 1993. This is some six months following the date of the incident in question.

The Aeronautics Act directs the Tribunal to conduct its affairs with procedural fairness and natural justice. If this is to occur, an essential ingredient is that Mr. Hitchon receive sufficient and timely information so he can know the case he has to meet and have a reasonable opportunity to prepare a defence against the charge. Much of the evidence that Mr. Hitchon might have wished to gather for his defence is perishable. The 6-month interval could make it difficult for him to locate witnesses who could testify that he was not flying too low. In addition, details of a flight that took place months before, and was among many and not particularly remarkable at the time, could be very hard to recall.

SUMMARY, OFFENCE #1

Mr. Hitchon claims that he was at 1,200 feet when passing over the built-up area, and did not violate the minimum altitude requirement. To conform with the regulation, he must have been at an altitude of at least 1,000 feet when at a point 2,000 feet north of the built-up area. While not definitive in itself, the Tribunal has some difficulty with the geometry of this claim.

Mr. Hitchon stated that following completion of his work he initiated a "zoom" climb to convert any excess speed to altitude. He then entered a continuous climb, and the aircraft had a sufficiently high climb rate to attain an altitude of 1,200 feet by the time he reached the built-up area. The fact that his climb was continuous suggests that his flight path could be represented by a relatively straight line, starting at a low altitude near the field at the top of his "zoom" climb, and ending over the built-up area at 1,200 feet. Visualizing this line, one can see that a short distance north of the built-up area, the airplane would have been at, say, 1,100 feet and a little further north, 1,000 feet and at a further distance, 900 feet, etc. It appears to the Tribunal that, if the aircraft's climb performance was such that it had attained an altitude of 1,000 feet at a point 2,000 feet north of the built-up area and continued to climb, the airplane would have been somewhat higher than 1,200 feet by the time it transversed the 2,000 feet to reach the built-up area.

In other words, if Mr. Hitchon's claim is correct, the airplane would have gained only 200 feet of altitude while travelling 2,000 feet horizontally. Even with a substantial "zoom" climb, this flight profile seems unlikely. Possible, but unlikely. Conversely, using the same trajectory, if the airplane was at 1,200 feet over the built-up area, the angle of its flight path, slanting back down toward the field, would suggest that it must have been lower than 1,000 feet when at a point 2,000 feet from the built-up area, and therefore cut through part of the "no fly zone" north of town.

CONCLUSION, OFFENCE #1

The Tribunal concurs with Mr. Eberhard that, on the balance of probabilities, Mr. Hitchon was violating paragraph 534(2)(a) of the Air Regulations. We believe, however, that considering the aircraft's track and probable profile, the violation was minor in nature. On numerous flights earlier in the day between points on either side of the town, Mr. Hitchon had made a conscious effort to avoid the built-up area.

Mr. Hitchon stated at the Appeal Hearing that he very much regrets this incident and gave assurances that he would add a greater buffer between his airplane and any inhabitants, to ensure these circumstances would not recur.

With respect to Offence #1, for the reasons above given, the Appeal is hereby denied. Having consideration for Mr. Hitchon's undertaking, and without corroborating evidence in support of the cases against him, the Tribunal hereby reduces the sanction on Offence #1 to $200.

Regarding Offence #2, flying the aircraft without a valid Certificate of Airworthiness, Mr. Hitchon admitted in a Statement of Facts agreed to prior to the Review Hearing that he had conducted two rolls in C-GRPV. The issue of whether or not this manoeuvre would cause the aircraft's Certificate of Airworthiness to become invalid was not argued. As a result, the Minister did not have the opportunity to describe to Mr. Eberhard which Act, regulation or order, stipulates that the Certificate of Airworthiness becomes invalid because of a particular manoeuvre conducted during flight.

Paragraph 210(1)(a) of the Air Regulations is clear. In order for this aircraft to be flown, its Certificate of Airworthiness must be valid. The question to be answered is what can cause an existing Certificate to become invalid? This subject was examined thoroughly in the Allen Nimmo case (CAT File C-0198-33). This case involved an allegation by the Minister that Mr. Nimmo, a commercial pilot, had flown a Cessna Citation by himself when the aircraft's Flight Manual stated that two pilots were required. The Minister reasoned that the aircraft was being operated in a manner inconsistent with its Certification and charged Mr. Nimmo with flying the airplane when its Certificate of Airworthiness was not valid. As the Nimmo case involves essentially the same issue as this case, we will refer to it.

In writing the Reasons for the Nimmo case, Mr. R.J. Rushford Q.C. stated:

"The central issue in this appeal is whether an "operational" infraction of the Air Regulations invalidates a Certificate of Airworthiness under the provisions of Section 210(a) or whether only maintenance related infractions and the absence of a "certification of airworthiness" render a Certificate of Airworthiness invalid or no longer in force.

(...)

A Certificate of Airworthiness is defined in Section 101(1) of the Air Regulations as follows:

"certificate of airworthiness" means a conditional certificate of fitness for flight issued in respect of a particular aircraft under Part II of these Regulations or under the laws of the state in which the aircraft is registered."

Section 211(6) of the Air Regulations provides as follows:

"A certificate of airworthiness or flight permit issued under this Part shall contain such conditions relating to the equipment, maintenance and operation of the aircraft as may be prescribed by the Minister, and the conditions so prescribed may be amended at any time by the Minister."

Transport argue that Section 211(6) is authority for placing conditions on a certificate of airworthiness.

Further, Transport say that the definition of a Certificate of Airworthiness in Section 101(1) makes a Certificate of Airworthiness "conditional" meaning that certain things must be done to get it and certain things must be done to maintain it.

Transport argue that items 1 to 7 on the Certificate of Airworthiness are in fact conditions which must be met to keep the Certificate of Airworthiness in force. In particular, we are referred to items 5 and 6 which read:

"(5) This Certificate of Airworthiness is issued pursuant to the Convention on International Civil Aviation signed at Chicago the 7th December, 1944 and the Air Regulations in respect to the above mentioned aircraft which is considered to be airworthy when maintained and operated in accordance with the foregoing and either the Aircraft Specification or Type Approval, the Weight and Balance Report and Aircraft Flight Manual.

(6) Unless expired, suspended or cancelled in accordance with the Air Regulations, this certificate shall remain in force so long as the aircraft identified above is maintained and certified airworthy in accordance with the Air Navigation Orders."

Transport then reason that if items 5 and 6 are "conditions", a breach of any part of items 5 and 6 would render the Certificate of Airworthiness invalid and that a portion of the provisions relate to matters which are "operational" in nature.

If this argument is correct, as one Tribunal Member observed, it would be possible to "slide in and out of a Certificate of Airworthiness". A Certificate of Airworthiness could be in force while an aircraft was on the ground, go out of force the moment it was flown and back into force again when it was back on the ground.

The Appellant argues that if the required maintenance is carried out, and if that maintenance is documented, the Certificate of Airworthiness remains in force, operational infractions notwithstanding.

The Appellant further argues that whether or not an aircraft is airworthy and whether or not the Certificate of Airworthiness is in force are two separate and distinct issues.

Airworthy is defined in Section 101(1) of the Air Regulations as follows:

""airworthy" means, in respect of an aeronautical product, in a fit and safe state for flight and in conformity with the applicable standards of airworthiness."

The relevant portions of Section 210(1) of the Air Regulations for the purpose of this case are:

"No person shall fly or attempt to fly an aircraft... unless there is in force in respect of that aircraft... a Certificate of Airworthiness... and unless all conditions upon which the Certificate of Airworthiness... was issued are complied with."

Section 215 of the Air Regulations provides:

"The Minister may make orders or directions with respect to the times when a certificate of airworthiness or a flight permit is or is not in force."

The Air Navigation Orders, Series II, No. 4 is entitled:

"Order Respecting Conditions and Procedures for Keeping A Certificate of Airworthiness (hereinafter referred to as the Order)"

Paragraph 1 of the Order reads:

"This Order may be cited as the Certificate of Airworthiness Order"

The heading preceding paragraph 3 of the Order reads:

"Conditions of Certificate of Airworthiness"

The heading is followed by paragraph 3 reading:

"Every certificate of airworthiness issued in respect of an aircraft is issued on condition that

(a) the aircraft will be maintained in accordance with a maintenance program that meets the aircraft standards of airworthiness established by the Minister pursuant to section 211 of the Air Regulations, and

(b) an entry will be made in the Aircraft Journey Log of the aircraft by an authorized person, certifying that the aircraft is

(i) airworthy, or

(ii) released for return to service,

whichever is applicable, at the times and in accordance with the procedures set out therefor in the Airworthiness Manual or in the Engineering and Inspection Manual."

Paragraph 5 of the Order reads:

"Notwithstanding anything in this Order, a certificate of airworthiness issued in respect of an aircraft is not in force at any time when either of the conditions set out in paragraph 3(a) or (b) fails to be satisfied in respect of that aircraft."

The only orders made by the Minister under Section 215 of the Air Regulations are those set out in paragraphs 3(a) and (b) of Air Navigation Orders, Series II No. 4.

Paragraph 3(a) clearly relates to "maintenance" related matters.

Paragraph 3(b) relates to documentation in the aircraft journey log.

Paragraph 3(b)(i) refers to procedures set out in the Airworthiness Manual or in the Engineering and Inspection Manual. In this case, it is the Airworthiness Manual which applies.

Chapter 571 of the Airworthiness Manual is entitled:

"Maintenance of Aeronautical Products"

The relevant paragraphs are 571.3(a) which reads:

"571.3(a) "Airworthiness Limitations" means those maintenance tasks which are mandatory as a condition of the type approval."

571.5(c)(1), (2), (3) and (4) which read:

"571.5 "The certificate of airworthiness of an aircraft is not in force unless that aircraft is in compliance with:

(1) The airworthiness limitations section contained within the manufacturer's instructions for continued airworthiness, and the requirements of any supplemental inspection document (SID) which has been published by the manufacturer for that aircraft;

(2) The replacement schedule for life limited parts specified in the aircraft type approval or otherwise approved by the Minister.

(3) All applicable requirements of this chapter.

(4) All applicable airworthiness directives issued by the Minister and, unless otherwise specified by the Minister, all applicable airworthiness directives and equivalent notices issued by the civil aviation authorities of the countries of origin of the aircraft, engine(s), propeller(s) and appliances; and"

571.5(d) which reads

"The certificate of airworthiness of an aircraft is not in force if the aircraft or its required equipment has been repaired, modified, or otherwise maintained in a manner, or by using parts or materials, not in accordance with the requirements of this chapter.

All of the above provisions are maintenance related.

The Aeronautical Information Publication, which is an operative document with little legal effect, contains provisions which are consistent with maintenance requirements as distinct from operational requirements invalidating a Certificate of Airworthiness.

Reference was made to ICAO documents. More specifically, the panel looked at the Convention on International Civil Aviation, Annex 8, Part II. ADMINISTRATION, which deals with Certificates of Airworthiness. This material does not relate to operational matters but is maintenance- related.

In particular, Paragraphs 1, 2 and 3 relate to building an aircraft and in effect say if you are going to build one it has to be airworthy.

Paragraph 4 deals with keeping an aircraft airworthy and subparagraph 4.1 refers to "at the time of inspection" which is mechanical in nature.

Paragraph 5 deals with the validity of a Certificate of Airworthiness and says it shall be renewed or shall remain valid and then goes on to detail things which have nothing to do with aircraft operation.

Paragraph 6 is entitled "Temporary Loss of Airworthiness" and refers to failure to maintain.

Paragraph 7 simply deals with the form of a Certificate of Airworthiness, while Paragraph 8 deals with providing each aircraft with a flight manual, placards or other documents stating approved limitations within which the aircraft is considered airworthy... and additional instruction and information for the safe operation of an aircraft. Nothing in Paragraph 8 would have indicated that the Certificate of Airworthiness would be invalidated if the information referred to therein were not provided.

All of the above reinforce the argument that a Certificate of Airworthiness may be invalidated for maintenance or certification related matters as distinct from operational matters.

CONCLUSION (Nimmo)

We conclude therefore that any directions or orders made by the Minister under paragraph 215 of the Air Regulations with respect to the times when a Certificate of Airworthiness is or is not in force do not relate to "operational" matters. If the minimum crew requirements of the Type Certificate Data Sheet for the aircraft in question have been breached, such a breach is an operational matter and does not invalidate the Certificate of Airworthiness.

The possible operation of this aircraft on the flight in question in breach of the minimum crew requirements may very well be a breach of other sections of the Air Regulations but it is not a breach of Section 210.

This finding is consistent with the wording of items 5 and 6 of the Certificate of Airworthiness for this aircraft.

All item 5 says is that the aircraft is considered airworthy (in a fit and safe state for flight) when maintained and operated in accordance with the Chicago Convention, the Air Regulations, the Aircraft Specification or Type Approval, the Weight and Balance Report and the Aircraft Flight Manual. An aircraft may not be airworthy because of an operational breach of the Air Regulations or the Air Navigation Orders, but that in itself does not invalidate the Certificate of Airworthiness as long as the aircraft has been properly maintained and certified.

Item 6 simply provides that the Certificate of Airworthiness will remain in force unless expired, suspended or cancelled in accordance with the Air Regulations. The Certificate of Airworthiness has not been suspended or cancelled, nor has it expired. The balance of item 6 relates to the aircraft being maintained and certified airworthy in accordance with the Air Navigation Order. Nothing in item 6 relates to operational matters.

The Minister has authority under section 215 of the Air Regulations to make orders or directions with respect to the times when a Certificate of airworthiness is or is not in force, and has in fact done so in the Air Navigation Orders, Series II, No. 4, insofar as maintenance-related matters are concerned. If infractions of operational matters are intended to invalidate the Certificate of Airworthiness, all the Minister need do is say so. At this point in time, however, the Minister has not said so."

SUMMARY, OFFENCE #2

There is no evidence in the Record to indicate the aircraft suffered any damage as a result of completing the rolls. Nor was there evidence that any limits were exceeded, such as the airspeed or "G" limits.

Sections 517, 518 and 519 of the Air Regulations refer to acrobatic flight. They read:

"517. No aircraft shall be flown in any acrobatic flight

(a) so as to endanger or be likely to endanger air traffic in the vicinity of the aircraft;

(b) over any urban or other populous area; or

(c) in controlled airspace or within any air route designated as such by the Minister except in accordance with the written authorization of the Minister.

518. No aircraft shall be flown in any acrobatic flight or exhibition flight over any assembly of persons except in accordance with the written authorization of the Minister.

519. No person in any aircraft shall execute any acrobatic flying unless he is the sole occupant of the aircraft or is a flying instructor authorized in accordance with these Regulations to engage in giving dual flying instructions."

The above Regulations are comprehensive regarding acrobatic flight. The Tribunal must assume that, if the Minister had wished to prevent the type of manoeuvre conducted by Mr. Hitchon, he would have so stated in these Regulations. There was no evidence in the Record to indicate that Mr. Hitchon was violating any of the above sections.

The Minister introduced a copy of a placard which is mounted in the cockpit of Ag-Cat C-GRPV (Exhibit M-1) which states "no acrobatic or inverted maneuvers, including spins approved". The Tribunal understands the meaning of this placard to be that the Ag-Cat aircraft in question is neither certified for, nor prohibited from, conducting the rolls completed by Mr. Hitchon. It may be that this aircraft could be certified for acrobatic flight without modification, and it may not.

CONCLUSION, OFFENCE #2

Conducting acrobatic manoeuvres in an aircraft which has not been specifically certified for acrobatic flight is potentially dangerous. While one might question Mr. Hitchon's judgement in carrying out the rolls, we do not believe that, in this particular case, there was a flagrant disregard for safety. The Tribunal does not condone this type of activity; however, we conclude that the Minister has not prohibited, through regulation, the conducting of the manoeuvres carried out by Mr. Hitchon.

The Tribunal recognizes that the legal basis for the allegation made in Offence #2 was not argued at the Review Hearing. The panel raised the matter at the Appeal Hearing, but neither Mr. Hitchon nor the Minister's representative wished to argue the issue. We raise it at this stage in the belief that the failure to do so would be an error, and be patently unfair to Mr. Hitchon.

The Tribunal concludes that with respect to Offence #2, no offence related to paragraph 210(1)(a) has occurred; therefore, the Appeal is granted and the monetary penalty cancelled.

The Tribunal wishes to comment with gratitude upon the well prepared and articulate arguments made by both the Minister's representative, Mr. Albert Cloutier, and Mr. Hitchon.

Date modified:

2010-03-31

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