TATC Decisions

The Minister has proved on a balance of probabilities that Mr. Annand violated paragraph 602.14(2)(b) of the Canadian Aviation Regulations. However, I reduce the monetary penalty to $250 since this is his first offence of this type. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within 15 days of service of this determination.

A Review Hearing on the above matter was held Wednesday, April 10, 2002 at 10:00 hours at the Court House, Law Courts, in Courtenay, British Columbia.

BACKGROUND

The allegations in this matter arose from the July 23, 2001 arrival and departure of a floatplane at Savary Island, B.C. The parties agreed through a written "Agreement of Fact" that among other things, the aircraft involved was a Cessna 170 with registration marks C-GWAR and that Daniel Joseph Annand was the pilot-in-command at the relevant time. The aircraft landed, deposited one passenger, then departed.

There were people on the beach near the area of Savary Island locally referred to as "the Hole", where the aircraft landed and departed. The Hole is a popular spot both for boats to anchor and for float pilots to drop off and pick up passengers, because at the Hole the water depth increases much more rapidly at the shoreline than in other areas of the island.

The Minister of Transport (the "Minister") levied a $500 monetary penalty against Mr. Annand on the grounds that after take-off from the water at Savary Island on July 23, 2001, he passed within 500 feet of the people on the beach, thereby violating paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs).

LAW

Paragraph 602.14(2)(b) of the CARs stipulates:

602.14 (1) For the purposes of this section and section 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons where that built-up area or open-air assembly of persons is within a horizontal distance of

(...)

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft
(...)
(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

Subsection 101.01(1) of the CARs:

In these Regulations,
(...)
"take-off" means

(a) in respect of an aircraft other than an airship, the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding and following the leaving of that surface, and

(...)

EVIDENCE

Mr. Ray on behalf of the Minister called three witnesses: Mr. Brian Dick, the Transport Canada Enforcement officer who had investigated the incident; Mr. Derek Hudson, Director of Aviation Enforcement for the Pacific Region; and Mr. Hank Ewert, who was the passenger dropped off at Savary Island by Mr. Annand on July 23, 2001.

Mr. Dick testified as to his investigation of the incident and stated that he took a warned statement from Mr. Annand on August 24, 2001. The statement was entered as Exhibit M-2 without objection.

Mr. Hudson testified that he has a cabin on Savary Island overlooking the Hole. On July 23, 2001 he observed from his cabin C-GWAR flying overhead, then turning left to land on the water in the Hole. He also observed that there were quite a few boats moored in the area including two sailboats. Mr. Hudson observed that the aircraft taxied through the boats and sailboats and beached on the west side of the Hole where there was a group of people.

Mr. Hudson observed that on departure, the aircraft taxied out amongst the boats then accelerated and took off to the north/northeast. He said the take-off path was clear. Once airborne, the aircraft levelled off at about 25 feet then did a steep right turn back toward the island and boats. Mr. Hudson said it appeared that the aircraft flew between the two sailboats approximately level with the top of the masts. He said the aircraft flew over the people standing on the beach, waggled its wings, then pulled up into a steep left bank and climbed up over the island. Mr. Hudson, an ATR pilot with 13,000 hours and 2,450 hours on floats, said he was shocked by what he saw (in the handling of this aircraft). He thought it would have been more prudent to taxi further out from the boats before take-off. He said that normally in this situation, a pilot would do a partial turnout and climb to 600 feet or so in order to pass over the island safely. He was concerned in part because he believed that if the aircraft had an engine failure during the departure the pilot would not have had an "out". He said the pilot elected to leave a safe environment and do a 180-degree turn over people. He believed the aircraft passed over the people on the beach at about 30 feet.

On cross-examination Mr. Hudson agreed that the aircraft could not have simply turned right after take-off and flown over the trees safely. However, on both cross-examination and re-examination, he maintained his view that a straight out departure was available to the pilot. Also under cross-examination, Mr. Hudson identified as his an undated typewritten statement made by himself regarding this incident. In the statement he said, among other things, that his cabin is about 100 feet above the water. He also said in the statement that the pilot had the option to turn the opposite way, out over the water, instead of flying low over boats, people and cottages. Also the pilot would have been flying away from the 100 foot bank on shore instead of turning towards it. The view expressed by Mr. Hudson in his statement was that had the engine coughed, the pilot would have been in the trees. Mr. Hudson's statement was entered as Exhibit D-4.

Mr. Hudson also identified a map of Savary Island. He marked upon it GWAR's take-off path and the positions of the two sailboats and the people on the beach. Under re-examination, Mr. Hudson reiterated his view that a 180- degree turn at low altitude is not an acceptable procedure.

Mr. Ewert testified that at the point where Mr. Annand dropped him off there were four or five people, and there were people scattered all over the beach. His evidence was that C-GWAR took off towards Lund (north/northeast), turned right, then turned left and followed the shore, then climbed up over the runway located on the island to the east of the Hole. He said the aircraft did not fly over the group of people on the shore but beside them, then did an "S" turn to get out of the area. His evidence was that the aircraft was about 300 feet from the group when it went by, he guessed at a height of about 70 feet, although he allowed that distances and altitudes are difficult to estimate. Mr. Ewert identified as his a letter to Aviation Enforcement dated September 29, 2001 regarding the incident. The letter was entered as Exhibit M-5.

Under cross-examination by Mr. Annand, Mr. Ewert stated that there were lots of boats anchored around the island on the day in question. He identified three photos of Savary Island and marked where boats were anchored. He agreed that if the aircraft had turned left or been flown straight out after take-off it would have flown low over boats moored in the area. He also agreed that in turning right Mr. Annand did not fly over any person, boat or thing. He said he thought that was why Mr. Annand had departed that way. He thought that when the aircraft took off, the people on the beach were not put in any danger, but thought that if Mr. Annand had departed straight out he would have created a hazard to the anchored boats. He also said that when he saw a photo, taken from shore, of a sailboat he had observed anchored off Savary Island, he could see there was an apparent optical illusion in that a boat parked far away could look close from a different angle.

On re-examination, Mr. Ewert testified that there could have been at least 50 boats anchored in the area and that it gets very crowded there in the summer. He said he was not familiar with anchoring boats and although he said the distance between the boats could be 30-40 feet, he really didn't know.

Mr. Annand testified on his own behalf. He said that he flies for a living, usually in and out of logging camps, as he is a logger. Most of his flying is low altitude between the south coast and the Queen Charlotte Islands. He said that on take-off on the day in question, the sailboat was beside him as he started the take-off roll. He said he chose to make the steep right-hand turn after take-off to avoid flying over boats at 10-20 feet. He said he turned 180 degrees and flew parallel to the shore to build up speed to climb and did a zigzagging S turn to avoid boats, people and houses. He recalled sailboats outside of him and one big boat inside of him and some punts. He also recalled one big boat coming towards him from the outside. He admitted he did steep turns but not as low as 25 feet and admitted he could have flown over the trees at 100 feet.

However, Mr. Annand thought that at all times he had an "out" in case of an engine failure because he could have landed on the sand or the runway on the island. He said that there was no question that his turns were steep but felt his manoeuvres were safe in his 210 horsepower Cessna 170 with a light fuel load and no passengers, although he allowed these were not procedures he would undertake in a (DHC-2) Beaver. He thought that at no time he endangered persons or property and when he passed near the people on the beach, he was still in the act of taking off. He believed that if he flew straight out or left he would have got complaints and would have been unsafe because of the boats. He said if his engine had coughed he would have hit a boat in those directions.

On cross-examination Mr. Annand maintained his position that his choice to do a 180-degree turn was better than taking off over boats at 20-30 feet. He said he could not have paralleled the shore because there were people on the beach and boats moored along the shore. He admitted he could have taxied out farther but said "it gets rough out there", although he did not say whether it was windy or rough on July 23, 2001. He thought his low turn was safe and did not consider it unusual.

CLOSING ARGUMENTS

Mr. Ray for the Minister submitted that all the elements of the offence were proved on a balance of probabilities. The Minister's position was that the take-off conducted by Mr. Annand was not a normal one and that in any case the take-off was completed before the aircraft flew near the people on the beach.

Mr. Annand submitted that he was in the process of taking off when he flew near the people and that his take-off procedure caused the least amount of risk to persons, property or vessels. He agreed this was not a normal take-off but submitted that many coastal take-offs are not. He also submitted that in a circuit, a take-off ends only when an aircraft is above circuit height.

The Minister submitted that the $500 monetary penalty was as provided in the table of sanctions for a second offence and that the maximum fine for a CAR 602.14(2)(b) offence is $1,000. Mr. Annand admitted he had paid a fine for a previous regulatory violation a few years ago but the offence was of a completely different type. Mr. Annand submitted that no fine was fair because he believed he had not broken the law.

ISSUE

The Minister has clearly proved that Mr. Annand operated his aircraft at a distance less than 500 feet from one or more persons. The issue is whether he did so while conducting a take-off, in which case he did not violate paragraph 602.14(2)(b) of the CARs.

DISCUSSION

Clearly, there are differences of opinion between the witness Mr. Hudson, and the witnesses Mr. Ewert and Mr. Annand, with respect to the wisdom or necessity of Mr. Annand's chosen departure procedure on the day in question. The Minister and Mr. Annand also differ in their opinions as to whether Mr. Annand was still conducting a take-off when he flew near the people on the beach.

The CARs define "take-off" as "...the act of leaving a supporting surface, and includes the take-off run and the acts immediately preceding and following the leaving of that surface". Mr. Annand must have flown his aircraft near the people on the beach much less than a minute after he left the surface. He had gained very little altitude when he flew near the people. These facts support a finding that when he flew by the people, he was still in the act of taking off.

However, my opinion is that a take-off must involve reasonable take-off procedures if a pilot is to be allowed to take advantage of the take-off exception provided by paragraph 602.14(2)(b) of the CARs. I do not believe paragraph 602.14(2)(b) can reasonably be interpreted as protecting a pilot from prosecution if he chooses to fly procedures that are unnecessarily hazardous and therefore not part of a reasonable take-off procedure.

The following evidence supports the view that Mr. Annand's take-off procedure was necessary or otherwise acceptable:

1. Mr. Annand and Mr. Ewert both testified that a straight out or a left hand departure would have been unsafe because Mr. Annand would have had to have flown low over the numerous boats anchored in the area.
2. Mr. Annand was concerned about complaints from the boaters.
3. Mr. Annand testified there was a big boat coming straight toward him.
4. Mr. Annand testified that his actions felt safe, that he created no danger to persons or property, and that he always had an "out".
5. Mr. Ewert felt the persons on the ground were not placed in any danger and he thought that Mr. Annand took off in the manner he did in order to avoid the numerous boats in the area.
6. Paragraph 602. 14(2)(b) of the CARs prohibits flight at a distance of less than 500 feet from vessels or structures, as well as from persons.

The evidence that supports the view that Mr. Annand's takeoff procedure was unacceptable and should not fall within the CAR 602.14(2)(b) take-off exception is as follows:

1. Mr. Hudson testified that Mr. Annand's take-off path was clear.
2. Mr. Hudson thought that it would have been more prudent for Mr. Annand to have taxied out farther from the boats before take-off.
3. Mr. Annand also said he could have taxied farther out. Although he said "it gets rough out there" there was no evidence that it was windy or rough on the day in question.
4. In Mr. Annand's written statement he said that he landed northbound amongst the anchored boats. Yet his evidence was that on departure he could not have climbed over the boats. It is contradictory that there would be room to actually land amongst the boats but insufficient room between them to be able to find a relatively safe climb-out path.
5. Mr. Ewert said there were people scattered all along the beach, yet Mr. Annand chose to fly toward the beach.
6. Mr. Annand elected to fly at an altitude of less than 100 feet toward an island that had a 100 foot bank and admitted he may have flown over the trees at 100 feet.

I agree with Mr. Hudson that a steep, low level 180 degree turn is not an acceptable departure technique. It demonstrates poor airmanship because it significantly increases the risk of stalling the aircraft or of catching a wingtip on the water, no matter what the type of aircraft. Although Mr. Annand's evidence was that one of the reasons he flew the departure as he did was so he would have an "out" in case of engine failure, I agree with Mr. Hudson that on the evidence, it does not appear that the pilot in this case would have had a reasonable "out" in the event of an engine failure. It is highly unlikely that any pilot could avoid an accident if his engine failed while flying a steep turn at low level. I also do not believe that landing on sand or on a gravel runway is a viable option for landing a float plane. Nor do I believe that a pilot has engine failure 'outs' in mind if he chooses to fly at less than 100 feet toward an island that has a 100 foot bank and a beach with people scattered all over it or climbs out over trees at 100 feet.

Mr. Annand expressed concern about the possibility of getting noise complaints from the boats anchored in the area if he flew over them. I find that to be insufficient reason to undertake a low level steep turn on take-off that results in flying within 500 feet of people. Had Mr. Annand done a normal take-off and departure over or in between the boats, there would have been no regulatory violation.

As mentioned above, in Mr. Annand's statement he said he landed northbound amongst the anchored boats. This contradicts his evidence that he could not have found a safe path to climb out over the anchored boats. Therefore, I prefer Mr. Hudson's evidence that Mr. Annand's take-off path was clear. Also, to the extent there were any boats in Mr. Annand's path that Mr. Hudson did not notice or see, I think it is more likely than not that Mr. Annand could have reasonably minimized the risk to any boats in his path by taking the time to taxi longer and/or by making slight alterations to his heading as necessary as he climbed out.

Mr. Ewert's view was that if Mr. Annand had climbed straight out, it would have created a hazard to the anchored boats. Mr. Hudson's view was that the pilot in this case created a hazard by electing to leave a safe area and fly towards people on the beach by doing a steep, low level 180-degree turn after take-off. I give greater weight to Mr. Hudson's views of what is hazardous and what is not because Mr. Hudson is a very experienced pilot and Mr. Ewert is not a pilot.

I accept Mr. Ewert's evidence that the aircraft flew about 300 feet from the people, not over them as stated by Mr. Hudson. The difference in Mr. Ewert's and Mr. Hudson's evidence on this point can be explained by the different angles from which they saw the people and the aircraft. In any case the difference between "over" and "300 feet" is not material, since CAR 602.14(2)(b) prohibits flight within 500 feet of a person.

CONCLUSION

I find that the Minister has proved that Mr. Annand operated an aircraft at a distance less than 500 feet from a person. I also find on the evidence that the procedures flown by Mr. Annand on take-off were unnecessary and hazardous and therefore cannot be considered part of a reasonable take-off procedure. Therefore Mr. Annand may not rely on the take-off exception contained in paragraph 602.14(2)(b) of the CARs.

DECISION

The Minister has proved on a balance of probabilities that Mr. Annand violated paragraph 602.14(2)(b) of the CARs. However, I reduce the monetary penalty to $250 since this is his first offence of this type.

Sandra Lloyd
Member
Civil Aviation Tribunal