TATC Decisions

I FIND THAT THE RESPONDENT DID CONTRAVENE PARAGRAPH 534(2)(a) OF THE AIR REGULATIONS, AND I CONFIRM THE MINISTER'S DECISION TO ASSESS A MONETARY PENALTY OF $250. THIS AMOUNT, PAYABLE TO THE RECEIVER GENERAL FOR CANADA, MUST BE RECEIVED BY THE CIVIL AVIATION TRIBUNAL WITHIN FIFTEEN DAYS FOLLOWING SERVICE OF THIS DETERMINATION.

The Review Hearing on the above entitled matter was held Thursday, November 25, 1993 at 13:00 hours, at the Pickle Lake Hotel, in the town of Pickle Lake, Ontario.

BACKGROUND

The Respondent, Rick Brenton, had been assessed a monetary penalty on two counts: $250.00 on the first count for having contravened section 522 of the Air Regulations, and $250.00 on the second count for having contravened paragraph 534(2)(a) of the Air Regulations. The Notice of Assessment of Monetary Penalty reads in part as follows:

"Count No. 1: Air Regulation 522 in that on 17 May 1993 at approximately 1550 hour local time at or near Webequie, Ontario you flew an aircraft, to wit a Cessna U206 hearing Canadian Registration Marc C-GBGJ, at a height of less than 2000 feet over the aerodrome.

Count No. 2: FURTHER, on 17 May 1993 at or near Webequie, Ontario you flew an aircraft, to wit a Cessna U206 hearing Canadian Registration Marc C-GBGJ, at an altitude of less than 1000 feet above the highest obstacle within a radius of 2000 feet from the aircraft, a violation of Air Regulation 534(2)(a)."

Section 522 of the Air Regulations reads as follows:

"No person shall fly an aircraft at a height of less than 2,000 feet over: aerodrome except for the purpose of landing or taking off or except as otherwise directed by an air traffic control unit."

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

This file contains a copy of a letter dated July 30, 1993 from G.O. Langen, Regional Director, Regulatory Compliance Branch, to the Civil Aviation Tribunal. The letter says that Mr. Brenton "paid for the first count (Air Regulation 522) in the amount of $250.00; however, he is contesting the second count (Air Regulation 534(2)(a)."

The letter from Mr. Langen also includes a copy of a note, dated July 19, 1993 signed by Rick Brenton, which was directed to the Regulatory Compliance Branch. A copy of the Money Order for $250.00 to pay the first count is shown below this note. Rick Brenton states the following:

"Please find attached a money order in the amount of 250.00 for Count No. 1 Air Regulation 522. I will pay the count No. 2 the first week of August 1993 as per my phone conversation with Mr. Langen."

The concern and obligation from this point forward will be on Count No. 2 (paragraph 534(2)(a) of the Air Regulations), which Rick Brenton has not paid and is now contesting.

Five Exhibits were presented, they are as follows:

• M-1  A copy of the Certificate of Registration of Aircraft and the Certificate of Airworthiness for Cessna U20G, C-GBGJ.
  
• M-2  A copy of a page from the Aircraft Journey log and Daily Flight Report for C-GBGJ dated May 17, 1993.
  
• M-3  Three photographs of Webequie, with airstrip in foreground.
  
• D-4  Statement of Mr. Emmanual Jacob.
  
• D-5  Statement of Mr. Sammy Jacob.

The Minister's first witness, Inspector Peever, said that on May 17, 1993, while he was at the Webequie airport, he saw a blue and white aircraft make an extremely low pass up the middle of the runway. When it reached the end of the runway, it climbed 100 feet or so and disappeared over the trees. From Inspector Peever's vantage point, it appeared over the town of Webequie at perhaps 200 feet. The aircraft then pulled up quite sharply and did a right turn and a right circuit at approximately 500 feet, did one circuit back over the town and continued for another circuit and landed on the lake to the east of Webequie. Inspector Hanson, who was with Inspector Peever, went to Transport Canada's aircraft which was in the parking area and tried to contact the blue and white aircraft by radio.

Inspector Peever went to their aircraft and heard Inspector Hanson ask the blue and white Cessna for identification. The pilot said this is Rick. Inspector Hanson asked for his call letters, but there was no further transmission.

The Inspectors started their aircraft to overfly the lake to identify the Cessna, but were unable to do so. By the time they got there, the Cessna had already taken off.

The next day, the Inspectors went back to photograph the area. They spotted it in a small bay north of the town, but were unable to get close enough to get the registration because of rough air.

Inspector Hanson contacted the Cessna pilot by radio and asked him to meet them at the airport to discuss the events of the previous day. Mr. Brenton, the pilot, agreed and met the Inspectors. Inspector Peever said that pilot Rick Brenton did admit to the low pass over the airport and the low pass over the town.

Inspector Peever, referring to the pictures in Exhibit M-3, described the flight path of the aircraft over the runway and over the town.

Inspector Hanson testified next, as the Minister's second witness. He is a pilot who has accumulated approximately 12,000 hours, including some 2,400 hours on floats. His experience varies widely, from Cessna 180 to Twin Otter.

Inspector Hanson testified that, on May 17, 1993, he and Inspector Peever were in the Webequie area doing surveillance. They had parked their King Air on the ramp at the north end of the runway. He said that he noticed a Cessna 206 flying low, very low, approximately 20 to 25 feet, down the length of the runway on a northerly heading. As the aircraft flew down, and got to the north end of the runway, it climbed slightly. It had to do so, to avoid hitting the trees. It then went on toward Webequie. He lost sight of the aircraft because it was so low over the trees. He continued watching for it and saw it pull-up sharply where he knew the town site was. He could see the top of the wings and the tail section and the fuselage. It climbed quite sharply up to what he estimated as 4500 feet and then levelled off.

Inspector Hanson called the aircraft from the King Air, asked for identification, received the answer "Rick" and then no further answer. He said that on the following day, as they were doing surveillance in the area, they returned to Webequie. They saw the Cessna 206 taxiing on the water and made contact by radio. He requested the pilot meet them at the airport and he agreed.

Inspector Hanson explained to Rick Brenton what they were doing in the area and what they had seen. When they also explained the violation of regulations, he was fairly cooperative.

Inspector Hanson said that Mr. Brenton implored him not to issue a suspension as it might cause him to lose his job. Inspector Hanson said that he could lay the two charges as shown because he felt he had been cooperative. The Inspector said that Mr. Brenton thanked him for giving him a break.

Rick Brenton was sworn. Speaking on his own behalf, he said that on May 17, 1993 he was on approach to Webequie when he passed over the north end of the runway at approximately 900 feet. On his final approach to the lake at Webequie, he noticed that the water was about four feet lower than last season when he was in there. He, therefore, decided to overshoot and check the shoreline for old cribs. He went around looking and then came in for a landing.

Mr. Brenton said he landed and found the facilities were not adequate. He took off again and went to the north shore. The water was too low there, so he went to the other one, and that was where he stored the aircraft for the night.

Mr. Brenton said that none of his passes went over the community itself but that the aircraft was always over the water. He reiterated that, when he passed over the north end of the runway on his approach to Webequie, he was showing 900 feet which he said would be approximately 300 feet above the water. He admitted that he was a little too close to the airport, that he could have gone around the other way and that he may have broken the rules, but he had a reason for doing so.

Mr. Brenton felt that in the interest of safety he was checking his intended landing area. He further said that he knew the rule, 1,000 feet high and 2,000 feet out, but at those distances he could not adequately check the area he wished to land in.

CONCLUSION

Inspector Peever testified that, when he and Inspector Hanson spoke with Mr. Brenton during their meeting at the airport, Mr. Brenton did admit to the low pass over the airport.

Inspector Hanson, in his testimony, referred to meeting with Mr. Brenton at the airport. The Inspector explained what they were doing, why they were there and what they had seen. When they explained to Mr. Brenton the regulations they felt he had contravened, he admitted to violating regulations.

The statements of Emmanual Jacob and Sammy Jacob, presented by Mr. Brenton, are practically identical. The only difference is that Emmanual Jacob's statement has an additional paragraph. I can give little credibility to these for at least the three following reasons:

(1) The individuals who signed these statements are not available for questioning.

(2) The format is not satisfactory. They might have had more effect if they had been written in the writer's own words.

(3) Except for their names, the second paragraph of both statements is as follows:

"(Name) and I were standing at the end of the dock and observed 206 G-BGJ (sic) on approach for about 3 minutes wherely (sic) the aircraft was in sight at all times."

I find this hard to accept. Had they been watching this aircraft's approach for three minutes, they would have first seen it approximately six miles away!

The witnesses for the Minister, Inspectors Peever and Hanson, gave evidence that was quite clear and easily followed. Their testimony was that of experienced pilots outlining what they had seen and believed to be accurate.

Rick Norman Brenton testified as an experienced pilot. His flight into Webequie, Ontario, on May 17, 1993, was his first flight of the float season to this community. I believe I understand the facts as they existed on that day. Rick Brenton did admit to violating regulations and attempted to give his reasons. I could accept some of them, but others did not fit the picture that was presented throughout the Hearing.

I have considered the facts presented by all parties at this Hearing. Although I feel certain sympathies for Rick Norman Brenton's actions, I do not accept his actions of this day. I believe that he did violate regulations.

The monetary penalty is half the amount that could have been imposed.

DETERMINATION REGARDING MONETARY PENALTY

I FIND THAT THE RESPONDENT DID CONTRAVENE PARAGRAPH 534(2)(a) OF THE AIR REGULATIONS, AND I CONFIRM THE MINISTER'S DECISION TO ASSESS A MONETARY PENALTY OF $250. THIS AMOUNT, PAYABLE TO THE RECEIVER GENERAL FOR CANADA, MUST BE RECEIVED BY THE CIVIL AVIATION TRIBUNAL WITHIN FIFTEEN DAYS FOLLOWING SERVICE OF THIS DETERMINATION.