Cat File No. C-0134-37
CIVIL AVIATION TRIBUNAL
Minister of Transport
- and -
Bi-Air Application Services Ltd.
C.R.C., c.2, s. 534(2)(a)
Low flying - Built-up area
It was alleged that the pilot flew low over Makwa Provincial Park and over a house and on that
occasion sprayed liquid over a person's body. The Minister imposed a monetary penalty of
On review, the Tribunal reduced the penalty to $250.00 due to mitigating circumstances, namely
that the company usually follows procedure and gets an exemption but that he was not aware that
this property required a permit.
REVIEW DETERMINATION Ohlhauser
February 15, 1990
1989 was flown over a built-up area of Makwa
That the respondent contravened section 534(2)(a) of
Provincial Park in the Loon Lake District,
the Air Regulations. For the reasons given, the
Saskatchewan at an altitude of less than 1,000 feet
monetary penalty is reduced to $250.00, payable to the
above the highest obstacle within a radius of 2,000 feet
Receiver General for Canada and mailed to the Civil
from the aircraft. This was in contravention of Air
Aviation Tribunal, 4711 Yonge Street, Suite 702,
Regulation 534(2)(a). Bi-Air Application Services
North York, Ontario M2N 6K8 or on before April 2,
Ltd. failed to present the monetary penalty to
September 25, 1989. A hearing was held in this
Bi-Air Application Services Ltd., R.R. 3, Vermilion,
Alberta was sent a Notice of Assessment of a
Mr. MacCulloch, Case Presenting Officer for the
monetary penalty in that they were registered owner of
Department of Transport, adduced evidence by way of
an aircraft, Registration No. C-GORK, that on June 8,
2 Minister of Transport v. Bi-Air Application Services Ltd.
exhibits to confirm that Mr. Murray is the owner of authorization and that the property to be sprayed was
Bi-Air and that Bi-Air had a valid operating certificate, the Jumbo Beach, and further confirmed that he was
and Aircraft Registration No. C-GORK. aware of the procedures that needed to be met in regard
to spraying. He further testified that his usual
Mr. Catton, the first witness for the Department of procedure was to seek permission from the Minister
Transport, was duly sworn. In his testimony he for an exemption. It was his evidence that he was not
indicated that his permanent address is Lot 5, Loon aware that this property required a permit, as it was 50
Lake, and that he lived in a subdivision that consists of acres of Jumbo Beach under the authority of Mr.
approximately 75 to 100 buildings. He testified that on Jarrdene.
June 8, 1989, while shaving, he heard an airplane
approaching, and went outdoors to observe that Mr. Murray confirmed that he was not the pilot on that
airplane. For approximately one-half hour be day, but was the President and Operations Manager;
observed the aircraft making several passes over therefore, the owner of Bi-Air Application Services
built-up areas, and directly over him. He testified that Ltd.
the plane was approximately 100 feet above the
ground. The poplar trees surrounding the area in Evidence, Exhibit 8, was introduced to define the
which he lives are approximately 40 to 50 feet high, phrase "built up area". This definition includes
and he used this as his reference. Mr. Catton testified structures that are, especially those that are not
that the aircraft C-GORK flew directly over him and abandoned, erected or built by man, including the
his home on two occasions, and that on those occasions private dwellings, schools, and elevator over which the
liquid from the aircraft was sprayed over his body. accused flew. This reference is from a judgment by
His Honour Justice T. Lismer,
Exhibits 5, 6 and 7 confirm the location of the
subdivision and the identity of the aircraft and its Provincial Judges Court in Manitoba.
relation to the surrounding trees.
The facts of the case are as follows:
Testimony indicated that Mr. Catton was upset in
regard to the spraying being done from this aircraft, 1. That Makwa Provincial Park is a built up
and that it was flying too low. It was his feeling that the area.
aircraft company did not have a permit to conduct such
spraying. 2. The aircraft C-GORK was lower than 1,000
Mrs. Catton was then called as a witness and was
sworn. When it became evident that her testimony was 3. Bi-Air Application Services Ltd. was the
to corroborate the evidence provided by her husband, owner of the aircraft.
Mr. Catton, Mr. Wells, on behalf of Bi-Air, confirmed
that the aircraft in question, owned by Bi-Air, was 4. Mr. Wells is the owner of Bi-Air Application
flying low and spraying. Services Ltd.
No further evidence was introduced by the Department On the admission of Mr. Wells, on behalf of his client,
of Transport. Bi-Air Application Services Ltd., it is admitted, and
proven by evidence that C-GORK flew over a built up
Mr. Murray, having been duly sworn, provided area of Makwa Provincial Park in Loon Lake District,
evidence that he is the President of Bi-Air Application Saskatchewan at an altitude of less than 1,000 feet
Services Ltd., and confirmed that on June 8, 1989, his above the highest obstacle within a radius of 2,000 feet
plane was low flying. It was his understanding that Mr. from the aircraft.
Jack Jarrdene, a local representative, had received
Minister of Transport v. Bi-Air Application Services Ltd. 3
That decision was communicated to the parties, and,
following that, argument was heard on penalty.
It was the position of the Department of Transport that
the penalty imposed ($500) was appropriate for a first
On review of the information available to me, under
Tables of Sanctions, it is my understanding that first
offence under Section 534(2)(a) is 7 to 14 days
suspension, or a $500 fine. I believe that penalties
involving contravention of the Aeronautics Act should
include measures dealing with denunciation,
deterrence and rehabilitation. I believe that in this
instance, from the facts before me, that the major
emphasis should be on rehabilitation, as I believe
mitigating circumstances indicate that the facts as
outlined in this case were not the normal procedure of
Bi-Air, and, in particular, Mr. Murray.
Take into account these measures, the fine is reduced
to Two Hundred and Fifty Dollars ($250), payable
April 2, 1990.