Decisions

CAT File No. Q-1855-33
MoT File No. NAP6504-P-099442-31536

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Donald Doyle, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)(b)
Canadian Aviation Regulations, SOR/96-433, s. 602.89(1)(a), 602.89(1)(b), 700.02(1)


Review Determination
Pierre J. Beauchamp


Decision: October 6, 2000

I find that the Minister has failed to establish, on a preponderance of evidence, that on June 25, 1998, Mr. Doyle failed to brief his passengers with respect to the location and means of operation of emergency and normal exits, and failed to brief the passengers with respect to the location and means of operation of safety belts, the whole contrary to paragraphs 602.89(1)(a) and (b) of the Canadian Aviation Regulations. I dismiss the Minister's allegations.

I find that the Minister has failed to discharge the onus placed upon him, and dismiss the charge of illegally operating a commercial air service, as alleged against Mr. Doyle, and dismiss this charge as well. The $7,000 penalty is cancelled.

A Review Hearing on the above matters was held from March 20, to March 23, 2000, at the Federal Court of Canada in Montréal, Quebec.

BACKGROUND

Mr. Donald Doyle (hereinafter referred to as the Applicant) is the holder of a commercial pilot licence and has been a flight instructor for more than 15 years.

On June 25, 1998, while acting as pilot-in-command of a Cessna 172-L, C-GBPR, he attempted a take-off from Nitchequon aerodrome with two passengers on board.

The aircraft failed to get airborne safely and crashed after passing the end of the runway. The occupants all survived with various serious injuries.

He was subsequently charged with breaching several sections of the Canadian Aviation Regulations (CARs)(CAT File No. Q-1855-33) to wit that:

On June 25, 1998, at approximately 06:30 local time, while pilot-in-command of aircraft C-GBPR you took off from Nitchequon aerodrome without briefing the passengers with respect to the location and means of operation of emergency and normal exits, contrary to section 602(89)(1)(a) of the Canadian Aviation Regulations.

Penalty: $1,000

On June 25, 1998, at approximately 06:30 local time, while pilot-in-command of aircraft C-GBPR you took off from Nitchequon aerodrome without briefing the passengers with respect to the location and means of operation of safety belts, contrary to section 602(89)(1)(b) of the Canadian Aviation Regulations.

Penalty: $1,000

On June 25, 1998, at approximately 06:30 local time, while pilot-in-command of aircraft C-GBPR you took off from Nitchequon aerodrome operating an air transport service without holding an air operator certificate, contrary to section 700.02(1) of the Canadian Aviation Regulations.

Penalty: $5,000

And finally contrary to section 602.01 of the CARs (CAT File No. Q-1943-02) that:

On June 25, 1998, at approximately 06:30 local time, while pilot-in-command of aircraft C-GBPR you operated the aircraft in a negligent manner. In fact, you took off from Nitchequon aerodrome while the existing runway conditions were not suitable for the intended take off.

Suspension from January 10, 2000 to November 1st, 2000

PROCEDURE

A number of preliminary issues relating to the availability of witnesses, the adequacy of the disclosure package as well as the openness of these hearings were dealt with at the outset.

All witnesses convened were heard, the information missing from the disclosure package was provided to the applicant, and the hearings were held in public.[1]

EVIDENCE—The Minister

Mr. Tamborriello, the case presenting officer for the Minister of Transport, called Dr. Yvon Roberge as his first witness.

Dr. Roberge is the father of Bruno Roberge, then aged 14, who was a passenger on the aircraft that Donald Doyle was piloting when it crashed, while attempting a take-off, from the Nitchequon airport.

Dr. Roberge testified to the events surrounding the accident, as well as the circumstances that brought them all to the Nitchequon that fateful day.

His testimony was charged with emotion, as he obviously still had not recovered from these traumatic events, which he painfully recalled, under the questioning both of Mr. Tamborriello and under cross-examination by Mr. Doyle.

He testified that, as far as the June 1998 trip to Nitchequon was concerned, he flew to Nitchequon, with Mr. Réal Clouet. It was not the first time that he had flown there by small aircraft, because he is a private pilot himself and owns a similar small aircraft. He has approximately 300 hours of flying time to his credit.

He stated that on June 25, 1998, he got up around 05:30 in the morning, and went to the aircraft; after taking what he qualified as the "usual photographs," they loaded the aircraft. The occupants were his son Bruno, Daniel Lincourt, his brother-in-law, and Donald Doyle.

He described Nitchequon as an old airport, which was once used to service a now-abandoned weather station.

He testified that the aircraft taxied from its parking spot via a road that leads to the runway at about mid-distance. He related that he positioned himself to observe the take-off. He was situated at the north extremity of the intersection of the taxiway and the runway, in the parking area, which is located adjacent to the runway.

Mr. Tamborriello asked: "You took notes regarding this incident?"[2] Dr. Roberge answered: "I'm under the firm conviction that this was other than an accident..."[3] He remembered that the accident occurred around 06:30 in the morning; with a trembling voice he related how he gave first aid to his son: "I removed shards of glass from his brain..."

He stated that he took notes[4] while he spent 12 hours at the hospital during his son's operation, "knowing that there would be litigation following this accident."

Questioned by Mr. Tamborriello as to the load aboard the aircraft, he stated that as the trip was to be a light one for Mr. Doyle ("le voyage se faisait à vide"), there were only the personal effects of Bruno, his son, and his brother-in-law and a small outboard engine. Questioned on the weight of this load, he assessed it at not more than 30 lbs., excluding the weight of the small outboard motor.

He described the condition of the runway as a sandy runway, an abandoned runway that they knew, having flown there in previous years, the weather as a clear sky with a very light breeze, flowing from the lake to the southwest; the runway was soft and surroundings covered in dew.

He then described the events, stating that the aircraft, after passing the parking area, arrived at the runway, had turned left toward the north with "the intention to take off toward the south." He said that he noted that it first attempted to take off in a southerly direction and by the time the aircraft reached his position, the engine was cut, a 180° turn was started and the aircraft got stuck. He helped it turn by pushing on the wing strut and the aircraft went back in a northerly direction in its own tracks; when it got to the north end of the runway it got stuck again as it was turning. He saw the passengers disembarking to push it.

He stated that on the second attempt to take off, the aircraft had a good speed and he thought they would get airborne; he said he even waved his hand. But then the engine was cut again, and the aircraft turned and with full power started going up the runway toward the north again.

He observed the barrels that were used as markers, and obviously reliving what he saw, described the barrels: "...four, three..." and the aircraft disappeared at the end of the runway; the tail hit and the wheels were "dans le vide" and the aircraft disappeared.

When questioned by Mr. Tamborriello on the wind speed and whether it was 5 to 10 knots, he answered: "No, I would say it was 5 kts"; the temperature, he said, as he wrote in his notes, was 23° Celsius.

On the question of the arrangements with regards to the cost to the trip, he testified that he had asked Mr. Doyle who had been his instructor and had always been safe and prudent, to fly his son and brother-in-law up to Nitchequon. Messrs. Roberge, Lincourt and Doyle had been there the year before, but this year he wanted his son to join them and asked the Applicant to fly him up. He stated that the arrangements had been made at the last minute, and that Mr. Doyle, who would already be at Nitchequon with a group, would fly back to pick up his son and his brother-in-law in Chibougamau and fly them back up to Nitchequon to meet up with him.

With regards to the cost sharing, it would amount to approximately $1,000 to $1,200 for the flight portion, that is the flying involved to pick up his brother-in-law and son, which was around two and a half to three hours per flight leg, that is, six hours for the first portion and six hours for the return, at approximately $100 per hour. He stated that he and his brother-in-law would split that cost and assume their own expenses. He testified that his brother-in-law was aware of the approximate cost of the aircraft, between $400 and $600; that is what the aircraft had cost him the previous year when he flew up with his own aeroplane.

CROSS-EXAMINATION—Yvon Roberge

Under cross-examination by Donald Doyle, Dr. Roberge related their discussions surrounding the initial arrangements for the trip to Nitchequon.

Dr. Roberge called Mr. Doyle prior to June 20, 1998. They had more than one conversation but under cross-examination, Dr. Roberge is not clear as to the intent and final arrangements flowing from these discussions. It turns out that he accompanied a fellow pilot/fisherman/aircraft owner, Réal Clouet, on his aircraft to Nitchequon.

Under cross-examination by applicant his recollection of events such as his status as crew member or not on Mr. Clouet's aircraft, his arrival/landing at Nitchequon and even the location of the parked aircraft at the airport was vague.

Under the questions of the Applicant, Dr. Roberge testified that he had, in the past, rented aircraft, while he was in flight training, from a company called Cargair, at their Mascouche location, and that depending on the aircraft type and whether the aircraft was leased with fuel on board or not and with an instructor or not, the price would vary from $60 to $75 plus tax, so in the order of, according to Mr. Doyle's question, $80 to $100, to which Dr. Roberge replied: "I don't know, I didn't rent very often ..."

He then testified that he had made the arrangements with Mr. Doyle so that the latter would pick up his brother-in-law and his son and bring them from Chibougamau to Nitchequon. Questioned as to who, therefore, had the responsibility of bringing his 14-year-old son between Quebec and Chibougamau and as to whether his uncle (Daniel Lincourt) would take care of that, Dr. Roberge answered "Oui, avec un adulte avec un bon jugement ..." He then stated that, as far as the trip from Chibougamau to Nitchequon was concerned, his son would have been with his uncle in whom he had full confidence and that is the reason why, since he only had 300 hours of flying time himself, he preferred that someone with lots of experience do the portion of flying between Chibougamau and Nitchequon; they would therefore be travelling in two different aircraft "de façon séparée comme c'est souvent normal ..."

The Applicant then questioned Dr. Roberge on his knowledge of aviation law, particularly as it relates to section 401.28 of the CARs, which deals with the transportation of passengers and expenses related to this transportation while detaining a private pilot licence only. Dr. Roberge stated that when they talked about this trip, he asked simply of the Applicant whether he would be kind enough to go and pick up his son and brother-in-law, with the understanding that the Applicant would just tell him how much had been involved, and they would have "fixed it between themselves."

There was never any question on the legalities, that as far as this trip with Mr. Clouet was concerned, they had shared the expenses: "Tu fais un plein, je fais un plein ... quant à vous, tu voulais aller à la pêche ..."

Questioned on the issue of seat belts, Dr. Roberge stated that after June 30, 1998, that is the week following the accident, he mentioned to Donald Doyle that his son had stated that neither he (Bruno Roberge), nor his brother-in-law was wearing a seat belt.

Revisiting the question of sharing of expenses on a previous fishing trip, the Applicant produced Exhibit D-8 entitled "Voyage de pêche", which had in its corner annotations made by Dr. Roberge. This document related to their past fishing trip to Nitchequon in the summer of 1997. Questioned as to the last line on the last page, "partage des dépenses... à discuter", Dr. Roberge stated that it meant that everything would have been divided equally among all participants; they simply assembled all of the bills expended by everyone for aircraft fuel, food, and other expenses associated with the trip and on the return, everything was shared equally, including the cost of a truck that was rented to bring their bags back from Dr. Roberge's own aircraft, which had made a forced landing on its way back from Nitchequon.

Q. This was a fishing trip between people "d'accord pour partager les dépenses?"

A. On a eu un incident et personne n'a rien dit (même pour la camionnette) on a partagé les dépenses, oui... j'ai pas un souvenir que c'était pas équitable.

Further questioned by the Applicant, Dr. Roberge then related how they had worked on the runway during their trip in 1997, using an old vehicle and a roller to better prepare the runway. As far as June 98 was concerned, no work was done on the runway; the runway in 1998 was not in the same condition as in 1997.

Questioned further as to the events of June 25, 1998, he testified that as the aircraft was about to depart its parking area, he noticed his son did not have a headset and asked them to wait while he got him one, although he did not notice whether his son or brother-in-law were wearing their seat belts.

Questioned on the wind that morning and as to whether he had indicated under direct examination that it was from the south at about 5 knots, he reiterated that he could feel a light breeze on his right cheek coming from the lake. He also testified that the taxiway met up with the runway approximately halfway down the runway, that there is a gully past the north end of the runway, and the runway has an incline towards the north somewhere between 20 and 30 feet. Asked as to what the distance between the end of the runway and the trees was, where the aircraft had hit the trees, he stated that it was approximately 500 feet from the end of the runway to the crash site.

Questioned further on the take-off, he stated that he observed the aircraft during the take-off, that he never saw it leave the ground, that the main wheels were on the runway at all times except for one occasion where the nose wheel was off the ground... that he observed the aircraft at all times throughout its take-off run: "Je ne faisais que vous regarder. J'en ai fait des cauchemars..."

Returning to the question of compensation for the trip, Dr. Roberge stated that he had informed his brother-in-law that the cost for this year would be approximately the same as for the trip the previous year, maybe with a slight increase due to the fact that there would be an additional trip between Nitchequon and Chibougamau to pick them up.

Q. Did you indicate an amount of $500 to be paid to me two weeks after the trip?

A. Je vous ai répondu mais ça devient un peu confus... on est dans la même famille, mais à première vue... normalement, après un voyage de pêche on se retrouve et on partage les dépenses.

Q. Yes or no, did you say to Daniel Lincourt the cost would be $500 per passenger payable two weeks after the trip?

A. Les événements se mêlent... c'est confus, je ne me souviens pas précisément.

Q. With reference to the information given to Daniel Lincourt, that an aircraft would be picking him up in Chibougamau, did you give him that information? Did you give him information to go to Chibougamau?

A. Bruno s'était rendu à Québec. C'était entendu que pour une question d'expérience, Donald Doyle serait le pilote.

Q. Was the only reason for me to leave Nitchequon to Chibougamau to pick them up or did I have to your knowledge other reasons to go to Chibougamau?

A. C'est spéculatif, y'avait des bidons... une autre raison, c'était pour aller faire le plein. T'as couché à Chibougamau avec Daniel Lincourt et Bruno.

Q. So it was to get fuel and get Bruno and Daniel Lincourt?

A. Oui, mais je spécule.

Under the questioning of Mr. Doyle, it was established that for safety purposes with regards to reserves and flying in that remote area, it was customary to get additional fuel out of Chibougamau to make the return trip possible between Chibougamau and Nitchequon, and that in fact, on his own trip, they carried extra fuel in 5-gallon cans.

Dr. Roberge also mentioned that there was no windsock available at the runway, the sock portion of the windsock having disappeared, leaving only the bare structure.

RE-EXAMINATION—Dr. Roberge

Under questioning by Mr. Tamborriello, Dr. Roberge related that as far as the 1997 trip was concerned, they shared the expenses and that the route Mascouche–Chibougamau–Nitchequon had taken approximately 5 to 5½ hours of flying and that the cost of the trip including the food for that week had been approximately $500 to $600 per person. As far as the 1998 trip was concerned, the agreement with Mr. Doyle was that it would probably amount to approximately $100 per hour. As far as the runway gradient was concerned, he estimated it was probably somewhere around 2%.

RE-CROSS-EXAMINATION—Dr. Roberge

Re-questioned by Mr. Doyle on the question of the 2 or 3% gradient, Dr. Roberge stated that from the south end of the runway to the north end of the runway, there was a difference in elevation of approximately 10 feet. And finally, on the question of cost share from the 1997 fishing trip, he estimated the cost was around $400, including the cost of fuel, equipment, oil, rental of the vehicle, and that amount was shared between the six members. The vehicle cost between $400 to $500, and that amount had been divided between the six of them.

DANIEL LINCOURT

The next witness called by Mr. Tamborriello was Mr. Daniel Lincourt, brother-in-law of Dr. Yvon Roberge.

Mr. Lincourt testified that he was advised of the fishing trip arrangements from his brother-in-law by telephone, that they were to be picked up, that is Mr. Lincourt and Dr. Roberge's son Bruno, in Chibougamau by Donald Doyle for the trip to Nitchequon and that he would fly them back to Chibougamau. On June 20, they met in Chibougamau and left the next day for Nitchequon. Asked by the representative of the Minister as to whether he had been informed of the safety requirements of the aeroplane and its emergency procedures, operation of the doors, operation of the seat belts, Mr. Lincourt replied that he had not been, that they had just loaded the aircraft and left. He stated that he was seated in the front of the aircraft next to the pilot for the trip to Nitchequon and Bruno Roberge was seated in the back, that the flight time was approximately 2½ to 3 hours from Chibougamau to Nitchequon.

With regards to the June 25 flight out of Nitchequon, he stated that they had met at the aircraft around 06:00 in the morning, that Mr. Doyle loaded the aircraft and after a summary inspection of the aircraft, having verified the oil, water and the fuel and flight controls, they embarked on the aircraft with Bruno Roberge seated in the front and he in the back.

Questioned again as to whether before this flight, they had been briefed on the safety features with regards to the seat belts, emergency exit, as well as emergency briefing, Mr. Lincourt stated that they had not been briefed.

Asked by Mr. Tamborriello as to whether he was wearing a seat belt, he first stated no. Questioned further as to whether the pilot had asked him to put his seat belt on, he stated no, that he did it on his own accord. He then stated that he had not noticed whether the front passengers, that is Bruno Roberge and Mr. Doyle, were wearing their seat belts, that he was wearing his own seat belt but that, from his position, he could not see in front if they had their own.

He then proceeded to describe the events of the accident, stating that they taxied down the road from their parking spot to the runway, turned left on the runway and went up to the north end of the runway, that is toward the last marker, a 45-gallon drum. This, according to the witness, was their first "passe"; the engine of the aircraft was very noisy ("le moteur faisait un bruit d'enfer"). He stated that the aircraft then turned heading south and the pilot told them that his parking brake was on; he stated that they had then proceeded towards the point where they had come onto the runway (at mid runway), that when they got there, they did a 180° turn and returned heading north toward the end of runway, that when they got to the turning point there, at the last marker, as they were turning, the aircraft got stuck. The pilot stopped the engine, they got out of the aircraft to get it out of the sand; they then got back into the aircraft, he buckled himself in, and the pilot started the engine and started heading again toward the centre of the runway with the engine still making a lot of noise.

When they got to the centre of the runway, the aircraft turned again a second time heading north and he stated that at that time he heard his nephew Bruno yell to the pilot that he was not wearing his seat belt. He said he did not see any reaction from the pilot and at that point the door opened, he yelled at the pilot and seeing that Bruno had gotten no reaction from the pilot, he got up from his seat and helped Bruno close the door. He continued, saying that the aircraft was still heading north towards the end of the runway, that the engine was making a lot of noise, that the speed was no greater than it was at the last run. He saw the aircraft pass the last marker and expected that they were going to turn like the last time, but that this time they continued past the marker. He felt the tail of the aircraft touch once, the nose was raised and it felt like the tail had hit the ground. The aircraft continued a small distance, he felt the tail hit the ground again and when it got at the end of the runway, the aircraft never got airborne and simply went down the hill; it floated a little bit and hit a tree with the right wing, then another tree was hit with the left wing and then the aircraft crashed at the bottom of the ravine.

He stated that once on the ground, the pilot opened the door, and "ran like a rabbit," that his nephew was still on the aircraft, stuck between the seat and the dash and that he pulled on the seat and got himself free. There was fuel running down everywhere. He pulled on his nephew's seat. Bruno was semiconscious; he grabbed him and pushed him outside of the aircraft through the broken windshield.

Once they were both out of the aircraft he saw that the pilot had put himself under some trees and he asked how he was, and he stated that he had a sore back. He then took care of his nephew; he was bleeding, with his scalp open and he could hear his brother-in-law running on the runway and screaming at them. Once his brother-in-law reached him, he left to go and get help.

He was then questioned on the amount of baggage that was onboard the aircraft and he stated that there were two sleeping bags, two packsacks, a small outboard engine and two empty 5-gallon cans plus their fishing gear, the whole weighing at most 120 to 125 lbs. He stated that as far as the weather was concerned, the sky was clear, the temperature around 20° to 23°, and there was a very light breeze coming from the lake. Questioned on the wind speed, he stated that he could not put a number to it, simply that there was a light breeze, It was noticeable because as the lake water was cold, you could feel a little breeze, certainly not a big wind.

Questioned on the speed of the different runs down the runway and particularly the take-off run, he stated that the speed was about the same, that they were moving at a pretty good clip, but he could not estimate the speed, not being a pilot and not having any points of reference. Questioned on the slope of the runway, he mentioned that there was a slight slope[5] towards the north. He estimated that the difference in elevation from the centre of the runway towards the north end as well as toward the south end was 30 to 35 feet, although he could not state it affirmatively, it was just an estimate. This would mean an estimated difference between both ends of runway of 60 to 90 feet. Questioned on the percentage of slope, he stated that he could not state such a percentage.

With regards to the cost of the fishing trip, Mr. Lincourt testified that the arrangements had been made by his brother-in-law but it was estimated that the cost would be somewhere around $500.

CROSS-EXAMINATION—Daniel Lincourt (Donald Doyle)

Under cross-examination by the Applicant, Mr. Daniel Lincourt reviewed his past testimony and his statement to Mr. Tamborriello, which Mr. Tamborriello had summarized in his notes, and produced as Exhibit M-5.

Mr. Lincourt testified that he already had been to Nitchequon on a previous occasion in 1997, that it was another fishing trip and that they had shared all of the expenses of the trip.

Now referring to M-5, Mr. Tamborriello's notes of a conversation with Mr. Lincourt, the Applicant asked Mr. Lincourt whether in fact there had been a meeting between himself and the Applicant before the June 1998 trip, as he had testified previously. When referred by the Applicant his declaration which had been taken down by Mr. Tamborriello, at page 7 of M-5, that there had been "entente conclue avec Yvon Roberge et Donald Doyle", he specified that there had been no direct understanding between himself and Donald Doyle and that therefore the statement as inscribed was incorrect. Mr. Lincourt indicated that he was under medication at that time and stated that the statement taken down on pages 1 to 7 was correct as far as they related to what happened during the flight but that in that respect, he could clearly state that as far as the $500 expected cost of the trip, that statement was in relation to the splitting or division of the cost with reference to the food and everything required by the fishing trip. He reiterated that as far as he was concerned it was not a false declaration, that he had discussed with his brother-in-law the cost of the trip which would be somewhere around $500, and that it should not be seen as a statement that it was a commercial agreement. What was important in his declaration, was the level of negligence he felt occurred during this flight.[6]

Cross-examined by the Applicant, he did not recall much of the flight from Chibougamau to Nitchequon, for example, whether the pilot had done a runup, seeing him use a checklist, whether Bruno Roberge had used a seat belt, the conversation they had had, or the Applicant using the expression "on va faire notre petite prière" followed by instructions as to how to open the doors, the use of the seat belts, the location of the fire extinguisher, and the use of the locator beacon.

The questioning of Mr. Doyle then turned to the 1997 trip and the work that went on the runway. Mr. Lincourt stated remembering that he and others, including Mr. Doyle who was driving the truck, had used some material, including a 200-gallon drum, to do several runs on the runway to pack it down. The portion of the runway that was worked on extended for a distance of approximately 1,500 to 2,000 feet, an area extending from the north portion of runway 05 to the taxiway entrance to the runway, to the portion of the runway extending to the south west of the intersection of the runway but not to the end of the runway: "On n'allait pas jusqu'au bord du lac".[7]

Mr. Lincourt stated that he recalls that that was the portion of the runway that was used when they departed from Nitchequon at the end of their fishing trip in 1997 and that they had no difficulty in taking off though they were four onboard the aircraft. It was also that same section of the runway that was used on landing on June 21, 1998, when they came back to Nitchequon, and there was no incident on the landing.

Turning to the June 25, 1998 flight under the questioning of Mr. Doyle, Mr. Lincourt stated that the first turn of the aircraft from the north east end of the runway towards the centre was approximately 1,400 feet from the midway portion of the runway and that the aircraft got stuck at approximately the centre of the runway where the sand, at the north east end of the runway, was extremely soft, and that the aircraft got stuck about 50 to 60 feet from the end of the runway.

Questioned as to whether Mr. Lincourt recalled getting briefed by Mr. Doyle that he would let him out of the aircraft but they were not to go forward of the struts, Mr. Lincourt answered that he remembered such briefing and that before shutting down the engine they had been told not to get out of the aircraft. Questioned about the 5-gallon cans on the back seat of the aircraft, he stated that he remembered that there was one on the seat and that he was leaning on it, although he did not remember where the other empty container was, that it may have been under Bruno Roberge's seat, but he was not sure; he then stated that he disembarked from the aircraft on the left side of the aircraft because there were objects on the right side which prevented him from getting out (the 5-gallon cans). With regards to the aircraft being stuck and their pushing on it to move it, Mr. Lincourt, although not sure, stated that he and Bruno Roberge pushed on the aircraft while the engine was shut down, because he thought that it would have been unsafe to push on the aircraft with the engine developing power. Under questioning from Mr. Doyle on this question, Mr. Lincourt testified that from his recollection, they were pushing on the struts of the aircraft, with engine shut down, and Mr. Doyle seated in the aircraft. Upon re-embarking in the aircraft, he stated that, as far as he was concerned, he never changed places, and sat on the left side of the aircraft behind the pilot. Further questioned on this, he did not recall using, as suggested by Mr. Doyle, the two extremities of the seat belts that were located on the rear seat to try to tie himself in; he did not recall Mr. Doyle pointing out the appropriate way of using the seat belts to buckle himself in. As far as he was concerned, Mr. Doyle had not mentioned anything about the seat belts.

Questioned as to whether he remembered being told by Mr. Doyle, after the accident, to follow him out through the pilot's side, he stated that he did not remember Mr. Doyle saying anything to him, and that he had no option but exit through the windshield with Bruno Roberge, as the right side of the aircraft was damaged and Bruno Roberge's seat was pushed completely forward and stuck.

Finally on the question of the runway conditions, he stated that they were worse than in 1997, that the runway had not been worked on, and was softer, and particularly that the last 20 feet of the runway were softer than the rest of the runway.

Revisiting the question of the sharing of expenses under the questioning of Mr. Doyle, Mr. Lincourt stated that they shared the accommodations with another party and some of the food, and that he and Mr. Doyle and Yvon Roberge were to share all of the expenses like they had in the past, that Donald Doyle stayed with them throughout the period and participated in the trip like all of them and at the end of the fishing trip, they were to share and divide all the fish between them except for the bigger catches, that they also shared the equipment, the boats, the motor...

Referring to the terrain and trees surrounding the airport as well as airport elevation, he reiterated that his recollection was that the difference between elevation at both ends of the runway was in the order of 60 to 75 feet, and the trees were not more than 20 to 25 feet in elevation probably not more than 20 feet in actual fact, and located approximately 150 to 200 feet from the end of the runway, the typical type of black pine that you find at these latitudes up north.

On a final note, under the questioning of Mr. Doyle, he stated that as far as he was concerned, he had not noticed any change in the power of the engine on the last take-off run, that it seemed to have performed in the same way as it had previously.

REDIRECT—Mr. Lincourt (Mr. Tamborriello)

Under the questioning of Mr. Tamborriello, when asked further about a trip with his wife and the Applicant that they had discussed, Mr. Lincourt stated that the trip would have been from Quebec City or Chibougamau to Nitchequon, that no price had been given, that these were just plans, an outlook; he stated that he was quite aware that such a trip carried out with an outfitter would have been quite expensive, but in this way, with Mr. Doyle and sharing of the expenses, it would have been cheaper; it was, however, just at the planning stage and that the expenses would have been shared between him, his wife and Mr. Doyle.

GILLES HOUDE

Mr. Gilles Houde was next called to testify for the Minister. Mr. Houde is an inspector at Transport Canada and a former flight instructor who has known the Applicant, for 20 years. He was called to give expert testimony and Mr. Doyle acknowledged him as an expert.

He testified that using data that was available for the Cessna 172-L, he had made calculations to determine the take-off run required.

Using the Owner's Manual data given for aircraft model C172-L, Mr. Houde arrived at the following figures for a take-off weight of 2,300 lbs: take-off run 1,040 feet and take-off distance to clear 50 feet of 1,910 feet, using 0 wind. Now assuming a 5-knot tail wind and the data from the Cessna 172-M manual for tail wind correction data which is not available in the L manual, and adding a soft field take-off run correction and a correction for temperature (higher than standard), he arrived at a total required distance of 1,820 feet for ground run; using the same data corrected for a take-off distance to clear a 50-foot obstacle, Mr. Houde arrived at a required distance of 3,342 feet. Mr. Houde testified that he had not made such calculation for headwind correction, only for tailwind conditions.

He stated that in his opinion, given the conditions that day, the pilot should have used the full length of the runway, used a 10° flap setting to shorten the take-off run by approximately 10%, used a rolling take-off technique, that is, once he got to the end of his take-off runway, he should not have stopped but done a continuous rolling take-off: as far as the slope gradient was concerned, the pilot should have walked the runway, measuring paces to 2½ to 3 feet per pace, and then putting down a marker for his lift-off point. He should then have taken off into the wind. Questioned as to how a pilot would be able to evaluate the acceleration, he stated that this was an important factor: it could be felt in his hand through the control column, the aircraft getting lighter and lighter and of course by the use of the airspeed indicator.

Mr. Houde suggested that the figure of about 70% of 60 mph (a normal rotation speed), i.e., a speed of approximately 45 mph should have been a target for rotation; that if he did not achieve that speed by the marker that he had set down, he should have aborted the take-off. He stated that a possible cause of the aircraft not getting airborne or the tail striking the ground could be the use of too much back pressure on the control column: the pilot wants to get the nose off the ground and he applies too much back pressure, too fast; that could cause the tail to strike the ground.

At this point in the testimony of Mr. Houde, it was decided to adjourn his testimony and continue it the next day so that both Mr. Bruno Roberge, who was available at that time, as well as the re-examination of Dr. Roberge could proceed.

BRUNO ROBERGE—Direct Testimony (Donald Doyle)

Bruno Roberge was then called to testify by the Applicant. Bruno Roberge was first asked whether he remembered how many times the aircraft got stuck on the runway before take-off. He remembered that it got stuck twice, and that on one occasion, he and his uncle got out of the aircraft to push on the strut. Asked whether on that occasion he was informed by Mr. Doyle not to go ahead of the strut, he stated that he did not remember that detail, but that he seemed to recall that both he and his uncle were pushing each on the strut on his own side and they had gotten out of the aircraft on the two different sides; furthermore, that when they were pushing on the strut, the engine was running.

Referring back to the flight from Chibougamau on June 21 and asked by Mr. Doyle whether there was a run-up done that day in Chibougamau, he stated that yes he remembered it had been done before take-off. Asked whether he remembered Mr. Doyle telling him where the ELT was located and his uncle pointing it out to him, Bruno Roberge answered that he would not have had to ask where it was because he knew where it was... Asked whether he remembered Mr. Doyle referring to the aircraft checklist and saying "we will say our little prayer," Mr. Roberge stated that there was never any mention of a prayer; pressed on this question:

Q. Est-ce que le matin du 21 juin j'ai dit que j'allais dire la petite prière et tu m'as demandé c'est quoi, et je t'ai dit comment ouvrir les portes, la balise de détresse...

A. Non il n'a pas parlé de ça. Je ne me souvient pas.

Asked whether he remembered ever seeing the checklist (Perfecair, Exhibit D-16) he stated remembering seeing some of these sheets but not the cover of it, and this may have been on a previous occasion. As far as the Laurentide Aviation checklist (Exhibit D-17) was concerned, Bruno Roberge stated that he had never seen this document before.

Referring to the June 25 door opening incident on the runway, he stated that although he mentioned it to the pilot, there had been no reaction on his part and that it was he and his uncle who had closed it. Bruno Roberge was then asked whether, in the sequence of events, it was after that that the aircraft got stuck and that they got out; he answered: "Yes, but you didn't." Further questioned on this, he corrected himself and stated that the door must have opened after the second instance of the aircraft getting stuck, and their getting out because his father had closed the door on the first occasion and therefore it must have been when he got out of the aircraft to push it and attempted to close the door by himself that it subsequently opened.

As far as the subsequent runs on the runway, following their getting back on the aircraft, after pushing it the second time, Bruno Roberge stated that it was at that time that the pilot realized that the parking brake was on. After this they started a run in a southerly direction and then the aircraft was turned very rapidly[8] and it was during that subsequent run that Mr. Roberge failed to respond to his calls as to what he was doing. He recalled that his father had already mentioned to him about seeing the barrels along the runway, and the third one from the end as a no go marker, and since they had gone by that point, he reacted by saying "what are you doing...".

He does not remember whether the flaps were down and following the crash, asked whether he remembered Mr. Doyle telling him to get out of the aircraft because there was fuel leaking, he answered that he did not remember hearing anything; all that he remembered was seeing the hands of Mr. Doyle moving towards his seat, possibly to open his seat belt.

His testimony concluded on his statement that he felt that Mr. Doyle was responsible for the accident.

DR. YVON ROBERGE—Mr. Tamborriello (Continuation of the direct testimony)

Under questioning by Mr. Tamborriello, Dr. Yvon Roberge reiterated that the arrangements had been made with Donald Doyle directly. Dr. Roberge stated that as far as the 1998 trip was concerned, the only expenses agreed to were in relation to the cost of the aeroplane, unlike 1997 where the agreed price had involved the division of all costs between all of the participants.

RE-CROSS-EXAMINATION—Dr. Yvon Roberge (Donald Doyle)

Mr. Doyle revisited this question with Dr. Roberge and under the questioning of Mr. Doyle, Dr. Roberge mentioned remembering a telephone conversation which related to the question of the location of an aircraft from Joliette at the cost of $100 an hour for this trip between Chibougamau and Nitchequon and return.

Q. Lors de cette première conversation téléphonique vous souvenez-vous que je vous avais suggéré de louer un avion, parce que mon voyage était déjà préparé et de louer avec Cargair au montant de $100 de l'heure, et donc le $100 n'était pas pour l'utilisation de mon avion, mais pour la location d'un avion de Cargair?

A. Cargair ne permet pas l'utilisation d'avion dans un aéroport semblable. C'est possible qu'on ait eu cette conversation, mais c'était sûrement impossible de louer un avion dans ces circonstances..."

CROSS-EXAMINATION — Mr. Houde (Donald Doyle)

Under the questioning of Mr. Doyle, Mr. Houde revisited some of his earlier statements with regards to soft field take-off technique. He reiterated that the feel of the aircraft through the flight controls is very important, as in the soft field take-off technique it is important that as early as possible in a take-off run, as the power is applied on the aircraft, that the weight of the aircraft is removed from the nose wheel. He again stated that as part of this technique, the pilot should not stop once he is ready for take-off, to avoid the possibility of the aircraft settling in to the soft runway, and that as you apply take-off power, that you just move the control column without jerking it and observe the nose of the aircraft rise.

He stated that it was normal procedure in soft field conditions, even when the aircraft is taxiing, to maintain the controls fully back to release pressure off the nose wheel. Questioned by Mr. Doyle on his earlier statement that the pilot should judge his take-off speed and according to the aircraft manual, that airspeed should be 70% of the lift-off speed, he referred to the C172-L pilot operating handbook[9] and stated that this speed would be 70% of 60 mph, that is 42 to 43 mph.

Mr. Houde then turned to the question of ground effect and testified that it is simply lift caused by the wings close to the ground; that as far as the take-off run is concerned, ground effect enables an aircraft that is airborne, to stay in the air for a short period of time. The aircraft, out of ground effect, would possibly settle back to the ground when this ground effect loses its effectiveness.

Mr. Houde agreed with Mr. Doyle that since an aircraft could technically settle back down on the ground if it got in the air in ground effect below a "safe" speed, a pilot would not want to take off at that speed, that is, leave a safety height before obtaining a safe speed to fly. Examined by Mr. Doyle on the issue of the runway condition, he stated that as far as he was concerned, wet sand was more consistent than dry sand, but in his opinion, although not stated in any book, wet sand hindered a take-off run more than dry sand, though, on this question, he refused to make this an affirmative assertion.[10]

Examined on the question of setting markers on the runway to assess the progress of the take-off run, Mr. Houde stated, under the questioning of Mr. Doyle, that if the marker had been set as a reference point, and the pilot determined by visual indication of airspeed that he had achieved necessary speed to take off, he should continue his take-off run; for example, if he has attained 40 to 42 mph, he should know he is on the verge of attaining lift-off providing he has got enough runway. He stated that for his own procedures, he usually used a marker halfway down the runway and if he had not attained his speed by then, he would seriously consider aborting take-off.

Questioned as to whether it is possible to place the marker further than that if there are no obstacles at the end of the runway, he answered in the affirmative, depending on the obstacles.

Questioned on the issue of application of slope correction, he stated that although the VFR flight supplement information for Nitchequon airport makes no mention of runway slope, airmanship would dictate that a pilot should apply such correction, if applicable.

This completed the Minister's proof, and the Applicant then proceeded with the witnesses for his defence.

PIERRE-LAURENT SAMSON

Mr. Doyle called Mr. Samson as his first witness, to testify on the question of the calculations of take-off distances. Mr. Samson is an instructor pilot, and has been a bush pilot with experience on Cessna 206, on floats and skis, Cessna Caravan and crop dusting aircraft. He was known to the representative of the Minister, Mr. Tamborriello, who acknowledged his expertise and accepted that he testify as an expert witness.

Mr. Samson, at the request of Mr. Doyle, calculated for the Tribunal (Exhibit D-20) his estimates for the take-off run, under the conditions discussed above, using the pilot operating handbook available to the pilot that day (Exhibit M-10). He used a gross take-off weight of 2,000 lbs, as he estimated that the aircraft empty weight was 1,436 lbs, the pilot's weight at 170 lbs, Mr. Lincourt's weight at 180 lbs, and Bruno Roberge at 120 lbs, the outboard motor of 30 lbs, the empty food container at 5 lbs, a small packsack at 5 lbs, two sleeping bags at 10 lbs, two food containers at 3 lbs.

Calculating the fuel weight, he estimated half tanks were onboard, based on the statements made to him by Donald Doyle who had done a visual inspection before take-off. The fuel weight had therefore been verified at approximately 115 lbs for a total aircraft weight of approximately 2,035 lbs or close to 2,100 lbs. Using the 2,000 lbs figure, the pilot operating handbook chart, and a 1,700-foot elevation, a sand runway and a temperature of approximately 25°, he interpreted the data between sea level and 2,500 feet, applied a 64% factor of correction as he had calculated 1,700 feet was approximately 64% of 2,500 feet. Applying that correction factor, he arrived at a ground run total of 710 feet on asphalt and a total distance to clear a 50-foot obstacle at that elevation (1,700 feet) of 1,242 feet. That was for a hard surface runway with no wind. He then corrected the ground run portion of the take-off run to a 50-foot obstacle by 45%, which is the figure he uses personally, from experience, for safety purposes for soft field take-offs: so 145% of 710 feet was 1,030 feet as a take-off distance to his wheels getting airborne. Adding the 1,030 feet to the airborne portion of the total run to the 50-foot obstacle of 532 feet (1,242 - 710 = 532), he arrived at a total distance of 1,562 feet as a take-off run to clear the 50-foot obstacle.

He stated that at that point, the pilot was not aware of any tailwind and that with those figures, he would have taken off. He stated that he used the 45% figure, instead of the 7% figure mentioned at the pilot operating handbook, because from experience, that 7% is not enough: "I don't want to scare myself every time I take off."

He testified that as Mr. Doyle had indicated to him that he had approximately 2,000 feet available for his take-off, under the circumstances, he would have had no hesitation in taking off.

Referring again to the pilot operating handbook, under questioning by Mr. Doyle, he stated that he expected that the rate of climb for that aircraft under those conditions, at 1,700 feet, would be approximately 670 feet per minute and that that average rate of climb was included or used in the distance calculation to clear the 50-foot obstacles.

CROSS-EXAMINATION—Mr. Samson (Mr. Tamborriello)

Under questioning by Mr. Tamborriello, Mr. Samson reiterated that unlike the 7% correction mentioned in the pilot handbook, he used 45% as a correction factor for safety purposes. He admitted that he had not factored a 10% correction for the variation in temperature and correcting his data for that factor, that gave him approximately 1,700 feet required distance. Questioned by the representative of the Minister as to where he should reach that 50-foot elevation to clear the potential obstacle, he stated that this would vary depending on the circumstances. It did not follow that if you needed 2,000 feet of runway according to your calculations, to cross a 50-foot obstacle, that you should be at a 50-foot elevation over the runway; it depended on the situation. Under those conditions, the 50-foot obstacle would have to be at the end of the 2,000-foot runway; he reiterated that for example if he needs 1,000 feet to get airborne on a hard surface runway, and he applies a 45% correction for soft field and has 2,000 feet clear way, his figures tell him that under such circumstances he has at least 500 feet of additional runway available. Under those conditions, he has no problems with the figures because the 2,000 feet required distance also includes clear way.

Referring again to D-20, the expert witness' calculations, the 1,562-foot distance to pass a 50-foot obstacle was corrected by 10% and that distance became 1,718 feet. The witness reiterated that under these conditions, he would have taken off, because he had factored in a 45% safety factor, and although 200 feet later there may be obstacles, at 1,700 feet he would already be at an elevation of 50 feet.

ROMÉO DE CARUFEL

Mr. de Carufel was a participant in the June 1998 fishing trip to Nitchequon. He testified that he got to Nitchequon onboard Mr. Doyle's aircraft, accompanied by two other passengers, Messrs. Raymond Fortier et Mario Lévesque. They had departed on June 20, 1998, from St-Jérôme airport flown to Nitchequon and made two stops en route. When they got to Nitchequon, there were three aircraft on wheels already there and one or two on floats. This trip had been organized by l'Association des pilotes de brousse. One of the aircraft there belonged to Réal Clouet; it was a Cessna 172. He testified that Mr. Clouet had stayed the four days they were there, and shared the same camp with them.

The trip was a fishing trip[11] and preparations had been made prior to the trip; the four of them had met a couple of weeks prior to the trip to decide what would be required, the equipment, the material and also to discuss expenses and how much it would cost. It had been agreed that all expenses would be shared equally between them. That meeting had taken place on Mr. Doyle's birthday, June 7th.

Mr. de Carufel related that he had been to Nitchequon on a previous occasion with Messrs. Philippe Rioux and Donald Doyle. On that occasion they had shared all expenses also, and that included the gas, the propane and everything related to the trip including the aviation fuel, the food, even the worms used for fishing.

Q. Vous partagiez aussi les poissons?

A. Oui, tout.

Asked as to whether the conditions of the runway were the same in 1998 as on his previous trip in 1996, he stated that yes, they were pretty well the same. On that occasion in 1996, the aircraft had taxied down the runway and taken off in a northerly direction.

In 1998, the flying time between Chibougamau to Nitchequon had been 2½ hours and they had brought two 
5-gallon cans of fuel with them.

He testified that after the accident, he went to the site of the accident and he estimated that the distance between the end of the runway and the trees, that the aircraft had eventually hit, was approximately 200 feet.

Finally he stated that during that last fishing trip, there were many other people in Nitchequon, probably some 20 to 25 people, that in fact, just in their own camp, there were Réal Clouet, Yvon Roberge and his son, Daniel Lincourt and others; in another chalet, were the owners of the three other aircraft, approximately six or seven people.

CROSS-EXAMINATION—Mr. de Carufel (Mr. Tamborriello)

Under the questioning of Mr. Tamborriello, Mr. de Carufel testified that as far as the cost of the fishing trip was concerned, they expected to spend approximately $400 per person; for example the cost of the food had been around $1,000, so for the rest of the expenses including the fuel for the aircraft, the propane etc. they were expecting to spend about that much.

Questioned by Mr. Tamborriello on the topography of the airport, he stated that he remembers it well ("c'est un beau pays"), that it is a long runway of sand with a lake at one end, and at the other end a "depression" with a small lake and then the forest. He stated that in 1996 they had parked the aircraft on the runway approximately 500 to 600 feet from the end of the runway which abuts the lake, because that area of the runway is very soft, so that when they took off, they taxied in a northerly direction to the end of the runway, turned headed back towards the parking area and then turned again and took off in the northerly direction. Questioned by Mr. Tamborriello as to the "profile" of the runway, he stated that there is a slight slope to the runway towards the lake.[12]

Continuing on the question of the topography, he stated that in 1998 he did not walk the runway, but that at the site of the accident, the height of the trees is around 25 feet, that from the end of the runway, the top of the trees is close to the same height as the runway since the terrain descends from the runway towards the trees.

RE-DIRECT (Mr. Doyle)

Mr. de Carufel stated that the taxiway area widens where it meets the runway and it is approximately 300 to 400 feet wide.

PHILIPPE RIOUX—(Mr. Doyle)

Mr. Rioux, a police officer with the Sûreté du Québec, was then called to testify. In 1996, he was the owner of an aircraft and went to Nitchequon with Mr. de Carufel and Donald Doyle. In 1996 he was a student pilot, as he had not finished his private pilot licence course. They had refuelled their aircraft with full fuel before leaving St-Jérôme, taken up more fuel at Chibougamau both on the way up and on the return portion, and arriving at St-Jérôme had divided all expenses between the three of them. He stated that he had done two other trips with Mr. Doyle and on both of these other occasions, they had split the cost of the trip.

He stated that on that trip in 1996, they had taken off in a northerly direction and encountered no problems. As far as the status of the runway is concerned, he stated that the runway portion that is towards the lake, was soft and they had used the Transport Canada truck that was there and made runs on the runway to harden it. He stated that this procedure of running on the runway had clearly improved the runway.

CROSS-EXAMINATION—Mr. Rioux (Mr. Tamborriello)

Under cross-examination by Mr. Tamborriello, Mr. Rioux reiterated that they had gone on that fishing trip in 1996 as friends, its purpose was not an instructional trip, that Mr. Doyle was the pilot-in-command, and that he had not charged Mr. Rioux any monies as instructional fees during this trip. From memory he stated that the trip cost him approximately $180 on that occasion. Finally, under questioning by Mr. Tamborriello, he reiterated the same take-off run that Mr. de Carufel had testified to before, indicating that the aircraft had taken off from the south west portion of the runway in a northerly direction.

RE-DIRECT—Mr. Rioux (Mr. Doyle)

Under the questioning of Mr. Doyle, Mr. Rioux reiterated that the trip was a fishing trip, with the idea of dividing all costs, including the fish that would be caught.

He stated that in 1996 he had walked the runway and that the runway was in more or less good shape; he noted that he operates his aircraft from St-Jérôme, which is a sandy runway and that in 1996 the runway in St-Jérôme resembled very much that of Nitchequon's.

At that point, Mr. Tamborriello asked to produce rental prices for the Cessna 172 and it was agreed by all parties that the average rental price of a 172, including taxes, is approximately $105 an hour, not including instructor, but with fuel.

The Applicant then took the stand and testified on his own behalf.

DONALD DOYLE (Deposition)

Mr. Doyle first recounted his telephone conversation in June of 1998 with Dr. Yvon Roberge on the matter of the Nitchequon trip. Referring to a document (Exhibit D-22), he explained that Dr. Roberge contacted him after he had flown to Nitchequon to check on the runway conditions in anticipation of his planned June 20 fishing trip.

Dr. Roberge apparently wanted to fly to Nitchequon with Mr. Doyle but Mr. Doyle testified that as he had already planned his trip with another party, and on the request of Dr. Roberge, he put him in contact with Réal Clouet, who was a friend of his, so that they could fly up together in Mr. Clouet's aircraft and meet up in Nitchequon for their fishing trip.

Mr. Doyle indicated that he later received another phone call from Dr. Roberge, indicating amongst other things that he would accompany Mr. Clouet to Nitchequon and join up with them for the fishing trip. He then asked Mr. Doyle whether he could pick up his son and brother-in-law in Chibougamau and fly them to Nitchequon. When Mr. Doyle suggested to Dr. Roberge that he do the flying himself and that if Mr. Clouet would not permit him to use his aircraft, that he could use his,[13] Dr. Roberge insisted that he preferred that the Applicant pick them up, and Mr. Doyle agreed.

This would permit him to do a reconnaissance of the area between Nitchequon and Chibougamau for future fishing trips as well as permitting him to get additional fuel and bring it back to Nitchequon. This fuel would be required to fuel Mr. Clouet's aircraft and his aircraft for the return portion from Nitchequon, at the end of their fishing trip. During that telephone conversation, Mr. Doyle testified that a mention was made about a repair bill, for an aircraft radio belonging to Dr. Roberge, which Mr. Doyle had used and had fixed by a radio repair shop, following Dr. Roberge's accident. It was agreed that the cost of repairs would be paid after the trip, as they made the arrangements for the other expenses relating to their fishing trip to Nitchequon.

During discussions with Mr. Clouet as to the arrangements for the insurance on his aircraft for Dr. Roberge, Doyle testified that he discussed the question of expenses of the aircraft use and reminded him that the cost would have to be shared equally between all, as it was illegal to do otherwise.

Donald Doyle next testified as to the trip of June 20 from St-Jérôme to Lachute to refuel and then flying up to Chibougamau with a stop at barrage Gouin to find out about fishing conditions etc. In Chibougamau they met up with Mr. Clouet and Yvon Roberge who had already arrived. He testified that they refuelled the aircraft and filled two 5-gallon containers, which they left in Chibougamau, and then flew on to Nitchequon, a flight lasting about 2½ hours. Once there, he unloaded the aircraft and flew back to Chibougamau.

He then related arriving back to Chibougamau on June 20 to pick up Bruno Roberge and Daniel Lincourt, not finding them at the airport, but at a motel in town and spending the night there because of the lateness of the hour. He related having a conversation with Mr. Lincourt with reference to, among other things, the cost of the trip, indicating to him, because he (Mr. Doyle) and Dr. Roberge had different accounts to settle, to make his arrangements with him, and the whole matter would be settled after the trip. He testified that while in the motel, he had a discussion with Mr. Lincourt about another potential fishing trip including Mr. Lincourt's wife[14] and about this particular trip.

Referring to the June 21 trip from Chibougamau to Nitchequon, Mr. Doyle testified, referring to his notes (D-27) that, before starting the engine, he briefed the passengers on safety measures and remembered using the checklist stating "on va dire la petite prière" and reviewing the doors' use, the seat belts, and indicating where the ELT was, etc. He indicated that they acknowledged his instructions, that as a matter of fact, young Bruno Roberge asked where the ELT was located and Mr. Doyle indicated that it was behind, in the storage compartment, that the latter turned, that his uncle pointed it out to him.

Mr. Doyle testified that on June 24, he went fishing at the rapids located approximately two miles north of the end of the runway, and to get there, he had walked the runway as he had walked it before on previous trips and on every occasion when they went fishing at the rapids. Although they had planned to return on the 24th, at Bruno Roberge's request, they decided to spend an extra night so that he could be there for the bonfire that evening, and planned to depart early on the morning of the 25th, which is what they did. He stated that on June 25, he rose early, had breakfast and prepared the aircraft, refuelling his aircraft with one of the 5-gallon containers of fuel and putting the fuel from the other container into Réal Clouet's aircraft, as he needed that fuel since the fuel he had brought up had been lent by someone else to help refuel another aircraft that was there and short of fuel.

He remembered using the checklist that morning and testified that he even remembered the feel of it.[15] Using the checklist, he briefed the passengers again on the use of their seat belts, the location of the ELT, indicating, "s'il m'arrive quelque chose, tu le mets là, à on", the medical kit etc.

He remembered getting the wind indication by looking at the tree tops and noticing that the wind was just coming from the northwest, that Yvon Roberge was waiting on the runway as he had walked down before they got there. Mr. Doyle related that when he got to the intersection of the runway, his aircraft was not really stuck into the ground, as was indicated by previous witnesses, that after pictures had been taken, the aircraft was facing more in a southerly direction and Yvon Roberge alone helped the aircraft turn around to the northerly heading by pushing on the strut to enable the aircraft to turn more sharply. The sand on the runway was light, and had a consistency that he felt was like gravel, very much like the condition of his runway in St-Jérôme. He was satisfied therefore that the runway was in good condition before their expected take-off. He indicated that two days prior to the take-off, there had been heavy rain, and it had the effect of cementing (hardening) the top surface. He indicated that the consistency of the runway was better, in fact, in 1997, although the runway was good, it was dry, more powdery and they had compacted it.

Referring to the diagram of the sequences of events (Exhibit D-33), he related the circumstances of his take-off. Asked about the door opening on the passenger's side, he indicated that the door had been closed, but that you could see daylight. On the Cessna 172, he said, if the latch does not go all the way in, you could close the door and latch it and even lock it, but you can still see daylight. He related that when Bruno Roberge said his door was open at the take-off, he was probably not sure whether it was during the taxi or the take-off. Mr. Doyle remembered very well that when he was told the door was not properly closed, he said that he would tend to it later as he was doing other things at the time, and was not about to take off. Upon hearing this, Daniel Lincourt unbuckled himself in the rear, leaned over, unlatched the door, opened it, then closed and latched it and went back to his seat.

Mr. Doyle testified that he continued taxiing the aircraft in a northerly direction wanting to go as far as he could go, and to be in a position to determine where that was before his take-off run. He indicated that at the end of the runway, conditions were looser, and that during the turn to taxi back to his take-off point, he got off the beaten track, and the nose wheel, which is of a smaller diameter than the main wheels, dug in and caused the aircraft to stop. At this point the engine was still running, and he indicated that before he let his passengers go out to push the aircraft, he briefed them on the propeller and told them to stay behind the struts at all times. He indicated that they agreed and both got out of the aircraft on the same side, since he was still seated in his seat; they, therefore, were pushing on the same strut, the right strut, and this caused the aircraft to rotate almost on itself and dig in further. He then put the parking brake on and shut down the engine. He indicated that he got out, removed sand from the nosewheel, and rotated the aircraft by swinging the tail. He then got back in and moved the 5-gallon cans, which were on the seat, to make room for his passengers.

On the question of the handbrake, he related that Daniel Lincourt got in the aircraft first, sat behind Bruno, but while strapping himself into the back seat, he used the extremities of the belt to strap himself in. Mr. Doyle noticed this and told him "t'es pas bien attaché, attache-toi comme il faut..." and Mr. Lincourt retied himself properly. From his position, Daniel Lincourt could see the handbrake located between the pilot's legs, and so as Mr. Doyle tried to move the aircraft forward, noticed that the parking break was still on; Mr. Doyle released it and mentioned to his passengers, "it moves better..."

They were now moving in a southerly direction on the way back to his take-off point, and he saw that Bruno Roberge was looking out the window, trying to make contact with his father who was at the intersection. He indicated that he tugged on Bruno Roberge's seat belt, to ensure that it was fastened, that is a procedure, he says, often carried out by flight instructors... On the way down, he did a power on acceleration check to see how the aircraft was reacting, and Bruno Roberge turned and looked at him surprised: "quoi?" Doyle replied "it's ok" and Bruno Roberge smiled...

He continued his southwest run, passed the intersection of the taxiway entrance to get as much runway available as possible and used the southwest end of the large entrance for his turn, and while still rolling, and without stopping, he started his take-off run. It is at that point, as Bruno Roberge has already testified, that Bruno Roberge said "qu'est-ce que tu fais?". Mr. Doyle related that that is because Bruno was not used to this procedure, having never seen it done before. By then the nose was up, the power was on, and he had full back control column, the tail rubbed very slightly on the runway. He indicated that on his last run up the runway, he had noticed green moss growing and that this was his reference for his acceleration point. Now on the take-off run, he hit his marker, noted his speed, and made the decision to go for it. He testified that his best angle of climb speed was about 68 mph, that was his target speed... Then the trees were approaching, and contact was made and he thought "at worst I'll stall it into the trees." After the crash, he indicated that the fuel was not leaking in an abundance but in a trickle. He suspected the fuel was coming down from the fuel vent under the wing. He stated that when he first looked at Bruno Roberge, he had his back to him and he said to him, because the door to the right side was jammed, "follow me" and he rolled out of the aircraft and crawled away from it. Next he heard crunching sounds, and he noticed that his passengers were exiting the aircraft through the windshield which had popped, and they were walking on the cowling as they got out. He testified that he suffered lower back disc injury crushed from impact.

Referring to Exhibit D-36 which is a Xerox copy of the take-off data page of the pilot operating handbook of the Cessna 172, Mr. Doyle related that at the time of his take-off on June 25, he had not done the actual calculations for his take-off run. He based his decision to take off that day on his past experience, having flown there in the past under similar conditions, as well as the fact that he was used to operations on a soft runway, because his aircraft was actually operated from a similar runway at St-Jérôme airport. His calculations that appear at the exhibit were thus made later and he arrived at a total take-off distance of 1,295 feet to clear a 50-foot obstacle.

On the question of the operation of a commercial air service, Mr. Doyle referred to a letter dated February 28, 2000, addressed to Mr. Justin Bourgault, the Regional Manager of Aviation Enforcement for Transport Canada in Montreal (Exhibit D-35). Mr. Doyle reiterated in his statement to the Tribunal that at no time did he receive any money prior to the June 1998 flight or expect any payment other than the cost directly related to the sharing of the expenses, including the transportation of Mr. Lincourt, Dr. Roberge's brother-in-law, and his son Bruno Roberge, from Chibougamau to Nitchequon. He reiterated that he accepted to do this particular trip as a favour to Dr. Roberge, a very good acquaintance, and it was in fact a friendly act on his part. He indicated again that the purpose of the trip was a gathering of friends on a fishing excursion and nothing else, that the costs pertaining to the trip would be shared by all equally. The extra trip between Chibougamau and Nitchequon with Daniel Lincourt and Bruno Roberge was done as a favour to Yvon Roberge who had had an accident a year earlier, and under the circumstances, had asked him to do that particular portion of the flying which he could have otherwise done himself.

CROSS-EXAMINATION—Donald Doyle (Mr. Tamborriello)

Mr. Doyle, under the questioning of Mr. Tamborriello, revisited some of the points of his earlier testimony.

As far as the load onboard the aircraft when he took off from Nitchequon for that fateful flight of the 25th is concerned, he stated with reference to the outboard motor onboard that it was a small light motor that weighed approximately 20 to 25 lbs., that he had onboard two empty plastic fuel containers referred to above, and the personal bags of Daniel Lincourt and Bruno Roberge; as far as the aircraft fuel is concerned, he had about half tanks.

Questioned on his trips to Nitchequon in June, he stated that he had been there twice, once early in June, with a Cessna 185 when he stayed for three days, and the last trip of June 20 to June 25. He stated that at the time of the accident his total flight time was approximately 6,900 hours.

Relating to the evening of June 24, the night before the departure, he testified that they had a bonfire around 9:30 that evening, that he did not stay there very long, as he does not drink, that he had maybe a half a glass of wine during supper around 5:00 pm. They had a good time around the bonfire, talking about aviation, not drinking. Questioned by Mr. Tamborriello as to his determination of the wind that morning again, Mr. Doyle reiterated that while taxiing down towards the runway, he looked at the tip of the "sapinage" and that is how he saw there was a weak wind from the northwest. So far as the weather was concerned, he stated that it was very early, around 06:00 in the morning, and estimates that the winds were from 3 to 5 knots, and that what was on his mind was that the temperature had changed, and knowing the weather around that area, he assumed there was an approaching cold front from the north, and therefore a northwest wind; he stated that the temperature was cool, somewhere around 60 to 65° Fahrenheit, that his estimate of 60 to 65° Fahrenheit is more accurate than his 25° Celsius, as he is not a "centigrade guy".

The questioning then turned on the issue of the marker used by the Applicant, during his take-off run. Mr. Doyle testified that he had decided on some moss as marking a spot about ¾ of the way from where he intended to take off as his marker, and that he expected to use the opening of the taxiway to the runway as his turnaround point for his take-off roll. Questioned on the distance available, he answered that he figured that from the start of his take-off run, which would be about 100 feet past the entry to the runway, to the tree line, he had approximately 2,000 feet, so that the distance from the start of his take-off run to the end of the runway gave him approximately 1,800 to 1,900 feet. The moss marker, he finally established, referring to an inscription at Exhibit M-14 drawn for the purpose, at approximately 900 feet from the beginning of his take-off roll.

Re-examined on the question of the tail strike during the take-off run, he stated that as he finished his turn, he had full back control column as he turned north, he got good (abrupt) acceleration, and it was at that time that the tail barely rubbed the ground. By the time he got to the green moss marker, his air speed read what he was expecting 60 to 65 mph.

Q. Why didn't you get airborne?

A. Don't ask me, it was just skipping along.

Q. You still had approximately 1,000 feet to go, you continued, what happened to the air speed, did it decrease, increase?

A. It increased to approximately 65 mph, it was just skimming along and never increased more.

He stated that he had flaps selected at 10°, that he got acceleration to 65 mph, and that he was expecting to climb out at 68 mph; that was his target. At 65 mph it was not flying, he then raised the nose and it was just skipping along...

SUBMISSIONS

Mr. Tamborriello first pleaded that there were elements common to all of the infractions that had been proven:

First, there are the admissions submitted at Exhibit M-1, that Mr. Doyle was pilot-in-command of the aircraft registered as C-GBPR, which on June 25, 1998, took off from Nitchequon aerodrome; that the aircraft was registered as a private aircraft and that Mr. Doyle, at the time of the accident on June 25, 1998, did not possess any air operator certificate issued pursuant to Part VII of the CARs; finally that the last mention of the Nitchequon aerodrome in the Canada VFR Flight Supplement dates back to January 16, 1986.

It was also established fact that there were three people onboard the aircraft taking off from Nitchequon, that the aircraft took off from runway 05, and that the flight was planned from Nitchequon to Chibougamau.

Mr. Tamborriello further submits that the aircraft's take-off point was from the intersection of the taxiway to the runway, that the temperature was around 25° Celsius, that is between 23° to 25°, and that the runway is a soft field runway.

Charges relating to paragraphs 602.89(1)(a) and (b) of the CARs

These infractions relate to the Minister's position that Mr. Doyle failed to brief his passengers before take-off from Nitchequon aerodrome on June 25, 1998, both with respect to the location and means of operations of emergency and normal exits, and with respect to the location and means of operation of safety belts.

In support of this position, Mr. Tamborriello refers to Exhibit M-5, his hand-written notes of a meeting with Mr. Lincourt on July 17, 1998, where the said Mr. Lincourt indicated to him that the pilot had explained no emergency procedures, nor checked and ensured that his passengers had buckled their seat belts. He also points to the testimony of young Bruno Roberge, who said that there had been no briefing, and no checklist shown to him or used.

Mr. Tamborriello, referring to Mr. Doyle's testimony to the effect that he had used an expression "on va faire la petite prière" and had used a plastic or a cardboard checklist, reiterates that this may have been used on other occasions, but as far as the Nitchequon take-off is concerned, it is clear from the testimony of Bruno Roberge and Daniel Lincourt that these briefings never occurred.

Subsection 700.02(1) of the CARs

On the question of acting as pilot-in-command of an aircraft used for hire or reward, an infraction to the aforementioned section, Mr. Tamborriello submits that this infraction is proven by the following points:

Dr. Yvon Roberge testified that he made arrangements with Mr. Doyle for the use of the aircraft, and payment for this use in the order of $100 per hour was agreed to, that the planned trip would take between 10 to 12 hours, and that the costs would be shared with two passengers, that is his son Bruno Roberge and Daniel Lincourt. These 10 to 12 flight hours corresponded to the required four flights, between Chibougamau and Nitchequon, to pick up said Bruno Roberge and Daniel Lincourt and bring them up to Nitchequon and bring them back to Chibougamau, as well as the ferry of the aircraft between these two locations for positioning.

Mr. Tamborriello submits that these arrangements for transport of said Bruno Roberge and Daniel Lincourt must be considered a commercial service, by reference to the provisions of the CARs, where a private aircraft can only be used, and its costs shared, where the pilot is part of the group. Mr. Tamborriello claims that in this case the arrangements were made without the pilot sharing the cost.

Mr. Tamborriello further submits that only when passengers are onboard the aircraft, and not when the aircraft is being repositioned, can the cost of fuel be shared between all occupants. He submits that as a commercial pilot, the Applicant also exercises the privileges of a private pilot, and that as there are no sections in the CARs dealing with the use of a private aircraft for hire and reward, then section 401.28 is the applicable regulation to the case at hand, and paragraphs 401.28(2)(c) and (d) clearly state that only when the passengers are onboard the flight can the cost of fuel be divided between the users. The regulations do not include the cost of operation of the aircraft, but only that of fuel, oil and fees; the sharing of cost must include the pilot and he must be part of the party.

Mr. Tamborriello submits that although the evidence does establish that on several other occasions, Mr. Doyle made trips with other groups in the past where all of the expenses were shared, this case only deals with the flights between Chibougamau and Nitchequon, and back to Chibougamau.

Although there has been evidence that Mr. Lincourt said that he thought the arrangement would be the same as the previous year, there is no evidence, it is submitted, that he contacted Donald Doyle. Since Mr. Lincourt thought it involved dividing costs equally with Yvon Roberge and Donald Doyle, this could not be since there is evidence that Mr. Doyle was also part of another group.

Negligent Operation of an Aircraft

Finally, on the issue of the alleged infraction to section 602.01 of the CARs, and the negligent operation of an aircraft, Mr. Tamborriello essentially submits that had the Applicant Doyle carried out the appropriate calculation, which his expert Mr. Houde submitted as Exhibit M-13, as corrected at Exhibit M-19, he would have realized that under the conditions that he was in, he required approximately 3,072 feet of runway. Since, in actual fact, he had only about 1,900 feet (according to his own testimony), available from the start of his take-off roll, he was negligent.

Mr. Tamborriello reviews the proof as submitted to the Tribunal to arrive at the figure of 3,072 feet. He submits that we must accept that the temperature was 20 to 25° Celsius, that the wind, as testified by both Mr. Lincourt and Yvon Roberge, was from the south at about 5 knots, and that there was a gradient on the runway, which was significant and noticeable. Starting with a basic weight of the aircraft, and adding the passenger weights mentioned in testimony, half fuel tanks and another 125 lbs of luggage, he arrives at the necessary take-off weight of 2,225 lbs. Using the 0 flap take-off data from the pilot operating handbook, for both the 2,000 lbs weight and the 2,225 lbs aircraft weight, and applying the factors mentioned above, he recalculates the data. He submits that although his expert made an error, which was corrected after the testimony of Mr. Doyle's own expert, who states that the take-off roll and the slope and soft field factors should only apply to the take-off roll and not to the whole distance required to cross a 50-foot obstacle, he revised that data and arrived at the aforementioned figures of 3,072 feet for a 2,225 lbs aircraft; this figure includes a 45% safety factor as suggested by Mr. Doyle's expert witness. Mr. Tamborriello submits that, given the fact that from Mr. Doyle's own testimony, only 1,900 feet were available for take-off, what we are left with is why did Mr. Doyle attempt this take-off.

He further submits that although Mr. Doyle testified that he had normal acceleration, this is contradicted by the testimony of Mr. Lincourt, who felt there was no difference in acceleration between the first runs down the runway and the eventual last take-off run. Furthermore, he submits that Mr. Doyle should have used runway 23 for take-off which was more into wind, even if the wind was slight. He would have benefited from the down slope of the runway, and in addition, this runway points towards a wide open lake as opposed to runway 05, which was oriented towards a ditch and obstacles. Finally, his take-off technique left something to be desired, as the tail struck the ground twice, according Mr. Lincourt's testimony.

In retrospect, not only was his flight preparation inadequate (he had carried out no calculations for the anticipated take-off conditions), he chose not to use the full runway available to him and used only a portion thereof, and then, compounding the error, used the wrong runway. The combination of all of these factors constituted grave errors in judgement, particularly for such an experienced flight instructor.

Mr. Tamborriello further submitted that the credibility of Mr. Doyle must be questioned. He recalls his testimony regarding his telephone number inscribed on his business card, and his explanations as to why that phone number was supposedly no longer in use. Furthermore, Mr. Tamborriello suggests that according to Mr. Doyle's own testimony, he had 15,000 hours of flying time, when in fact the evidence of his log book shows that he had only approximately 7,000 hours flying time.

Mr. Tamborriello submits, referring to the Civil Aviation Tribunal case of Francis Dominic Decicco v. Minister of Transport,[16] that "in any consideration of what constitutes negligent or reckless conduct, one must review this conduct in the light of what a reasonable and prudent pilot would do in the same circumstances." Mr. Tamborriello's submission is that under the circumstances of this case, Mr. Doyle was neither reasonable nor prudent.

Finally, on the question of sanctions, Mr. Tamborriello submits that Mr. Doyle's conduct that day, where he was not forced by unforeseeable circumstances, nor rushed by emergency or traffic, justifies the lengthy suspension of his aviation document. Furthermore, his conduct during the course of these four days of hearing, where according to Mr. Tamborriello, Mr. Doyle used lengthy cross-examinations, most of the time not leading anywhere, calling of witnesses which were of little use, for example, his insisting that Bruno Roberge come and testify in this case, disregarding young Roberge's general condition and future as a consequence of having to relive these events through his testimony, testify to his lack of a proper attitude.

He submits that the CARs require a pilot to take all measures to carry out their flight safely; these regulations also require a passenger briefing before each flight, and if such briefing had been carried out, and the front passenger been safely attached to his seat, the consequences of the accident may well have been a lot less serious. Considering the serious consequences of this accident, the Minister decided to assess the maximum penalty.

With regards to the commercial operation of the aircraft, Mr. Tamborriello submits that Mr. Doyle mislead his passengers, and that a commercial operation is not the same as a fishing trip between a bunch of friends. The Minister cannot allow such commercial operation, and that is why again the maximum penalty was assessed.

Applicant's Submission

With regards to the operation of an illegal commercial flight, Mr. Doyle first submits that prior to his arrival in Chibougamau, he had no direct contact with Bruno Roberge nor Daniel Lincourt. His only communications had been with Yvon Roberge, who had made the arrangements. Mr. Doyle submits that he was well aware he was a member of two groups, one planned before his conversation with Yvon Roberge, and the second group involving Daniel Lincourt and Bruno Roberge.

As far as the first group is concerned, he had to travel back from Nitchequon to Chibougamau for fuel. Both Yvon Roberge and Daniel Lincourt's testimony confirmed the purchase of fuel in Chibougamau prior to his return with them to Nitchequon, and the same thing applies to the last trip planned between Nitchequon and Chibougamau for them. Furthermore, Daniel Lincourt did indicate in his testimony that he had bought food for a group that would include Donald Doyle, and also admitted that everything would be shared between all of them.

In actual fact, he submits that Yvon Roberge, for all practical purposes, was not part of Daniel Lincourt's group, because he had come with Réal Clouet in his own aircraft, and by his own admission was to share everything equally. He submits that what in fact happened, was that everything became a "mish mash" in the sense that all three groups, using two aircraft, shared the same destination, the same premises, the food and what had started off as two separate groups became one group, even sharing fuel between aircraft.

Mr. Doyle submits that he did his best to apply the regulations as they relate to commercial operations, being well aware of the requirements. He submits that the regulations are not there to punish, and that their application must be done reasonably. They are there to prohibit illegal transport, not to punish people with regards to operation of their own aircraft for such purpose as they were used in this case.

As far as the take-off out of Nitchequon and the subsequent charges alleging negligent operation of the aircraft are concerned, Mr. Doyle submits that the data that must be used in the calculation of the aircraft weight is the evidence that he had that day, and so Bruno Roberge's weight must be at 145 lbs, the fuel weight must be what he had estimated it at, because he did a visual check of how much fuel there was, and his figures of the take-off weight of the aircraft at 2,035 lbs are more representative of the real weight of the aircraft that day.

As far as the wind data is concerned, he has stated and reiterated that the winds were from the northwest and light at most at 5 knots, although it is possible that they may have changed while he was taxiing, and that there was little indication of that, as the runway has no functioning windsock.

As far as the temperature was concerned, he states that he remembered that the temperature was cool and suggests that we must use his expert's testimony, Mr. Samson, for the correction to be applied to the runway surface for the take-off. He submits that his expert is an instructor pilot and teacher used to the charts and that the data he arrived at should be the one closest to the reality of the circumstances of that day.

He submits that Transport Canada increased the distance required by 25% for a tail wind of 5 knots. He submits that he was not aware of such tail wind at the time. Furthermore, the Minister's representative uses 10% correction for slope, preferring on this issue the testimony of Mr. Lincourt's estimate of changes on runway elevation and therefore slope, to that of Dr. Yvon Roberge, the pilot and father, who estimated the difference between both ends of the runway at 10 feet, which indicates no significant slope to the runway at all. Furthermore, the data available on the VFR supplement has no indication of gradient. Also, the northern portion of the runway is wind blown and may have given Mr. Lincourt the visual effect of having slope where there was really no significant slope.

The Applicant therefore submits that the data that the Minister has used in his calculations does not reflect the conditions at the time: not the aircraft weight, not the wind, not the slope. So the data arrived at is completely arbitrary and we are left with the testimony of his own expert, which states that under the conditions he has established, he would have carried out the take-off.

As far as the allegations of infractions to the obligation to brief his passengers, Mr. Doyle submits essentially that Mr. Lincourt's testimony is not consistent with the facts that he has brought forward. Mr Lincourt testifies that there were no briefings whatsoever, neither in Chibougamau nor in Nitchequon, and when asked if he had flown with others, he does not remember. As to his brother-in-law, he does not remember either. Mr. Doyle submits that Mr. Lincourt, as other people, simply did not pay attention to the briefings, because he was aware of the information being provided since he had flown before, and as he testified, knew how to open the doors, where the ELT was and how to use the seat belts. Mr. Doyle submits that he was probably "star gazing". However, Mr. Doyle remembers very well that he did carry out the briefing and that on the question of the ELT, Bruno Roberge specifically asked where the ELT was.

Highlighting the confusion in the testimony of Bruno Roberge and Daniel Lincourt on this subject, he points out their testimony relating to the aircraft stopping at the top of the runway at one point when it got stuck, and the passengers disembarking to push the aircraft out of its position: Bruno Roberge is asked whether the engine was running, and remembers that it was, whereas Mr. Lincourt did remember that the engine was not running "because it's not safe when the engine is running, to get out".

The Applicant submits that if these passengers did not remember an important event such as whether the engine was running or not as they got out of the aircraft, how could they remember whether they had been briefed or not. Mr. Doyle submits that he is an experienced instructor, uses his checklists on a constant basis, that procedures are part of his livelihood, and safety is always his main concern.

Finally, Mr. Doyle submits that according to three witnesses (Yvon Roberge, Daniel Lincourt et Bruno Roberge), it seems that he could do nothing right, was completely negligent, and that they went so far as to say that Donald Doyle had scrambled to save his own life and not taken care of his passengers after the crash. He reiterates that that is not the case, as he used the only door available to get out and asked his passengers to follow him through the opening.

He reiterates that, as far as the take-off is concerned, he carried out the procedures exactly as the expert witnesses have testified they should be done, and should not be held negligent in the operation of his aircraft.

He submits in closing that the Minister failed to properly investigate this accident and that had measurements been taken and aircraft components properly examined, these proceeding would not have been undertaken.

THE LAW

Subsection 7.7(1) of the Aeronautics Act stipulates:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person...

Subsection 602.89(1) of the CARs:

602.89 (1) The pilot-in-command of an aircraft shall ensure that all of the passengers on board the aircraft are briefed before take-off with respect to the following, where applicable:

(a) the location and means of operation of emergency and normal exits;

(b) the location and means of operation of safety belts, shoulder harnesses and restraint devices;

[...]

Subsection 700.02(1) of the CARs:

700.02 (1) No person shall operate an air transport service unless the person holds and complies with the provisions of an air operator certificate that authorizes the person to operate that service.

Subsection 6.9(1) of the Aeronautics Act stipulates:

6.9 (1) Where the Minister decides to suspend or cancel a Canadian aviation document on the ground that the holder of the document or... operator of any aircraft... has contravened any provision of this Part or any regulations or order... the Minister shall... notify the holder.

Subsection 602.01 of the CARs:

602.01 No person shall operate an aircraft in such a reckless or negligent manner as to endanger the life or property of any person.

DISCUSSION

The Minister had the burden to establish on a balance of probabilities[17] that Mr. Doyle had committed each of the infractions alleged against him, the most serious of which is to have operated his aircraft in a negligent manner when taking off from Nitchequon on June 25, 1998, while the existing runway conditions where not suitable for the intended take-off.

Negligence in the Operation of Aircraft C-GBPR

The Minister submits that taking off from runway 05, without prior calculations of the required take-off distance, when the winds were from the south at 5 knots, on a soft surfaced (sand) runway, uphill (alleges at least 2% up slope) and from a point where only approximately less than 2,000 feet of the 3,285 feet long runway was available, constitutes negligence when the ensuing take-off is unsuccessful, the aircraft crashes, and all occupants are severely injured.

The Minister submits that the pilot-in-command should have known that under these conditions, 3,000 feet of runway were required and attempting to take off where only 1,800 to 1,900 feet of runway were available constitutes negligence.

Mr. Doyle, of course, sees it very differently. His version of the events is that while taxiing to the runway, he noted that the wind was light, and from the northwest, that is, favouring runway 05.

He had used this runway (whether 05 or 23) on numerous prior occasions without difficulty. He had examined it frequently during his five-day stay there, walking it often on his way to his favourite fishing hole at the rapids to the northwest, he had landed on it on arrival, on the 20th and the 21st of June (using the southwest direction (230°)).

Furthermore, they, he and his friends, had worked the runway in past years (1996–1997) using a Jeep and roller to pack it down. This had not been done in 1998, but the runway was in good condition. It had rained in the past few days, and this had had the effect of packing down/hardening the runway.

Furthermore, this type of runway was similar to the runway that he operated from (St-Jérôme airport—a sand based runway) on a daily basis and he was quite used to the performance of his aircraft under these conditions.

He had used standard procedures for this fateful take-off, his aircraft was well under maximum take-off weight, around 2,000 lbs, the wind was light from the northwest, so he chose to take off in that direction; he used as much of the runway as was reasonably available to him, i.e., he taxied past the intersection of the taxiway to the runway, the area that had been worked on in the past, as the extremity (towards runway 05 button) was too soft for use, and after two runs up the runway (05) to assess conditions, attempted to take off.

He used full back control column pressure to remove the weight off the nose wheel, as is the procedure recommended in his pilot operator handbook (POH), and is recognized soft field take-off techniques, and started his take-off roll without stopping as a continuous transition from his downwind taxi.

He had made a mental note of the spot on the runway for his go-no-go decision point, and target speed there. At that point, he had reached his decision speed (approximately 70% of his best climb speed of 68 mph (i.e., approximately 45 mph). Past that point, the aircraft continued to accelerate toward 68 mph, but stabilized at 65 mph, and he could not get the aircraft airborne before the edge of the runway.

He had done everything a prudent pilot would have done under these circumstances and should not be held liable.

Standard of Proof

It is well settled law that the standard of proof imposed on the Minister, although not defined in the legislation, is the civil standard of "proof on a balance of probabilities".

The Tribunal, in weighing the document holder's right to procedural fairness and natural justice and the Minister's obligation to maintain an adequate level of public safety, has determined that the standard of proof to be imposed on the Minister is not the criminal standard of "proof beyond any reasonable doubt" but the civil standard of "proof on a balance of probabilities". If the balance weighs equally in favour of the Minister and the document holder, the standard has not been met, but if the balance weighs more heavily in favour of the Minister, the standard has been met.[18]

The bottom line is that the Minister's position is that the pilot had chosen the wrong runway direction for his attempted take-off. That is where the mistake is, that is where his negligence lies, with the consequent breach of section 602.01 of the CARs and penalty, which is the suspension of his commercial pilot licence privileges for a period of ten months.

Stated in the aforementioned Minister's terms, this position appears unimpeachable.

It would follow that had the pilot taken off in the south-westerly direction of the runway (230°), he would have benefited from a significant (according to the Minister's position) down slope of the runway, been into wind (the wind was light from the south, according to Dr. Yvon Roberge's testimony), and even if the runway distance available and useable out of a potential of 3,285 feet was only about 1,800 to 1,900 feet (according to Mr. Doyle's own testimony), he would have benefited from approximately 1,000 feet of overrun, the soft last unuseable (1,000 feet) before the physical end of the runway, which points to a sandy beach and then lake Nitchequon, that is to say, no obstacles to his climb out (Exhibit D-32).

Furthermore, given the Minister's estimated take-off weight of 2,225 lbs, and using calculations derived from the data of the pilot operating handbook and applying to it a safety factor of 45% as suggested by Mr. Doyle's own expert witness, Mr. Doyle would have required approximately 3,000 feet of runway for his successful take-off under those conditions, that is take-off on runway 05, with a tail wind, uphill, and soft sand conditions.

As further proof of his negligence, which is a direct corollary of this, it is submitted that Mr. Doyle did not even carry out any calculations at all before attempting to take off. Had he done so and arrived at the proper results, it is assumed that he surely would have not attempted to take off.

We have mentioned earlier that it is now settled law that the Minister of Transport must establish the constituting element of the alleged infraction on a balance of probabilities, that is, the same standard of proof as required in civil cases (the civil onus), as opposed to the criminal onus to discharge, where proof of the alleged infraction must be established beyond a reasonable doubt.

The degree of probability required in order to discharge the burden of proof in a civil case was defined by Lord Denning in these terms:

That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: "we think it more probable than not", the burden is discharged, but if the probabilities are equal it is not."

Cartwright J. in Smith v. Smith and Smedman put the test as follows:

I wish, however, to emphasize that in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment is formed including the gravity of the consequences of the finding.

In Clark v. The King, Duff J. concluded that in a civil case, a court may act on "such a preponderance of evidence as to show that the conclusion he seeks to establish is substantially the most probable of the possible views of the facts (emphasis added).[19]

And so, the Minister must establish the actus reus, that is the negligent act, but it is not sufficient to say, in our context, the aircraft crashed, now it is up to Mr. Doyle to establish reasonable care on a balance of probabilities.

The fact of the matter is that instead of choosing the course of action which a contrario, the Minister proposes should have been followed by the Applicant, the latter chose to take off from runway 05, at a point located about a third of the way down from its threshold.

Was he "negligent" in doing so? Negligence in the operation of an aircraft has been the subject matter of a number of past Tribunal decisions. This Tribunal sitting in appeal in the case of Edmundo R. Sanchez v. Minister of Transport[20] defined negligence by referring to the case of Norbert A. Selbstaedt.[21]

[...] Negligence is defined in Black's Law Dictionary, Fifth Edition, page 930, as follows:

The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances.

In identifying the consideration to be applied in determining whether or not negligence has been proven, the Tribunal went on to say at page 12:

The Minister must establish 'on a balance of probabilities' that the Appellant omitted to do something that a reasonable man would do in the circumstances or did something which a reasonable and prudent man would not do...

The same definitions where also used in the recent case of Francis Dominic Decicco v. Minister of Transport[22].

We also note that the aforementioned case of Sanchez is interesting for our concerns here, in that it cites with approval the quoted case Selbstaedt:

That case is important for another reason, namely that the Appeal Tribunal confirmed that a document holder is not required to prove that the alleged contravention did not take place. The burden of proof is and continues to be on the Minister to establish a contravention and the justification for an administrative penalty. To hold otherwise would not provide the document holder with the procedural fairness and natural justice to which he is entitled.[23]

So the question remains: did the Minister establish, on a balance of probabilities, that Mr. Doyle operated his aircraft in a negligent manner, so as to endanger the lives of his passengers in taking off from Nitchequon airport, "while the existing runway conditions were not suitable for the intended take-off?"

What are these existing unsuitable runway conditions, that were put forward by the Minister? Mr. Tamborriello, as noted above, claimed that by taking off

  • downwind;
  • uphill;
  • with only approximately 2,000 feet of runway available;
  • when the aircraft weighed approximately 2,225 lbs;
  • requiring 3,072 feet of runway to clear a 50-foot obstacle;
  • at 0 flaps;
  • at a 25° Celsius temperature;
  • from a runway situated at a field elevation of 1,785 feet;

Mr. Doyle was negligent. The submission is that had he taken off in the other direction, it is presumed that he would have avoided most of these "unsuitable runway conditions".

Let us examine these elements:

a) Downwind

Dr. Roberge testified that the wind was light and from the lake; he could feel it "cooler on his right cheek". He noted this in his written notes taken when he was waiting for his son, at the hospital ("I knew there would be litigation"): "vent 5 kts du sud ouest"[24] vent de dos.[25] In his testimony at the hearing, he talked of a very light breeze coming from the lake, from the south.

Daniel Lincourt, for his part, declared in his statement to Mr. Tamborriello (M-5, p.2) that the wind that morning was calm, from the south.

Mr. Doyle, on the other hand, states that he noted the wind direction during his taxi to the runway: "it was light, from the northwest, 3 to 5 kts", he states that this was consistent, from his experience, with an approaching cold front and consequent winds from the northwest.

The evidence on this issue of the winds is therefore contradictory, and to say the least, inconclusive as far as the Minister's position is concerned, which for the purposes of the allegation of negligence (i.e., taking off with a tail wind) and take-off calculations used a correction to the ground roll of the aircraft of 5 knots.

Dr. Roberge states that the wind is light from the south; on direct examination, when it is suggested to him that the wind was approximately 5 knots, he states "3 to 5 kts."[26]

Mr. Lincourt, for his part, says the winds were calm from the south. Mr. Doyle, light from the northwest...

b) Uphill

Again on this question we have varying testimony.

Dr. Roberge first states a variance of elevation from one end of the runway to the other of approximately 10 feet, then in cross-examination, when pressed by Mr. Doyle, he states that it is approximately 20 to 30 feet, maybe higher; Mr. Lincourt establishes the variance of elevation at 30 to 65 feet. Mr. Doyle, from his point of view, indicates that there is no significant slope. A photograph of a portion of the runway[27] is of no assistance and the one extract[28] from the VFR Flight Supplement entry for Nitchequon shows no gradient indicated at all.

Even using a variance in elevation from one end of the runway to the other of 50 feet, one only gets a gradient of approximately 1.5% and if one uses Dr. Roberge's first version of 10 to 30 feet variation, depending on his testimony, the gradient is from 0.3% to 1%.

Furthermore, the last submitted entry into the VFR Flight Supplement, dating back to 1987, has no mention of runway gradient, nor any special notice of required procedure or caution note,[29] nor runway data note indicating a prohibition or a special care requirement for the use of runway 05, due to the slope.

Again, the proof of runway slope is inconclusive; the Minister provided the Tribunal with no other elements (no survey reports, no entry to VFR Flight Supplement...) establishing a significant slope.

c) Total runway distance available

It is generally agreed that although the runway is noted at 3,285 feet long in the VFR Flight Supplement (Exhibits D-1 and D-2) the runway available from the start of take-off was approximately 2,000 feet.

The Minister's proof is silent with regards to the remaining 1,285 feet, that is, the distance between a point approximately 100 feet south from the wide entrance between the taxiway intersection and the runway, to the button of runway 05. It is however clear from the testimony of Dr. Roberge, that that 2,000-foot area is the area that had been worked on in 1997, and was also the area used by himself and Mr. Clouet on landing in Nitchequon on June 20, 1998.[30]

Mr. Doyle's testimony is to the effect that the last 1,000 feet to the button of runway 05 was soft, the presumption being that it was too soft to use safely for the take-off run.

So we are left with the inescapable conclusion that Mr. Doyle used all the runway that was available for his direction of take-off (northeast).

d) When the aircraft weighed 2,225 lbs

The Minister assumed originally the take-off weight of 2,267 lbs (M-9) based on an aircraft empty weight of 1,436 lbs, 12 lbs for 8 quarts of oil, 3.5 hours of fuel onboard, i.e., (20.4 gal at 7.2 lbs/gal.) for 148 lbs; pilot and front passenger of 182 lbs each (standard weights for occupants) and the same for the rear passenger, and 125 lbs of miscellaneous load.

The evidence from the testimony of Messrs. Bruno Roberge, Daniel Lincourt and Donald Doyle establishes total figures that are quite different: the weight of the occupants, Bruno Roberge more like 140 lbs, Daniel Lincourt around 180 lbs maximum, and Donald Doyle close to 160 lbs; the fuel onboard (FOB) was more like 115 lbs for half tanks, as testified by Donald Doyle, and the weight of luggage approximately 30 lbs plus a small motor weighing in the order to 30 to 40 lbs. Therefore, based on the testimony of the witnesses, the weight of the aircraft at take-off was more in the order of 2,100 lbs.

e) Required 3,072 feet to clear 50-foot obstacle

The Minister's representative, Mr. Tamborriello, argued in his closing argument that proving and compounding Mr. Doyle's negligence was the fact that he admitted never having actually carried out any take-off calculations to establish the proposed take-off runway distance required, and then when he eventually produced such calculations (D-36) months after the fact, his estimated calculation of 1,294 feet of runway required to clear a 50-foot obstacle was in error since he had not corrected the data for temperature.

It is interesting to note that in that context, Mr. Tamborriello produced the calculations arrived at by his expert witness, Mr. Houde (M-13), of 2,772 feet as the take-off distance required to clear a 50-foot obstacle, assuming a 5-knot tail wind, a soft field correction of 25%. This data was then corrected after cross-examination of Mr. Houde by the Applicant, and the evidence of Mr. Samson, Mr. Doyle's expert witness. Mr. Samson had suggested the applications of a 45% safety factor correction to the ground roll portion of the soft field take-off, and this correction applied, not to the whole take-off distance to 50 feet, as calculated by the Minister's expert witness, but only to the ground roll portion of that calculation. Mr. Tamborriello admitted in his closing statement: "Yes, we did make a slight mistake..."

The said Mr. Samson, expert for Mr. Doyle, an experienced bush pilot with significant soft field experience,[31] using an aircraft weight of 2,000 lbs, a field elevation of 1,700 feet, 10% factor for temperature variation and 45% soft field factor corrections arrives at a total take-off distance to cross a 50-foot obstacle of 1,718 feet. This 1,718-foot distance is arrived at based on no tail wind, nor a headwind correction and no significant slope factor.

Mr. Tamborriello in his cross-examination of Mr. Samson correctly showed that when Mr. Samson used a 64% factor for his interpolation calculations of data from the POH data which provided it only for 2,500 feet, the interpolation factor should be 71%. The witness had interpolated the airport altitude to 1,700 feet[32] and arrived at a factor of 64%.

Using 71% vs 64%, one arrives of a distance of approximately 1,750 feet.

It is worth noting here that the distance of approximately 1,750 feet required over a 50-foot obstacle presumes a 50-foot obstacle.

The evidence from all parties was that there was a gully/ravine/depression at the end of the runway, that the aircraft disappeared (Yvon Roberge's testimony) over the edge down the ravine in its attempted take-off, and hit the top of trees which were 20 to 30 feet high, approximately 200 to 300 feet past the end of the runway.[33]

There certainly is no evidence from any quarter that there were 50-foot obstacles at the end or even 200 to 300 feet past the end of runway 05.

f) At a temperature of 25° Celsius

Dr. Roberge, in his notes, established the temperature that morning at approximately 23 to 25° Celsius (that is 73 to 77° Fahrenheit). Mr. Doyle ("I'm not a centigrade guy") estimates the temperature more around 65° Fahrenheit (18° C): "I assumed there was a cold front to the north... the air was cool, there was dew on the ground..."

Again no other evidence is entered by the Minister as to the prevailing weather conditions that day for that area, nor any other data relating to temperatures.

g) For a 0-degree flap take-off

Finally it has been established by the uncontradicted testimony of Mr. Doyle that he attempted to take off with flaps set at 10°.

That is quite plausible and most probable as that is the POH recommended pilot technique:

WING FLAP SETTINGS

Normal and obstacle clearance take-offs are performed with wing flaps up. The use of 10° flaps will shorten the ground run approximately 10%, but this advantage is lost in the climb to a 50-foot obstacle. Therefore, the use of 10° flaps is reserved for minimum ground runs or for take-off from soft or rough fields. If 10° of flaps are used for minimum ground runs, it is preferable to leave them extended rather than retract them in the climb to the obstacle. In this case, use an obstacle clearance speed of 65 MPH.[34] (Emphasis added)

Nowhere in the Minister's take-off calculation is the distance for ground roll reduced by the 10% mentioned above, considering that the data used at the take-off data chard (M-10), and take-off distance chart (M-11) as well as the take-off data calculations (M-13, M-19) is for flaps 0 take-offs.

Furthermore, there seems to be confusion between the take-off distance data that appears at the Minister's Exhibit M-10, which is an excerpt of the appropriate data charts taken from Mr. Doyle's Cessna 172 model, which states a soft field take-off correction of 7%. However, the take-off data used at M-11, at note 5, imposes a 15% ground distance increase for dry or grass runways, and M-11 was presented by the Minister as evidence, but relates to a similar Cessna 172 model albeit a M model, when, apparently, the model 172 used by Mr. Doyle on that fateful day, was a 172-L.

Again it is important to remember that it is not up to Mr. Doyle to establish he was not negligent. The burden of proof is on the Minister to establish negligence, and this with a preponderance of evidence.

So in the final analysis, did Mr. Doyle do "something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or [...] something which a reasonable and prudent man would not do."[35]

We know that when dealing with a specialty area, it is the degree of reasonableness expected of a person with his special skill or knowledge,[36] that is the equivalent criteria.

I find, having heard the evidence and examined the exhibits, that the Minister has failed to make his case of negligence.

I am satisfied that given the circumstances that day, the Minister has not shown that Mr. Doyle did not meet the standard of care that was expected of him.

Did Mr. Doyle make a mistake that day? Possibly, but as far as the proof on the record is concerned, it has not been established, on a balance of probabilities, that Mr. Doyle was negligent.

It has been established that Mr. Doyle used the runway which he judged was most into wind, although the wind was light. We should remember that his route of flight that day was in a south-westerly direction, across lake Nitchequon, toward Chibougamau.[37] So a take-off in that direction would have shortened his flight, yet he chose to take off in a north easterly direction (runway 05) which was not the easier course of action. He in fact taxied up to the edge of the runway 23, during his run-up and evaluation of runway conditions. He obviously judged that take-off from runway 05, in a north easterly direction, to be a better course of action. His use of all available runway, take-off technique and choice of flaps are all consistent with standard operating procedures for his aircraft, and he testified, that during his taxi up runway 05, he opened the door, and examined the sinking of the main wheel on the ground to determine the suitability of the runway conditions. All appeared in order. He had estimated his take-off run, marked the point on the runway for his go no go decision point, and his testimony to the effect that he had obtained target speed was not contradicted, nor shaken in cross-examination. He had reached his target speed there, and the aircraft continued accelerating toward 68 mph, his best climb out speed, but he never got airborne.

Did he get into softer ground, with concurrent negative effects on his take-off run?[38] Was there a gradual loss of power, tire problem, shift in wind direction during his take-off?

The fact is that the aircraft failed to get airborne before the end of the runway and crashed down the embankment. However, it is not the purpose of these hearings to determine the cause of the accident, but to examine whether Mr. Doyle was so negligent in his operation of the aircraft as to endanger the lives of his passengers.

As discussed above, the onus of establishing this negligence, on a balance of probability, rests with the Minister:

If, at the end of a tribunal hearing, on all the credible evidence, it has been proven that the events alleged probably occurred, the case has been proven... However, the degree of proof required to establish a fact by a balance of probabilities is not the same in every case. The law recognizes degrees of probability.

In all cases [...] If a decision may destroy a person's reputation and professional life, very strong evidence supporting a high degree of probability must be adduced.[39]

I therefore find that the Minister failed to establish such negligence. To paraphrase the Brace[40] case, negligence may be described with respect to the present circumstances as a breach of the duty of care required of Mr. Doyle towards his passengers, in order to avoid causing them harm:

In determining the duty of care required of Brace, his intentions are not relevant. One must ask the question: should Brace have known or ought to have known that the foreseeable, natural and probable consequences of his flying in the manner described above would cause harm to his passengers.

As in the Brace case, the question I had difficulty in determining was whether Mr. Doyle was mainly "guilty", if at all, of committing an error of judgement or even a succession of errors, or was he in fact negligent.

In the Brace case referred to above as well as the Selbstaedt case,[41] the pilots had pressed the weather, i.e., faced with deteriorating weather conditions while VFR they had decided to try to maintain visual contact with the ground and eventually crashed.

Their flight, once the decision had been made, had continued for a number of minutes with lots of opportunities to adopt different courses of action (climb, turn, or even turn before entering the bad weather, fog conditions...).

In the case at bar everything was decided in a matter of seconds: the pilot had adopted what he felt was the safest course of action: take off into a light head wind (away from his direction of flight), using all the runway that was available; his aircraft was well under maximum gross take-off weight, he was used to these runway conditions, because he had operated from this runway in the past, had landed on it recently, and operated on similar runway conditions at his home base. In addition, he had checked the current instant conditions, both over the course of the last few days by walking the runway, and during the initial portion of his taxi up the runway, visually, by checking the tracking of his landing gear in the sand during his taxi, and by doing a power run also during his taxi down the runway, with good acceleration, immediately before his take-off run.

He was therefore conversant with his aircraft performance which he fully expected to meet and exceed that required for his intended take-off.

In this context, it is appropriate to quote from William K. Kershner's The Advanced Pilot's Flight Manual:

Takeoff Performance

The rate of acceleration will generally decrease as the takeoff run continues. The net acceleration force (NAF) will be less as the calibrated airspeed picks up, as noted earlier. The point is that if acceleration is bad at the beginning it's not apt to increase as the airspeed picks up... the total retarding force is greatly affected by the rolling resistance existing but the drop of Thrust available with increasing airspeed is the big factor in decrease in the NAF. On soft-field takeoffs your subjective feeling may be that the airplane, in the initial part of the run, is not accelerating as on dry concrete (naturally) but seems to be doing as expected for this condition. There seems to be a point about halfway to the expected lift-off spot that the airspeed stops increasing and sort of hovers around a particular (too-low) value. This is the decision time: (1) close the throttle and taxi back for another shot at it (this can be a useful technique in some cases, to pack the snow or press the grass down with a few dummy runs) or (2) keep at it and hope that it will pick up airspeed again, break loose, and let you clear the trees? [...] One possibility is to correctly pace off the safe distance for lift-off and put a marker at the halfway point. If you don't have an indicated (calibrated) airspeed of 0.7 (or 70%) of the lift-off speed at that halfway marker you will not likely have lift-off speed at the end point.[42]

The point is that Mr. Doyle had good acceleration as he started his take-off run (actually down runway 23 before his turn, as he did his acceleration test run before his turn around the taxiway intersection to the runway), and he had reached his target speed by the time he got to his marker. That was the decision point. He had his speed and decided to continue the take-off.

Did he fall pray to Kershner's note that "this naturally assumes a constant coefficient of rolling resistance—if the 'second half' of the surface is softer the airplane may slow down and never get off."[43]

It is not for this forum to decide. The point is that his chosen course of action was not unreasonable, delictual, nor ignorant. I find that the Minister failed to establish that Mr. Doyle omitted to do something a reasonable man, governed by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.[44]

In this often quoted definition of negligence, one should read for our case pilot instead of man. I find therefore that the Minister failed to establish that Donald Doyle's actions were those that a reasonable and prudent pilot would not do.

It may well be that under similar circumstances, some pilots might have chosen a different course of action. But such is not the test, the fact is that his actions, as established by the Minister in evidence, were not unreasonable and demonstrative of a lack of care or knowledge, that a similarly experienced pilot would have demonstrated under the circumstances.

In view of the foregoing, I have determined to infirm the Minister's decision to suspend Mr. Doyle's commercial pilot licence for a period of 10 months, as I find that the Minister has not established that he breached section 602.01 of the CARs.

We now turn to the charges of failing to properly brief his passengers, and Mr. Doyle's alleged operation of a commercial air service under the circumstances previously discussed, without holding an appropriate air operator certificate.

Operation of a (Commercial) Air Transport Service Without Holding an Air Operator Certificate

The Minister's allegation is that the proposed flight on June 25, 1998 constituted an illegal operation of a commercial air service.

The Minister pleads that by charging $100 per hour for the proposed series of flights, that not only included the Chibougamau–Nitchequon–Chibougamau legs, but also the ferry of the aircraft from Nitchequon to Chibougamau and return to Nitchequon after the planned flight from Nitchequon to Chibougamau, Mr. Doyle was in breach of the applicable CARs that forbid a private pilot, or as is the case here, a commercial pilot exercising the private pilot privileges of his licence, from carrying any passengers for hire or reward. The Minister submits that the only exception to that is the sharing of fuel/oil, expenses and fees for operation of the aircraft (CARs 401.28(1) (2)) on the flight legs where the passengers are actually onboard (401.28(2)) and, where their carriage is incidental only to the purpose of the flight.

In support of this position, the representative of the Minister submits that he has established the agreement between Donald Doyle and Yvon Roberge with regards to the transport of his son Bruno Roberge and Daniel Lincourt, his brother-in-law, and that it was understood that it would cost $1,000 to $1,200 to transport them between Chibougamau–Nitchequon–Chibougamau, that is $100 per hour for 10 to 12 hours of flying time or 2.5 per flight leg (Chibougamau–Nitchequon and Nitchequon–Chibougamau) and the repositioning of the aircraft (Nitchequon to Chibougamau and Chibougamau to Nitchequon).

Once again, the Minister had the onus of establishing, on a balance of probabilities, the essential elements of its charge, that is, that Mr. Doyle was conducting that flight, on the morning of June 25, 1998, from Nitchequon to Chibougamau for hire or reward, and outside the exceptions provided at subsection 401.28(2) of the CARs.

In support of this position, Mr. Tamborriello proposes the testimony of Dr. Yvon Roberge as well as the statement of Daniel Lincourt made to him (M-5) dated July 17, 1998:

Entente conclue avec Yvon Roberge et Donald Doyle concernant le prix du voyage : environ $500 par pax.

À être payé, environ 2 semaines après le voyage, directement à D. Doyle.[45]

Let us examine the proof on the record.

First, there is no divergence of proof on the following facts: In June 1998, Donald Doyle was planning his annual fishing trip to Nitchequon and for that purpose had flown in early June to examine the conditions of the facilities and airport they were planning to use at the end of the month.

He had been there on a number of occasions before, and the previous year Yvon Roberge and Daniel Lincourt had been members of a group who had gone there for the same purposes. The group had shared all expenses, including aircraft expenses, the food and all charges had been divided equally amongst all, even down to the fish caught ("save the big ones": Daniel Lincourt).

By mid-June Mr. Doyle had contacted his friend, Roméo de Carufel, and they had formed a group of four for the planned excursion, when he was called by Dr. Yvon Roberge, who was asking Mr. Doyle to join him, as his own aircraft was not available following the previous year's accident.

Since Mr. Doyle's group was already formed, and his aircraft full (Mr. Doyle plus three passengers), Yvon Roberge is eventually put into contact, through Donald Doyle, with Réal Clouet, a friend of Mr. Doyle, who owns a Cessna 172 but does not have, it appears, a valid medical certificate permitting him to operate his aircraft by himself.

During these conversations relating to the arrangements for the Clouet-Roberge trip, Donald Doyle is asked by Dr. Roberge to accommodate the participation of his young son, Bruno, then 14, and his brother-in-law, Daniel Lincourt, so that they can join them for this fishing expedition.

During these discussions, Mr. Doyle submits he suggested to Yvon Roberge that he rent an aircraft, to do his flying himself; the cost for such rental is discussed, around $100 per hour.

The evidence is from there on contradictory as to what arrangements were made exactly.

In his last testimony, as mentioned above, Yvon Roberge is quite clear that it was $100 per hour for the trip Chibougamau–Nitchequon–Chibougamau.

Mr. Doyle for his part claims that no such arrangements were made, that the cost of that trip would be as in the past, shared by all equally, and payments made by all parties on the return.

As a matter of fact, no monies ever changed hands after the accident, though some goods and effects were returned by Yvon Roberge to Mr. Doyle.

So on the one hand we have the testimony of Dr. Roberge, to the effect that the cost of the aircraft is to be $100 per hour for the transportation of Daniel Lincourt and his son, between Chibougamau–Nitchequon and return. That was in fact his unequivocal statement when he was recalled to testify.

On the other hand, on this question of a proposed charge of $100 per hour, the Applicant testifies that this amount was only mentioned in relation to the cost of a potential rental of an aircraft from Cargair by Dr. Roberge.

He states that he was well aware of the legal obligation relating to illegal operations, and, as in the past, the only costs discussed were an equal sharing of all costs of the fishing trip by all participants.

As in the previous matter, the Minister had the onus of establishing, on a preponderance of probabilities, the essential elements of its charge, that is, that Mr. Doyle was conducting that flight from Nitchequon to Chibougamau, for hire or reward and outside the exception provided at subsection 401.28(2) of the CARs.

The main witness for the Minister therefore on this question, as stated above, is Dr. Roberge. He is obviously a very intelligent man and a caring father.

He testifies at length as to the events that occurred on June 25, and on the circumstances relating to the arrangements made before this trip.

These events obviously have had a traumatic effect on his son, but have marked him also, as they would any father... His testimony was therefore given with the imprint of emotion, and particularly during cross-examination by Mr. Doyle, with what one could qualify as controlled anger.

As stated above, although his testimony was clear on the question of the dollar charge to Mr. Lincourt, when he was last heard, when that question was first visited with him previously, and particularly during cross-examination, his evidence was not so consistent.

In his direct testimony, he states that the cost of the trip would be shared equally between his brother-in-law and himself, that the cost of the aircraft would be between approximately $400 to $600. However, under cross-examination by Mr. Doyle, his recollection of the arrangements between himself and his brother-in-law, and the amounts involved is not as vivid:

Q. Did you at any time, prior to the June 20 flight, indicate to Mr. Lincourt an amount of approximately $500 to be paid by him in regards this trip, two weeks after the trip to me, Doyle?

A. Il me semble avoir dit à Daniel, ça va être à peu près la même chose que l'an passé, peut-être un peu plus, parce qu'il va y avoir un transport d'avion plus long que d'habitude à faire.

Q. Did you indicate an amount of $500 to be paid to me after the trip?

A. Je vous ai répondu, et ça devient un peu confus... on est dans la même famille, mais à première vue... Normalement après un voyage de pêche on se retrouve et partage les dépenses. (emphasis added)

Q. Yes or no, did you say to Daniel Lincourt that the cost would be $500 per passenger payable two weeks après le voyage?

A. Les événements se mêlent, c'est confus, je ne me souviens pas précisément.

Furthermore, Yvon Roberge states that "Bruno s'était rendu à Québec... pour une question d'expérience, c'était entendu que Donald Doyle serait le pilote."

What also reluctantly comes out of his testimony, during the cross-examination, is the fact that Donald Doyle had to fly to Chibougamau to pick up fuel for the planned return out of Nitchequon.

Now turning to Mr. Lincourt's testimony, when questioned by Mr. Tamborriello, he states, referring to his previous statement written by Mr. Tamborriello (M-5) that it is his brother-in-law that made the arrangements, and informed him that the cost of the trip would be approximately $500 total.

"Il m'a dit à peu près $500 total et j'apportais de la nourriture et équipement de pêche... $500 tout compris."

But when cross-examined by Mr. Doyle on this question of cost for the trip, his assurance wanes:

Q. So this statement is incorrect?

A. J'étais sous médication, tout est exact, de page 1 à 7. Tout ce qui s'est passé du côté vol est exact. Avec du recul, je peux carrément dire que le $500 on splittait par rapport à la nourriture toutes les choses qui venaient avec le voyage. Je ne suis pas d'accord que c'est une fausse déclaration. J'avais parlé avec mon beau-frère que ça coûterait approximativement $500. Si j'avais vraiment voulu dire que c'était une entente commerciale, je l'aurais dit plus fort. Il n'y a qu'un quart de page sur sept... (emphasis added)

Furthermore, he will state that during the trip there were other people at the cabin:

Q. Do you recall that we put our groceries together pretty much to share?

A. Le partage se faisait plutôt entre Bruno, Yvon, Donald Doyle et moi. Les autres pas vraiment, c'était juste des connaissances. C'est sûr qu'on a partagé certains aliments (œufs, pains).

Q. Was I there for the full period of time, from 21st to the 25th of June, did I go fishing with you, go boating, was there participation from me during the whole time?

A. Oui.

Q. At the end of the trip, there was agreement we would divide all the fishes between us?

A. Oui, sauf qu'on gardait les grosses prises individuelles.

Q. We also shared on equipment, boats, motor?

A. Oui, j'avais amené un petit 4HP qu'on partageait...

And finally, he had even had discussions with Mr. Doyle, with regards to planning another fishing trip, where his wife would accompany them. When questioned by Mr. Tamborriello on this issue, he states:

Q. Au sujet du voyage avec votre épouse?

A. L'itinéraire aurait été de Québec ou Chibougamau. Aucun prix de donné, c'était juste des plans, un aperçu. C'est sûr que si on compare avec un pourvoyeur, ç'aurait été cher, mais en partageant comme ça c'est beaucoup moins cher. C'était des discussions seulement. Ça aurait été une surprise pour elle. Les dépenses auraient été partagées avec M. Doyle, mon épouse et moi.

So in the final analysis, we again are left with an inconclusive proof as to arrangements where it appears that the parties to an organized fishing trip were to share all related expenses, including the cost of the aircraft used for that purpose. There is no proof in the case of the use of the aircraft for hire or reward. What we have, it seems, is a case, where Mr. Doyle, to accommodate a man he at the time deemed his friend, accepted to fly back to Nitchequon to Chibougamau, to bring his son and brother-in-law so they could join them for this planned week of fishing.

The proof is uncontroversial that though Dr. Roberge could have flown that trip himself, he preferred "pour une question d'expérience" that Mr. Doyle go and pick them up. In any event, it appears, Mr. Doyle was going to Chibougamau to pick some fuel up for his and Réal Clouet's aircraft, for the planned return trip. He accepted to do this favour, and in fact, it was planned (Lincourt's testimony) that they would, like the previous years, share in all the expenses.

In the light of the foregoing, I find therefore, that the Minister has failed to discharge the onus placed upon him, and dismiss the charge of illegally operating a commercial air service, as alleged against Mr. Doyle.

We now turn to the two infractions relating to the alleged failure of Mr. Doyle to brief his passengers with respect to the location and means of operation of emergency and normal exits, and the use of safety belts, the whole in contravention of paragraphs 602.89(1)(a) and (b) of the CARs.

Lack of Briefing

Reviewing the evidence adduced by the Minister on these questions, it is clear that once again, the evidence is contradictory.

Mr. Doyle remembers using a checklist to brief his passengers. He submits as evidence two of these, which he says he carries onboard his aircraft, one on each side of the cockpit: one is a cardboard document,[46] and one, a small plastic-covered, folded document.[47]

Mr. Doyle indicates that he used those checklists to brief his passengers, and that in Chibougamau before departure, he remembers using the term "on va faire la petite prière", referring to the litany he uses to ensure he has covered, in his briefings, the use of doors, exits, and seat belts.

The witnesses called by the Minister on this question, Messrs. Daniel Lincourt and Bruno Roberge, state that no such briefing was given at any time.

Furthermore, we have the testimony of Dr. Yvon Roberge, who declares that he was told (by Daniel Lincourt) that his son was not buckled in during the take-off run of June 25, and that his son had said to him that Donald Doyle had taken the seat belt from him.

Daniel Lincourt does not remember if Bruno Roberge had his seat belt on June 25. He declares that he was not briefed on their use, that he did not remember being briefed on an earlier trip with Mr. Doyle, stating that he "knew how to use them."

Bruno Roberge for his part, when asked in cross-examination whether there were any briefings, declares emphatically: no briefings.

Finally, on the use of doors, Daniel Lincourt and Bruno Roberge testified that during the take-off run up the runway, the passenger door on Bruno Roberge's side opened, that Mr. Doyle was advised and did nothing. It was Daniel Lincourt who leaned over and closed the door.

On this question, Mr. Doyle testifies that the door opening occurred not on the take-off run, but on his run up the runway: "I was doing other things, I wasn't about to take off".

So the evidence on the question of briefing on the use of seat belts and doors, is quite contradictory.

As I stated in an earlier decision:

As instructed by Sopinka and Lederman:

Absent extenuating circumstances, the testimony of disinterested witnesses should prevail over that of persons who are or may be interested in the result. The court, however, is not to disbelieve or attribute error to the evidence of a witness solely because he is interested but must, instead, examine such evidence with reference to the facts of the case and other relevant factors. One judge has put it this way:

'...when the evidence of an important fact is contradictory ... the Court must weigh the motives of the witnesses, their relationship or friendship with the parties, their attitude and demeanour in the box, the way in which they gave evidence, the probability of the facts sworn to, and come to a conclusion regarding the version which should be taken as the true one ...'[48]

The evidence of Mr. Doyle is precise, quite factual, and contains many details that if not true, are certainly the work of a very fertile imagination. For example, when discussing the use of the Laurentide Aviation checklist (D-17) that fateful morning for his briefing, he says:

I remember using the checklist. It was early morning and the Laurentide Aviation checklist is plastic. It was cool in my hands, it had spent the night in the aircraft. I remembered yesterday, when the expert called to testify spoke of 'feel of the aircraft'. The checklist felt cool...

He uses throughout the expression "on va faire la petite prière" and states :

The passengers had already been briefed in Chibougamau. I re-briefed on the use of seat belts: "tu sais comment ça s'ouvre, the location of ELT...? They answered yes.

On the other hand, both Yvon Roberge and Daniel Lincourt testified that Bruno Roberge was not even tied down. When cross-examined by Mr. Doyle on this question and as to what happened when the passengers first boarded the aircraft after the pictures had been taken, Dr. Roberge states:

Q. When you offered him his headset, do you remember checking his seat belt?

A. Non, je ne me souviens pas. Je lui ai donné le headset par la fenêtre.

Q. At that moment, Daniel Lincourt était en arrière?

A. Oui.

Q. Did you notice whether he was wearing a seat belt?

A. Non.

Q. No, he wasn't wearing a seat belt?

A. Non, je n'ai pas vu les particularités

On the other hand, Yvon Roberge states that he understood from Daniel Lincourt that his son was not buckled in when the aircraft crashed, and Daniel Lincourt said so in his testimony.

Yet, Bruno Roberge himself, testifying on this question, stated that after the crash, all he remembered of his exit of the aircraft, and Mr. Doyle's instructions, was Mr. Doyle's hands moving to him, "possibly to unbuckle his seat belt".

Furthermore, Bruno Roberge, questioned by Donald Doyle as to whether he was briefed not to go in front of the strut, when the aircraft got stuck during the turn at the top of the runway, claims that he was not briefed: "it wasn't necessary, the engine was stopped".

Yet his uncle remembers well the briefing, and sequence of events: they (he and his nephew) first got out to push with the engine running, could not move the aircraft as the nose wheel was sunk in, then the engine was shut down, and Mr. Doyle got out.

To further add to the confusing statements of events, it is worth noting the fact that Mr. Doyle remembers Daniel Lincourt getting out on the passenger's side with Bruno Roberge and both pushing on the right strut to turn the aircraft toward the south west (he had been doing a left turn up the runway when he got into soft sand, and the aircraft got stuck). That would be consistent with the passengers disembarking from the right side, and assisting the pilot with engine running to turn the aircraft towards the left (pushing on the right strut).

Furthermore, if Daniel Lincourt had been pushing on the left strut, as he claims, he either would have had to disembark from the left side, which is difficult to do, with the pilot seated in his seat at the controls. Or he would have had to disembark from the passenger's side on the right side of the aircraft. Then what? Walk around the aircraft to the left side, which would either mean walking in front of the aircraft with the propeller turning, with the attendant risk,[49] or walk around the tail of the aircraft, with corresponding prop blast and longer distance to strut. Here again, there is no testimony to that effect.

So the logic of the events seems to correspond more to Mr. Doyle's version than that of Bruno Roberge and Daniel Lincourt.

Furthermore, when Dr. Roberge is questioned as to whether he noticed before departure, after taking "les photos d'usage", whether his son was wearing his seat belt, he states as noted above that he did not notice. Yet, he noticed that he did not have his headset, and went back to the cabin to get it. Is that reasonable to believe from a careful, caring father like Dr. Roberge obviously is, who had chosen to have Mr. Doyle fly his son, because he thought it would be safer, as he himself did not feel confident and experienced enough, in the light of the presence and availability of Mr. Doyle to do the trip.[50] So this caring father sent his son away, was by his side at the door and yet, did not notice whether he had his seat belt on?

Now Daniel Lincourt, in direct testimony, when asked whether there was a safety briefing before departure, states that no, they had just loaded the aircraft and had gone. Asked whether he was buckled in, he states no, but when Mr. Tamborriello insisted:

Q. Est-ce que le pilote vous avait demandé (de vous attacher)?

A. Non, je l'ai fait de ma propre initiative.

Mr. Tamborriello questioned:

Q. Avez-vous remarqué si les ceintures de sécurité ont été utilisées?

A. Moi, j'avais ma ceinture, mais de l'endroit où j'étais je n'ai pas vu si les ceintures avant étaient attachées...

Furthermore, he states that after they had re-embarked, after pushing the aircraft, he heard Bruno Roberge tell the pilot he did not have his seat belt on and that his door was open. He states that he leaned over, and closed the door, and claims the take-off continued: "Bruno n'avait toujours pas sa ceinture attachée".

For his part, Mr. Doyle remembers the door opening before they got stuck and had to disembark. Bruno Roberge, under cross-examination by Mr. Doyle, first agrees with him:

Q. Was it yourself that closed the door or your uncle?

A. Mon oncle. Il a passé par-dessus les bagages et m'a aidé à fermer la porte.

Q. Then the aircraft got stuck and you got out?

A. Yes. Not you?

But then young Roberge, when Doyle insists, revises his statement:

Q. So the door got open before we got stuck?

A. C'est après que nous nous soyons pris parce que la porte avait été bien fermée par mon père au camp, ça doit être quand on a sorti et je suis rentré et fermé la porte seul. (emphasis added)

On the issue therefore of briefing his passengers and ensuring that seat belts were done up, as mentioned earlier, Mr. Doyle testified that he briefed them in Chibougamau and re-briefed them in Nitchequon before departure. Furthermore, he states unequivocally that during the last re-embarkation after getting the aircraft out of its stuck position at the top of runway 05, he noticed that Daniel Lincourt had used the wrong ends of the seat belts to tie himself in (which Mr. Lincourt does not remember) and corrected him on the proper use of the seat belts, and further, that he tugged on Bruno Roberge's seat belt, on the way down the runway, as he did his final run before turning for take-off. He even got a reaction from him: "Quoi?" and smiled.

Having reviewed the testimony of the witnesses on this question, I conclude that Mr. Doyle's version of the events on this issue is more credible than that of the witnesses of the Minister.

One must remember that these participants were party to an extremely traumatic event, and it appears that the passengers, as well as Dr. Roberge, saw the confidence they had placed in Mr. Doyle, misplaced, and obviously felt wronged.

Dr. Roberge when testifying, particularly during cross-examination by Mr. Doyle, spoke with what I have qualified as controlled anger, never looking at Mr. Doyle, and speaking in a crisp, curt voice. One can easily sympathize and understand his feelings and perception of Mr. Doyle having caused grievous unwarranted injury to his beloved son: "Je lui avais serré l'épaule. Il était beaucoup plus expérimenté. Fais attention, c'est ce que j'ai de plus précieux au monde" and having lacked judgment:

Q. (Mr. Doyle) So the responsibility for travel between Québec and Chibougamau was then on his uncle?

A. (Y. Roberge) Oui, d'un adulte avec un bon jugement!

and :

Q. (Mr. Doyle) Prior to the accident, did you consider me as a friend?

A. (Y. Roberge) On étaient des connaissances, l'aviation nous réunissait, mais quand on manque de jugement... on est victime...

may have influenced their collective recollection of these events.

Daniel Lincourt adopts the same point of view: "on avait fait deux voyages auparavant, c'était l'fun..." 

Q. (Mr. Doyle) Ç'aurait changé beaucoup de choses?

A. (Mr. Lincourt) Oui.

And earlier, during cross-examination by Mr. Doyle on the question of his statement presented by Mr. Tamborriello, he states: "Ce qui était important, c'était le niveau de négligence. Ce maudit-là nous a lançé dans le trou!"

Bruno Roberge will qualify Mr. Doyle's past performance as "amateurisme."

In that context, I find that their testimony is unfortunately often vague, lacking in consistency and the certainty that Mr. Doyle's testimony has on the same questions.

It is also worth noting that these events occurred nearly two years before these hearings, and it is clear that time has naturally blurred a lot of their recollection.

On the question of the weighing and considering of contradictory evidence, Sopinka and Lederman propose the following guidelines which apply to this case:

Referring to the resolution of contradictory evidence in general, O'Halloran J.A., in Weeds v. Weeks stated:

In such cases a Court must look for the balanced truth in the corroborative evidence if such exists, and in any event measure all the evidence perspectively by the test of its consistency with the preponderance of probabilities in the surrounding circumstances...

The concept of credibility escapes exact definition. Two witnesses may be worthy of credit, but in varying degrees, with the result that on points of contradiction, the evidence of one will be preferred to the evidence of the other. There is no means of defining the manner in which this result is achieved, but various judges have expressed opinions which give some insight into the process. In Wallace v. Davis, Riddell J.A. stated:

... the credibility of a witness in the proper sense does not depend solely upon his honesty in expressing his views. It depends also upon his opportunity for exact observation, his capacity to observe accurately, the firmness of his memory to carry in his mind the facts as observed, his ability to resist the influence, frequently unconscious, of interest to modify his recollection, his ability to reproduce in the witness-box the facts observed, the capacity to express clearly what is in his mind – all these are to be considered in determining what effect to give to the evidence of any witness.[51] (Emphasis added)

Mindful of these precepts and for all the above reasons, I therefore find that the Minister has failed to establish, on a preponderance of evidence, that on June 25, 1998, Mr. Doyle failed to brief his passengers with respect to the location and means of operation of emergency and normal exits, and failed to brief the passengers with respect to the location and means of operation of safety belts, the whole contrary to paragraphs 602.89(1)(a) and (b) of the CARs, and dismiss these charges as well.

P. J. Beauchamp
Member
Civil Aviation Tribunal


[1] Subsection 37(3) of the Aeronautics Act.

[2] Mr. Tamborriello used the French term (événement).

[3] The quotes from the testimony of the witnesses throughout this decision are extracts from the undersigned's notes taken during these proceedings.

[4] Exhibits M-2 and M-3.

[5] The witness used the term "dénivellation vers le nord."

[6] "Ce maudit-là nous a lancé dans le trou... j'ai dû sortir mon neveu de l'avion...".

[7] Exhibit D-4.

[8] Bruno Roberge uses the term "tourner en fou".

[9] Exhibit D-19.

[10] Mr. Houde in that case said that he was a little "flou" on this question.

[11] "On est tous des gens qui aiment la pêche".

[12] "Q. Est-ce que vous vous rappelez du profil de la piste?

A. J'ai une idée.

Q. Est-ce qu'il y a un penchant?

A. Pas beaucoup, mais il y a un penchant vers le sud, vers le lac. C'est pas énorme."

[13] Exhibit D-27, p. 2.

[14] "He was a little concerned about the accommodations in Nitchequon."

[15] "It was early morning and the Laurentide Aviation checklist is plastic. It was cool in my hands; it had spent the night in the aircraft."

[16] Francis Dominic Decicco v. Minister of Transport, CAT File No. C-1316-02, Appeal Determination of April 21, 1998.

[17] Minister of Transport v. Thomas Ritchie Phillips [1987] CAT File No. C-0014-33, and further affirmed at Leigh Benjamin Hutchins v. Minister of Transport [1997] CAT File No. O-1428-33.

[18] Norbert A. Selbstaedt v. Minister of Transport [1988] CAT File No. C-0081-02.

[19] Sopinka and Lederman, The Law of Evidence in Civil Cases, Butterworth & Co. (Canada) Ltd. [1974] Extent an Allocation of Burden of Proof, at pp. 384-385.

[20] Edmundo R. Sanchez v. Minister of Transport [1989] CAT File No. O-0104-02 and O-0105-33.

[21] Norbert A. Selbstaedt op. cit., at note 18.

[22] April 21, 1998, CAT File No. C-1316-02.

[23] Sanchez v. Minister of Transport op. cit., at note 20.

[24] Exhibit M-2-b.

[25] Exhibit M-2-c.

[26] Note: A wind at 3 to 5 knots from the south, i.e., approximately 180 in a degree direction, has a component effect of approximately 1 to 2 knots for a direction of take-off of 230°.

[27] Exhibit D-32.

[28] Exhibit D-2.

[29] See Canada Flight Supplement, general section:

procedures (PRO):

The procedures ('PRO') sub-heading of an entry contains recommended routes, altitudes, circuit directions, etc.... This sub-heading is used in conjunction with the VFR Terminal Procedures Chart when one is provided.

CAUTION

Brief information describing conditions of a permanent (90 days or more) nature, regarding aeronautical facilities or hazards, knowledge of which is essential for the safe operation of aircraft.

[30] Dr. Roberge testified to this at the hearing and made a red pen entry on Exhibit D-1 indicating the area they used for landing on arrival.

[31] The expert for the Minister, Mr. Houde, also had significant African bush soft field experience.

[32] See Exhibit D-20.

[33] Dr. Roberge estimated the distance between the end of the runway and the crash site at approximately 500 feet.

[34] Cessna model 172 and Skyhawk 1972, Owner's Manual, (Exhibit D-19), at pp.2-12.

[35] Francis Domenic Decicco v. Minister of Transport, CAT File No. C-1316-02, Appeal Determination, April 21, 1998, at p. 6.

[36] Richard Noël v. Minister of Transport, June 25, 1996, CAT File No. Q-0435-33, at p. 8.

[37] See map of route Nitchequon to Chibougamau, Exhibit D-29.

[38] The VFR Supplement (D-2) notes under Nitchequon airport, at runway data, indicates for runways 05/23, 3285x200 sand operation no maintenance, runway soft in spots.

[39] See Sara Blake in Administrative Law in Canada [1992], at p. 43, cited with approval in Minister of Transport v. Canadian Airlines International, an Appeal Determination of this Tribunal, of February 18, 1993, CAT File No. C-0225-50.

[40] Marcus Brace v. Minister of Transport, July 10, 1987, CAT File No. P-0009-02, at p. 5.

[41] Op. cit., note 14.

[42] Iowa State University Press / Aims 1994, exhibit submitted by the Minister, on May 1st, 2000, at p. 79.

[43] Id. p. 119.

[44] Black's Law Dictionary, revised 4th edition 1968, at p. 1184.

[45] Exhibit M-5, p. 7.

[46] Liste de vérifications Perfecair (D-16).

[47] Laurentide Aviation (D-17).

[48] Minister of Transport v. Christian Albert, CAT File No. Q-1878-33, at pp. 11-12.

[49] Note here that Daniel Lincourt testified that Mr. Doyle briefed him not to go forward of the strut, with the engine running.

[50] Dr. Roberge testified: "J'avais pleinement confiance en son oncle, et c'est pourquoi, n'ayant que 300 heures de vol, on préférait que ce soit quelqu'un d'expérimenté qui fasse la portion de vol entre Chibougamau et Nitchequon. On voyageait en deux avions, de façon séparée, comme c'est souvent normal."

[51] Sopinka and Lederman, op: cit, pp. 528-529.