Decisions

CAT File No. Q-1990-37
MoT File No. 5504-C-040201

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Régionnair Inc., Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.01


Review Determination
Pierre J. Beauchamp


Decision: October 6, 2000

TRANSLATION

In the circumstances, I am satisfied that the offence with which the respondent was charged has been proven by the Minister on a balance of probabilities and that the respondent has not shown that it took every possible precaution to comply with the Act. However, I believe it is appropriate to reduce the penalty assessed to the amount of $5,000. The notice of assessment is therefore maintained and the monetary penalty reduced to the amount of $5,000. That amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

A review hearing on the above two matters was held on May 4 and 5, 2000, at the court house in Sept-Îles, Quebec.

BACKGROUND

The applicant is an airline pilot employed by the respondent Régionnair Inc. On January 4, 1999, he was the pilot-in-command of Régionnair flight GIO 1707, when the aircraft he was flying crashed on the Saint-Augustin river during an instrument approach to the airport of the same name. Both the crew members and the 10 passengers survived with no major injuries.

The Minister subsequently issued the following notice of suspension to Mr. Monger:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend your abovementioned Canadian aviation document for contravention of section 602.01 of the Canadian Aviation Regulations.

On January 4, 1999, at about [09:00][1] local time, as pilot-in-command of Régionnair flight GIO 1707, you flew in a reckless manner: to wit, during the instrument approach onto runway 20 at the St. Augustin airport, Quebec, you descended below the minima published in the Canada Air Pilot, resulting in a landing on the St. Augustin river, Quebec.

This suspension is effective February 7, 2000, to June 7, 2000, inclusive.

The respondent Régionnair Inc. received a notice of assessment of monetary penalty for $12,500 as the registered owner of this aircraft. The notice of assessment states:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty against you, as registered owner, for contravention of section 602.01 of the Canadian Aviation Regulations.

On January 4, 1999, at about [09:00] local time, Régionnair flight GIO 1707 operated registered aircraft C-FGOI in a reckless manner: to wit, during the instrument approach onto runway 20 at the St. Augustin airport, Quebec, the aircraft descended below the minima published in the Canada Air Pilot, resulting in a landing on the St. Augustin river, Quebec.

You are being proceeded against as the registered owner of this aircraft, pursuant to section 8.4(1) of the Aeronautics Act.

As the evidence is the same for both files, it was agreed at the hearing to hear both matters jointly.

THE EVIDENCE

Régionnair flight GIO 1707 was a regular flight between Blanc Sablon and Sept-Îles, with a planned stop at the Saint-Augustin airport, Quebec. It was made by a twin-engine Beechcraft BE02 flown by pilot-in-command Douglas Monger[2] and co-pilot Roland Landry, both employed by Régionnair Inc.[3]

Captain Douglas Monger is also the chief pilot on the company's Twin Otter DHC6 and is a shareholder in the company.

The flight preparations were completed at Blanc Sablon, one of Régionnair's operating bases. While Captain Monger was seeing to the flight plan and checking the weather conditions for the planned flight, the co-pilot was doing the pre-flight inspection of the aircraft.

The departure from Blanc Sablon and the flight to Saint-Augustin were without incident; it was a flight of a distance of about 57 nautical miles, therefore a flight, for this type of aircraft, of about 20 minutes, depending on the approach chosen to Saint-Augustin.

Captain Monger had checked the weather conditions at Saint-Augustin by telephoning the airport manager, Mr. René Beaudoin. The latter is not a certified observer of the Department of the Environment, but locally it is customary for him to regularly give pilots his observations, when asked.

To estimate ceilings, he goes by the height of known obstacles in the surrounding area, such as the Hydro-Québec tower situated about a mile northeast of the airport, the height of the mountains and of the trees around his vantage point. For visibility, he goes by what he is able to see, that is, the distance of the seen obstacle from his vantage point at the airport.

That morning, during the first telephone call from Captain Monger, the ceiling was about 900 feet and the visibility was about 1½ miles.

The conditions subsequently varied. On the first radio call from the crew, at about 8:40–8:45 hours, visibility was ¼ mile to ½ mile, the winds were from a direction of 120° at a speed of 15 to 20 kt, and the reading on the airport's barometric altimeter was 29.80 inches of mercury (in. Hg).

When the pilots called him back later, visibility had improved to ½ mile.

An LOC/DME runway 20 approach had been planned and the instruments/radio set accordingly. The barometric settings of the altimeters had been adjusted to 29.80 and the bug[4] positioned initially at the approach chart's reference altitude of 100 nautical miles,[5] or 4,700 feet, then at 25 nautical miles, or 2,400 feet.

The captain planned and carried out a straight-in approach to Saint-Augustin airport, using the Saint-Augustin radio beacon and the electronic runway alignment indicator (LOC) to ensure his alignment, the distance from the airport being assured by his DME reading.[6]

At the time of the approach briefing, he had selected an altitude of 100 feet on the altimetric radar. The altimetric radar was therefore programmed, among other things, to warn the pilots when this radar altitude (that is, in relation to the ground immediately beneath the aircraft) was reached.

It seems that the pilots never received or heard this warning.

The approach was made normally up to the final approach fix (FAF). Up to that point, the altitude limits had been respected, and final approach was begun at 1,500 feet (ASL[7]).

This approach is done in stages, the first after the FAF being situated, according to the approach chart, at 960 feet (ASL), at a DME distance of 3.5, which is actually the distance of 2.5 nautical miles from the threshold of runway 20.

The co-pilot does not remember having called at 100 feet over this first stage. The pilot-in-command and the co-pilot stated that, from this altitude, they continued the descent towards the MDA (500 feet ASL).[8]

With regard to the DME, the co-pilot said that the normal practice is for both pilots to monitor the DME. During this approach, he does not remember who was monitoring the DME in the final part of the approach, that is, from the final approach fix (FAF) to the point of impact.

He stated, however, that no one, neither he nor the captain, called the missed approach point, 2.3 DME.

He called only the minimum descent altitude (MDA), i.e., 500 feet, and was concentrating on looking outside, looking for visual references and the airport.

Both the co-pilot and the captain stated they had vertical contact with the ground during the approach.

The co-pilot said that at 500 feet, he saw the Indian village to his right, then, a few seconds later, the line of trees.

He was expecting to see the runway a few seconds later. Everything seemed normal. He had called a correction a little earlier, for the LOC alignment and speed, which was high, but had made no other calls.

At no time did he see the runway, runway lights or air terminal buildings.

The captain testified that the approach was normal with a regular rate of descent of about 500 fpm, to a reading of 960 feet on the barometric altimeter.

At the final approach fix, the co-pilot called both the altitude (1,500 feet) and the DME, and the plane was configured for the landing.

At 960 feet, the co-pilot called it, and had already told him he had ground contact.

At the time, he stated " ... [he] had been looking for a rate of descent to be at 500 feet at 2.3 DME". Then the plane touched the ground about ¾ mile from the runway.

He also had visual contact. Visibility, according to him, was 1.5 miles and he even saw the snow-covered runway and the terminal.

In his opinion, the accident was caused by the whiteout conditions. He remembers seeing the altimeter at 250 feet and that at the time he had forward visibility but no visibility with the ground.

As for the radio altimeter, he had set it at 100 ft-ground, for an aid and added safety during the approach, knowing he would encounter whiteout conditions.

When he left the aircraft after the accident, the barometric altimeter on his instrument panel read 100 feet, whereas that of the co-pilot read 0 feet.

THE LAW

With regard to the respondent Douglas Monger:

The Canadian Aviation Regulations (CARs) stipulate as follows:

Reckless or Negligent Operation of Aircraft

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

Instrument Approaches

602.127 (1) Unless otherwise authorized by the appropriate air traffic control unit, the pilot-in-command of an IFR aircraft shall, when conducting an approach to an aerodrome or a runway, ensure that the approach is made in accordance with the instrument approach procedure.

Landing Minima

602.128 (1) No pilot-in-command of an IFR aircraft shall conduct an instrument approach procedure except in accordance with the minima specified in the Canada Air Pilot or the route and approach inventory.

(2) No pilot-in-command of an IFR aircraft shall, unless the required visual reference necessary to continue the approach to land has been established,

[...]

(b) in the case of a non-precision approach, descend below the minimum descent altitude.

With regard to the respondent, Régionnair Inc.:

The Aeronautics Act states as follows:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

ARGUMENTS—The Minister

With regard to the applicant, Douglas Monger, the position of the representative of the Minister of Transport is clear. Mr. Monger did not comply with the regulations in making a straight-in approach to Saint-Augustin and, above all, in not pulling up on reaching the minimum altitude stipulated for the approach, not having had at the time the visual data required to ensure a completely safe landing at the airport.

Captain Monger not only failed to comply with the regulations in force for instrument approaches; he did not even follow the respondent's own standard operating procedures (SOP).

In fact, according to the Minister's representative, the captain should have used a pilot monitored approach (PMA), in which the co-pilot flies the aircraft to the minima while the captain monitors the approach and looks for external visual references, and the captain, once acclimatized, then decides to land or pull up.

Also, there was a breach of airmanship (no briefing, and confusion over task-sharing at the minima) and of the SOP concerning use of the radio altimeter.

All these breaches of the regulations and of discipline, for an experienced pilot, a shareholder of the respondent and even chief pilot of another type of aircraft, attest to the reckless conduct of this flight and to the liability of both the applicant and the respondent.

In fact, with regard to the respondent Régionnair Inc., as it has not been established that it took every reasonable precaution to prevent such an accident, its liability is implicated and amply justifies the issued notices of suspension and of monetary penalty.

ARGUMENTS—The applicant Monger and the respondent Régionnair Inc.

Mr. Desrosiers argues, firstly, that these notices were issued prematurely because the Canadian Transportation Accident Investigation and Safety Board[9] has not yet completed its investigation.

Now, it is up to the Board to determine the causes of the accident.

The Minister, in conducting an investigation and issuing these notices of suspension and of monetary assessment, is forcing the Tribunal, in practice, to rule on the causes of the accident and thereby substitute for the TSB. Now, the TSB has exclusive jurisdiction in this regard, and the Tribunal therefore has no competence to hear these matters.

Moreover, as to the facts, Mr. Desrosiers argues that, in the circumstances, Captain Monger acted as any prudent pilot would have.

He was not actually obliged to make a pilot monitored approach and his straight-in approach to Saint-Augustin is a type of approach consistent with the practice, as the experts Collier and Deroy testified.

He therefore complied with both the regulations and his standard operating procedures (SOP). As for the use of the radio altimeter in this way (cursor at 100 feet), this was to ensure greater safety during an approach that the captain anticipated would be made in whiteout conditions.

The Minister has thus failed in its job of proving, on a balance of probabilities, the serious offences with which the applicant is charged.

In fact, in his view, the captain did not execute a pull-up at the minima because both pilots had visual references on the ground and the captain himself had the runway environment in sight.

The charges brought against Mr. Monger and Régionnair should therefore be fully dismissed.

DISCUSSION

Let us dispose immediately of the argument of the applicant's counsel that the Tribunal has no competence because the TSB investigation has not been completed.

The TSB was conceived in 1983 on the recommendations of the Dubin Commission of Inquiry,[10] and its incorporating Act was amended in 1989.[11]

As section 7 of this Act stipulates, the Board's mission is to advance transportation safety by conducting, among other things, independent investigations into transportation occurrences to determine the causes and contributing factors.

However, the Act stipulates that, in its findings, the function of the Tribunal is neither to assign fault nor determine civil or criminal liability[12] and its findings cannot be construed as assigning fault or determining civil or criminal liability.

Moreover, these findings are not binding on the parties to any legal or other proceedings.[13]

We might add that pursuant to section 23 of the Act, the Board, when notified of a transportation occurrence, is bound to inform the Minister of Transport forthwith and in the appropriate manner.[14]

Also, subject to the conditions the Board may set, a person designated for this purpose by the Minister of Transport "may attend as an observer at an investigation of a transportation occurrence because ... the person has a direct interest in the subject-matter of the investigation and will contribute to achieving the Board's objectives".[15]

It is therefore clear that not only does the TSB Act in no way prevent the Minister from conducting an investigation in implementation of the Aeronautics Act and the powers of sanction this Act vests in it, but the Board is obliged to inform the Minister of any transportation occurrence, and the latter may delegate an observer "because ... the person has a direct interest in the subject-matter of the investigation and will contribute to achieving the Board's objectives".

Furthermore, the aforementioned Dubin Commission of Inquiry also recommended a consolidation of the Aeronautics Act and the creation in the Department of Transport of a separate section that would see to implementation of the Act[16] and whose purpose would be to ensure that aviation stakeholders observe the safety standards in force.

It further recommended the creation of the present Tribunal,[17] whose function would be to hear requests for the review of decisions of the Minister.

These recommendations, as we know, were incorporated into the Aeronautics Act which now governs us.

Now, this power to take disciplinary action for breach of the enacted regulations in order to ensure aviation safety necessarily assumes a power of investigation, which is enshrined in section 4.2 of the Aeronautics Act and vested in the Minister:

4.2 The Minister is responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics and, in the discharge of those responsibilities, the Minister may

[...]

(n) investigate matters concerning aviation safety;

The Minister therefore holds a parallel power of investigation, which is in no way limited by the said Act.

Finally, it should also be remembered that the limitation applicable to the issuance of such notices (suspension, monetary penalty) is generally one year.[18]

Now, as TSB investigations often last more than one year after an occurrence, the Minister would, in these cases, be unable to issue any violation notice since the Aeronautics Act makes no provision for exceptions.

If one were to accept the arguments of the counsel for the applicant and the respondent, the Minister's hands would be tied since, firstly, he could not issue violation notices before the investigation was completed, and secondly, this investigation might not be completed until after the limitation date, which would be absurd.

It is clear that in order for the Minister of Transport to fully exercise his authority pursuant to the Aeronautics Act, his power of investigation and action, in the context of matters that are clearly under his jurisdiction, such as the present case, cannot be limited, unless these limits are clearly expressed in a statute. Obviously, there are no such limits in the Board Act; quite the contrary.

The argument of the applicant and the respondent that the Tribunal has no competence in the present case because the notices issued were premature therefore does not hold.

Captain D. Monger: flew in a reckless manner

The Minister had the burden of establishing, on a balance of probabilities, that the applicant was reckless within the meaning of the Act when, on January 4, 1999, while flying his aircraft on instrument approach to runway 20 at the Saint-Augustin airport, he allegedly descended below the minima published in the Canada Air Pilot, resulting in a landing on the Saint-Augustin river.

The fundamental question is whether the applicant continued an instrument approach and the descent of his aircraft below the published minima (500 feet ASL), in conditions that did not permit a safe landing, as the visibility conditions at the missed approach point (2.3 DME) at 1.3 nautical miles from the threshold of runway 20 at Saint-Augustin did not allow him to obtain the required visual references.

The Minister argues that failing to make a missed approach and failing to pull up constituted, in the circumstances, a serious breach for a pilot of the experience and status of Mr. Monger (captain and chief pilot) and that this conduct was of a negligence and rashness that were tantamount to recklessness, prohibited in section 602.01 of the CARs, as the aircraft, because of this conduct, hit the ground, in this case the frozen river, about 5/8 mile from the runway threshold.

The applicant's counsel obviously did not see the matter the same way.

Captain Monger conducted his entire approach according to good practice, to the published minimum of 500 feet. At that altitude, both crew members had contact with the ground and the captain himself had the runway environment in sight.

In the circumstances, he was not obliged to pull up and the accident was owing to an incorrect reading of the barometric altimeter on the captain's instrument panel, which gave an incorrect reading 100 feet higher than the plane's actual altitude, and owing to the fact that the pilot, in this final phase of the approach, encountered whiteout conditions.

There is not even any question in the circumstances of negligence on the latter's part, much less "recklessness," which entails an even greater burden of proof.

What of that?

Messrs. Desrosiers and Tamborriello referred us to the precedents of this Tribunal concerning negligence and recklessness.

I take in particular the decision of this Tribunal sitting on appeal in Francis Dominic Decicco v. Minister of Transport,[19] written by the Tribunal chairperson, Mrs. Faye Smith. In this case, the captain of a Beech 99 was accused of having, during two flights bound for Fort Hope, Ontario, landed on the runway before the previous flights had cleared the runway.

After reviewing the evidence, the Tribunal determined that while this was a case of conduct that was below the standards set for a reasonably prudent pilot and constituted negligence on his part, his conduct did not meet the definition of recklessness, in that the Tribunal did not find that Captain Decicco had shown excessive and wanton disregard for the life or property of anyone, according to the meaning of the words "in ... a ... reckless manner" of subsection 520(1) of the Air Regulations.

On the question of the distinction between negligence and recklessness, the Tribunal stated as follows:

The Minister's representative cites the Canadian Law Dictionary definitions taken from the case of Jason R. Newburg v. Minister of Transport[20] as follows:

Negligence: Negligence is the omitting to do something that a reasonable man would do or the doing something which a reasonable man would not do.... It is really the absence of such care as it was the duty of the defendant to use.... The care taken by a prudent man has always been the rule laid down—a regard to caution such as a man of ordinary prudence would observe.

Reckless: Marked by a lack of proper caution; careless of the consequences. In some cases the term insinuates more than carelessness, even going as far as to imply willfulness. In this context the meaning may be indifferent to the consequences, mindless, not caring; very negligent; advertent negligence where the consequence was foreseen as possible but not desired. Reckless means grossly careless ... the doing of something which in fact involves a risk, whether the doer realizes it or not.

In addition, the case Norbert A. Selbstaedt v. Minister of Transport[21] cites the following definitions taken from the Fifth Edition of Black's Law Dictionary:

Negligence is defined ... [at] 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 or failure to do what a person of ordinary prudence would have done under similar circumstances.

Recklessness is defined in the same work at page 1142 as follows:

Rashness; heedlessness; wanton conduct. The state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, though foreseeing such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended

Does Captain Monger's conduct during this flight, and in particular his actions during the final part of the approach, constitute not merely a negligent act or series of acts, but gross negligence, which implies a disregard and indifference which, in the circumstances, endangered the life or property of others, even if no harm was intended?

The evidence of the witnesses is generally consistent as to the flight procedure until the final approach to Saint-Augustin, even though there were variances with Mr. Beaudoin's version about the visibility data conveyed during his telephone conversation with Captain Monger. The latter recalls a stated visibility of 2 to 2.5 miles; Mr. Beaudoin recalls that the visibility was 1.5 to 2 miles at the time.

The evidence also shows certain variances in the description of the preparation and conduct of the flight by Captain Monger.

For example, according to him, he discussed the weather and the planned flight with his co-pilot before departure. This is plausible, except that Mr. Landry does not remember discussing weather with anyone at Blanc Sablon. He did the walk-around check, and the captain did the planning.

He also does not remember any particulars of the briefing in flight.

The captain remembers briefing the co-pilot to shift his glance to inside the cockpit at the MDA and that he would look outside.

In this regard, Mr. Landry said that at the minimum (500 feet), he was looking outside, looking for visual reference aids, thinking the pilot was still flying by instruments. He stated that this was the company's standard procedure (SOP) and never thought the captain would also, as of that moment, be busy looking outside.

Let us say right away that I accept in particular the version of events given by the co-pilot Landry rather than that of Captain Monger. Mr. Landry is a disinterested witness (he does not even work for the respondent anymore) and strikes us as credible and acting in good faith.

Another version of the events serves the interests of Captain Monger. According to him, the accident was caused by an error of his barometric altimeter, which gave him a reading 100 feet higher than the actual altitude, and by the co-pilot's failure to shift his glance from outside to inside on reaching the minima, as he should have done. His recollection of the events simply does not square with reality; to hear him, the flight was executed in an exemplary and disciplined manner, a full briefing was given, the limits were strictly observed, the manoeuvre was executed perfectly, and the accident occurred by chance and without error on his part.

Some of his statements are corroborated by the co-pilot's version. But with regard to the critical moments of the flight, that is, on approaching the minima, their versions of events differ.

In light of the evidence about this critical flight, it appears all was normal until the final descent.

The Minister's representative made much of the fact that a straight-in approach had been executed rather than a conventional approach in order to situate the aircraft on the LOC in final position, but it must be said that this procedure had no direct effect or causal bearing on the accident. It may, however, be indicative of a rather questionable application or understanding of the regulations.

In this regard, the expert witness Samson stated that this type of approach does not comply with the regulations. The expert witnesses for the defence were divided on this matter. Mr. Collier, chief pilot of BE02 at the time, stated that he understands this type of unpublished straight-in approach, using a DME arc, is illegal but uses it himself. The expert Deroy considered it a normal procedure because in an uncontrolled environment, there is more latitude and that is the way it is done on the lower North Shore.

The Minister's expert, Mr. Samson, said he did not consider it an approved procedure, as it does not conform to the procedure published for the LOC/DME RWY 20 approach of concern to us.

I agree with the latter, even though, in the circumstances, it seems that the procedure was completed safely.

The Minister's representative also gave the impression that, had a PMA been executed, the confusion and error that seems to have existed at the minima would not have occurred.

It is, however, clear from the evidence that the applicant was not obliged to make this type of approach and that the decision was left to the captain's judgment. This judgment is based, among other things, on the assessment of the weather conditions and the flying skills of his co-pilot. In these circumstances, he felt it was better to complete the approach by executing it himself, and this cannot be held against him.

This brings us to the FAF Desmarais at 6 DME, and it is here that things took a turn for the worse.

During the approach briefing, the captain decided to set the warning device of the radio altimeter at 100 ft-ground, whereas, according to Mr. Collier's testimony, the company standard requires that it be set at the minimum altitude equivalent to the MDA, that is, at 483 feet in this case.

It appears from the evidence that the start of the stage descent from the altitude of 1,500 feet to 6 DME was made normally.

The captain immediately (at 1,500 feet) set the warning device to the altitude of the straight-in approach, that is, 2,400 feet. In the circumstances, he had no visual or aural warning of the approach of his chosen and mandatory minimum altitude (500 feet MSL/483 ft. AGL) other than a call by his co-pilot and his personal observations of the barometric altimeters.

The descent at a regular rate was begun at about 960 feet.

After passing the FAF at 6 DME, the co-pilot does not remember making any DME call. He explained that they (the two pilots) had the job of verifying both DMEs.

The captain testified that the co-pilot called 3.5 and 2.3 DME. The latter point corresponds to the missed approach point.

In this regard, the co-pilot stated that he called only 100 feet above the minimum descent altitude (MDA) and 500 feet. The captain corroborated this and added that the latter told him he had "good visual contact."

Neither of them heard the sound signal of the radio altimeter at 100 feet.

As for the last DME call at 2.3, the co-pilot was categorical: "no one made this call." Furthermore, the latter did not even know whether they had reached this point when the aircraft touched the ground.

After his call at 500 feet, he concentrated on looking outside and looking for visual reference points; he saw the Indian village, the line of trees, but never the runway or the terminal.

The witness Brian Stote, himself a pilot with the company on this type of aircraft and a passenger on the flight, was obviously concerned about the approach and also very familiar with the operation at Saint-Augustin.

He, too, had vertical contact with the ground until the aircraft was above the river, but lateral visibility was limited. On short final, above the river, he saw nothing, everything was white, and he could make out no reference. He got up to look outside, but no longer seeing anything, sat down again.

This witness strikes us as very credible and his experience as a pilot and his vantage point lend some weight to his testimony.

Seen in the context of both these testimonies, Mr. Monger's statement that, on reaching the minima, that is, 500 feet and 2.3 DME, he had not only the tree line or the Indian village within view, which Mr. Landry had seen earlier, but also the snow-covered runway and the terminal, is quite simply not credible.

I well understand that lateral visibility and reference points seen from behind the cockpit by a passenger, even an experienced one, are quite different from what can be seen from the cockpit, but both Messrs. Stote and Landry stated that "once over the river, you saw nothing because of the whiteout conditions". Moreover, Mr. Monger himself had anticipated these whiteout conditions and said they were the cause of the accident. He therefore also corroborates this fact.

Now, the regulations are clear and the evidence is that at the minima (MDA) the pilot is to maintain his altitude (in this case, 500 feet) until the missed approach point (2.3 DME), here situated 1.3 nautical miles from the runway threshold. If, at that point, he does not have the required visual references for an approach, he is to pull up. The regulations are clear and are worth recalling:

602.128 (1) No pilot-in-command of an IFR aircraft shall conduct an instrument approach procedure except in accordance with the minima specified in the Canada Air Pilot or the route and approach inventory.

(2) No pilot-in-command of an IFR aircraft shall, unless the required visual reference necessary to continue the approach to land has been established,

[...]

(b) in the case of a non-precision approach, descend below the minimum descent altitude.

(3) Where the pilot-in-command of an IFR aircraft conducting an instrument approach does not establish the required visual reference referred to in subsection (2), the pilot-in-command shall initiate a missed approach procedure

[...]

(b) in the case of a non-precision approach, at the missed approach point.

What, then, is this required visual reference? The Canada Air Pilot states that this term "[i]n respect of an aircraft on an approach to a runway, means that section of the approach area of the runway or those visual aids that, when viewed by the pilot of the aircraft, enables the pilot to make an assessment of the aircraft position and rate of change of position, relative to the nominal flight path."[22]

In addition, the same manual, in the chapter on Operating Minima - Landing, refers to the above regulation and states:

The visual references required by the pilot in order to continue the approach to a safe landing should include at least one of the following references for the intended runway and should be distinctly visible and identifiable to the pilot:

a) the runway or runway markings;

b) the runway threshold or threshold markings;

[...]

e) the approach slope indicator system;

[...]

i) the parallel runway edge lights;[23]

It is in the evidence that runway 20 of the Saint-Augustin airport had a least runway lights that had been automatically turned on by the pilots, runway identification lights[24] and one two-bar VASIS.[25]

No one saw any of these required visual references. Now, although certain visual data, such as the Indian village or the line of trees, appeared momentarily through the snow, the required visual references were neither established nor maintained.

The Minister's representative made much of the fact that the pilot even attempted his approach when the reported visibility (¼ to ½ mile) was well below the visibility minima suggested on the approach chart. But these stated visibilities are not mandatory for this type of aircraft and an approach is cleared provided the minimum descent altitude (MDA) is respected.

In the case of concern to us, I am satisfied that this minimum altitude was not expressly respected by Captain Monger.

He had set his radio altimeter at 100 ft-ground; he takes this route regularly and was certainly confident that, despite the whiteout conditions that prevailed, he could "come in" once he had momentary vertical contact with the ground.

Things deteriorated above the river, but he continued the approach.

Neither the co-pilot nor the passenger-pilot Stote noticed any change in the rate of descent. So there was never a pause at the minimum altitude of 500 feet when the co-pilot, who was looking outside at the time, called. In fact, the evidence shows there was no change in either the engine speed on approach, or the rate of descent.

The captain acknowledged that his speed was about 120 kts, and the co-pilot testified that at some point, after 3.5 DME, the speed was high and the aircraft had deviated one dot off the LOC and the alignment was corrected. In the circumstances, it is reasonable to estimate the ground speed at about 2 miles/minute.[26]

The aircraft had therefore travelled the distance between points 3.5 DME and 2.3 DME in about 36 seconds, and to descend 460 feet (960 feet – 500 feet) in this time takes a rate of descent of about 760 feet per minute.

The captain testified that he "went after the required rate of descent". Now, the aircraft crashed about 5/8 mile from the runway, effectively just over ½ mile beyond the missed approach point, requiring, as the Minister's representative suggested, an approximate rate of descent of 1,600 ft/min., if the plane was indeed at 500 feet as anticipated and stated by Captain Monger at 2.3 DME.

Now, given the evidence, this simply is not plausible. As the captain said, had he hit the frozen river at 1,660 ft/min. on descent, he "would not be here to talk to you".

The limits for descent were therefore never observed and, in the circumstances, I consider this to be gross negligence, as defined earlier.

There was no urgency to continue the approach. A missed approach might have and should have been made and, from there, either a flight to the alternate airport or another approach made, fuel/weather conditions permitting.

The fact of having continued the descent and the approach in the circumstances constitutes conduct that is not only negligent, but also rash, and this is precisely what the regulations prohibit.

For all these reasons, I am satisfied that the Minister has discharged the burden of proof and I uphold the notice of suspension.

SANCTION—Mr. Douglas Monger

With regard to the penalty, i.e., the suspension of Captain Monger's airline pilot licence for a period of 122 days, I reduce this period to 61 days.

Let us say straightaway that the consequence of the applicant's conduct was the crash of the aircraft and the endangerment of his life and the lives of the other occupants of his aeroplane.

According to the principles that govern sentencing, the offender is to be punished not so much as an act of vengeance as to set an example for anyone who would be tempted to follow his example.

As Lagarde points out:

The sentence must be designed to prevent the example of the accused from being followed. It must be an "example" of what awaits those who would be tempted to imitate the accused's reprehensible conduct. But this exemplary effect must not be taken too far. An excessive penalty seldom has an exemplary effect and nearly always runs counter to the rehabilitation of the guilty party whom it embitters, turns rebellious and makes definitively anti-social.[27]

Now, a 122-day suspension would prevent Mr. Monger from earning his livelihood as a commercial pilot for one third of a year and would therefore result in a significant loss of earnings.

Moreover, I do not see in the applicant's conduct any of the aggravating factors (repeat offending, dangerous conduct) that the Minister's representative is arguing and would justify a harsher sentence.[28]

I believe that a 61-day suspension is fairer in the circumstances and will fully meet the criteria of exemplariness and deterrence that are the basis of such sanctions in our legal system.

SANCTION—Régionnair Inc.

Régionnair Inc. has been proceeded against as the registered owner of aircraft C-FGOI used for flight GIO 1707, flown by its employee Captain Monger, in the circumstances described above.

Subsection 8.4(1) of the Aeronautics Act stipulates:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

The evidence is that Régionnair is the registered owner (Exhibit M-1) and that Captain Monger was acting as pilot-in-command of a company flight. The aircraft was therefore not "in the possession of a person other than the owner without the owner's consent".

Offences of this type have been characterized as strict liability offences,[29] that is, where the State is not required to prove mens rea, i.e., guilty mind or intent, but for which the defence of due diligence is admissible. This concept is enshrined in section 8.5 of the Aeronautics Act, which stipulates:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

In this regard, the Supreme Court states: [30]

Where an employer is charged in respect of an act committed by an employee acting in the course of employment, the question will be whether the act took place without the accused's direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. The availability of the defence to a corporation will depend on whether such due diligence was taken by those who are the directing mind and will of the corporation, whose acts are therefore in law the acts of the corporation itself.

It should be added that the burden of this proof rests in this case with the respondent, as the Minister has discharged the burden of establishing the negligence of the pilot Monger. The respondent therefore had to establish that it had taken every possible precaution to avoid such conduct on the part of one of its employees.[31]

Unfortunately for the respondent, this has not been shown. There are the testimonies of Messrs. Stote and Collier, which show that no direct pressure was placed on the pilots to, shall we say, "push the limits" and that the pressure to operate was the usual pressure affecting any commercial operator facing competition, as it exists on the lower North Shore.

As for efforts made to prevent such conduct—nothing. No evidence of an organization that regulates its pilots, ensures their training, backs up flight safety, and so on. Quite the contrary; Captain Monger is himself one of the 15 shareholders who are owners of the company. He is chief pilot of the DHC-6 Twin Otter the company has been using for over 10 years and therefore one of its senior pilots.

His seniority and his status as shareholder and director give him some authority over the other pilots and employees and strengthen the ties that connect him to the corporate person that is the respondent. There is no doubt that, for many, he is closely linked to the company and is one of its directing minds and wills.

Now, the respondent has the obligation to provide the services of qualified pilots who abide by the regulations, and to monitor their performance and operations. If it does not do so, it is at its peril, especially when one of its directors is himself at fault.

In the circumstances, I am satisfied that the offence with which the respondent was charged has been proven by the Minister on a balance of probabilities and that the respondent has not shown that it took every possible precaution to comply with the Act and prevent such events and conduct from occurring.

The Minister assessed a monetary penalty of $12,500 against the respondent for this offence, which represents half the maximum penalty, and argues that this penalty is fully warranted given the possible consequences of the action taken by the respondent's pilot, who is also one of the company's directors.

Considering that, following this accident, its senior pilot Mr. Collier resigned from his duties, that the company has certainly lost the services of the aircraft involved for an undetermined period of time, and that it will now lose the services of another of its chief pilots for a period of 61 days, I believe it is appropriate to reduce the penalty assessed to the amount of $5,000, which in fact corresponds to the maximum penalty assessable against an individual for this offence.

I am convinced that, in the circumstances, this penalty is appropriate and quite consistent with the abovementioned principles of exemplariness and deterrence.

The notice of assessment is therefore maintained and the monetary penalty reduced to the amount of $5,000.

Pierre J. Beauchamp
Member
Civil Aviation Tribunal


[1] At the hearing, with the consent of the parties, the time that appears in the notices of assessment and of suspension was changed by one hour so that the universal time (UTC) and the local time would exactly correspond.

[2] The applicant in case CAT Q-1974-02/MoT NAP-5504-P040205, hereafter referred to as the applicant.

[3] The respondent in CAT File No. Q-1990-37/MoT File No. 5504-C-040201, hereafter referred to as the respondent.

[4] Altimeter bug.

[5] See exhibit M-3.

[6] Distance measuring equipment.

[7] ASL: above sea level.

[8] MDA: minimum descent altitude, in relation to sea level.

[9] Hereafter the TSB or the Board.

[10] See Report of the Commission of Inquiry on Aviation Safety, Mr. Justice Charles L. Dubin, May 1981, p. 252-253.

[11] See: Canadian Transportation Accident Investigation and Safety Board Act [Sanctioned June 29, 1989], chapter C-23.4, hereafter referred to as the Board or TSB Act.

[12] Subsections 7(2) and (3).

[13] Id. subsection 7(4).

[14] Id. subsection 23(1).

[15] Subsections 23(1) and (2).

[16] Dubin, op. cit. note 9, p. 500 et seq., 632 et seq.

[17] Id. p. 635 et seq.

[18] Aeronautics Act, section 26.

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

[20] (1993) File No. O-0415-02 (Appeal) cited at page 6 in Civil Aeronautics Jurisprudence, Volume 3, Transport Canada, Document No. TP 4311E.

[21] CAT File No. C-0081-02.

[22] Exhibit M-3(3), Canada Air Pilot, p. 17, Definitions.

[23] M-3(3), Canada Air Pilot, p. 21, Landing Minima.

[24] Id. see p. 36 and 202, AS runway identification lights (unidirectional condenser discharge lights).

[25] Id. p. 202 and 38.

[26] We might recall that all testimony mentioned winds from the south at 15 to 20 kts.

[27] Irénée Lagarde, Droit pénal canadien, Wilson et Lafleur, 1962, p. 902.

[28] See Minister of Transport v. Kurt William M. Wyer, CAT File No. O-0075-33 (Appeal).

[29] See The Queen v. Sault Ste. Marie [1978] 2 S.C.R. 1299.

[30] Id. p. 1331.

[31] See Minister of Transport v. Canadian Helicopters Ltd., decision of B. Drysynsyde of January 31, 1992, CAT File No. W-0134-37, and 641296 Ontario Inc. (North East Air Services) v. Minister of Transport, decision of the Tribunal in CAT File No. O-1342-37.


Appeal decision
Suzanne Racine


Decision: May 8, 2001

TRANSLATION

The appeal is dismissed. The appeal panel confirms the decision of the Minister of Transport to the effect that the appellant contravened section 602.01 of the CARs. The notice of assessment is maintained and the monetary penalty is reduced to $5,000. That amount is payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within 15 days of service of this determination.

An appeal hearing on the above matters was held March 28, 2001, at 10:00 hours in the offices of Communication Québec, in the city of Sept-Îles, Quebec.

BACKGROUND

The appellant Mr. Douglas Monger, is a pilot employed by the appellant Régionnair Inc., and a shareholder in the company. Mr. Monger is also the chief pilot on the appellant's Twin Otter DHC-6.

On January 4, 1999, Mr. Monger was at the controls of a Beechcraft (BE02) aircraft owned by the appellant company and registered as C-FGOI, during the regular flight 1707 between Blanc Sablon and Sept-Îles, with a stop at Saint-Augustin. Mr. Roland Landry was the co-pilot. The captain and his co-pilot were making an instrument approach onto runway 20 at the Saint-Augustin airport when the aircraft, with 10 passengers on board, crashed on the frozen surface of the Saint-Augustin river ¾ mile from the runway threshold. There were no fatalities.

On December 29, 1999, the Minister sent Mr. Monger a notice of suspension of his pilot's licence for contravention of section 602.01 of the Canadian Aviation Regulations (CARs). The Minister alleges that Mr. Monger flew in a reckless manner during the instrument approach of Régionnair flight GIO 1707 onto runway 20 at the Saint-Augustin airport, descending below the minima published in the Canada Air Pilot (CAP), resulting in a landing on the Saint-Augustin river. The Minister is seeking a 122-day suspension.

The Minister also sent the appellant Régionnair, on December 29, 1999, a notice of assessment of monetary penalty, as the registered owner of aircraft C-FGOI, for contravention of section 602.01 of the CARs, alleging the same reasons stated in Mr. Monger's notice of suspension.

Mr. Monger and Régionnair requested a hearing before the Civil Aviation Tribunal to dispute these contraventions.

A review hearing was held May 4 and 5 in Sept-Îles before Member Pierre Beauchamp. As the evidence is the same for both cases, the member agreed, at the review hearing, to hear both matters jointly. He rendered his decision October 6, 2000, maintaining the contraventions against the appellants, but reducing the length of the suspension of Mr. Monger's pilot's licence from 122 to 61 days and the amount of the penalty assessed against Régionnair from $12,500 to $5,000.

Mr. Monger and Régionnair are appealing the ruling and the sanctions imposed by the member.

Accordingly, the Civil Aviation Tribunal held an appeal hearing in Sept-Îles, on March 28, 2001, at 10:00 hours, in room RC 01C of the Bissot building, before Ms. Faye Smith, Dr. Michel Larose and Ms. Suzanne Racine, chair and members of the panel respectively.

PRELIMINARY MOTIONS

First, counsel for the appellants asked to amend ground 7 of his appeal petition to read: " ...and that the appellants have established that they exercised all due diligence to comply with the Act".

His motion was allowed.

Secondly, counsel for the appellants requested, in the name of the basic principles of natural justice, namely, the appellants' right to an impartial hearing, that the members sitting on the appeal panel recuse themselves. According to the appellants' counsel, the presence specifically of Ms. Smith and Dr. Larose on the appeal panel may well impede the integrity of the process in this case, as they confirmed, on appeal, a member's decision to suspend the air operator certificate of Régionnair, an appellant in the present case. Régionnair has brought this ruling of the appeal panel before the Federal Court through the judicial review channel.

In the present case, the Minister claimed that Régionnair and its operations manager, given the prior history, were not competent to conduct its operation safely, in contravention of paragraph 703.07(1)(f) (Subpart 3—Air Taxi Operations) and paragraph 704.07(1)(f) (Subpart 4— Commuter Operations) of the CARs. The Saint-Augustin accident of January 4, 1999, the subject of this case, was one of the five incidents that prompted Transport Canada to conclude that the appellant company was not competent to conduct its operation safely.

Moreover, according to the appellants' counsel, Dr. Larose should not sit on the appeal panel in this case because on the day prior to this appeal, he heard a review hearing involving the appellant Régionnair.

Counsel for the Minister, taken by surprise, objected to this motion on the ground that he had not been given advance written notice pursuant to section 10 of the Civil Aviation Tribunal Rules governing procedure in connection with matters dealt with by the Tribunal.

After considering the application of the appellants' counsel, the appeal panel chair proposed submitting the appeal, with the parties' consent, to a panel consisting of a single member. Subsection 36(2) of the Aeronautics Act states as follows:

Subsection 36(2) of the Act:

(2) The Chairman of the Tribunal may, if the Chairman considers it appropriate, direct that an appeal to the Tribunal be heard by a panel of more than three members or, with the consent of the parties, by one member alone.

Counsel for the appellants agreed to the panel's suggestion and counsel for the Minister raised no objection. The appeal panel chair, who is also the Chairman of the Tribunal, assigned Member Suzanne Racine, under the powers vested in her by subsection 36(2) of the Act, to hear this appeal. The panel did not rule on the merits and validity of the motion of the appellants' counsel, and the panel heard the parties without further delay.

GROUNDS OF THE APPEAL

Counsel for the appellants submitted the following grounds of appeal:

  1. The member erred in law in ruling that the Civil Aviation Tribunal was competent to rule on the causes of the accident of January 4, 1999, at Saint-Augustin, although the Transportation Safety Board (TSB), which has exclusive jurisdiction in this regard, has not completed its investigation.
  2. The member erred in fact and in law in confusing the notions of "negligent" conduct and "reckless" conduct.
  3. The member erred in fact and in law in claiming that the above-mentioned accident had been caused by contraventions of the Air Regulations, because the causes of the accident are not yet known.
  4. The member erred in fact and in law in accepting the version of first officer Roland Landry, rather than that of Captain Monger, on the ground that he was a disinterested witness because he no longer worked for Régionnair Inc.
  5. The member erred in fact and in law in finding almost nothing favourable in the testimony of the witness Brian Stote, even though he was deemed to be very credible.
  6. The ruling is completely biased in favour of the thesis defended by the Minister, particularly since the member completely disregarded or ignored all testimony favourable to the appellants.
  7. The member erred in fact and in law in ruling that the Minister had proven the offence of "recklessness" on the balance of probabilities, and that the appellants have established that they exercised all due diligence to comply with the Act (ground as amended by a preliminary motion of the appellants' counsel).
  8. Finally, although the member reduced by half the monetary penalty assessed against Régionnair Inc. and the period of suspension of Mr. Monger's pilot's licence, the fact remains that the sanctions imposed by the member are unreasonable in both cases, the appellants having no prior offences of any nature whatsoever.

ARGUMENTS OF THE APPELLANTS

Grounds 1 and 3

The appellants' counsel alleges that the member erred in law in ruling that the Civil Aviation Tribunal was competent to hear the appellants' cases while the TSB, which has exclusive jurisdiction in this regard, was investigating the causes of their accident of January 4, 1999. In ruling thus, the member allowed the Civil Aviation Tribunal to appropriate a jurisdiction it does not have and thereby unduly substitute itself for the TSB.

Grounds 2 and 7

Counsel for the appellants is critical of the member for confusing the notions of "negligent" conduct and "reckless" conduct, two very different notions. In fact, according to counsel, one must not lose from sight the fact that the Minister, in his notices of contravention, opted for offences of reckless conduct, which are more serious than those of negligent conduct.

The member erred in claiming that an experienced pilot such as Mr. Monger flouted passenger safety in conducting himself in a manner so serious as to reach the degree of recklessness discussed in the Decicco[1] decision. The "whiteout" conditions, rather than Mr. Monger's recklessness, were the cause of the accident of January 4, 1999.

The Minister, according to the appellants' counsel, has not discharged the burden of proof that the notion of reckless conduct, which entails a higher degree of seriousness, demands.

Grounds 4, 5 and 6

Counsel for the appellants maintains that the member erred in making unreasonable findings of fact and credibility about important events related to the critical moment of the flight, the real crux of the debate.

First of all, the member erred in finding the co-pilot's testimony more credible simply because he was a disinterested witness. The latter stated he did not see the runway, the approach lights or the terminal, contrary to the testimony of Captain Monger, who said he had forward visual contact and saw the snow-covered runway.

The member then erred, in his view, in attributing unreasonable importance to Mr. Monger's statement that he saw, on reaching the minima, i.e., at 500 feet and 2.3 DME (distance measuring equipment), not only the line of trees, the Indian village and the snow-covered runway, but also the terminal. According to the appellants' counsel, Mr. Monger never said any such thing.

In his view, the member therefore made an unreasonable assessment of the facts, in particular given this discrepancy between the testimony of Mr. Landry and that of Mr. Monger. Counsel for the appellants argues that the testimony of Mr. Monger and that of Mr. Landry about the instants before impact agree in all respects, the only difference being that Captain Monger saw the snow-covered runway, whereas the co-pilot Landry did not, even though the latter knew, based on the visual references seen on short final (line of trees, river's edge), that it should be there.

Moreover, the member gave no weight to the fact that the aircraft's point of impact was exactly in the runway centreline and that, had it not been for the incorrect reading of the altimetric radar set at 100 feet for better reference in anticipated "whiteout" conditions, it would have landed on the runway as planned. These revelations would be sufficient to corroborate the fact that Mr. Monger saw the said runway.

The member did not reasonably assess the testimony of Mr. Stote, an employee of the appellant company and a passenger on flight GIO 1707 on January 4, 1999, although he was considered credible because of his experience as a pilot. Mr. Stote, an experienced pilot from Saint-Augustin, stated that the approach seemed normal to him, that he had the feeling the rate of descent was stable and that, from his place in the cabin, he had good ground visibility during the descent until the moment the aircraft flew over the river in whiteout conditions. Mr. Stote was convinced the aircraft had hit the runway and slid off at the moment of impact.

At the site, Mr. Stote was able to distinguish, despite the falling snow, the banks on either side of the Saint-Augustin river as well as the hills behind. Needless to say, according to the appellants' counsel, visibility was not as limited as the member seemed inclined to think. Moreover, a Cessna Caravan owned by the appellant had landed without problem 30 minutes earlier at the Saint-Augustin airport.

Counsel for the appellants maintains that Captain Monger had the required visual reference, in this case the runway environment, and that his instrument approach on January 4, 1999, to the Saint-Augustin airport was made in accordance with aviation regulations.

Ground 8

Should the appeal panel rule to uphold the decision of the first instance member, the appellants' counsel is asking that it intervene with regard to the sanctions in favour of the appellants given the lack of prior offences, the context and the difficult flight conditions for pilots in the Lower North Shore region and the appellant's precarious financial position.

ARGUMENTS OF THE RESPONDENT-MINISTER

Grounds 1 and 3

Counsel for the Minister argues that the first instance member did not err in law in determining that the Civil Aviation Tribunal (CAT) was competent to rule on the causes of the accident of January 4, 1999, at Saint-Augustin even though the TSB, which has exclusive jurisdiction in this regard, has not yet completed its investigation.

According to him, the CAT and the TSB are two different entities fulfilling distinct functions. On the one hand, the CAT was created to hear requests for the review of decisions of the Minister and to determine whether or not there was a contravention of the Aeronautics Act and its regulations. On the other hand, the mission of the TSB is to advance transportation safety by conducting, among other things, independent investigations into transportation occurrences to determine their causes and factors, without having authority to attribute or determine civil or criminal liability.

Counsel for the Minister maintains that the appellants contravened the Aeronautics Act and that the CAT is the competent forum for determining this. The TSB Act in no way prevents, in his view, a ministerial investigation for the purposes of implementing the Aeronautics Act and the powers devolved on the Minister under this same Act. Also, the fact that an accident occurred and that the TSB has begun an investigation at no time affects the competence of the CAT.

Grounds 2 and 7

The first instance member did not err in law in finding that the aircraft had been operated not only negligently but also recklessly, as defined in the decision Francis Dominic Decicco v. Minister of Transport.[2] The facts presented by the Minister at the review hearing show a serious breach for a pilot with Mr. Monger's experience and status. Moreover, the appellants have not established, on the preponderance of probabilities, that they exercised all due diligence to prevent the contraventions. The appellant Monger used a dangerous method in descending below the minimum descent altitude (MDA) without establishing and maintaining at least one of the required visual references for a safe landing. Furthermore, he undeniably set a bad example.

Grounds 4, 5 and 6

Counsel for the Minister considers that the review member's findings of fact and credibility are reasonable and should be confirmed. The review member's decision is based on several conclusions as to fact and credibility, which should not be revised unless manifestly unreasonable or based on a total lack of evidence.

The member's decision to favour the testimony of the co-pilot Landry over that of Captain Monger on the ground that Mr. Landry is a disinterested witness is not an unreasonable conclusion. In fact, the member clearly supported, using the facts presented to him, the reason that compelled him to favour the co-pilot's version over that of the captain.

Nor did the member believe the aircraft was at 500 feet at 2.3 DME, as the captain alleged. Based on the data presented and calculated before him, he considered it implausible that Captain Monger had descended to 500 feet and maintained that altitude until 2.3 DME. The calculations suggest instead an approximate rate of descent of 1,660 feet/minute, assuming that the point of impact was _ mile from the runway threshold or just over ½ mile beyond the missed approach point (MAP), and that the speed was about 120 knots as the aircraft travelled the distance between points DME 3.5 and 2.3. The facts on which he based his conclusions were therefore reasonable.

The same can be said in assessing the testimony of Mr. Stote who, while credible in stating he had vertical contact with the ground until flying over the river, nevertheless said he saw "nothing but white" on final.

Ground 8

Counsel for the Minister, while he did not object to the reduced sanctions the first instance member imposed on the appellants, nevertheless points out that Captain Monger, also chief pilot on the appellant's Twin Otter, acted dangerously on January 4, 1999, in failing to comply with the minimum descent altitude, which action could have resulted in fatalities.

DISCUSSION OF THE GROUNDS OF THE APPEAL

Grounds 1 and 3

Counsel for the appellants maintained that the first instance member erred in law in deciding that the CAT was competent to rule on the causes of the accident of January 4, 1999, in Saint-Augustin even though the TSB investigation into this accident was open, contrary to the legislation that gives the TSB exclusive jurisdiction in this regard.[3]

The panel cannot accede to this argument and rejects these grounds.

It is the panel's opinion that the member correctly ruled that the CAT was the appropriate forum for hearing requests for a review of decisions of the Minister that are submitted to it.

The CAT, which was created precisely to hear such requests, is indeed the competent forum for determining whether or not there has been a contravention for the purposes of the application of the Aeronautics Act and its regulations. As for the TSB, its role is to advance transportation safety and conduct independent investigations into occurrences to determine their causes and factors.[4] Each of these entities therefor has its own mission.

Moreover, nowhere in the TSB Act are there provisions depriving, or even restricting, the Minister of Transport's power to act within his sphere of competence on the ground that the TSB has opened an investigation into an occurrence alleged in requests for review of decisions of the Minister. Quite the contrary; the TSB is bound to inform the Minister of a transportation occurrence forthwith[5] so that he can designate a person, subject to certain conditions set by the TSB, to attend the investigation as an observer.[6] The Minister therefore has the authority to issue notices of suspension and of assessment of monetary penalty, independent of the fact that an accident has occurred or an investigation been opened by the TSB.

Grounds 2 and 7

The appellants claim they did not act negligently, much less recklessly, when landing the aircraft at Saint-Augustin on January 4, 1999. In their view, not only did Captain Monger have the runway environment in sight, but had there been no whiteout conditions over the Saint-Augustin river and the snow-covered runway, there would have been no accident. This has nothing to do with the alleged violation of the minima.

However, in view of the evidence submitted to him, the first instance member, trier of fact, concluded that the appellants had been reckless in failing to respect the prescribed descent limits by continuing the approach without having the necessary required visual references.

According to the panel, the member relied on reasonable elements to reach this conclusion.

It is important to note that the Minister actually mentions, in his notices of suspension and assessment of monetary penalty, that Régionnair flight GIO 1707 made with aircraft C-FGOI had been conducted in a reckless manner, rather than simply a negligent one. This notion imposes a more demanding burden of proof on the Minister.

The notions of negligence and recklessness have been discussed in Decicco v. Minister of Transport.[7] The notion of recklessness actually has a stronger meaning than that of negligence. Negligence implies that someone has failed unwittingly to do something a reasonable person would have done, or has done something that a reasonably careful person would not do. Recklessness suggests gross negligence, i.e., the doing of something which involves a risk, whether or not the doer realizes it. This latter notion implies conduct that is rash, heedless and without regard for the consequences, under circumstances involving danger to life or safety of others, although no harm is intended.

Did the appellants' conduct qualify as reckless, as the first instance member claimed? The panel believes the member did not err in fact or in law in drawing this conclusion.

Section 602.128 of the CARs states that no pilot-in-command of an IFR aircraft shall conduct an instrument approach procedure except in accordance with the minima specified in the CAP and descend below the minimum descent altitude in the case of a non-precision approach, unless the required visual reference necessary to continue the approach to land has been established.

The definition of required visual reference stipulated in the CAP designates, for an aircraft on an approach to a runway, that section of the approach area of the runway or those visual aids that, when viewed by the pilot, enables him to assess the aircraft position and its rate of change of position, relative to the normal flight path.[8] The CAP further stipulates that aircraft pilots, during a non-precision approach, may not continue to descend below the MDA, unless the required visual reference to make a safe landing has been established and maintained.

These visual references required by the pilot in order to continue the approach to a safe landing should include at least one of the following references for the intended runway and should be distinctly visible and identifiable to the pilot: [9]

  1. the runway or runway markings;
  2. the runway threshold or threshold markings;
  3. the touchdown zone (TDZ) or touchdown zone markings;
  4. the approach lights;
  5. the approach slope indicator system;
  6. the runway identification lights (RILS);
  7. the threshold and runway and lights;
  8. the touchdown zone lights (TDZL);
  9. the parallel runway edge lights; or
  10. the runway centreline lights.

Now, the evidence has shown that runway 20 of the Saint-Augustin airport was equipped with runway lights that the crew had automatically activated from the cockpit, runway identification lights and a visual approach slope indicator system (VASIS), which neither the captain nor the co-pilot said they saw during the approach. Also, while the appellants' counsel argued that Captain Monger was perfectly justified in continuing his approach because at the MDA, that is, at 500 feet altitude, he had the runway environment in sight, the evidence nevertheless reveals that neither the captain nor the co-pilot said they had obtained and maintained several visual references available at the Saint-Augustin airport, other than having the runway environment in sight. In fact, the member, for reasons set out under grounds 4, 5 and 6 above, preferred to believe the testimony of the co-pilot who said he had looked outside, at the MDA, for the visual reference aids but never saw either the runway or the terminal, although he did see the Indian village and the line of trees through the snow. The Indian village and the line of trees were certainly runway environment indicators, but were not the required visual references necessary, according to the CAP, for a safe landing.

Captain Monger, who had, moreover, anticipated whiteout conditions when he set his altimetric radio at 100 feet, decided, nonetheless, to continue the descent to runway 20 even though he had not established visual contact with the necessary aids. Captain Monger therefore did not execute the aircraft approach in accordance with the requirements of the regulations in effect. Moreover, there was no urgency to continue the approach, particularly as the captain had other alternatives. He could have, and should have, conducted a missed approach and landed at an alternate airport or attempted a second approach at Saint-Augustin if fuel/weather conditions permitted.

The panel concluded that the member was correct in stating that the appellants acted not only negligently but recklessly during the descent and the approach to runway 20 of the Saint-Augustin airport. According to the panel, the member reasonably concluded that the appellants acted recklessly, even with gross negligence, in opting, to the detriment of the safety of passengers and crew, to needlessly continue this approach which did not comply with aviation regulations, and which could have had much more serious consequences.

Also, the panel is puzzled by the amendment to ground 7 of the appeal presented by the appellants' counsel as a first preliminary motion. The amended version states that the member erred in fact and in law in ruling that the appellants had established that they exercised all due diligence to comply with the Act. The panel is in fact of the opinion that the appellants did not exercise all due diligence to comply with the Act and have not discharged their burden of proof.

Grounds 4, 5 and 6

The member, in view of the evidence presented at the review hearing, had to make several findings of fact and credibility. He faced conflicting testimony on a major point, namely: did the captain establish and maintain, at the MDA, the visual approach references required to land the aircraft safely?

The co-pilot Landry testified that he never saw, at the MDA, either the runway, or the runway lights, or the terminal buildings. Moreover, Captain Monger did say he saw the snow-covered airport as well as the terminal, as confirmed by the stenographic notes.[10] Counsel for the appellants was wrong to claim otherwise.

Given the conflicting evidence, the first instance member must assess the evidence submitted and attempt to determine and evaluate which of the two versions probably reveals the truth. To this end, the member must assess the testimony, applying to the assessment of the evidence provided by the parties the following test[11]:

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

In the panel's opinion the member made no unreasonable finding of fact or credibility in favouring the disinterested testimony of the co-pilot Landry, considering it more credible in the circumstances than that of Captain Monger. The member preferred to believe the co-pilot's version to be more representative of the events that actually took place because he did not think it plausible that the captain had been able to see both the snow-covered runway and the terminal, which latter statement, moreover, counsel attempted, in vain, to refute.

It is normal that the interest of one party or witness in the outcome of a hearing may influence the member's assessment of his credibility. Moreover, in the view of authors Sopinka and Lederman[12]:

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....' [our emphasis]

The panel is convinced that the member drew appropriate conclusions of credibility in assessing, on its true merit, Mr. Stote's testimony. Mr. Stote, though experienced in aircraft approaches to the Saint-Augustin airport, was not in the cockpit on January 4, 1999. He testified about what he was able to see from his seat as a passenger in the cabin of the aircraft. The member was right to claim that the lateral visibility and reference points seen from that location may differ from those visible from the "ringside seats" in the cockpit. Mr. Stote's testimony and impressions, while wholly credible, called for the certain weight the member wished to attribute them.

The panel also finds that it was reasonable for the member to rule, based on the data presented and calculated by the Minister's representative, that the aircraft could not have descended and maintained an altitude of 500 feet at 2.3 DME, since the captain admitted that the aircraft speed was about 120 knots between points 3.5 and 2.3 DME and that the impact area was somewhere between ½ mile beyond the missed approach point (MAP or 2.3 DME) and 5/8 mile from the runway threshold. According to this admission, between the altitudes of 500 feet (2.3 DME) and 0 feet (point of impact), the rate of descent would be about 1,660 feet/minute, or double the normal rate of descent (760 feet/minute). Now, Mr. Stote said there had been no change in engine speed on approach and no change in the rate of descent. It is the panel's opinion that it was therefore reasonable to conclude that the aircraft was not at an altitude of 500 feet at 2.3 DME, but rather below the minimum, given the location of the impact area and the rate of descent, reported as stable.

It is important to point out that the role of the appeal panel is not to substitute its assessment of the facts for that of the first instance member, who is quite free to analyse and assess the evidence submitted to him. The panel must not step in to reassess the conclusions as to fact and credibility unless the member's assessment is unreasonable or unsupported by the evidence.[13] This attitude can be attributed to the care taken to preserve the integrity of the appeal process. The panel believes there is no reason to overturn the conclusions as to fact or credibility reached by the member.

Ground 8

The panel is well aware of the flight conditions and the aviation context that prevail at airports in the communities of the Lower North Shore. However, the Aeronautics Act is quite clear about the minima and makes no provision for exemptions, for either a precision or a non-precision approach. The economic and pecuniary considerations of an airline must not take precedence over the obligation of the captain and the company to ensure the transportation safety of the passengers in accordance with the air regulations, particularly as the captain is a figure of authority and of exemplariness as chief pilot and directing mind of the appellant.

The panel maintains that the sanctions imposed on the appellants must serve the principles of deterrence and promote rehabilitation. The whole must be adroitly balanced so that the nature of the measures to be imposed perfectly express the primary concern: aviation safety.[14]

The first instance member did not accept the aggravating factors which would have warranted harsher sanctions. He decided there were instead mitigating factors for reducing the sanctions, namely, the significant loss of salary for the captain, the loss of the services of the aircraft and of one of the chief pilots for Régionnair. The member reduced the duration of the suspension of Mr. Monger's pilot's licence from 122 to 61 days and the fine against Régionnair from $12,500, an amount that already represents half the maximum penalty, to $5,000. Counsel for the Minister is not appealing the reduction of the sanctions.

Therefore, the panel is not revising the sanctions, although it might have been inclined to maintain the sanctions originally imposed by the Minister. The panel considers that the fact of having continued the descent and the approach in the circumstances discussed above warranted the imposition of the sanctions imposed by the Minister. Descending below the MDA without having visual contact with the necessary references is not only needlessly risky on the part of the appellants, but prohibited by the regulations.

DETERMINATION (MONGER)

The appeal is denied. The appeal panel confirms the decision of the Minister of Transport to the effect that the appellant contravened section 602.01 of the CARs. The suspension of Captain Monger's pilot's licence is maintained and its duration reduced to 61 days.

DETERMINATION (RÉGIONNAIR)

The appeal is denied. The appeal panel confirms the decision of the Minister of Transport to the effect that the appellant contravened section 602.01 of the CARs. The notice of assessment is maintained and the monetary penalty is reduced to $5,000.

Reasons for the appeal determination:

Suzanne Racine,
Member


[1] Francis Dominic Decicco v. Minister of Transport, File No. C-1316-02, April 21, 1998 (appeal).

[2] See note 1.

[3] Canadian Transportation Accident Investigation and Safety Board Act, SC 1989, c. 3, hereafter the Board or TSB Act.

[4] Section 7, TSB Act.

[5] Subsection 23(1), TSB Act.

[6] Subsection 23(2), TSB Act.

[7] See note 1.

[8] Canada Air Pilot, p. 17, Definitions.

[9] Canada Air Pilot, p. 21, Landing Minima.

[10] Transcript of stenographic notes, p. 349, line 8.

[11] Faryna v. Chorny [1952] 2 D.L. line 54.

[12] J. Sopinka and S. N. Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974) at pp. 530-531.

[13] Trent Wade Moore v. Minister of Transport, File No. C-0138-33, February 14, 1991 (appeal) and Thomas Ritchie Phillips v. Minister of Transport, File No. C-0014-33, January 26, 1987 (appeal).

[14] Kurt William M Wyer v. Minister of Transport, File No. O-0075-33, September 6, 1988 (appeal).