TATC File No. Q-3229-33
MoT File No. N5504-55900
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Rabih Émile Krayem, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, mod. by R.S., c. A-3, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.01
Michel G. Boulianne
Decision: January 15, 2007
Citation: Krayem v. Canada (Minister of Transport), 2007 TATCE 1 (review)
[Official English translation]
Heard at Québec (Québec) March 10 and May 9, 2006
Determination: The Minister's decision is upheld. The total amount of the monetary penalty of $1,000 is confirmed. The total amount of the monetary penalty is payable to the Receiver General for Canada and must be received by the Tribunal within 35 days of service of this determination.
I. THE FACTS
 This concerns the review of a decision of the Minister assessing a monetary penalty of $1,000 pursuant to sections 7.7 to 8.2 of the Aeronautics Act, R.S.C. 1985, c. A-2, amended by S.C., c. A-3, for a contravention of section 602.01 of the Canadian Aviation Regulations, SOR/96-433 (CARs), to wit:
On December 19, 2004, at about 16:12 hours universal time coordinated (UTC), as pilot-in-command of the Piper Navajo aircraft registered as C-GBYL, operating as flight Aéropro 754 (APO754), you operated the aircraft in such a reckless or negligent manner as to endanger the life and property of your passengers by continuing your runway 29 instrument approach at Gaspé airport (CYGP) without having maintained the required visual references to complete a safe landing.
A. Denis Paré
 The first witness heard, Denis Paré, said he had been an investigator since January 17, 2000, and that before that, he was an air traffic controller, and had 30 years of cumulative experience. Diane Desmarais, Regional Manager, Aviation Enforcement, assigned him to investigate this case.
 The information which initiated his investigation came from the Civil Aviation Daily Occurrence Reporting System (CADORS). This information was not necessarily confirmed however since it was basic information.
 The respondent filed as Exhibit M-1 a CADORS report bearing number 2004Q1888 whose content is summarized below.
 On December 19, 2004, the PA31 350 (Piper Navajo), registered as C-GBYL, operated by Aéropro as flight APO754, with the applicant pilot and four passengers on board, made an instrument flight rules (IFR) flight between Port-Menier, Québec, and Rocher-Percé, Pabok, Québec.
 After completing a go-around at Pabok because of poor weather conditions, the aircraft headed for Gaspé, where it crashed following the second, back-course approach to runway 29.
 The aircraft touched down about 50 feet south of the runway and 2,000 feet from the threshold. It travelled a distance of about 168 feet before coming to a stop in an inverted position.
 The five occupants were rescued and taken to hospital to be treated for their injuries and there was extensive damage to the aircraft.
 The last contact from the Québec flight information centre (FIC) with APO754 was at 1607Z, when the aircraft was at the GADMU waypoint, making its second approach to runway 29.
 At 1611Z, a maintenance vehicle from Gaspé airport informed the FIC that it thought something had happened to APO754.
 The FIC tried to contact the pilot but got no response. The ground maintenance vehicle confirmed that it had the aircraft within view on the ground at Gaspé and requested permission to move onto the runway.
 The driver of the maintenance vehicle helped the passengers evacuate the aircraft and emergency procedures were implemented beginning at 1613Z. The runway in use was closed until 2300Z on December 19.
 To verify these facts, it was necessary to search for the information, request the audiotapes from Nav Canada, check with the FIC and the Montréal control centre, and consult the flight progress strips and the communications between the aircraft, the control centre and the FIC. Finally, documents were requested from Aéropro, the owner of the aircraft.
 The first consideration was the communication from the pilot on frequency 122.3 used for information/traffic during the flight to Gaspé and then the communication from the pilot on frequency 126.7 about flight information generally.
 The transcript of the conversations on frequency 122.3 was produced as Exhibit M-2, and the recording tape as Exhibit M-3.
 When the pilot crossed the GADMU waypoint, he was on final at 5.4 kilometres. The next transmission came from ground personnel operating on frequency 22.
 The flight plan was filed as Exhibit M-4. It should be noted that this flight plan was activated at Montréal and the information was received by the Québec flight service station (FSS). The second part of the flight plan shows the Port-Menier/Pabok/Gaspé flight.
 Exhibit M-5 is the meteorological report, which states, among other things, at line seven, that at 1916Z, the winds were from 270 degrees at three knots, with light snow, vertical visibility of 1,100 feet and a temperature of –9 degrees with a dew point at 10. The altimeter showed a barometric pressure of 2987.
 Line 16 is an amendment for the sector's terminal forecast with winds from 100 degrees at five knots, visibility of three miles in light snow and a ceiling of 1,000 feet with light snow, as well as visibility of one statute mile starting at 1402Z and broken at 400 feet.
 At a meeting with the applicant's representative, the latter handed to the witness the meteorological information the pilot had on board the aircraft during the flight. This document was filed as Exhibit M-6 as a copy of the original. The applicant's representative also handed other documents to him and confirmed that Rabih Émile Krayem had been at the controls of the aircraft.
 Exhibit M-7 is an excerpt from the Canada Flight Supplement. The three pages produced provide general information about the Gaspé airport. It is important to note that the airport has K-type aircraft radio control of aerodrome (ARCAL) lighting, operating on frequency 122.3.
 In cross-examination, the witness confirmed having received the CADORS report (M-1) between December 21, 2004, and January 18, 2005, since the request was made to Nav Canada on January 4 and he received its file on December 29.
 The witness also received all the documentation from the FSS on January 21, 2005, namely, the audio tapes, the Nav Canada flight progress strips, the meteorological information and the flight plan. He also received from the general manager of airport sites for Québec all the necessary documentation around January 10.
 The witness confirmed his experience. He took a pilot training course in 1968, holds a private licence and has had twin-engine training, although he has not taken the exam. He also confirmed that he himself had listened to all the recordings submitted.
 When asked about the meteorological report (M-5), he was unable to say whether the pilot had had this document with him during the flight.
B. Marc Bond
 The next witness was Marc Bond, a trucker, who was a passenger on the aircraft involved in the accident. He was seated on the right, at the front, during the Port-Menier/Pabok flight.
 According to him, they made two approaches to Pabok and were unable to land. The pilot informed them that he could not run any risks and that they would therefore go and land at Gaspé.
 There were three other passengers on board and, according to him, it took them 20 to 25 minutes to get from Pabok to Gaspé, where a first approach was made. During that approach, he saw the lights and buildings. When the aircraft pulled up without landing, the witness thought they were going somewhere else and asked the pilot if they were returning to Port-Menier. The pilot gestured to him to wait a few moments, because he was in radio contact.
 According to the witness, they were in the air about twenty minutes. The aircraft descended again and he recognized the approach from the houses and trees he had seen the first time. He then saw orange triangles, white lights and a straight line. Then, he said, it was completely black.
 At the request of the Minister's representative he drew a sketch, which was filed as Exhibit M-8, on which he showed the orange triangles he had seen pass beneath the aircraft, under the "belly" to use his expression. But he had not seen the runway, because it was white and snowing.
 During the second approach, after they had passed over the orange triangles, the aircraft was low, at maybe 500 or 600 feet. There was no turbulence and the aircraft was stable, but there was nervousness on board. When landing, the aircraft was tossing about.
 After the accident, the passengers were taken to hospital. The witness was placed in a cervical collar. Since they were all in the same room, he said he smoked one or two cigarettes and asked the pilot "Why did you come down?" The pilot answered, "What do you mean?" The witness replied, "There was five or six inches of snow on the runway."
 In cross-examination, the witness confirmed that he had recognized the Gaspé approach but had not seen the air terminal, because the aircraft was tossing about. He told the pilot he saw houses.
C. Firmin Mathurin
 The third witness was Firmin Mathurin, a heavy equipment operator living in Gaspé. He has worked at the airport clearing snow from the runways for 16 years.
 On that December 19, 2004, he was on duty from 4:30 to 12:30 hours (local time). The weather was not good, it was inclement, it was snowing heavily.
 While he was at the garage, he heard the sound of an aircraft and caught sight of an airplane passing overhead. He recognized the aircraft in question from its shape 500 or 600 feet above him heading west.
 He had already filed two runway meteorological reports and wanted to go back out and check the runway after the aircraft flew over. He asked Québec for permission to do so, and it was refused because the aircraft was going to make another approach. So he waited on the exit runway. He heard the pilot talking on inbound and the sound of the aircraft coming in. He saw it come from the east, because the window of his truck was lowered.
 As the aircraft approached, the witness saw it pass over the markers situated to the left of runway 29, about 600 feet from the runway threshold. Even though the weather was not good, he could still see the aircraft. He thinks it was not snowing as heavily as when the first approach was made, but it was still snowing heavily. According to him, the aircraft was lower than the first time and he could see it until the impact. He drew two sketches, which were filed as exhibits M-9 and M-10.
 He definitely saw the aircraft when it was above the precision approach path indicators. It was parallel to the runway and the aircraft seemed to be tossing about. It crashed about 60 feet from the runway lights to the south, a bit farther than half-way down the full length of the runway, in fact a bit farther than where the garage is situated, as shown in Exhibit M-10, but a bit farther south.
 According to him, runway conditions were 100 percent snow-covered with white lines.
 Three runway reports were filed in a bundle as Exhibit M-11; these are the reports he faxed to Québec. He confirmed that the runway lights were working and were clear and that there were snowbanks measuring about 30 centimetres.
 He explained that when the aircraft's communication system is used to turn on these lights, three presses of the button turn on all the low-intensity lights except the strobe lights. Five presses turn on all the medium-intensity lights. Seven presses turn on all the high-intensity lights and the strobe lights.
 There was a brief redirect by the Minister's representative on an insignificant point.
 This concluded the presentation of the evidence, as the applicant did not see fit to call any witnesses.
 The Minister's representative states that the elements of recklessness and negligence have been proven by the documents and the testimonies of Messrs. Paré, Bond and Mathurin.
 Visual references are required. According to the evidence, such references existed, because Mr. Bond claimed to have seen a row of lights, while Mr. Mathurin stated that the lights were clear. However, this does not mean they were visible. It is important to always have visual references, either the runway threshold or clearing of the runway.
 The pilot had the choice: he could switch from an IFR flight to a visual flight rules (VFR) flight. It is important to point out that the aircraft was never lined up with the runway centre line, even though the pilot had heard the communications of the runway worker, Mr. Mathurin. The witness Bond confirmed that the orange triangles were under the aircraft when they should normally have been to the left of the runway.
 The meteorological report indicated horizontal visibility of three-quarters of a mile and vertical visibility of 1,100 feet. The pilot should have been able to see the ground.
 There was therefore a lack of discipline and a poor assessment of the weather. The aircraft was not lined up with the runway. The pilot could have asked for tracks to be made on the runway. Finally, it is up to the pilot to be informed. The regulations are there to guide the pilot, but nothing can substitute for his judgment.
 A review of the facts shows there was an initial approach on runway 29 followed by a pull-up and a decision to make a second approach with a landing beside the runway.
 The information the pilot had was that it was snowing and visibility was three-quarters of a mile. He also had meteorological information (M-6) and the approach chart. He had the recommended, but not necessarily the required, visibility.
 The pilot must remain at the minimum landing altitude unless one of the required runway elements is present, namely:
- the runway or its markings;
- the runway threshold or its markings;
- the touchdown zone or its markings;
- the approach lights;
- the approach slope indicator system;
- the runway identification lights;
- the runway threshold and runway end lights;
- the touchdown zone lighting;
- the parallel runway edge lights;
- the runway centre line lights.
 The pilot should have known and taken into account that it was snowing, that there was a whiteout effect. He could have asked for tracks to be made on the runway, even though Mr. Mathurin had made the offer and the FSS had turned it down. The pilot should have deduced from these communications that the runway worker's request established the need for the runway to be cleared. Had he requested this, the said authorization would doubtless have been given.
 According to the witnesses, the aircraft was tossing about and was therefore not stabilized. Such a situation should have necessitated a pull-up. According to the meteorological information (M-6), visibility was deteriorating.
 The evidence shows that the pilot pressed the button on his microphone five times, which turned on all the medium-intensity lights but not the strobe lights. He could have pressed it seven times and got the highest intensity possible.
 During the second approach, the pilot got confirmation of the weather when he was directly over the GOFTS reference point, about 15 minutes from final approach.
 Citing Decicco v. Canada (Minister of Transport), , appeal determination, CAT File No. C-1316-02,  C.A.T.D. No. 22 at para. 23 (QL), the Minister's representative states as follows:
Negligence: Negligence is the omitting to do something that a reasonable man would do or the doing [of] 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 wilfulness. 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.
 The pilot should have known he would see the runway late and acted accordingly. That is what a reasonable and prudent pilot would do in similar circumstances.
 Mr. Krayem made a second approach knowing full well that the weather had not improved and he was no more prudent.
 In Blackwell v. Canada (Minister of Transport), , appeal determination, CAT File No. O-2141-02,  C.T.A.D. No. 24 at para. 45 (QL), the words "negligence" and "recklessness" are defined as follows:
[...] 'negligence' to mean simply failure to exercise reasonable skill and prudence in the circumstances, whether there is advertence or not. [...] 'recklessness' is aimed at those who are more culpable than the merely negligent inasmuch as to be reckless one must perceive the risk and deliberately decide to run it.
 In his argument, the applicant's representative made a point of mentioning the lack of precision of certain witnesses and the inconsistencies in their testimony, and above all, in his view, the fact that the applicant had contravened no regulation. According to him, the pilot's true intentions are not known and the facts recounted cannot be verified. He argued that all the calculations made by the Minister's representative were incorrect, that the pilot had been prudent and had managed the situation to the best of his abilities.
 As I pointed out to the applicant's representative, I am somewhat surprised at the statement that the pilot managed the situation to the best of his abilities. Beyond all the technical terms, an accident occurred. The pilot of the aircraft reported no emergency, failure of one of the engines or instrument malfunction on his aircraft and had all the latest meteorological information. He knew that personnel were available to clear the runway at his mere request and had the possibility on board his aircraft to turn on all the indicator lights to their maximum intensity to allow him to locate the runway.
 The pilot was present in the hearing room. It was never argued that he could not recall the events, that his memory had been affected by this accident or that he was suffering from amnesia. Yet the applicant did not testify, did not call any other witness and provided no explanation to justify his management to the best of his abilities.
 He might well have provided some explanation to justify having landed completely off the runway, a sudden gust of wind or an unexpected movement by a passenger that affected his concentration, but that is not the case. While he was not familiar with all the terms, the only witness heard who was present in the aircraft testified that he had recognized the approach the second time and had seen the runway and the lights to one side of it, as well as the orange triangles passing under the aircraft. It is primarily this testimony and that of Mr. Mathurin, the runway worker, that show that the aircraft was about 60 feet off the runway centre line and parallel to the runway and never left this trajectory.
 I come back to the terms "recklessness" and "negligence" defined earlier. In my view, however, both terms can be used to varying degrees, but the two converge respecting the unwarranted failure to take all reasonable care to ensure a safe landing when all required parameters are available to the pilot.
 For all these reasons, I uphold the Minister's decision and the amount of the monetary penalty assessed.
January 15, 2007
Michel G. Boulianne
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