Decisions

TATC File No. W-3592-02
MoT File No. SAP 5504-67470 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Lawrence Glenn Mashowski, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, ss 602.19(10), para. 602.96(3)(b


Review Determination
J. Richard W. Hall


Decision: April 5, 2011

Citation: Mashowski v. Canada (Minister of Transport), 2011 TATCE 8 (Review)

Heard at Calgary, Alberta on April 22, and May 10 to 12, 2010

Held:

Count 1 - The Minister did not prove, on a balance of probabilities, that the Applicant, Lawrence Glenn Mashowski, contravened subsection 602.19(10) of the Canadian Aviation Regulations. Consequently, the 30-day suspension set out in the Notice of Suspension is cancelled.

Count 2 - The Minister did prove, on a balance of probabilities, that the Applicant, Lawrence Glenn Mashowski, did contravene paragraph 602.96(3)(b) of the Canadian Aviation Regulations. However, the suspension is reduced from 45 days to 10 days. This suspension will commence on the 35th day following service of this Review Determination.

I. BACKGROUND

[1] The Applicant, Lawrence Glenn Mashowski, is a pilot and owner of a Cassutt aircraft, bearing registration marks C‑FNZP, based out of the High River Airport in the Province of Alberta. The Minister of Transport ("Minister") issued a Notice of Suspension ("Notice") on May 28, 2009. Schedule A of the Notice states the following:

#1 – CARs 602.19(10)

On or about the 27th of September 2008, at approximately 15:58 hours local time, at or near the High River Airport, in the Province of Alberta, you did conduct a take‑off in an aircraft, to wit a Cassutt, bearing Canadian registration C‑FNZP, when there was an apparent risk of collision with an aircraft, more specifically, a Diamond bearing Canadian registration C‑GHYJ, in the landing path, thereby contravening subsection 602.19(10) of the Canadian Aviation Regulations.

SUSPENSION – 30 DAYS

#2 – CARs 602.96(3)(b)

On or about the 27th day of September 2008, at approximately 15:58 hours local time, you being the pilot‑in‑command of an aircraft, to wit Cassutt, bearing Canadian registration C‑FNZP, operating at an aerodrome, namely the High River Airport, in the Province of Alberta, did fail to avoid the pattern of traffic formed by other aircraft in operation, thereby contravening subsection 602.96(3)(b) of the Canadian Aviation Regulations.

SUSPENSION – 45 DAYS

TOTAL SUSPENSION – 75 DAYS

II. STATUTES AND REGULATIONS

[2] Subsection 602.19(10) of the Canadian Aviation Regulations ("CARs") provides as follows:

602.19 […]

(10) No person shall conduct or attempt to conduct a take-off or landing in an aircraft until there is no apparent risk of collision with any aircraft, person, vessel, vehicle or structure in the take-off or landing path.

[3] Paragraph 602.96(3)(b) of the CARs provides as follows:

602.96(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall

(a) observe aerodrome traffic for the purpose of avoiding a collision;

(b) conform to or avoid the pattern of traffic formed by other aircraft in operation;

(c) make all turns to the left when operating within the aerodrome traffic circuit, except where right turns are specified by the Minister in the Canada Flight Supplement or where otherwise authorized by the appropriate air traffic control unit;

(d) where the aerodrome is an airport, comply with any airport operating restrictions specified by the Minister in the Canada Flight Supplement;

(e) where practicable, land and take-off into the wind unless otherwise authorized by the appropriate air traffic control unit;

(f) maintain a continuous listening watch on the appropriate frequency for aerodrome control communications or, if this is not possible and an air traffic control unit is in operation at the aerodrome, keep a watch for such instructions as may be issued by visual means by the air traffic control unit; and

(g) where the aerodrome is a controlled aerodrome, obtain from the appropriate air traffic control unit, either by radio communication or by visual signal, clearance to taxi, take-off from or land at the aerodrome.

III. EVIDENCE

A. Minister of Transport

(1) Christopher Yeryk

[4] Christopher Yeryk was the pilot‑in‑command of a Cessna 172 he rented at the Calgary Flight Training Centre based at the High River Airport on the day of the incident. By September 2008, he had about two years of flying experience which translates to about 400 hours. Mr. Yeryk testified that he was fairly familiar with the High River Airport. It was an uncontrolled aerodrome with one paved runway and one gravel runway that was perpendicular (north/south) to it. He stated that on the day in question, the paved runway, 06/24, was the active runway.

[5] Mr. Yeryk testified that he was doing practice manoeuvres on the day in question. When he returned to the airport, he flew over the circuit at 500 feet, crossed midfield, checked the windsock, and then joined the circuit. There were no other aircraft in the circuit. Mr. Yeryk testified that the windsock was just perpendicular, and that there was a light and variable wind that day. In his view, the effect of the wind was negligible. He proceeded to select runway 06 in order to gain the greatest amount of headwind based on his reading of the windsock. When asked by the Minister's representative whether there was another aircraft in circuit, Mr. Yeryk stated that the Diamond Katana ("Katana") from the Calgary Flight Training Centre joined the circuit behind him.

[6] Mr. Yeryk testified that he made all the necessary radio calls and did a couple of touch and go's or practice landings. After doing approximately three practice landings, Mr.  Yeryk landed for the last time on runway 06 and cleared the runway. At all times, Mr. Yeryk and the pilot in the Katana maintained radio contact. There was no conflict between these two aircraft.

[7] Mr. Yeryk stated that after he landed and taxied toward the apron, another aircraft commenced to taxi and then backtracked onto runway 24. Mr. Yeryk also heard the pilot of that aircraft announce that he was backtracking and taking off from runway 24. Mr. Yeryk expressed surprise that this aircraft decided to take off on runway 24 when there was another aircraft in the circuit for runway 06.

[8] On cross‑examination, Mr. Yeryk conceded that the Katana aircraft behind him could have extended its downwind leg to avoid conflicting with the aircraft taking off from runway 24. The Katana also could have crossed mid‑field and joined the circuit on runway 24. On re‑examination, Mr. Yeryk testified that if he were the pilot on runway 24, he would have either joined the circuit on runway 06 or waited for the Katana to land.

(2) Alexander Bahlsen

[9] Alexander Bahlsen stated that he was the Chief Flight Instructor of the Calgary Flight Training Centre. On the day in question, he was flying with his student, Kwan Nang Fung. They were doing left‑hand circuits in the Katana aircraft. He testified that he saw Mr. Yeryk's aircraft land on runway 06 and clear the runway. He then stated that he saw another aircraft taxi onto the runway. This aircraft would later be identified by Mr. Bahlsen as a Cassutt, registration marks FNZP, Mr. Mashowski's aircraft. Mr. Bahlsen did not remember Mr. Mashowski making any radio calls prior to entering the runway. Since he did not know what the intentions of the aircraft were, he kept it in his view at all times. He testified that the aircraft entered runway 24 while he was on his downwind leg. Mr. Bahlsen made radio calls to ask what the aircraft's intentions were, but received no response. As a result, Mr. Bahlsen instructed his student to continue flying in the circuit but kept the Cassutt aircraft in his view at all times.

[10] Mr. Bahlsen testified that the aircraft proceeded to take off on runway 24, became airborne, and at approximately 100 feet off the ground, made a left‑hand southbound turn. His aircraft was approximately 500 feet above ground, and he instructed his student to overshoot the runway and pull off to the left (north-side) of the runway. Mr. Bahlsen confirmed that he could have landed and there would have been no danger of collision, but thought it was a better idea to overshoot and calm his student. He stated that these circumstances were certainly out of the ordinary.

[11] Mr. Bahlsen also testified that in his view, the established circuit was runway 06 because he was in it, and four or five aircraft had used it in the past half hour. In his opinion, if he had wanted to take off on runway 24, he would have waited for the aircraft in the circuit for runway 06 to land first.

[12] During cross‑examination, Mr. Bahlsen admitted that he heard at least one radio call from Mr. Mashowski. He could not recall whether the radio call was Mr. Mashowski announcing that he was backtracking or taking off (Transcript at 109). When asked why he did not extend downwind, Mr. Bahlsen replied that he would not have been able to see Mr. Mashowski's aircraft. Mr. Bahlsen was also asked why he did not cross midfield and join the circuit for runway 24. He responded that it was contrary to anything he had ever seen or done. As a result, Mr. Bahlsen told his student to continue, turn onto base leg, and commence his descent. At all times, Mr. Mashowski's aircraft remained on the runway. Mr. Bahlsen testified that he still did not know what Mr. Mashowski's aircraft was doing; it could have been waiting at the turnaround bay for Mr. Bahlsen to land.

[13] Mr. Bahlsen acknowledged that since the incident, procedures at the airport have changed and it was no longer proper to remain in a holding bay while other aircraft were landing. However, he still maintained that it was possible that Mr. Mashowski was simply waiting for them to overshoot. When asked whether he had made a radio call that they had planned to overshoot, Mr. Bahlsen stated that they had not.

[14] Once it was apparent to Mr. Bahlsen that Mr. Mashowski's aircraft had commenced a take‑off roll, he instructed his student to overshoot. At that point, Mr. Bahlsen testified that they were at an altitude of 500 feet. At one point, both aircraft were more or less on the same trajectory towards each other, before Mr. Mashowski veered to the left. At the closest point, the two aircraft were separated by 400 vertical feet and 100 horizontal feet. When asked whether he believed there was a danger of collision, Mr. Bahlsen responded that he did not think there was.

(3) Kwan Nang Fung

[15] Kwan Nang Fung was Mr. Bahlsen's student pilot on the day in question. He testified that he was flying the aircraft in a circuit for runway 06. While they were in the downwind leg, just past the midfield position, he observed an aircraft taxiing on the runway to 24. At that point he made a radio call informing others that he was on the downwind. He then proceeded to turn onto base and made a radio call, and another radio call to turn onto final.

[16] Mr. Fung testified that he received no response to his radio call on either the downwind or the base. While on base, he heard the aircraft on runway 24 make a radio call for backtracking and taking off. Mr. Fung then proceeded to turn onto final. He testified that when he turned onto final he was about two miles away from the runway at an altitude of 1 000 feet. Mr. Mashowski's aircraft was facing towards him at the end of runway 06 or the button of runway 24. He then testified that he asked Mr. Bahlsen if he should land or overshoot and Mr. Bahlsen instructed him to overshoot. Mr. Bahlsen also instructed him to stay north of the runway to avoid a possible collision since they were aware of the aircraft taking off.

[17] Other than the radio call for backtracking on runway 24, Mr. Fung testified that he heard no other calls from Mr. Mashowski's aircraft. He also received no response to his radio calls. When asked whether he believed there was a risk of a collision, Mr. Fung responded that he believed there would have been if they had not taken action to avoid the aircraft taking off on runway 24 (Transcript at 151).

[18] On cross‑examination, Mr. Fung was asked what he thought Mr. Mashowski's aircraft was going to do once it was on the runway. He answered that he thought it was going to take off. When asked whether he had considered extending his downwind, he replied that he had and actually had extended his downwind farther than the normal circuit. He maintained his altitude at 1 000 feet, slowed down, and turned base. At that point, Mr. Fung testified he was too far away to see whether the Cassutt had commenced its take‑off roll. He then turned early onto final so as to offset any potential collision.

[19] Mr. Fung testified that he did not realize the aircraft was taking off until it had already commenced its roll down the runway and made a radio call. At that point Mr. Fung had descended to 500 feet. To avoid Mr. Mashowski's aircraft, Mr. Fung immediately began to climb back to 1 000 feet. Mr. Fung was then asked how many radio calls Mr. Bahlsen made to the other aircraft and whether he was yelling or not. He testified that Mr. Bahlsen made two or three radio calls and was not yelling.

(4) Thomas Joseph Watkins

[20] Thomas Joseph Watkins used to be a co‑owner of the Cassutt aircraft owned by Mr. Mashowski. He is an experienced pilot with approximately 2 200 flying hours in various aircraft, including single-engine types to complex multi-engine types. He has approximately 18 to 20 hours on the Cassutt specifically. He has high-performance type endorsement, as well as two racing licences issued by the Reno Air Racing Association in Reno, Nevada.

[21] Mr. Watkins testified that the Cassutt is a high-performance light weight aircraft, meaning that it can accelerate very quickly. When asked whether the Cassutt had any special procedural needs in comparison to other aircraft, Mr. Watkins testified that it did not and could be flown out of the High River Airport just like any other aircraft. Mr. Watkins was asked whether he would use another runway if there was already an aircraft in the circuit for runway 06. His response was that absent any strong winds, he would only use runway 06 to depart.

[22] On cross-examination, Mr. Watkins was asked about his experience flying the Cassutt. He testified that most of his experience with the Cassutt occurred at High River Airport. He was asked whether he was aware of the slope on runway 06 and whether it had influenced his decisions on which runway to use. He answered in the negative. Finally, he was asked whether he tries to take off into the wind whenever possible. Mr. Watkins responded that he would attempt to take off into the wind as long as it was reasonably practicable.

(5) Kim Brown

[23] Kim Brown is a Civil Aviation Safety Inspector with Transport Canada, Enforcement, in Calgary. Inspector Brown testified that he sent a letter to Mr. Mashowski advising him that he was under investigation for a possible violation of paragraph 602.96(3)(b) of the CARs (Exhibit M-9). The letter also informed Mr. Mashowski that he had no obligation to assist in the investigation, but may do so by contacting Inspector Brown.

[24] Inspector Brown testified that on October 30, 2008, Mr. Mashowski contacted him by telephone to discuss the matter. Inspector Brown took notes of the conversation (Exhibit M‑11). Mr. Mashowski told Inspector Brown that the wind velocity was 6 to 8 knots out of the south to the southeast, slightly favouring runway 06. Mr. Mashowski also stated that the windsock was clearly visible to him, but would have been difficult for other aircraft to see. The notes also stated that Mr. Mashowski heard a radio call from the Katana asking what his intentions were. Mr. Mashowski told Inspector Brown that he made a radio call as he was going over threshold, and while the other aircraft was on final.

[25] Subsequent to this conversation, in response to the Letter of Investigation of October 27, 2008, Mr. Mashowski sent a letter by email to Inspector Brown on November 20, 2008 (Exhibit M‑12), and requested a meeting at the offices of Transport Canada in Calgary. In his letter, Mr. Mashowski stated that he saw the Katana in the circuit and made the standard radio call indicating that he was backtracking on runway 24. Mr. Mashowski stated that he received a response to his call from Mr. Bahlsen that was belligerent and inappropriate, requesting in effect "aircraft backtracking on Two Four, what are your intentions, the active runway is Zero Six". Mr. Mashowski stated that he repeated he was backtracking on runway 24 for departure. In his letter, Mr. Mashowski also stated that he did all the necessary pre‑takeoff checks, then made a radio call and took off with a left turn out eastbound with traffic. He stated that he observed the Katana doing an overshoot one half mile from the threshold of runway 06 as he turned left southbound.

[26] Inspector Brown testified that he received another email from Mr. Mashowski regarding the specifics of his aircraft in response to inquiries from Inspector Brown. On February 11, 2009, Mr. Mashowski had a face to face meeting with him. Inspector Brown took notes of their conversation (Exhibit M-13). During that conversation, Mr. Mashowski stated that he was of the view that the wind favoured runway 24 ever slightly, but did not blame the other pilot for using runway 06 because the wind was splitting the runway and not really favouring either runway too much. Inspector Brown asked Mr. Mashowski if he volunteered that information to the other aircraft, and Mr. Mashowski responded that it was not his practice to do so.

[27] Inspector Brown testified that Mr. Mashowski told him that he saw the Katana was making its approach for landing despite the fact that he was on the runway. Mr. Mashowski told Inspector Brown that in his view he had an equal right of way according to the CARs. Mr. Mashowski grew worried, and felt that his best option was to take off and clear the runway. In his view, there was still adequate time for a take‑off before the other aircraft made its turn for final. According to Mr. Mashowski, the other aircraft did not make a call for final. He stated that he made a call before departure with a left-hand turn out. Mr. Mashowski explained that he could not talk on the radio during a take-off because the Push‑to‑Talk switch is not located on the stick.

[28] In a letter dated February 10, 2009, Inspector Brown received a formal complaint from Mr. Mashowski about the conduct of Mr. Bahlsen on the day of the incident (Exhibit M‑14). At the conclusion of his investigation, Inspector Brown prepared a report (Exhibit M‑18) where he concluded that Mr. Mashowski was in violation of both subsection 602.19(10) and paragraph 602.96(3)(b) of the CARs. A Notice of Suspension was issued to Mr. Mashowski on May 28, 2009 (Exhibit M-19).

[29] On cross-examination, Inspector Brown was questioned about the findings of his report. He was asked whether according to him, Mr. Bahlsen was aware that Mr. Mashowski intended to take off when he announced that he was backtracking on runway 24. Inspector Brown confirmed that according to his notes, Mr. Bahlsen was indeed aware that Mr. Mashowski intended to take off. Inspector Brown was also asked how he determined that there was an established circuit. He answered that an established circuit is determined by whether there are already aircraft in the circuit. He was of the view that the fact that an aircraft attempts to establish a circuit from the ground does not define the active runway. If there is already an aircraft in circuit above the aerodrome, that is the active runway.

[30] Counsel for the Applicant then canvassed the options available to Mr. Bahlsen to avoid the conflict. Inspector Brown agreed that there were other options, three to be exact, which were available to Mr. Bahlsen such as extending his downwind or rejoining the circuit on runway 24. In particular, Inspector Brown agreed that it would have been a rather easy option for Mr. Bahlsen to extend his downwind. He also conceded that once Mr. Mashowski was on the runway, it was true that Mr. Bahlsen had more options to avoid a conflict than did Mr. Mashowski.

[31] When asked what options were available to Mr. Mashowski, Inspector Brown was of the view that he should have not taken off, and that after backtracking, he should have held at the turnaround bay. He was then shown an excerpt from the Canada Flight Supplement (Exhibit M‑6) which prohibited holding in the turnaround bay. Inspector Brown acknowledged the document but stated that the prohibition was not in effect on the date of the contravention. Inspector Brown was then asked whether he was aware of the Transport Canada Aeronautical Information Manual ("TC AIM") at section 3.4 which cautioned against holding in a turnaround bay. Inspector Brown testified that he was not aware of that cautionary statement. The TC AIM was in effect on the date of the incident.

[32] Applicant's Counsel then produced three Civil Aviation Daily Occurrence Reporting System (CADORS) reports detailing accidents at High River Airport that illustrate the danger of holding in a turnaround bay on a runway. For example, in one incident, an aircraft had problems with its landing gear, veered off the runway, and hit a fence.

[33] Inspector Brown also conceded that Mr. Bahlsen should not have landed on the runway while Mr. Mashowski was there, and to do so would have been a violation of the CARs.

[34] Applicant's Counsel also questioned Inspector Brown on whether, in the view of both pilots, there was a risk of collision. Inspector Brown testified that Mr. Mashowski likely did tell him that there was no risk of collision. Inspector Brown also testified that Mr. Bahlsen was of the view that the entire incident was not a "big deal". On further cross‑examination, Inspector Brown conceded that none of the pilots, Messrs. Yeryk, Bahlsen, or Fung expressed the view that there was a risk of collision.

[35] Inspector Brown was questioned about factors he took into consideration when deciding the penalty. In his report (Exhibit M-18), Inspector Brown referred to the fact that Mr. Mashowski had been charged before. Inspector Brown also expressed the opinion that Mr. Mashowski had a habit of operating in conflict to established traffic patterns and having an attitude of being able to do whatever he wanted. When asked upon what evidence he based his opinion, Inspector Brown denied relying on the view of another Transport Canada investigator (Exhibit M-24) that locals at High River Airport felt Mr. Mashowski possessed a cocky and superior attitude.

[36] When pressed further, Inspector Brown conceded that other than the investigative report, he only had his interview with Mr. Bahlsen and possibly a discussion with one other employee at the Calgary Flight Training School to support that view. However, Inspector Brown maintained that he did not take into considerations conclusions about Mr. Mashowski's attitude in the prior investigative report when recommending a penalty for a second offence.

B. Applicant

(1) Lawrence Glenn Mashowski

[37] Mr. Mashowski testified that he was an instrumentation technologist with 20 years of experience. He has been doing engineering work for oil and gas plants. He also designs control systems and computer programs. Mr. Mashowski testified that he has been flying for 14 years. He has been competing in aerobatic competitions for ten years now. Much of his experience is with sport flying and high performance type amateur-built aircraft.

[38] Mr. Mashowski was asked to describe the requirements of his aircraft for take-off. He testified that take-off in a high-performance aircraft like the Cassutt is the most critical part of the flight. A skilled pilot wants to have the most options available in case something goes wrong during a take-off. He stated that there was a steep drop off, a ditch, and Highway 2 at the end of runway 06. If the engine malfunctioned, Mr. Mashowski testified that it is unlikely a pilot would survive if he went off the end of runway 06. Therefore, as a safety precaution, Mr. Mashowski stated that runway 24 was the safest runway for a take-off as there are more options for an emergency landing. Mr. Mashowski was also of the view that the wind that day favoured runway 24.

[39] Later in his testimony, Mr. Mashowski elaborated on his reasons for taking off on runway 06. He stated that he was aware that there were two aircraft ahead of him in the circuit for runway 06. He testified that he was originally planning on taking off on runway 06 until he looked at the windsock. Prior to take-off, Mr. Mashowski testified that the winds had shifted to the west. Given his experience, such a shift was usually an indication that the wind was going to persist out of the west. By the time he returned to land though, the wind had dissipated completely. But at the time, Mr. Mashowski believed that runway 24 was favourable.

[40] Mr. Mashowski then testified that he made his call to taxi out onto the runway. Mr. Bahlsen's aircraft was on downwind at that point. As soon as he got onto the runway, Mr. Bahlsen radioed him in a verbally abusive manner and a disrespectful tone of voice. Mr. Bahlsen made a long and loud transmission over the radio asking Mr. Mashowski what his intentions were and informing him that they were in the circuit for runway 06. Mr. Mashowski then replied that he was backtracking on runway 24, and whether Mr. Bahlsen could extend his downwind. Mr. Mashowski could not make out the reply he got back as it was broken and unreadable. He continued taxiing and concluded that there was no point in talking to Mr. Bahlsen any further as Mr. Bahlsen was clearly angry.

[41] Mr. Mashowski testified that he was alarmed when he saw the Katana turn onto base. In his view, he only had one option at that point, and that was to take off. It was dangerous to remain on the runway. After doing his pre take-off checks the Katana was midpoint on base. Mr. Mashowski made a radio call to advise that he was departing on runway 24, left‑hand turn out eastbound. At that point, all of his attention was on take-off and he made no other radio calls until he was airborne. While he was starting his shallow climb out, he could see the Katana on final. Mr. Mashowski testified that the Katana was seven-eighths of a mile away and at an altitude of 700 feet.

[42] Mr. Mashowski prepared some helpful satellite map diagrams of the High River Airport. In particular, Exhibit A-6 illustrated the positions of his aircraft relative to the Katana at different points in time. At their closest points, Mr. Mashowski testified that they were separated by about 600 to 700 horizontal feet and 350 vertical feet. He testified that when he was at beam, the Katana was at 500 feet altitude and that is when he saw them overshoot. After that he made his radio call clearing the circuit to the east.

[43] Under cross‑examination, Mr. Mashowski admitted that upon his return to the airport that day, he conformed to the established traffic pattern. He was also asked why he was compelled to enter the runway when he already knew there was another aircraft in circuit. Mr. Mashowski responded that he had an aircraft to fly. When asked whether he could have stayed on the ramp longer and waited, he responded that he could have waited.

(2) Harold Earl Rainforth, Expert Witness

[44] Mr. Rainforth has flown approximately 10 600 hours over the course of his career. He retired after almost 40 years of flying. He is also an Aircraft Maintenance Engineer. Most of his career was spent flying jet aircraft for Pacific Petroleum, which was later bought by Petro‑Canada. Prior to qualifying the expert witness, the Minister raised some concerns about the experience of the expert witness. The Minister was concerned that the expert witness may not be qualified to speak to airport procedures. Most of the expert witness' experience was in high performance jets in the instrument world, and he would have rarely dealt with small airports like High River. The Minister was also of the view that 10 600 hours was not a substantial amount of experience, but was rather average.

[45] Applicant's Counsel argued that the expert witness would be questioned generally on airmanship and procedures, and not the CARs or the training procedures that are in place now.

Counsel submitted that any weaknesses in the expert witness' testimony should go to weight. Based on the parties' arguments, I was prepared to qualify the witness as an expert based on his resumé and qualifications. It was then open to the Minister to challenge or question any of the expert witness' assessments.

[46] On direct examination, the expert witness was asked to assume the following facts:

  1. That the windsock slightly favoured runway 24;
  2. Mr. Mashowski radioed his intention to backtrack on runway 24, and proceeded to do that;
  3. Mr. Bahlsen and his student are operating an aircraft in the circuit for runway 06. They are at the corner of the crosswind leg and downwind leg when Mr. Mashowski enters the runway; and
  4. Messrs. Bahlsen and Fung were aware of Mr. Mashowski's presence on the runway and that he intended to take off.

[47] Based on these facts, Mr. Rainforth was asked whether it was acceptable practice for Mr. Mashowski to enter the runway. Mr. Rainforth testified that it was acceptable for Mr. Mashowski to enter the runway because he radioed his intention and the other aircraft knew he was there. The other aircraft was also at the corner of the crosswind and downwind leg so there was time. Mr. Rainforth was of the view that the Katana could simply extend its downwind leg if it needed more time, but otherwise there was no conflict. Alternatively, the Katana could have chosen to come across and switch runways or it could have proceeded straight west and continued for runway 06. The fact that there was radio-communication between the parties meant they were both aware of each other, and therefore safety should not have been an issue.

[48] Mr. Rainforth was then asked whether it was acceptable for the Katana to continue downwind to eventually land on runway 06. Mr. Rainforth expressed the opinion that it was inappropriate to turn onto base until the runway was cleared, especially once the pilots in the Katana knew that the other aircraft intended to take off. Furthermore, because he was familiar with the High River Airport specifically, Mr. Rainforth also added that Mr. Mashowski had nowhere to hold while taxied on runway 24 because there is no run-up pad. There is no way for Mr. Mashowski to get off the runway unless he goes onto the grass at the airfield.

[49] Mr. Rainforth was then asked to assume that there was no holding bay and was given the relative speeds of both the Cassutt and the Katana. He was then asked whether it was appropriate for Mr. Mashowski to take off. Mr. Rainforth responded that the scenario was difficult, and that he would be surprised if there was an aircraft that was that close to landing. He testified that it would probably be prudent of Mr. Mashowski to get off the runway. If he stayed on the runway, there was no guarantee that the landing aircraft would stop far away enough, particularly since it was a student pilot. His other alternative was to pull off onto the grass, which may damage his aircraft. Mr. Rainforth opined that the entire situation could have been easily avoided had Mr. Bahlsen extended his downwind.

IV. ARGUMENTS

A. Minster of Transport

[50] The Minister argues that there is a duty on Transport Canada to ensure public safety in aviation. Holding a Canadian aviation document is a privilege to which responsibilities are attached. Transport Canada has a responsibility to investigate contraventions and enforce the CARs. In fulfilling this responsibility, Inspector Brown properly exercised his duty to investigate the complaint against Mr. Mashowski. In the case of a second investigation against the same individual, Transport Canada policies require that he coordinate his activities so as not to overlap with the other investigator.

[51] The Minister argues that the evidence was properly obtained from Mr. Mashowski who was aware of his statutory right not to cooperate with the investigation. Despite such a warning, Mr. Mashowski initiated all communication with the Inspector. As a result, all evidence obtained by Inspector Brown from Mr. Mashowski was voluntarily given and therefore admissible.

[52] The Minister requests that the facts underlying the following arguments be judicially noticed. Subsection 602.19(7) of the CARs requires that pilots manoeuvring on runways must give way to an aircraft that is landing or about to land. Mr. Mashowski was aware of this requirement by virtue of possessing a pilot's licence. This provision recognizes the vulnerability of aircraft while they are in the air in comparison to those on the ground. Furthermore, when an aircraft is about to land it is being operated at the slowest safest operational air speed. Such a configuration can create aerodynamic issues with respect to "stall speed". Stall speed refers to a situation where a wing stops producing lift. The safe aircraft performance criteria are seriously limited when in landing configuration. Sudden control inputs could quickly create an unsafe flight condition or a stall condition.

[53] Additionally, in many cases, when an aircraft is landing, flight crews are becoming tired, fuel reserves may be at minimum allowable limits, and weather may be a factor. Furthermore, it is common knowledge that take-offs and landings are the two riskiest portions of a flight.

[54] The Minister submits that Mr. Mashowski did not have the right of way. CAR 602.19(1) states that the pilot‑in‑command of an aircraft that has the right of way shall, if there is any risk of collision, take action to avoid a collision. As a result, it makes sense that Mr. Bahlsen ordered his student to overshoot the runway in an effort to avoid a collision.

[55] The Minister submits that it is not necessary to have a collision to demonstrate that the risk was present. The Minister requests that the above‑mentioned CARs provisions and expectations surrounding good airmanship be judicially noticed. The Minister also submits that the TC AIM be subject to judicial notice. In support of this submission, the Minister cited R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para 48, where the Supreme Court of Canada stated that judicial notice of facts may be taken if those facts are either: "(1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy."

[56] Prior to joining a traffic circuit, all pilots should announce their intentions. Pilots are also expected to approach and land on the active runway. The active runway is the runway (in the first instance) that other aircraft are using according to section 4.5.2 of the Traffic Circuit Procedures in the TC AIM. The Minister argues that in this case, Mr. Mashowski ignored other aircraft and attempted to change the active runway on the premise that he was taking off into the wind. Mr. Mashowski was clearly aware of Mr. Bahlsen's aircraft in the circuit and still chose to taxi his aircraft onto the runway. The Minister submits that the active runway was 06 as established by Mr. Yeryk and followed by Mr. Bahlsen. Mr. Mashowski violated circuit procedures and proper airmanship by choosing to take off on runway 24 contrary to the established circuit.

[57] Furthermore, the Minister submits that although it was possible for Mr. Mashowski to establish a runway through take-off, in the present case, it was improper to do so since there was already an aircraft in the circuit. As such, Mr. Mashowski was required to either conform or avoid the traffic pattern already established. By failing to do so, Mr. Mashowski not only violated circuit procedures, but also created a risk of collision with Mr. Bahlsen's aircraft.

[58] The Minister submits that all elements of both counts have been met. Both parties agree that the incident occurred on September 27, 2008 at High River Airport. Exhibit M‑7 is Mr. Mashowski's journey log book which established the flight in question and the location, being High River Airport.

[59] Subsection 602.19(10) of the CARs states that a take-off shall not be conducted until there is no apparent risk of collision. There is no question that Mr. Mashowski conducted a take‑off on the day in question. The issue to be determined in this Review Hearing is whether there was an apparent risk of collision. It is the Minister's submission that there was a risk of collision. Mr. Bahlsen testified that: "[w]e were head to head when he took off on the runway. We were on final, yes, probably still separated by a mile, three-quarters of a mile." (Transcript at 90). When asked whether there was a potential risk of collision, Mr. Bahlsen stated: "[w]ell, there could be." (Transcript at 92). Mr. Bahlsen later stated: "[i]f neither of the pilots make an adjustment and are not prudent, then yes, there would be [a risk of collision]." (Transcript at 92). Mr. Bahlsen testified that the reason why they conducted an overshoot was to avoid a potential collision. The Minister also pointed to Mr. Yeryk's testimony that it was abnormal procedure to take off into oncoming traffic as Mr. Mashowski did.

[60] The Minister argues that although the term landing path is not defined in the CARs, it should be understood to be a situation where two aircraft share the same trajectory. In this case, Mr. Bahlsen was approaching runway 06 on a shallow landing path, while Mr. Mashowski was taking off. At one point, both planes were on the same trajectory in opposite directions at approximately 180 mph with less than a mile of separation. The Minister submits that the two aircraft being on the same trajectory is sufficient to establish an apparent risk of collision.

[61] With regard to Count 2, the Minister submits that Mr. Mashowski violated paragraph 602.96(3)(b) of the CARs by failing to avoid the established pattern of traffic. Both the testimony of Messrs. Bahlsen and Yeryk indicated that the active runway was 06. Mr. Mashowski took off in the opposite direction on runway 24 while Mr. Bahlsen was in the circuit for runway 06 for a landing. Although Mr. Mashowski was clearly aware that the circuit was established for runway 06, he still chose to take-off on runway 24. Based on the evidence, the Minister submits that by departing on runway 24 Mr. Mashowski failed to conform or avoid the established pattern of traffic. He forced Mr. Bahlsen to take evasive action and overshoot. This would not have occurred had Mr. Mashowski not been in a conflicting path with Mr. Bahlsen. As a result, the Minister has demonstrated on the balance of probabilities that Mr. Mashowski contravened the provisions of the CARs.

[62] Speaking to sanction, the Minister submitted that the Civil Aviation Safety Inspector chose a 30‑day suspension for Count 1, the contravention of subsection 602.19(10), because of the existence of aggravating factors. In the opinion of the Inspector, Mr. Mashowski's actions were potentially "catastrophic". Although Mr. Mashowski was clearly aware of the established traffic pattern, he nonetheless chose to enter the runway and take off despite the conflict with other traffic.

[63] With respect to Count 2, the Civil Aviation Safety Inspector recommended a 45‑day suspension on the basis that Mr. Mashowski's licence was already suspended once before. Although the Minister does not consider this a second offence, it does reflect a general disregard by Mr. Mashowski for the safe operation of aircraft at an aerodrome.

[64] The Minister submits that it was open to pursue Mr. Mashowski by referring the matter to the Royal Canadian Mounted Police ("RCMP"). However, the Minister chose to increase the number of days for a suspension instead, given the aggravating factors present. The Minister submits that the suspension should not be interfered with given the seriousness of the situation. In the view of the Minister, Mr. Mashowski's behaviour merited criminal investigation by the RCMP.

B. Applicant

[65] The Applicant submits that the Minister did not prove on a balance of probabilities that he was in contravention of subsection 602.19(10) and paragraph 602.96(3)(b) of the CARs. The basis for this submission in summary form is that:

  1. When Mr. Mashowski took off on runway 24, there was no risk of collision as stated by both Messrs. Mashowski and Bahlsen;
  2. Immediately after take-off, Mr. Mashowski avoided the pattern of traffic by initiating a left turn away from the runway centre line and he had radioed his intention to do so prior to commencing a take‑off roll.

[66] Furthermore, the Applicant submits that Mr. Bahlsen created the situation that resulted in the charges against Mr. Mashowski. Mr. Bahlsen had ample opportunity to avoid the conflict but elected to proceed despite being aware of Mr. Mashowski's presence on the runway. The charges should be considered within the context of Mr. Bahlsen's conduct on the basis that he should not have attempted to conduct a landing until there was no apparent risk of collision, nor did he attempt to avoid the pattern of traffic as set by Mr. Mashowski.

[67] The Applicant first sets out the factual basis of his arguments. He submits that all pilots agreed that it was proper procedure to take off into the wind. All four pilots at the scene heard Mr. Mashowski radio his intention to backtrack for take‑off on runway 24. Furthermore, Mr. Bahlsen had options to avoid the situation; most notably he could have extended his downwind leg. The Applicant submits that Mr. Bahlsen could have landed his aircraft safely since Mr. Mashowski was well clear of the runway.

[68] The Applicant submits that there was no risk of collision at any time between the two aircraft. Messrs. Bahlsen and Mashowski testified that there was no risk of collision. In his statement to Transport Canada investigators, Mr. Bahlsen specifically stated that he did not "feel this is a big issue" (Exhibit M-4 at 2). The Applicant submits that they were separated by 750 horizontal feet and 350 vertical feet at their closest points.

[69] The Applicant submits that his radio call on take-off announcing that he was departing left satisfied the obligation under paragraph 602.96(3)(b) to "avoid the pattern of traffic".

[70] The Applicant argues that Mr. Bahlsen could have easily averted the situation. Mr. Bahlsen had four options:

  1. At the midpoint of the downwind circuit, crossing at circuit altitude and joining the downwind leg of a circuit for landing on runway 24; or
  2. At the midpoint of the downwind circuit, crossing midfield at circuit altitude and rejoining the circuit for landing on runway 06; or
  3. Extending the downwind circuit beyond the normal turn to base location; or
  4. After turning left from downwind leg of the circuit to the base leg, continue at altitude and rejoin the circuit that he had formed for runway 06 or after turning from the downwind leg to the base leg of the circuit, continue at altitude and form a left hand downwind leg circuit for landing on runway 24.

[71] Any one of these options could have easily averted the situation. Inspector Brown conceded on cross-examination that there was no good reason for Mr. Bahlsen not to extend the downwind leg of the circuit (Transcript at 277). Although Mr. Bahlsen testified during the Review Hearing that he did not extend downwind because he did not want to lose sight of Mr. Mashowski's aircraft, in the Inspector's notes dated December 1, 2008, Mr. Bahlsen stated that it did not occur to him to extend his downwind leg (Exhibit M-4 at 2). Mr. Rainforth also testified that the option of extending downwind was rather simple. Mr. Bahlsen clearly made a conscious decision to continue on his landing path despite knowing Mr. Mashowski was on the runway.

[72] Given the situation, Mr. Mashowski submits that he had no choice but to take off and get out of Mr. Bahlsen's way. Furthermore, contrary to the Investigator's conclusions, the two aircraft were never head to head. The Applicant submits that his diagrams clearly illustrate that at no time were the two aircraft at the same altitude and trajectory. At the brief moment when the two aircraft were facing each other, they were at different altitudes proceeding in opposite directions as depicted in Exhibit A-6. By the time Mr. Bahlsen reached the threshold of runway 06, Mr. Mashowski had already completed his left turn and cleared the circuit.

[73] There was some suggestion that Mr. Mashowski should not have taken off and should have held on the runway. The Applicant submits that it was unsafe for him to wait at the end of the runway, and it was unsafe for him to hold at the turnaround bay. The TC AIM cautioned against holding in turnaround bays on the basis that there was insufficient room to safely hold an aircraft while another landed (Exhibit M-5). Furthermore, the CADORS reports contain examples of aircraft at High River Airport which encountered technical difficulties during landing that could result in a collision. One of those CADORS reports involved the very aircraft that Mr. Bahlsen was piloting on the day in question. Finally, the current Canada Flight Supplement, though not in force at the date of the incident, prohibits holding at the threshold of High River Airport runway 24. Given Mr. Bahlsen's flight experience of around 10 000 hours, he should have known that it was unsafe for Mr. Mashowski to hold on the button of runway 24.

[74] The Applicant also submits that the evidence of Mr. Fung was not reliable as he was an inexperienced student pilot, his recollection was poor, and there was a language barrier. The Applicant submits that the evidence given to the Investigator closer to the date of the incident was more reliable.

[75] Mr. Bahlsen, on the other hand, was not a credible witness due to inconsistencies in his testimony, namely his denial of hearing Mr. Mashowski's radio call for backtracking when the Investigator's notes clearly show that he heard it (Exhibit M-4). Furthermore, Mr. Bahlsen testified that he was midway on his downwind leg when Mr. Mashowski entered the runway. However, the Investigator's notes state that he was just entering downwind. He also testified that he did not extend because he did not want to lose sight of Mr. Mashowski's aircraft. The Investigator's notes state that Mr. Bahlsen told the investigator that it did not occur to him to extend. Mr. Bahlsen had read and initialled the Investigator's notes.

[76] The Applicant submits that although there was substantial discussion during the Review Hearing about whether Mr. Mashowski made the appropriate radio calls, the issue is somewhat of a red herring because radio communication is not a legal requirement at High River Airport.

[77] The Applicant puts forth two decisions which he believes assist his case. The first case is (Canada) Minister of Transport v. Hemingson, [2000], CAT file no. C-1964-33 (Review). In that case, the pilot was aware of an incoming Cessna aircraft that was in the circuit for landing. Believing he had sufficient time for a take-off, he backtracked on runway 26. The Prince Albert Flight Service Station (FSS) advised the Cessna to extend its downwind a little bit in order to allow the pilot on the ground to take off. The Cessna replied that it had the aircraft on the ground in sight. As the pilot was about to take off, the Cessna radioed in that it was landing overhead. The pilot abandoned his take-off.

[78] In dismissing the charges, the Review Member concluded that it was fair for the pilot to believe he had sufficient time and that the Cessna was going to extend. Furthermore, the pilot could no longer see the Cessna, at which point the responsibility rested upon the pilot of the Cessna to inform others of his whereabouts. The Review Member concluded that it was not clear that the situation was the fault of the pilot on the ground.

[79] The Applicant submits that similar to Captain Hemingson, Mr. Mashowski was not clearly at fault given the behaviour of Mr. Bahlsen in the circuit. Both Captain Hemingson and Mr. Mashowski entered the runway with another aircraft in or near the circuit, both radioed their intentions, and both believed the other pilot would extend. Based on Hemingson, the Applicant submits the charges against him should be dismissed.

[80] In (Canada) Minister of Transport v. Kalist, [1995], CAT file no. C-0397-33 (Review), Captain Kalist was the pilot-in-command of a passenger aircraft inbound to Sioux Lookout with advice by Sioux Lookout's FSS operator. Another aircraft was on the ground and elected to take off on runway 34. Captain Kalist was landing for runway 16 in the opposite direction. Captain Kalist was still four miles back from the runway and radioed the aircraft on the ground informing the captain that he had time for a take‑off. The aircraft subsequently took off. At their closest points, the two aircraft were separated by 100 to 500 feet based on witness testimony. In dismissing the charge, the Tribunal concluded that the situation was a result of Sioux Lookout being uncontrolled. The Review Member also concluded that by taking off on runway 34, Captain Kalist changed the active runway from 16 to 34, despite knowing that the other aircraft was coming in on runway 16. The Applicant submits that by electing to take off on runway 24, he changed the active runway according to Kalist.

[81] In the event that it is determined that Mr. Mashowski violated the CARs, he submits that he exercised all due diligence to avoid the contravention. He clearly radioed his intentions before entering the runway for the purpose of backtracking on runway 24. He entered the runway while Mr. Bahlsen was entering downwind, which according to Mr. Rainforth was appropriate. Mr. Bahlsen had ample opportunity to adjust his flight path. Mr. Mashowski clearly radioed his intention to take off on runway 24. He avoided the dangerous situation of remaining on the runway. He conducted his take-off as quickly as possible in order to avoid a collision. The Applicant submits that his actions met the requirements of due diligence in as cited in Nagnibeda  v. (Canada) Minister of Transport, [1997], CAT file no. C-1429-02 (Appeal).

[82] With regard to sanctions, the Applicant submits that he should have received the amount of days for a first time offence. The Minister has more than doubled the suspension by suspending Mr. Mashowski for a total of 75 days. The Minister alluded to the possibility of prosecuting the Applicant criminally. The Applicant submits that the availability of criminal prosecution does not justify an increase in the sanctions; the increase must be based on the particulars of the alleged offence. The Applicant submits that the sanction should be reduced to 14 days for Count 1 and 10 days for Count 2 in accordance with the recommended sanction for a first time offence.

[83] Finally, the Applicant submits that he should receive costs as this action has been frivolous or vexatious, pursuant to paragraph 19(1)(a) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 ("TATC Act"). The Applicant submits that the evidence brought forth in these proceedings was very weak and did not justify the charges laid.

V. ANALYSIS

A. Count 1 - Subsection 602.19(10) of the CARs

[84] First, I would like to express the view that this case would have been entirely avoidable had both pilots, Messrs. Bahlsen and Mashowski, exhibited a higher level of airmanship. In my view, the behaviour of both pilots is not to be condoned.

[85] With that said, I find that the Minister failed to establish on a balance of probabilities that Mr. Mashowski contravened subsection 602.19(10) of the CARs. First, both Messrs. Mashowski and Bahlsen testified that there was no risk of collision. Mr. Bahlsen also testified that at all times he had Mr. Mashowski's aircraft in sight and was prepared to avoid it if required. Mr. Mashowski was also aware of the other aircraft and planned his take-off with a left turn so as to avoid any potential conflict. The only pilot to testify that there may have been a risk of collision was Mr. Fung. However, even Mr. Fung acknowledged that they turned final early so as to avoid any potential conflict with Mr. Mashowski. Based on the testimony of all three pilots, it appears that they all possessed situational awareness of the other aircraft and had taken the necessary precautions to ensure no possibility of a collision. This factual scenario is similar to the situation in Kalist. The Review Member in that case dismissed the charges on the grounds that the crew of both aircraft were aware of each other and had taken the necessary steps to ensure no risk of a collision.

[86] Also worthy of mention is the distance between the aircraft at their closest points. Mr. Bahlsen testified that the closest distance was 400 vertical feet and 100 horizontal feet. Mr. Mashowski testified that the distance was 750 vertical feet and 350 horizontal feet. Admittedly, Mr. Bahlsen's estimation is an uncomfortably close distance, particularly given the fact that one aircraft was being piloted by a student. At the same time, it is also clear that there was sufficient distance to preclude the possibility of a collision. The Minister submitted that it was sufficient for both aircraft to be on the same trajectory for a risk of collision to occur. I cannot accept this argument because distance must also be factored in. At the point in time where both aircraft were on the same trajectory, they were still separated by sufficient distance to preclude the possibility of a collision.

[87] Another consideration is the role played by Mr. Bahlsen in contributing to this situation. Although I do not condone Mr. Mashowski's decision to enter the runway, once he was there, the risk of collision fell equally in the hands of both these pilots. By continuing with the landing process, Messrs. Bahlsen and Fung created an impossible situation for Mr. Mashowski. I accept that it was unsafe for Mr. Mashowski to remain on the runway while a student pilot attempted a landing. Mr. Fung also failed to radio his intention to overshoot until Mr. Mashowski was in the air, again leaving Mr. Mashowski with few options. By failing to extend his downwind, Mr. Bahlsen forced Mr. Mashowski into taking off in order to prevent a risk of a collision. Had Mr. Mashowski remained on the runway, there would have been a higher probability of a collision on the ground.

[88] Based on these circumstances, I cannot find that Mr. Mashowski was entirely responsible for creating the risk of a collision. If anything, once he was on the runway, the possibility of a collision was almost entirely in the hands of Mr. Bahlsen. In fact, as admitted in the testimony of Inspector Brown, had Mr. Bahlsen landed he would have been in contravention of the CARs.

[89] Based on all of the above considerations, it is my conclusion that the charge pursuant to subsection 602.19(10) of the CARs should be dismissed.

B. Count 2 – Paragraph 602.96(3)(b) of the CARs

[90] In my view, the Minister did prove on a balance of probabilities that Mr. Mashowski contravened paragraph 602.96(3)(b) of the CARs. In his testimony, Mr. Mashowski provided a thorough explanation of why he chose to take off on runway 24. He stated that the wind was slightly favouring runway 24. He also had a preference for the topography of runway 24 because (1) there was no slope; (2) there was no ditch at the end of the runway; and finally (3) there was no highway. Mr. Mashowski's explanation for his preference is understandable. However, if a pilot decides not to take off on the active runway, then there is a duty to avoid the established traffic pattern. In my view, it is this duty which Mr. Mashowski failed to discharge.

[91] First, in order to find that Mr. Mashowski failed to conform or avoid the established traffic pattern, it is necessary to determine what the pattern was at the time. It is my conclusion that the active runway was 06. Mr. Yeryk established the circuit for runway 06, and Mr. Bahlsen and his student pilot followed suit. Mr. Mashowski observed both aircraft in the circuit and was clearly aware that the established circuit was for runway 06. With that said, I cannot accept the Applicant's argument that the active runway was changed by Mr. Mashowski entering runway 24. The active runway is established by aircraft that are already in a circuit. This is the generally accepted notion among pilots.

[92] The Applicant relied on Kalist for the proposition that Mr. Mashowski by electing to take off on runway 24, changed the active runway. In my view, this is a narrow and incorrect interpretation of the decision. In Kalist, the landing aircraft was charged with failing to conform to the established traffic pattern. The Review Member acknowledged the inherent unfairness of charging the landing aircraft when the aircraft taking off should have held. The Review Member stated at page 6 of the Review Determination:

Captain Van Langenhove elected to take-off from runway 34 while knowing that the Sabourin flight was inbound on runway 16. His action changed the active runway from 16 to 34. The fact that he was 20 minutes behind schedule is not a realistic reason for this, even if it was a shorter distance to taxi to 34.

Captain Kalist acknowledged and said "You can go if you hurry." In accommodating the Bearskin aircraft, he set himself up as the scapegoat in this episode and later finds he is being charged under paragraph 521(b) of the Air Regulations.

[93] The Review Member in Kalist clearly criticized the aircraft on the ground for its decision to take off on runway 34. He held the fact that the pilot was 20 minutes late did not justify his decision to take off on the opposite runway given he was aware of the incoming aircraft. The Review Member concluded that the fact that the airport was uncontrolled and winds were variable resulted in this situation. He stated that had the airport been controlled, the aircraft on the ground would have been instructed to hold. He dismissed the charges because he believed the landing aircraft was not at fault. Based on the above, it is incorrect to conclude that pilots can alter the established active runway by ignoring other aircraft in the circuit and making unilateral decisions.

[94] With that said, Mr. Mashowski had a duty to either comply with or avoid the established traffic pattern. Once he decided he wanted to take off on runway 24, Mr. Mashowski had two options: he could have waited for Mr. Bahlsen to clear the circuit or enter the runway believing he had sufficient time not to create a conflict. Mr. Mashowski chose the latter. It was clear that Mr. Mashowski did not have sufficient time given the fact that he had to scramble to clear the runway. As a result of the conflict, Mr. Bahlsen and his student altered their usual circuit pattern by turning final early and eventually overshooting. Mr. Mashowski also had to take off with a left‑hand turn in order to avoid any conflict with Mr. Bahlsen.

[95] Although Mr. Mashowski did "avoid" the other aircraft, he did not avoid the traffic pattern within the meaning of paragraph 602.96(3)(b) of the CARs. He clearly interfered with traffic in the pattern as evidenced by the alterations each pilot had to make to his usual take‑off/landing path. He caused a disturbance to traffic in the pattern. He partook in behaviour which the majority of the pilot witnesses disagreed with. Both Messrs. Yeryk and Watkins, for example, disagreed with the idea of taking off opposite to an established traffic pattern. Although they both agreed that a pilot should take off into the wind, they qualified their statements that it must be practicable.

[96] In my view, it was neither practicable in this case nor necessary. The wind only slightly favoured runway 24. It seemed from Mr. Mashowski's testimony that he had a general preference for runway 24 given its topography. He expressed a dislike for taking off on runway 06 due to the slope, the ditch, and the fact that he would have to fly over Highway 2. With regard to the wind, he stated:

I was originally intending to take off on zero six until I looked at the windsock when I was preparing to taxi out. At High River, because it was operational, acceptable to use either runway. In fact, Two Four was the preferable runway at the time, even with no wind preference, the - - the wind shifted to the west, which is usually an indication that it is going to persist out of the west, because you could have an upper level wind, wind shear, that comes down to the surface.

On that day, it didn't materialize. The wind actually just dissipated by the time I had come back to land …

[Transcript at 430]

[97] The factors contributing to his decision to select runway 24 were not overly compelling from an airmanship perspective. It is likely that Mr. Mashowski could have just as easily taken off on runway 06.

[98] I would also add that Mr. Rainforth's opinion that it was appropriate for Mr. Mashowski to take off on runway 24 was based on the assumption that Mr. Bahlsen was at the corner of the crosswind and downwind leg. Based on that assumption, Mr. Rainforth concluded that Mr. Mashowski had sufficient time to conduct a take-off. However, the testimony of Messrs. Fung and Bahlsen indicates that they were at midpoint downwind. The Investigator's notes do indicate that they were entering downwind. There is a clear disagreement in the evidence. Mr. Rainforth was not asked how this fact would change his answer. In my view, the fact that both pilots had to make adjustments in order to avoid each other leans towards a finding that Mr. Bahlsen was not sufficiently far off for Mr. Mashowski to conduct a comfortable and safe take-off.

[99] With that said, I am sympathetic to the Applicant's argument that Mr. Bahlsen should have extended his downwind. I do not accept Mr. Bahlsen's contention that he was not sure what Mr. Mashowski was going to do on the runway. The testimony of his own student indicates they were both clearly aware that Mr. Mashowski intended to take off. Had Mr. Bahlsen landed, he would have been clearly in contravention of the CARs. At the end of the day, both pilots failed to meet the standards of airmanship expected of them. However, one of them was more at fault than the other. The situation was created by Mr. Mashowski's decision to enter the runway without sufficient time. As he testified himself, there was nothing compelling Mr. Mashowski to enter the runway. He was going for a recreational practice run. He had little to nothing to lose by waiting for Mr. Bahlsen and his student pilot to clear the circuit.

[100] With that said, I also find that Mr. Mashowski failed to exercise due diligence to prevent the contravention. The Applicant submits that once on the runway, Mr. Mashowski did everything he could to avoid the contravention. Although true, the difficulty I have with this argument is that it ignores what Mr. Mashowski could have done prior to entering the runway. In my view, Mr. Mashowski should not have entered the runway for 24. By doing so, he did not exercise due diligence. Unless an emergency situation existed, he simply should not have entered the runway if there was any risk of interfering with traffic in the circuit. High River Airport is an uncontrolled aerodrome with no mandatory radio frequency. There are inexperienced student pilots in training. In that kind of an environment, greater precaution should have been exercised by Mr. Mashowski.

[101] Based on the above considerations, the Minister has proven, on a balance of probabilities, that the Applicant contravened paragraph 602.96(3)(b) of the CARs. It is also my conclusion that he did not exercise all due diligence in preventing the contravention.

C. Sanction

[102] Given Mr. Bahlsen's contribution to the situation, I believe the sanction endorsed by the Civil Aviation Safety Inspector unfairly placed the blame entirely on Mr. Mashowski, and was too high. The aggravating factors cited by the Inspector were: 1) Mr. Mashowski was clearly aware of the established pattern but went against it anyway; 2) Mr. Mashowski displays a general attitude of ignoring the provisions of the CARs as evidenced by the other investigation. Although these could be considered aggravating factors, they are not as "catastrophic" as suggested by the Minister. Their effect seems somewhat exaggerated, while there is no acknowledgement whatsoever of the role played by Mr. Bahlsen.

[103] The Minister selected a 45‑day suspension. According to the sanction schedule, the highest suggested suspension for a second offence is 35 days. The minimum suspension for a third offence is 35 days. This is a first offence for Mr. Mashowski. It makes little sense to suspend him for 45 days for a first offence even with the aggravating factors mentioned above.

[104] In my view, the factors suggested to be aggravating are not a fair characterization of the situation based on the evidence. Mr. Mashowski's mistake was to enter the runway without sufficient time. His awareness of the established circuit in this case is not an aggravating factor since it would have been legal for him to take off on runway 24 if it did not interfere with traffic in the circuit. Furthermore, there was insufficient evidence before me that Mr. Mashowski displays a general attitude of disregarding the CARs. Simply stated, the factors suggested by the Minister as aggravating do not justify the disproportionate suspension increase chosen by the Minister. I therefore reduce the penalty to 10 days for Count 2 in line with the suggested amount for a first offence.

VI. COSTS

[105] In order to award costs pursuant to paragraph 19(1)(a) of the TATC Act, the successful party must show that the Notice was frivolous or vexatious. Past jurisprudence from this Tribunal has clearly indicated that an award of costs is only justifiable when it is clear from the outset that a matter cannot possibly succeed or to penalize a party for the institution of a matter for an "improper purpose": Grande Prairie Airport Commission v. (Canada) Minister of Transport), 2009 TATCE 20 (ruling), TATC file no. W-3441-15. In this case, the matter was clearly not frivolous or vexatious. The Minister's decision to bring forth charges had merit, and there was no evidence of an improper purpose.

VII. DETERMINATION

[106] Count 1 - The Minister of Transport did not prove, on a balance of probabilities, that the Applicant, Lawrence Glenn Mashowski, contravened subsection 602.19(10) of the Canadian Aviation Regulations. Consequently, the 30-day suspension set out in the Notice of Suspension is cancelled.

[107] Count 2 - The Minister did prove, on a balance of probabilities, that the Applicant, Lawrence Glenn Mashowski, did contravene paragraph 602.96(3)(b) of the Canadian Aviation Regulations. However, the suspension is reduced from 45 days to 10 days.

April 5, 2011

J. Richard W. Hall

Chairperson


Appeal decision
Richard F. Willems, Elizabeth MacNab, Patrick T. Dowd


Decision: September 26, 2012

Citation: Mashowski v. Canada (Minister of Transport), 2012 TATCE 28 (Appeal)

Heard in Calgary, Alberta, on April 3 and 4, 2012

Count 1 – subsection 602.19(10) of the Canadian Aviation Regulations - the Minister's Appeal is allowed. There is no reason to interfere with the thirty (30) day suspension imposed by the Minister.

Count 2 – paragraph 602.96(3)(b) of the Canadian Aviation Regulations - the Appeal Panel upholds the Review Member's Determination as to the allegation. However, the Appeal Panel reinstates the suspension of 45 days imposed by the Minister. Accordingly, we allow the appeal of the Minister as to sanction.

The thirty (30) day suspension for Count 1 and the forty-five (45) day suspension for Count 2 are both maintained for a total suspension of seventy-five (75) days. This suspension will commence on the 35th day following service of this Decision.


I. BACKGROUND

[1] On May 28, 2009, the Minister of Transport ("Minister") issued a Notice of Suspension to Lawrence Glenn Mashowski pursuant to section 6.9 of the Aeronautics Act, R.S.C. 1985, c. A‑2, suspending his pilot licence for a total of 75 days. Schedule A of the Notice of Suspension sets out the basis for the suspension as follows:

#1 – CARs 602.19(10)

On or about the 27th of September 2008, at approximately 15:58 hours local time, at or near the High River Airport, in the Province of Alberta, you did conduct a take‑off in an aircraft, to wit a Cassutt, bearing Canadian registration C‑FNZP, when there was an apparent risk of collision with an aircraft, more specifically, a Diamond bearing Canadian registration C‑GHYJ, in the landing path, thereby contravening subsection 602.19(10) of the Canadian Aviation Regulations.

SUSPENSION – 30 DAYS

#2 – CARs 602.96(3)(b)

On or about the 27th day of September 2008, at approximately 15:58 hours local time, you being the pilot‑in‑command of an aircraft, to wit Cassutt bearing Canadian registration C‑FNZP, operating at an aerodrome, namely the High River Airport, in the Province of Alberta, did fail to avoid the pattern of traffic formed by other aircraft in operation, thereby contravening subsection 602.96(3)(b) of the Canadian Aviation Regulations.

SUSPENSION – 45 DAYS

TOTAL SUSPENSION – 75 DAYS

[2] The basis for these charges was an incident at High River Airport in Alberta. An aircraft occupied by a student and his instructor (Alexander Bahlsen) was flying left‑hand circuits and performing touch‑and‑goes on Runway 06 at the airport. That aircraft reported by radio that it was downwind for a touch‑and‑go. Mr. Mashowski then radioed his intention to take off from Runway 24 (the opposite end of Runway 06) and, after entering and taxiing to the end of that runway, took off. Both aircraft took evasive action; Mr. Mashowski turning sharply left at an altitude of 100 feet, and the other aircraft turning early on the final leg of the circuit and eventually executing a missed approach.

[3] On June 16, 2009, Mr. Mashowski requested a review of the Minister's decision by the Transportation Appeal Tribunal of Canada ("Tribunal") and the Review Hearing was held in Calgary, Alberta, on April 22 and May 10‑12, 2010.

II. REVIEW DETERMINATION

[4] In his Review Determination dated April 5, 2011, the Review Member, J. Richard W. Hall, Chairperson, held in relation to Count 1 of the Notice of Suspension that the Minister had not proven a contravention of subsection 602.19(10) of the Canadian Aviation Regulations, SOR/96‑433 ("CARs"), so the 30‑day suspension was cancelled. In relation to Count 2, he found that the Minister had proven that Mr. Mashowski had contravened paragraph 602.96(3)(b) of the CARs, but reduced the period of the suspension from 45 days to 10 days.

III. GROUNDS FOR APPEAL

[5] Both parties filed Notices of Appeal in this matter. On May 5, 2011, the Minister filed a Notice of Appeal of the Review Member's Determination that there was no contravention of subsection 602.19(10) of the CARs on the following grounds:

  1. The Member erred in law in his interpretation of "apparent risk of collision" as mentioned in subsection 602.19(10) of the Canadian Aviation Regulations.
  1. The Member's findings of fact regarding the alleged violation of subsection 602.19(10) of the Canadian Aviation Regulations were unreasonable and not based on all evidence put on the record.
  1. The Member erred in fact and in law by reducing the suspension period regarding the violation of subsection 602.96(3)(b) of the Canadian Aviation Regulations.
  1. Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

[6] Mr. Mashowski's Notice of Appeal was filed on May 6, 2011. While his request was formulated more or less as a narrative commenting upon various paragraphs of the Review Determination, the Appeal Panel finds that his request amounts to an appeal of the Review Member's Determination that there was a contravention of paragraph 602.96(3)(b) of the CARs on the grounds that:

  1. The procedure used by the Minister in issuing the Notice of Suspension was improper;
  2. The Review Member erred in determining the facts; and
  3. The Review Member erred in interpreting the law.

IV. INTERLOCUTORY MOTION AT APPEAL

[7] On January 9, 2012, Mr. Mashowski filed an application for disclosure of:

  1. The legal opinion of the Department of Justice legal counsel mentioned in Inspector Kim Brown's notes; and
  2. The Case Report by Inspector Brown regarding Mr. Mashowski's written complaint against Mr. Bahlsen.

[8] The request for the disclosure of the legal opinion was denied on the grounds that such opinions come within one of the three recognized grounds of privileged information that cannot be compelled to be disclosed in evidence.

[9] The request for the Case Report was also denied (to the extent that the material therein is not protected from disclosure under the Privacy Act, R.S.C., 1985, c. P‑21) on the basis that it is material that could have been sought before the Review Hearing was completed and thus was available at that time. The Appeal Panel's powers to hear (and thus order the disclosure of) evidence is limited to new evidence that was not available at the time of the Review Hearing.

V. APPEAL HEARING – ARGUMENTS

[10] With the consent of the parties, the Appeal Panel decided that the appeal by each party should be argued separately. For ease of style, Mr. Mashowski is referred to as the Appellant for his appeal of the Review Member's Determination regarding Count 2, and the Minister is referred to as the Appellant for his appeal of the Determination for Count 1.

A. Mr. Mashowski's Appeal of Count 2 – Paragraph 602.96(3)(b) of the CARs

(1) Appellant's Argument (Mr. Mashowski)

[11] Mr. Mashowski first argued that this matter relates to a pilot's "freedom to fly" in accordance with the CARs. He said that he would be quoting from the Aeronautical Information Manual, TP 14371 ("AIM"), and the Flight Training Manual ("FTM"), both published by Transport Canada. In response to the Minister's objection that only parts of these documents were submitted in evidence, Mr. Mashowski said that he had been informed by his counsel that they would be material for argument rather than evidence. The Appeal Panel held that they could be referred to in argument as if they were texts, but the weight to be given to their extracts was a matter for its consideration.

[12] He referred to the explanation of "shall" and "should" in the AIM: "shall" meaning required by regulation; and "should" meaning recommended but not legislated. On that basis, he argued that "should" encompasses "procedures" and argued that he could not be found to be in contravention of a procedure, and that he could not be charged with an offence under a regulation that does not apply to that procedure. Since High River Airport is an Aerodrome Traffic Frequency ("ATF") uncontrolled aerodrome, matters related to radio communications are procedures that are not required by regulation. On this basis, matters relating to radio communication are not relevant to a charge under paragraph 602.96(3)(b) of the CARs.

[13] He discussed the meaning of the words used in the phrase "conform to or avoid the pattern of traffic" and argued that the word "pattern", as well as "circuit", both imply that aircraft are being flown. He also argued that "pattern" excludes departing aircraft because there are departure procedures for aircraft specifically aimed at avoiding the pattern of traffic. The procedure is to climb up straight to 1000 feet and to not turn into traffic that is potentially in the pattern, which could possibly cause a conflict. The use of the phrase "conform to or avoid the pattern of traffic" gives a pilot the latitude to operate in a safe manner.

[14] He argued that an aircraft taxiing or manoeuvring on a runway is not in flight and cannot therefore be in contravention of paragraph 602.96(3)(b) of the CARs since there is not a "pattern" on the ground that must be followed. He further discussed the meaning of "active runway" (or "runway in use") and argued that, by definition, it applies to any runway currently being used for take-offs or landings. There is no regulation preventing the use of multiple runways at uncontrolled aerodromes. He referred to the interpretation of the provision in the FTM stating that it is intended to prevent an aircraft from cutting off another aircraft in the pattern.

[15] He justified his decision to use Runway 24 by referring to the statement in the AIM that landing and taking off should be done heading into the wind, but that a pilot has the final responsibility for safety and may use another runway if safety requires it. He disagreed with the argument made by the Minister at the Review Hearing that it is acceptable to take off with a tailwind "where practical" and argued that it would be dangerous to do so. He referred to paragraph 602.96(3)(e) of the CARs, which provides that a pilot shall take off and land into the wind where practicable, and argued that a pilot taking off with a tailwind for reasons of convenience is contravening that provision. To take off with a tailwind merely because another pilot is in the circuit and has not looked at the windsock would be negligence.

[16] He referred to the statement in the Aviation Enforcement Case Report ("EMS 67470") (Exhibit M‑18), which reads as follows: "His decision to take off using the opposite runway to the established traffic pattern is not a violation of the regulations…" He repeated his allegation that J. R. Pollock (the Acting Regional Manager for Aviation Enforcement at that time) told Inspector Brown to "get [him] for something" while noting that Inspector Brown did not deny stating this to Mr. Mashowski, but only said he could not remember doing so.

[17] He referred to page 88 of the FTM where the requirement for taking off into the wind is discussed. The FTM lists a number of reasons in support, including that taking off into the wind "establishes circuit pattern direction for all aircraft in the case of an uncontrolled airport" (as read). On this basis, Mr. Mashowski maintained that by taking off from Runway 24, he established the circuit. He suggested that the main reason taking off into the wind might not be practical is the nature of a runway's terrain or its slope.

[18] He challenged the Review Member's conclusion in paragraph [93] of the Review Determination that "it is incorrect to conclude that pilots can alter the established active runway by ignoring other aircraft in the circuit and making unilateral decisions" and alleged that the conclusion was based on the Minister's position that he was required to request the permission of the pilot flying the existing circuit (Mr. Bahlsen) before changing it. However, Mr. Mashowski stated that the procedure set out in the AIM for changing active runways is to announce the intention to change, as well as change the runway based on wind conditions. He stated that he was the only witness to give evidence with regard to the wind conditions at the time of his take‑off.

[19] He discussed the radio calls and stated that, while there is no regulatory obligation to make these calls, he made the correct calls and repeated that he was not required to request permission from the other pilot, Mr. Bahlsen.

[20] He stressed that an aircraft that is seen cannot be hit and that he could be seen by the other aircraft. He again pointed out that there is no regulation preventing him from entering the manoeuvring area.

[21] He referred to subsection 602.19(10) of the CARs and argued that this provision gave him the right of way. His argument was based on his analysis of the asymmetrical application of "landing path" and "take-off path" in that provision. He argued that the take-off path ends when the wheels of the aircraft leave the surface and the aircraft climbs out of ground effect. The take‑off path is effectively the runway and does not extend beyond it since a pilot must be able to leave the surface before the runway ends. When he entered the runway, he was in the landing path of the other pilot's aircraft but that aircraft was not in Mr. Mashowski's take-off path since the other aircraft was still five to seven miles away from the threshold of Runway 06. The effect of this lack of symmetry is to create a right of way regulation that gives the right of way to the aircraft on the ground.

[22] The Appeal Panel notes that Mr. Mashowski also argued extensively concerning the actions of Mr. Bahlsen, alleging errors and faults on his part and suggesting actions he could have or should have taken. While the Appeal Panel appreciates that this pilot's actions form part of the factual circumstances surrounding this matter, the purpose of this appeal is to determine whether Mr. Mashowski contravened paragraph 602.96(3)(b) of the CARs, not whether another pilot also did so. Consequently, we have not considered these arguments.

(2) Respondent's Argument (Minister)

[23] The Minister's Representative argued that the subject of appeal with regard to paragraph 602.96(3)(b) of the CARs is a question of mixed fact and law and that the standard of review for such matters is "reasonableness" according to the decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. She referred to the same decision as determining that the concept of reasonableness encompasses a situation where there could be a number of possible reasonable conclusions. In Genn v. Canada (Minister of Transport), 2012 TATCE 7 (Appeal), TATC File No. P-3739-02, the Appeal Panel relied on Dunsmuir in finding that reasonableness is the appropriate standard of review for an Appeal Panel in reviewing factual conclusions and holding that "so long as a decision is within a range of reasonable outcomes based on the evidence before the decision‑maker, a reviewing body should not interfere".

[24] She argued that the Review Member's Determination that there was a contravention of paragraph 602.96(3)(b) of the CARs met this standard by falling within a range of reasonable outcomes and that it was supported by the evidence of both parties at the Review Hearing. There were no unreasonable findings of fact, nor any legal errors that needed to be corrected.

[25] The Review Member's finding in paragraph [91] of his Determination that Runway 06 was the active runway is reasonable based on the evidence that aircraft were using that circuit, which had already been established by Christopher Yeryk. The Review Member's statement in paragraph [93] that one pilot cannot unilaterally change a circuit is based on statements made by the Civil Aviation Tribunal Member in Canada (Minister of Transport) v. Kalist, 1995 CAT File No. C‑0397‑33 (Review).

[26] With regard to paragraph 602.96(3)(e) of the CARs, which provides that a pilot must take off into the wind where practicable, she argued that in a situation where the wind has changed, it is not practicable to take off while another aircraft is in the circuit intending to land. The option is to wait until the circuit has cleared. If anyone can change the traffic pattern at any time when there is already traffic in the circuit, paragraph 602.96(3)(b) of the CARs would be meaningless.

[27] The Minister's Representative challenged Mr. Mashowski's statement that there is a right to fly by noting that acting as a pilot is not a right but a privilege. She answered his arguments concerning his right of way by pointing out that subsection 602.19(7) of the CARs ("[w]here an aircraft is in flight or manoeuvring on the surface, the pilot-in-command of the aircraft shall give way to an aircraft that is landing or about to land") provides that the pilot landing has the right of way. She said that if the wind had changed, Mr. Mashowski could have waited until the other aircraft had cleared the circuit before entering Runway 24. There was no compelling reason, such as an emergency, for him to enter the runway immediately other than his statement that he "had an aircraft to fly" (as found in paragraph [43] of the Review Determination). Finally, she disagreed with his statement that the expression "where practicable", used in paragraph 602.96(3)(e) of the CARs, was meant to apply only in situations relating to the terrain or slope of the runway.

(3) Appellant's Reply (Mr. Mashowski)

[28] In response, Mr. Mashowski pointed out that the Minister did not submit any evidence concerning wind conditions at the time of the incident. He suggested that the Review Member made a factual error in paragraph [96] of his Review Determination when he stated that it seemed that Mr. Mashowski had a general preference for Runway 24. In fact, his testimony on page 404 of the transcript of the Review Hearing was that it was not the better runway.

[29] He challenged the Minister's interpretation of "where practicable" in paragraph 602.96(3)(e) of the CARs as having been advanced without any expert evidence as to its meaning; as well no witness testified that it was "practical" to take off with a tailwind. There is no procedure that says a pilot should wait for an aircraft to finish doing circuits at an uncontrolled aerodrome where that aircraft is operating with a tailwind. To do so would allow the pilot flying circuits to effectively close the aerodrome to all traffic.

[30] He referred to section 4.5.2 of the AIM, "Traffic Circuit Procedures – Uncontrolled Aerodromes" (Exhibit M‑5), and pointed out that it establishes a procedure, not a regulation. The procedure is that if there is a change in active runway, the pilot should communicate the change with the ground station. He suggested that where there is no ground station, as at High River Airport, the appropriate communication is to broadcast the change, which he did.

[31] He suggested that the purpose of the Tribunal is to review allegations of contraventions by the Minister. In this case, there was a statement by the Minister's officials that entering the runway was not a contravention, yet the Review Member found that he had no right to enter the runway. He suggested that this was a legal error and a new interpretation of a regulation without any expert evidence.

[32] He argued that his right to fly stems from the privileges attached to his licence. The right of way for an aircraft that is landing, established by subsection 602.19(7) of the CARs, is not relevant since the other aircraft involved was not close to the runway. Finally, he argued that his comment that he "had an aircraft to fly" is common pilot parlance when operating an aircraft under power.

B. Minister's Appeal of Count 1 – Subsection 602.19(10) of the CARs

(1) Appellant's Argument (Minister)

[33] The Minister's Representative argued that the Review Member's Determination that there was no contravention of subsection 602.19(10) of the CARs was an error in law in that he did not interpret the subsection correctly; therefore, the appropriate standard of review is correctness. She cited the most recent Tribunal Appeal Decision on the standard of review, Genn. This Decision cited Dunsmuir for the proposition that once a standard of review analysis has been made, it need not be repeated if the question has previously been determined. In Tribunal matters, the appropriate standard was established by the Federal Court in Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17, [2008] F.C.J. No. 17; the Appeal Panel in Genn summarized this standard as follows: "when reviewing questions of fact and credibility, the Appeal Panel owes considerable deference to the Tribunal Member. However, when issues of law are concerned, no deference is due to the Review Member and the Appeal Panel may make its own findings".

[34] She argued that the words in the subsection "conduct or attempt to conduct a take‑off" make it clear that a pilot must assess the risk prior to take‑off but that the Review Member evaluated the risk in light of the situation after take‑off; it cannot be said that there was no risk of collision because that collision was avoided. She referred to paragraph [85] of the Review Member's Determination where he stated that all the pilots "possessed situational awareness of the other aircraft and had taken the necessary precautions to ensure no possibility of a collision". She argued that there was no "situational awareness" as found by the Review Member, because such awareness required not only knowledge of where the other aircraft was, but also knowledge of the intentions of the other pilot.

[35] While the Minister's Representative acknowledged that there is no requirement for radio communication at High River Airport, she took the position that adequate communication of each pilot's intention was a necessary component of "situational awareness". Mr. Mashowski had communicated his intention to backtrack on Runway 24 and asked the other pilot to extend his downwind leg; he then received an unreadable reply and so was not aware of the other pilot's intentions. In such a situation, where complete communication is lacking, the appropriate method to avoid risk is to wait until the other aircraft has landed. This would have involved a delay of only a few minutes and, contrary to Mr. Mashowski's argument, would not have prevented the take‑off for an extended period of time.

[36] She referred to section 4.5.2 of the AIM (Exhibit M‑5), which defines "active runway" as "a runway that other aircraft are using or are intending to use for the purpose of landing or taking off". The same paragraph states that where a pilot wishes to change the active runway, "it is expected that the appropriate communication between pilots and the ground station will take place to ensure there is no conflict with other traffic". She argued that where, as at High River Airport, there is no ground station, the appropriate practice would be for the pilots to communicate with each other.

[37] The Minister's Representative referred to the Oxford online dictionary definition of "apparent" as "clearly visible or understood; obvious; seeming real or true, but not necessarily so" (as read). On the basis of this definition she submitted that the risk of collision was "apparent" to Mr. Mashowski since he knew that another aircraft was attempting to land directly in front of him and had planned to turn after taking off in order to move out of its way.

[38] She argued that the fact that both pilots had to take evasive action, as described in paragraph [94] of the Review Member's Determination, supports the position that there was an apparent risk of collision. She referred to Bergeron v. Canada (Minister of Transport), 1997 CAT File No. C‑1349‑33 (Review), where it was found that the need to take evasive action was an indication of a collision hazard. In Stover v. Canada (Minister of Transport), 1997 CAT File No. C‑1460‑33 (Review), it was again held that the need to take evasive action to avoid a collision with another aircraft indicated that there was a hazard.

[39] She argued that it was an error in law for the Review Member, in paragraph [86] of his Determination, to take into account the distance between aircraft in determining whether there was a risk of collision. Instead, the Determination should be based on the circumstances and Mr. Mashowski's actions prior to take-off. Mr. Mashowski did not properly evaluate the risk but was clearly aware of an apparent risk since he asked the other pilot to extend his downwind leg and he expedited his taxiing in case the other pilot decided to land on Runway 06.

[40] The Minister's Representative argued that the Review Member erred in law in concluding in paragraph [88] of his Determination that the other pilot was partially responsible. The person charged was Mr. Mashowski and any reference to another's wrongdoing should not be a factor in deciding whether Mr. Mashowski contravened subsection 602.19(10) of the CARs. The subsection does not refer to the creation of a risk, and actions that create the risk are irrelevant; only Mr. Mashowski's actions should be considered. He knew that the other pilot's aircraft was in the circuit while he was doing the run‑up on the apron, but had made the decision to backtrack on Runway 24 before entering that runway. He should have realised when he entered the runway that he did not have time to take off without creating a risk of collision. He therefore put himself in a position where he had to take off illegally since it was dangerous to remain on the ground. The Minister's Representative argued that the Appeal Panel should decide whether there was an apparent risk of collision based on the situation when Mr. Mashowski entered the runway.

(2) Respondent's Argument (Mr. Mashowski)

[41] At the beginning of his argument, Mr. Mashowski wished to refer to the original letter of complaint against him on the basis that it had been included in the Disclosure Package provided to him by the Minister. The Minister's Representative objected to the introduction of this material on the basis that it was new evidence that had been available at the time of the Review Hearing; the Appeal Panel ruled in favour of the Minister on the basis that section 14 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29 ("TATC Act") only allows the introduction of new evidence in matters at an Appeal Hearing if that evidence was not available at the time of the Review Hearing.

[42] He referred to a Transport Canada document on the internet stating that Minister's delegates are liable for negligence and alleged that he was being bombarded by negligent misstatements of fact, such as there being a requirement to request permission from another pilot to change runways or take off with a tailwind.

[43] He referred to his letter to Inspector Brown (Exhibit M-12) and said that according to the AIM, pilots should use standard phraseology in making transmissions. Consequently, the Appeal Panel should disregard arguments concerning the need to coordinate with other pilots. The comments by the Minister's Representative on radio communications imply that pilots have a control function at ATF aerodromes. There is no regulatory requirement or procedure regarding such communication.

[44] Mr. Mashowski pointed out that, in setting out the words of subsection 602.19(10) of the CARs, the Minister's Representative omitted the words "in the take-off or landing path". He was charged with taking off when there was "a risk of collision with an aircraft in the landing path". He argued that, in the context of the entire provision, the charge does not make sense. The exact description of the risks in the subsection is "apparent risk of collision with any aircraft, person, vessel, vehicle or structure in the take-off or landing path". It is nonsensical to say that a person, vessel, vehicle or structure could be in the landing path of an aircraft that is taking off. The charge against him was an effective rewording of the subsection that makes no sense.

[45] He referred to his earlier argument concerning the nature of the take-off path and repeated that the path ended with the runway. Consequently, the Regulation means that a pilot cannot take off if there is a risk of collision with something that is on the runway.

[46] He also repeated his earlier argument that he had the right of way and so had precedence. The Regulation applied to the other pilot to prevent him from attempting to land. It could not apply to Mr. Mashowski since there was no obstruction on the take-off surface.

[47] He argued that he did not cause the other pilot to overshoot the runway. It was a voluntary decision on that pilot's part to accommodate the inexperienced student pilot who was at the controls.

[48] He suggested that, while doing continuous circuits in the pattern, it is easy for a pilot to accommodate other aircraft and to facilitate their leaving the airport by simply adjusting speed or the size of the circuit.

(3) Appellant's Reply (Minister)

[49] The Minister's Representative referred to page 92 of the Review Hearing transcript where Mr. Bahlsen stated that when one aircraft is departing and climbing and the other is approaching and descending on the same trajectory, there is a risk of collision if neither pilot makes an adjustment. She argued that it was clear that the other pilot's overshoot was related to Mr. Mashowski's actions. At the time of the take‑off, Mr. Mashowski was not aware of the other pilot's intentions.

C. Sanction (Minister's Appeal)

(1) Appellant's Argument (Minister)

[50] The Minister's Representative submitted that the periods of suspension assessed by the Minister for both contraventions were reasonable and, furthermore, that the Review Member erred in fact and in law in reducing the suspension for the contravention of Count 2 (paragraph 602.96(3)(b) of the CARs) from 45 days to 10 days.

[51] She argued that the Review Member's finding at paragraph [102] of his Determination is unreasonable; that, in light of Mr. Bahlsen's contribution to the situation, it was unfair to place the blame entirely on Mr. Mashowski. It was an error to take the other pilot's actions into consideration and to reduce the period of suspension by putting the blame on another person.

(2) Respondent's Argument (Mr. Mashowski)

[52] Mr. Mashowski referred to the statement in EMS 67470, signed by Mr. Pollock (Exhibit M‑18), that separate offences arising from subsequent charges (EMS 67510, Exhibit M‑24) for which his licence was suspended, were not specifically second offences. Mr. Pollock nevertheless assessed suspensions in the recommended range for second offences. Mr. Mashowski acknowledges that there was another incident three days later, but argued that it was under a different provision of the CARs and at a different airport.

[53] He argued that the overshoot by the other aircraft should not be considered an aggravating factor as implied by the synopsis given on page 3 of the EMS Report (Exhibit M‑18), since it was never established that the purpose of the overshoot was to avoid his aircraft. With regard to the aggravating factors listed on page 9 of that Exhibit, he replied to the statement that he took off because the wind was favourable by stating that pilots are supposed to take off into the wind. The second factor of "limited and in concise [sic] communications" between the two aircraft is irrelevant since there was no requirement to communicate. If it was a factor at all, it was relevant to Mr. Bahlson's actions since he did not ask about wind conditions.

[54] He repeated that the procedure used in issuing the Notice of Suspension was faulty. There were no comments on the EMS Report by either the Supervisor or Regional Manager. He compared this report to that of the later incident (Exhibit M‑24), which he stated was properly adjudicated.

(3) Appellant's Reply (Minister)

[55] The Minister's Representative argued that it was considered a second offence precisely because of the incident of September 30, 2008. While it may have occurred later in time, it was adjudicated by Transport Canada before this matter and had to be taken into account in determining the sanction. The nature of the later offence, "illegal aerobatic", is similar since it relates to reckless and negligent movement of aircraft. In his Determination, the Review Member indicated that it was reckless and negligent for Mr. Mashowski to take off as he did.

(4) Respondent's Further Reply (Mr. Mashowski)

[56] Mr. Mashowski repeated his argument that an infraction of a different regulation that took place later in time could not be considered a second offence. He suggested that the remark that he had been reckless and negligent was libelous.

(5) Appellant's Further Reply (Minister)

[57] She pointed out that the Transport Canada decision on this enforcement matter was made by the Acting Regional Manager of Enforcement, Mr. Pollock. It is normal practice to have a person acting in a position while the actual incumbent is away.

VI. ANALYSIS/DISCUSSION

A. Standard of Review

[58] The standard of review to be exercised by an Appeal Panel of the Tribunal was established by the Federal Court in Billings where it was held that while findings of fact or credibility made by the Review Member should be given considerable deference, the Appeal Panel is entitled to its own view of the law. This standard of review was recently accepted by the Appeal Panel in Genn. In Dunsmuir, the Supreme Court of Canada reviewed the standard for review of administrative decisions by the courts and came to the conclusion that there were only two standards: reasonableness and correctness. Questions of law should be reviewed as to whether the conclusion reached was correct, whereas questions of fact, or mixed fact and law, should be reviewed on the basis of whether the determination made was reasonable. The Supreme Court held that reasonableness is a deferential standard based to some extent, at least, on the expertise and experience of the administrative decision‑maker in a complex administrative scheme. "Reasonableness" in judicial review includes the process of articulating the reasons and justifications for the conclusion, as well as determining whether the decision fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[59] While the decision in Dunsmuir concerned the judicial review of administrative determinations, it reinforced the standard set out in Billings; however, it is noted that Billings referred to the three standards that were generally accepted before they were reduced to two in Dunsmuir. Consequently in reviewing these matters, the Appeal Panel, while giving due deference to the Review Member's findings, bases its decision on whether his findings of fact fell within the range of possible and acceptable outcomes and, where he has determined questions of law, on whether his Determination is correct.

B. Mr. Mashowski's Appeal of Count 2 – Paragraph 602.96(3)(b) of the CARs

[60] In his Request for Appeal, Mr. Mashowski suggested that the person who reviewed the EMS Report (Exhibit M‑18) as Superintendent was also the Acting Regional Manager who issued the Notice of Suspension, and had therefore acted improperly because he had acted in both capacities and against the advice of Inspector Brown; and furthermore, because he is not a pilot. The Minister's Representative pointed out that it is normal practice for one person to act on behalf of his superior when the latter is absent; additionally, Inspector Brown did not testify that he had recommended against a suspension. While the EMS Report of Inspector Brown does suggest that at one point in time Mr. Mashowski had not breached a regulation, he went on to say that there was evidence that he had contravened two regulations and pointed out a number of aggravating factors. The Appeal Panel finds that the procedure followed in assessing the suspension was carried out in a proper manner.

[61] The Minister's Representative characterized Mr. Mashowski's appeal as a question of mixed fact and law and suggested that on that basis, the standard of review is whether the Review Member's Determination fell within the range of reasonable conclusions that could be made on the evidence. While Mr. Mashowski did not state whether his objections were based on fact or law in this matter, in his Notice of Appeal, he specifically challenged a number of findings, of both fact and mixed fact and law, made by the Review Member. In oral argument, he put forward a number of alternative interpretations of paragraph 602.96(3)(b) of the CARs. The Appeal Panel considers that he is appealing on both: matters of fact, to which we will apply a standard of reasonableness; and matters of law, for which the standard is correctness.

[62] In his oral argument supported by his written submissions, Mr. Mashowski argued that the wording of paragraph 602.96(3)(b) of the CARs, "conform to or avoid the pattern of traffic formed by other aircraft in operation", implies that it refers only to aircraft that are being flown and excludes both departing aircraft, since there are specific procedures for departing aircraft aimed at avoiding the pattern, and those manoeuvring on the runway. The Appeal Panel finds that this interpretation is incorrect. The introductory words of subsection 602.96(3) of the CARs place the obligation on a "pilot-in-command operating at or in the vicinity of an aerodrome" and "operating" clearly includes both taking off and manoeuvring on the runway. Therefore, an aircraft that is departing from the aerodrome must either conform to or avoid the pattern of traffic.

[63] Mr. Mashowski also argued that by taking off on Runway 24, he was establishing the pattern of traffic. This argument is in direct contradiction to paragraph 602.96(3)(b) of the CARs which refers to "the pattern of traffic formed by other aircraft in operation". It is clear from these words that if another aircraft is already operating in a pattern, then that is the pattern that must be conformed to or avoided.

[64] To a certain extent, Mr. Mashowski based his argument on his "freedom to fly" which, in turn, is based on the privileges attached to his licence. This argument, however, does not take into account his obligation to operate in accordance with the CARs.

[65] In his written request for appeal, Mr. Mashowski challenged a number of findings of the Review Member. Many of these challenges related to the Review Member's account of the material and arguments presented by the parties, and did not necessarily reflect the Member's opinion on the matter set out. There were, however, also challenges to findings on which he based his Determination. These challenges are to findings either of fact, or mixed fact and law, and are to be tested on the standard of reasonableness.

[66] Mr. Mashowski disagreed with the Review Member's statement in paragraph [90] that he had testified that the wind slightly favoured Runway 24 and that he preferred that runway for several listed reasons. He referred to passages in the Review Hearing transcript in support of his contention that he had no preference. While he did give the testimony referred to, he also testified on page 430 of that transcript that Runway 24 was the preferable runway at the time "even with no wind preference" and some reasons for preferring it were listed in his letter to Inspector Brown (Exhibit M‑12). The relevant finding made by the Review Member is, however, that, on the basis of the findings objected to, Mr. Mashowski's preference for Runway 24 is understandable. Whether that finding is based on the Review Member's understanding of the evidence or on Mr. Mashowski's contention that it was a necessary choice because of the wind direction, it is a finding that is reasonable in the circumstances.

[67] He further disagreed with the Review Member's statement that where a pilot decides not to take off on the active runway, he has a duty to avoid the established traffic pattern. He contends that this statement is contradicted by the AIM. He may have been referring to statements in the AIM that pilots should take off into the wind, and that pilots have the final responsibility for determining which runway is operationally acceptable. The Appeal Panel could find no statement in the AIM, however, indicating that a pilot can ignore the regulatory requirement to avoid the pattern of traffic formed by other aircraft in operation. This regulatory requirement is restated in the Review Member's finding at paragraph [90].

[68] Mr. Mashowski disagreed with the Review Member's statement in paragraph [91] that the active runway is determined by aircraft already in a circuit and that this is the interpretation generally accepted by pilots. The Minister's Representative argued that the Review Member's finding was reasonable based on the evidence of Mr. Yeryk and Mr. Bahlsen, both of whom testified that they were in the circuit for Runway 06. She also referred to section 4.5.2 of the AIM which states that the "active runway is a runway that other aircraft are using or are intending to use for the purpose of landing or taking off". The section does acknowledge that it may be necessary to use another runway, but states that in such situations there should be appropriate communication with the ground station to ensure there is no conflict with other traffic.

[69] Mr. Mashowski argued that paragraph 602.96(3)(e) of the CARs is authority for the proposition that the runway in use is determined by the wind direction. This paragraph provides that, where practicable, pilots shall land and take off into the wind. While this provision establishes a requirement that pilots must follow, it does not override other requirements that pilots must also follow. A change in the wind direction does not of itself change the active runway being used by pilots in the existing circuit, rather it creates a situation where a pilot wishing to take off must consider how to best meet both that regulatory provision and paragraph 602.96(3)(b).

[70] The Appeal Panel finds that the Review Member's finding that Runway 06 was the active runway is reasonable. There was evidence that it had been used by Mr. Yeryk and Mr. Bahlsen, and that the latter was continuing in the circuit that would lead to a further landing on that runway, thus falling within the description of "active runway" in the AIM.

[71] Mr. Mashowski argued that the Review Member was incorrect in his conclusion in paragraph [94] that Mr. Mashowski had a duty to "comply with or avoid the established traffic pattern" since he changed the word "conform" to "comply". The Appeal Panel finds that this is a distinction without a difference since the means of complying with the established pattern is by conforming to it.

[72] He also disputes the finding that he had to "scramble" to clear the runway and alleges that he acted in a prudent and expedient manner. The Minister defended the statement by pointing out that Mr. Mashowski testified that he expedited his taxiing and the Review Member found in paragraph [98] that both pilots had to make adjustments to avoid each other. The Appeal Panel finds that a conclusion that Mr. Mashowski had to act in a hurry or "scramble" is reasonable.

[73] Mr. Mashowski also challenged the Review Member's finding at paragraph [94] that "[a]s a result of the conflict, Mr. Bahlsen and his student altered their usual circuit pattern by turning final early" as contradicting his earlier statement in paragraph [88] that "once [Mr. Mashowski] was on the runway, the possibility of a collision was almost entirely in the hands of Mr. Bahlsen". Without commenting on the cause of the conflict, it is clear that there was such a conflict and a consequent disruption of the traffic pattern.

[74] There is no dispute that Mr. Bahlsen turned final early and eventually overshot the runway. Similarly, there is no dispute that Mr. Mashowski turned left when his altitude was 100 feet. This is contrary to the procedure outlined in 4.5.2(c) of the AIM which suggests that "aircraft departing the circuit or airport should climb straight ahead on the runway heading until reaching the circuit traffic altitude before commencing a turn in any direction to an en route heading". The Review Member's finding that there was a conflict that caused Mr. Bahlsen and his student to turn final early is a reasonable conclusion.

[75] Mr. Mashowski alleged that in paragraph [96] of his Determination, the Review Member misinterpreted paragraph 602.96(3)(e) that requires that a pilot "where practicable, land and take off into the wind," to mean "where practicable, land and take off with a tailwind". The Appeal Panel does not accept this analysis of the paragraph. The Review Member simply stated that, in his view, "it was neither practicable nor necessary". He concluded that it was not necessary because, as he stated in paragraph [97], "the factors contributing to his decision to select Runway 24 were not overly compelling from an airmanship perspective". This is a long way from saying that the Regulation requires a pilot to take off with a tailwind. The Appeal Panel accepts that the wind favoured Runway 24 at the time Mr. Mashowski decided to use it but also finds that it was not practicable to take off at that instant because there was not enough time to do so in a manner that would have allowed him to avoid a risk of collision or to avoid the existing pattern of traffic.

[76] Mr. Mashowski challenged the Review Member's statement in paragraph [98] that there is a clear disagreement in the evidence as to Mr. Bahlsen's position in the circuit at the time Mr. Mashowski entered Runway 24. The Appeal Panel sees no reason to disagree with the Review Member's finding on this point. In any event, the relevant finding by the Review Member is that "Mr. Bahlsen was not sufficiently far off for Mr. Mashowski to conduct a comfortable and safe take-off".

[77] The Appeal Panel finds that it was not practicable within the meaning of paragraph 602.96(3)(e) of the CARs for Mr. Mashowski to depart from Runway 24 at a time when doing so risked breaching other regulations.

[78] In paragraph [95] of his Determination, the Review Member found that "[a]lthough Mr. Mashowski did ‘avoid' the other aircraft, he did not avoid the traffic pattern within the meaning of paragraph 602.96(3)(b) of the CARs. He clearly interfered with traffic in the pattern as evidenced by the alterations each pilot had to make to his usual take-off/landing path [emphasis in original]". The Appeal Panel agrees with this conclusion and finds that Mr. Mashowski failed to conform to the pattern of traffic as required by paragraph 602.96(3)(b) of the CARs.

[79] Therefore, the Appeal Panel finds that Mr. Mashowski contravened paragraph 602.96(3)(b) of the CARs.

B. Minister's Appeal of Count 1 – Subsection 602.19(10) of the CARs

[80] The Minister's Representative submitted that the Review Member erred in law in interpreting subsection 602.19(10) of the CARs, therefore, the standard of review on this point is correctness. The errors in interpretation are his findings that the pilots involved (other than the student pilot) agreed that there was no risk of collision, that they both had "situational awareness", and that they took the necessary precautions to ensure that there was no collision.

[81] The Minister's Representative argued that the words of the provision "conduct or attempt to conduct a take‑off" clearly indicate that the risk of collision should be determined when or before an attempt to take off is made.

[82] Mr. Mashowski argued that the Minister's Representative based her arguments on a partial reading of the provision and did not consider the effect of the words: "apparent risk of collision with any aircraft, person, vessel, vehicle or structure in the take-off or landing path". He was charged with taking off when there was a risk of collision with an aircraft in the landing path and argued that it cannot be said that an aircraft that is taking off has a "landing path".

[83] The Appeal Panel takes the position that the use of the word "apparent" imports an objective test in determining if the provision applies, and that the risk should be determined on the basis of whether a reasonable and knowledgeable person observing the situation would consider a collision possible. While the risk might arise at any point during the take‑off process, it must be evaluated at the earliest possible point. In this matter, that point was after Mr. Bahlsen made the radio call saying "downwind, touch and go" (Review Hearing transcript, page 495) and Mr. Mashowski concluded that the appropriate runway for take-off was Runway 24. These events took place before Mr. Mashowski entered the runway and it was then that he should have calculated the risk of collision. The Appeal Panel notes that the expert witness, Harold Rainforth, testified that Mr. Mashowski acted properly, but his conclusion was reached on the basis of assumptions that were given to him. These assumptions must, however, not have been in accord with the facts since the Review Member found that take‑off was expedited and that both pilots needed to take evasive action.

[84] Mr. Mashowski's interpretation of subsection 602.19(10) is incorrect. It is not, as he suggested, two provisions condensed into one: one relating to obstructions in the take-off path of an aircraft taking off; and the other, to obstructions in the landing path of an aircraft that is landing. Rather it is a provision that is worded very broadly in order to capture as many situations as possible where there would be an apparent risk of collision, and one of these possible risks is for an aircraft to take off when there is another aircraft in its landing path.

[85] The Appeal Panel finds that there was an apparent risk of collision between Mr. Mashowski's aircraft and an aircraft that was in its landing path. While the pilots testified that there was no risk of collision, each departed from normal procedures to avoid that risk. Even if the overshoot by Mr. Bahlsen's aircraft was to help his student recover, as alleged by Mr. Mashowski, Mr. Bahlsen's turning final early had no other purpose than to avoid Mr. Mashowski's aircraft. These actions seem to be a clear indication that each pilot was aware that there was a possibility of collision if no evasive actions were taken.

[86] Mr. Mashowski also argued that based on the meanings he gave to "landing path" and "take-off path", he had the right of way. He argued that because the definitions of both "take-off" and "land" do not relate to the acts immediately preceding or following the wheels of an aircraft leaving or touching the ground, the path must be contiguous with the runway. Since he was on the take-off path before Mr. Bahlsen was on the landing path, he argued that he consequently had the right of way. This argument reflects a misunderstanding of the meaning of these words. Neither the take-off path nor the landing path can be limited to the path taken by an aircraft on the ground, but also relates to the route followed in the procedures associated with taking off and landing. In the case of a take-off, the normal procedure is that set out in the AIM at 4.5.2, climbing straight ahead to 1000 feet above airport elevation ("AAE"). The evidence of Mr. Mashowski's expert, Mr. Rainforth, was that the landing procedure begins when an aircraft turns base and begins its descent (Review Hearing transcript, p.606). The landing path is established when the descending aircraft turns onto the final leg of the circuit, and the route or "path" the pilot must follow in order to land becomes clear.

[87] The Minister's Representative challenged the Review Member's finding that there was no apparent risk of collision because both pilots had "situational awareness". Each pilot testified that he had the other aircraft in sight and at the Appeal Hearing Mr. Mashowski said "you cannot hit an aircraft that you can see" (Appeal Hearing transcript, page 61). The Minister's Representative argued that situational awareness includes more than the ability to see the other aircraft; it must also include an awareness of the intentions of the other pilot. On this premise, it is necessary that there be adequate communication between the pilots through radio where possible. Mr. Mashowski argued that since radio communications are not mandatory at High River Airport, arguments concerning radio communication should not be taken into account. He went on to refer to section 4.5.6 of the AIM, also referred to in his letter to Inspector Brown (Exhibit M‑12), for the proposition that radio transmissions should be in standard formats and suggested that any transmissions outside this format would be improper.

[88] The Appeal Panel notes that subsection 602.19(10) of the CARs prohibits taking off where there is an "apparent" risk of collision. The perception of risk is based on the relationship of the aircraft to the obstacle: in this case another aircraft in its landing path. The situational awareness of the pilots involved does not mean that there is no apparent risk, but rather that each should be aware of that risk and be prepared to take steps to avoid it.

[89] The Minister's Representative also submitted that it was an error in law to take the distance between the aircraft into account in determining if there was an apparent risk as the Review Member did in paragraph [86] of his Determination where he stated that "[a]t the point in time where both aircraft were on the same trajectory, they were still separated by sufficient distance to preclude the possibility of a collision". By taking account of the vertical and horizontal distances between the aircraft, the Review Member was considering their relative positions before Mr. Mashowski made his evasive turn to the left. At that point, there was indeed an apparent risk of collision even if the possibility of a collision was avoided.

[90] Finally, the Minister's Representative submitted it was an error in law for the Review Member to take into account the actions of the other pilots as he did in paragraphs [87] and [88] of his Determination. In paragraph [88], the Review Member stated that he could not find that Mr. Mashowski was entirely responsible for creating the risk of a collision and that once Mr. Mashowski had entered the runway, which the Review Member did not condone, the possibility of a collision was almost entirely in the hands of Mr. Bahlsen. She submits that an analysis of the subsection does not refer to the creation of risk; it simply prohibits a pilot from taking off whenever there is an apparent risk of collision. She argued that the factors that created the risk are irrelevant in determining whether Mr. Mashowski contravened the subsection.

[91] The Appeal Panel cannot accept this position in its entirety. In determining whether a contravention took place, the Review Member must analyze the activities of all involved. If he determines that the fault partially lies with another party, that may be a mitigating factor, but, it cannot completely excuse the person charged with the contravention. Mr. Mashowski, in his Notice of Appeal, points out an inherent contradiction in the Review Member's Determination, where, in paragraph [87], he finds that once Mr. Mashowski entered the runway, the risk of collision was equally in the hands of both pilots involved but goes on to find, in paragraph [88], that once Mr. Mashowski was on the runway, the risk was almost entirely in the hands of Mr. Bahlsen. This conclusion ignores the precipitating event of the occurrence: Mr. Mashowski's decision to backtrack on Runway 24 so that he could take off on that runway when he was aware both visually and from Mr. Bahlsen's radio call that he was downwind for touch and go on Runway 06. While Mr. Bahlsen's failure to accommodate Mr. Mashowski may be a mitigating factor, equally Mr. Mashowski's failure to accommodate Mr. Bahlsen is an aggravating factor. The Appeal Panel finds that, from an objective point of view, there was a risk of collision until each pilot had taken evasive action. Consequently, the Minister has proven on a balance of probabilities that Mr. Mashowski contravened subsection 602.19(10) of the CARs.

C. Sanction

[92] In the Notice of Suspension, the period of suspension imposed in respect of the contravention of Count 2 (paragraph 602.96(3)(b) of the CARs) was 45 days, and in respect of the contravention of Count 1 (subsection 602.19(10) of the CARs) was 30 days. In recommending the periods of suspension, both Inspector Brown and his Supervisor and Acting Manager, Mr. Pollock, took into account an incident involving Mr. Mashowski that took place three days later in contravention of a different provision and for which he served the resulting suspension.

[93] The Review Member reduced the period of suspension for the contravention of paragraph 602.96(3)(b) of the CARs from 45 days to 10 days. He pointed out that, while this was a first offence, the suspension imposed was longer than the suggested minimum for a third offence. He felt that it was unfair to assign the entire blame for the situation on Mr. Mashowski and that the aggravating factors mentioned in the EMS Report (Exhibit M‑18) were not reflected in the evidence.

[94] The Appeal Panel finds that it is not an error in law for the Review Member to take the actions of another into account in assessing the term of the suspension. Subsection 6.9(8) of the Aeronautics Act provides that a Tribunal Member conducting a review "may determine the matter by confirming the Minister's decision or substituting his or her own determination". This provision gives a Tribunal Member a very large discretion that includes deciding what to take into account in determining a sanction. The Review Member explained the reasons for reducing the period of suspension and his findings in the matter were reasonable.

[95] The Appeal Panel, however, is not bound by the Review Member's findings with regard to sanctions. While giving great deference to his findings of fact, the application of those findings to the determination of the appropriate sanction is a matter for the Appeal Panel's discretion. In the same way that subsection 6.9(8) of the Aeronautics Act provides that a Tribunal Member may substitute his or her own decision, paragraph 7.2(3)(b) of that Act authorizes the Appeal Panel to "dismiss the appeal, or allow the appeal and substitute its own decision".

[96] The Minister's Representative argued that both periods of suspension were reasonable and that it was an error in law to reduce the penalty because the Review Member felt it was unfair not to take Mr. Bahlsen's conduct into account. Mr. Mashowski argued that the suspensions could not be considered second offences because the other matter referred to was both later in time and under a different provision of the CARs. The Minister's Representative responded that, while the second incident took place three days after the ones that are the subject of this Appeal, the matter was adjudicated by the Minister before the Minister decided to issue the Notice of Suspension in this matter.

[97] The Appeal Panel considers that the same factors should be considered in determining the period of suspension for each contravention set out in the Notice of Suspension. In this regard, the Appeal Panel notes that the suggested periods referred to in the EMS Report (Exhibit M‑18) are established in guidelines which, although they provide a means of establishing a relatively uniform pattern of decisions regarding penalties, are not mandatory and can be deviated from in circumstances the Tribunal deems appropriate. One factor emphasized by the Review Member was the unfairness of placing the blame entirely on Mr. Mashowski. The Appeal Panel finds that while the actions of others in contributing to the contravention may be taken into account as a mitigating factor, they cannot be used as a means of assessing blame. A person who contravenes a regulatory provision is responsible for that action and should not be able to shift the blame to others.

[98] The Review Member found that he could not accept the aggravating factors set out in the EMS Report. He held that it was not an aggravating factor that Mr. Mashowski was aware of the circuit since there would have been no offence had he taken off without interfering with the traffic in that circuit. The Appeal Panel cannot agree with this assessment of the situation. Before entering the runway, it was Mr. Mashowski's responsibility to assess the situation as it existed at the time. In other words, he knew that the circuit was established and that the pilot in the circuit intended to land in a touch‑and‑go. He had decided that the wind conditions necessitated a take‑off on Runway 24. At that point, he should have been able to determine whether he would have been able to take off using normal procedures, without either creating a risk of collision or interfering with the circuit. If he could not have done so, he should not have entered the runway without determining whether Mr. Bahlsen would extend his downwind leg or until Mr. Bahlsen had cleared the runway.

[99] The Review Member also gave little weight to the statement in the EMS Report that there were accusations that Mr. Mashowski often operated in conflict with established traffic patterns and found there was little evidence to support this statement. The Appeal Panel agrees with this finding but notes that the Review Member ignored the comment that there was support for statements about his attitude in the incident of September 30, 2008. Furthermore, the Review Member did not comment on the listed aggravating factors of limited radio communications between Mr. Mashowski and Mr. Bahlsen, and the fact that Mr. Mashowski held a commercial pilot licence. These factors really relate to airmanship.

[100] Airmanship begins where regulations end. It is the consistent use of good judgment and discipline in all flight situations. The exercise of airmanship is one of the most important qualities a pilot must have to ensure his safety, and more importantly, the safety of others. A pilot must always err on the side of caution.

[101] Mr. Mashowski failed to exercise sound airmanship in two different situations. 

Even though the use of radio is not mandatory at High River Airport, it is a tool which should be used to promote safety. In this case, waiting clear of the runway until he had communicated with the aircraft on downwind would have been what a responsible pilot would have done. Taking off on the opposite runway without establishing confirmed contact with the other aircraft was not a good decision given the fact that the aircraft on downwind would have been approaching Runway 06 directly on his departure path, risking a point of contact. Mr. Mashowski's own expert witness testified that good airmanship suggests that communication should be kept going (Review Hearing transcript, page 625).

[102] He was aware of aircraft using Runway 06. He had no idea of the exact time the aircraft on downwind would be on short final, because he did not know the actual speed of that aircraft, or the point at which that aircraft would be turning onto base or final.

[103] He states that the wind favored Runway 24, and for safety reasons he was going to use it. In the interest of safety he should have made sure that the other aircraft were aware of the wind, and that it was the reason he needed to use Runway 24.

[104] To backtrack an active runway, take the time to do an engine runup, and then to take off head‑to‑head with another aircraft, shows a complete lack of consideration for other airport users.

[105] These considerations of airmanship constitute an aggravating factor and should be taken into account in assessing the period of suspension. The event of September 30, 2008 should be considered as a demonstration of further disregard of the principles of good airmanship and constitutes an aggravating factor on that basis.

[106] Throughout the proceedings, Mr. Mashowski attempted to lay the blame on Mr. Bahlsen and asserted that the Review Member's Determination was an interference with his "right to fly". Any such right is limited by the conditions of his licence, the requirements of the CARs, and the principles of good airmanship. Nevertheless, Mr. Mashowski is convinced of the correctness of his attitude and actions. This attitude is a further demonstration of his lack of respect for the rules of the air and airmanship.

[107] While Mr. Bahlsen's actions undoubtedly contributed to the situation and questions could arise with respect to his airmanship, we have all been taught from earliest childhood that two wrongs do not make a right and another's misbehaviour does not excuse our own wrongdoing. In this matter, the Appeal Panel finds that Mr. Bahlsen's actions are a mitigating factor, but any mitigating effect is balanced by the aggravating factor of Mr. Mashowski's lack of airmanship.

[108] The principles to be applied in determining a penalty for breach of a regulatory provision were set out in Canada (Minister of Transport) v. Wyer, 1998 CAT File No. O‑0075‑33, and include denunciation, deterrence and rehabilitation. [Although this matter dealt with monetary penalties, the principles apply equally to a suspension under section 6.9 of the Aeronautics Act.]

[109] The Appeal Panel considers that Mr. Mashowski's actions demonstrate that more rather than less time to reflect on his attitude would be appropriate if he is to be deterred and rehabilitated. Equally, "denunciation", or as explained in Wyer, the "retrospective public repudiation of the wrongful conduct", demands that the seriousness of the conduct complained of should be a consideration in establishing the length of the suspension.

[110] While the Appeal Panel recognizes that the periods of suspension imposed by the Minister are longer than those recommended in the guidelines, the guidelines do not impose mandatory limits and may be deviated from when appropriate. When the factors mentioned above are taken into account, a significant extension of the recommended period of suspension is warranted to meet the purposes set out in Wyer. The Appeal Panel, therefore, confirms the original suspensions assessed by the Minister in the Notice of Suspension.

VII. DECISION

[111] Count 1 – subsection 602.19(10) of the Canadian Aviation Regulations - the Minister's Appeal is allowed. There is no reason to interfere with the thirty (30) day suspension imposed by the Minister.

[112] Count 2 – paragraph 602.96(3)(b) of the Canadian Aviation Regulations - the Appeal Panel upholds the Review Member's Determination as to the allegation. However, the Appeal Panel reinstates the suspension of 45 days imposed by the Minister. Accordingly, we allow the appeal of the Minister as to sanction.

September 26, 2012

Reasons for the Appeal Decision: Elizabeth MacNab, Member

Concurred by: Richard F. Willems, Member

P. Terry Dowd, Member