Decisions

TATC File No. P-4029-33
MoT File No. EMS 082832

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Bradley Friesen, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Arnold Marvin Olson


Decision: May 7, 2015

Citation: Friesen v. Canada (Minister of Transport), 2015 TATCE 9 (Review)

Heard in: Vancouver, British Columbia, March 10-11, 2015

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has proven, on a balance of probabilities, that the applicant, Bradley Friesen, contravened section 602.01 of the Canadian Aviation Regulations. The monetary penalty of $1,000 is upheld.

The total amount of $1,000 is payable to the Receiver General for Canada and must be received by the Transportation Appeal Tribunal of Canada within 35 days of service of this determination.

I. BACKGROUND

[1] On January 14, 2014, the Minister of Transport (Minister) issued a Notice of Assessment of Monetary Penalty to the applicant, Bradley Friesen, for a contravention of section 602.01 of the Canadian Aviation Regulations, SOR/ 96-433 (CARs). Schedule A of the Notice lists two charges:

Charge 1:

On or about December 08, 2013, at or near Upper Consolation Lake in the Province of British Columbia, you, Bradley Friesen, as Pilot in Command, operated a Robinson R-44 helicopter, bearing Canadian registration C-GGLZ, in such a reckless or negligent manner as to be likely to endanger the property or life of any person, specifically, you maneuvered the helicopter on the ice through a group of persons, thereby contravening Canadian Aviation Regulation 602.01.

Monetary Penalty $1000.00

Charge 2:

Charge 2 was resolved prior to the review hearing in favour of the Minister, with the applicant agreeing to pay the monetary penalty of $750. Accordingly, Charge 2 is not at issue in the review hearing.

II. STATUTES AND REGULATIONS

[2] Subsection 7.7(1) of the Aeronautics Act, R.S.C., 1985, c. A-2, respecting monetary penalties, reads in part as follows:

7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention…

[3] With respect to Charge 1, section 602.01 of the CARs, concerning Reckless or Negligent Operation of Aircraft, reads as follows:

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

III. EVIDENCE

A. Minister

(1) Ross Bertram

[4] Mr. Ross Bertram is an enforcement investigator, flight operations for Transport Canada, with 13 years of experience in the enforcement branch. His background in rotary wing operations includes helicopter pilot experience on the Bell 206 and Bell 212 with the Canadian Armed Forces, as well as in subsequent commercial operations.

[5] His Aviation Enforcement Case Report (Exhibit M-1) combines Charge 2 together with Charge 1 that relates to the occurrence of December 8, 2013.

[6] Mr. Bertram indicated that during the course of the investigation into Charge 2, there was another video posted to YouTube showing contraventions of the CARs. Mr. Bertram was first made aware of this video through communication from Mr. Friesen and through complaints received through the Transport Canada Communication Centre, from people who had viewed the video on the internet. This 39-second video of the event on December 8, 2013 was shown and introduced as Exhibit M-2.

[7] Mr. Bertram said his first reaction upon viewing the video was that he did not like what he had seen, as it appeared the intent was to skate a helicopter on ice through a group of people.

[8] A series of six screen shots was introduced (Exhibit M-3) that enlarge the frame size and capture the interval from second :19 to second :20 of the video. Mr. Bertram observed that the camera appears to have been mounted on the left rear skid of the helicopter. He provided commentary that:

(a) screen shot #1 at :19 seconds shows the helicopter sliding toward a group of seven or eight people [hockey players skating on a frozen lake];

(b) screen shot #2, also at :19 seconds, shows the helicopter moving closer toward the people. Some of the skaters have moved slightly, some not at all;

(c) screen shot #3, still at :19 seconds, shows the helicopter still moving toward the hockey players, some of whom have moved slightly, some not at all, and the helicopter has not come abeam the line of people;

(d) screen shot #4, still at :19 seconds, shows some players now at the front of or underneath the rotor arc. Some have moved, some are at the same place, and the helicopter is on the ice and going through a gap in the group;

(e) screen shot #5, still at :19 seconds, shows that hockey players are definitely under the rotor arc. Some players have moved, some have not, and the helicopter has started to slide between the two people on the left side and the five or six people on the right side. Some players are standing, some are crouched, some are crouched quite drastically, and some are moving away;

(f) screen shot #6, at :20 seconds, shows the helicopter sliding through the gap between players, some of whom are crouching and others who are standing.

[9] Mr. Bertram concluded that it was a dangerous operation, that the hockey players could have been hit by the helicopter or rotor blade, or slipped on the ice and been run over. He listed possibilities that would have placed them in danger:

(a) the helicopter engine has a piston engine that could have sputtered or surged and introduced yaw;

(b) the pilot could have adjusted his cyclic so that the rotor disk would have tipped downward;

(c) drag on one skid could have been different from the skid on the other, causing the helicopter to yaw;

(d) there could have been a gust of wind causing a yaw or causing the pilot to introduce a pedal input that would in turn create a yaw;

(e) a change to the rotor disk would have brought it in closer proximity to the skaters.

[10] He explained how the situation at hand differs from when people load or unload from a stationary helicopter, in that this helicopter was maneuvering, sliding at a speed, and there were conditions that could have changed the disk angles.

[11] He expressed his opinion that it is irrelevant whether or not people were participating of their own free will. It was irrelevant as to the responsibility of the pilot to ensure safety. The pilot is responsible for what he does with the aircraft.

[12] He was asked if the dangers could have been minimized by the conduct of a safety briefing. He expressed an opinion that even if the hockey players had received a safety briefing, they may not have been aware of the danger that the rotor blades could be tipped in such a way as to be much closer to the surface, creating a possibility of players being hit. He also indicated that the helicopter could slide sideways and players could be hit with the tail rotor.

[13] An email from Mr. Friesen to Mr. Bertram, dated December 10, 2013, was introduced as Exhibit M-4, in which Mr. Friesen describes the events of December 8, 2013 that led to the making of the video posted to YouTube and the subsequent Charge 1. The email describes in detail how, in Mr. Friesen's view, safety precautions had been taken:

(a) he measured the ice thickness the day before;

(b) he confirmed the supporting ability of that thickness of ice;

(c) he practiced sliding on the ice with the helicopter, with 100 to 150 lbs. of the helicopter weight on the ice;

(d) on the day of the event, he conducted an initial safety briefing with all participants present;

(e) he personally walked the area of the proposed ice slide and confirmed that there were no ridges or holes;

(f) two of the skaters were themselves commercial helicopter pilots and brought their hand-held radios to act as coordinators;

(g) a detailed safety briefing and walk-through was conducted on-site and positions for the players established, leaving “a small hole”;

(h) he then flew the helicopter, slowly descended onto the ice at a speed of 15 knots and slid toward the hole in the line of skaters;

(i) he had placed the two helicopter pilots on the rotor side, to the left, to keep the other players as far from the rotor as possible;

(j) once completely past the line of players, he waited an additional two seconds before lifting into the air and turning;

(k) three helicopters were on standby in case of an incident and first aid-trained individuals were present.

[14] Mr. Bertram received another email from Mr. Friesen, dated December 11, 2013 (Exhibit M-5), that included a link to a further video posted to YouTube that Mr. Friesen described as explaining the events of December 8,2013 more clearly. That video was introduced as Exhibit M-6 (“Behind the Scenes”) and viewed.

[15] Mr. Bertram was cross-examined regarding his comments in Exhibit M-1 (under 5.4 (2) Aggravating Factors) referring to “… several videos where CARS contraventions are noticed”. He confirmed that without investigating all the facts he could not be sure that there were contraventions. He then agreed that there had in fact been no investigation.

[16] Exhibit A-1, a “Short Case Report”, was introduced through Mr. Bertram. It refers to a previous occurrence from January 2012, when complaints were received about a YouTube video posted by Mr. Friesen that purported to show the R-44 helicopter, which he was piloting, perform an aerobatic loop. Mr. Bertram agreed that the subsequent investigation revealed that the video was, in fact, a “camera trick” and that it was probable that Mr. Friesen had operated the helicopter within its operating limitations.

[17] He agreed that just watching a video does not determine whether or not a CARs violation is taking place.

[18] On the basis of his experience as a helicopter pilot, Mr. Bertram was asked if a helicopter with momentum could continue to slide on ice, like a hockey puck, without the rotor tilted forward. He replied that it could, but with the presence of risks such as collective change, wind change, torque change, engine sputter or surge that could create yaw.

[19] Exhibit A-2 was introduced, a screen shot from video M-6 that was likely taken from a hockey player's helmet camera, showing the approaching helicopter. A comparison was made with measurements listed in M-1, indicating a distance from the flat-pitched rotor blades to the ground as 10 feet nine inches. Mr. Bertram agreed that, assuming those measurements were correct and the rotor disk was flat, a very tall person, say seven feet, standing underneath, would still have three or four feet of clearance from the rotor.

[20] Mr. Bertram gave an explanation of what the process would have been had Mr. Friesen made application for a Special Flight Operations Certificate (SFOC). He indicated that a person can request such a certificate if they are planning something that could create additional danger or would contravene the CARs. The application would lead to an exchange of information, and an exemption from the CARs might be given if certain conditions were met.

[21] On redirect, Mr. Bertram confirmed that Mr. Friesen had the opportunity to get an SFOC; had he received the exemption and followed the requirements laid out, there would not have been any violation.

B. Applicant

(1) Bradley Friesen

[22] Mr. Bradley Friesen, the applicant, has been a helicopter pilot for approximately 25 years with up to 3,500 hours of experience. To the time of this review hearing, he has an infraction-free record, apart from Charge 2 that he no longer contests.

[23] He agreed he had been the subject of two previous investigations: one pertaining to a video purporting to depict an unauthorized aerobatic maneuver in a helicopter, and a second one purporting to show an unauthorized entry into a helicopter. No admission of contraventions was made in either investigation and both were concluded without charges.

[24] Shortly after posting the subject video to YouTube, he became aware it had been reposted from another website as “insane pilot slides helicopter through game of hockey at full tilt” and that it was receiving negative attention and a negative “spin”. He contacted Mr. Bertram at Transport Canada, provided him a link to the video and explained the context; that it had been a planned and coordinated event, safely conducted.

[25] Because of an outcry of response, he also provided a second video, “Behind the Scenes”, to show Mr. Bertram and the public additional video material from the day. It showed that those involved had travelled to the lake together, inspection of the ice had been performed, safety briefings had been conducted and the actual event was not as depicted. He said that comments on the second video were now very positive. Whereas people had previously been angry, they were now very supportive.

[26] Mr. Friesen then described safety precautions he had performed. The day before the events in question, he had flown his helicopter to a nearby lake and measured the ice thickness at 11 inches. He flew the players to the lake to film them skating, and performed test “ice slides” with the helicopter. Each of the players was an expert skater, some at the semi-professional hockey level.

[27] He described how an ice slide is safely conducted. The area is inspected to be free of debris or ice ridges, then an approach made to the ice allowing momentum to carry the helicopter forward in a slide. The cyclic is held neutral, setting the rotor disk in a level plane. The collective is slowly lowered, allowing only 100 to 200 lbs. of weight on to the ice surface. The rotor disk is still flat or slightly coned upward, allowing an immediate return to the air. In every event, helicopter speed on the ice was always quite slow, less than the speed that would begin to register on the airspeed indicator, approximately the speed of a “fast jog”.

[28] A photo (screen shot of a video) was introduced as Exhibit A-3, showing Mr. Friesen at the controls of a helicopter performing an ice slide. The purpose of the exhibit was to show the cyclic control held in a neutral position with the rotor in a level plane. The exhibit was entered on the understanding that it be for information only, because the photograph was taken on a different day and thus did not show the handling of the controls during the maneuver in question.

[29] Mr. Friesen said it would not have been possible to obtain an SFOC because it takes 20 business days to process and it was his understanding they are only available to commercial operators, whereas he is a private operator. They found the lake on the Saturday (Transport Canada was closed that day) and the maneuver was planned for the very next day. The weather forecast indicated approaching snow that would have ruined the ice surface.

[30] On the morning of the maneuver, he met with all of the participants and conducted an initial safety briefing. He covered rotor safety, how to approach the helicopter, dangers of the tail rotor, and the importance of not carrying anything above their heads while under the main rotor. He described how he was very explicit and blunt in his briefing, including words like “those [rotor blades] will cut your head right the fuck off”. There was no requirement for players to participate; they all had the option to not participate.

[31] All of the participants in the maneuver were loaded up in four helicopters and flown to the lake. Mr. Friesen conducted several additional practice ice slides with some of the participants on board. He personally walked the length of the ice sheet and inspected for any protrusions or ridges, and deemed it perfectly flat.

[32] One of the participants, Kirk Couette, was a professional stunt coordinator. He conducted an on-site safety briefing covering points such as how to move away from the helicopter as it approached, the importance of not raising hockey sticks above the head, and an emergency safety procedure of lying down on the ice and “covering up”. Two of the hockey players were helicopter pilots and were placed on the left side, to be closest to the tail rotor as it passed by. These two individuals had communication radios and would be in radio contact with the pilot, Mr. Friesen. The plan was that as the helicopter approached and reached the distance at which Mr. Friesen wanted them to move, he would radio “break, break, break”. Either of the two players with radios could initiate on their own the same call to the players, or the players could begin to move away on their own at any time.

[33] The players were set in position on the ice and a walk-through was conducted. A line was formed with two players on the left side and six players on the right side, separated by a gap of “at least 10 feet”. The helicopter skids form a width of seven feet. The gap was wide enough for the helicopter, even if nobody moved.

[34] Mr. Friesen lifted off in the helicopter, flew forward, landed, and performed an ice slide toward the players at perhaps 15 knots of speed. He said:

… as I approached the skaters, within 20 feet of the skaters, I called “break, break, break”. They were moving at the same point that I called “break”. I'm not sure if [a player] called “break” before me or not, but at the same time, they were starting to move away as I called the break.

[35] He continued past and through the skaters in complete control of the helicopter. After an additional one to two seconds, he then lifted off, turned around, flew back over the skaters and continued down the lake.

[36] He noted that the video has the appearance of greater helicopter speed because it was shot with a GoPro camera with a fish-eye lens mounted very close to the ice. He said the actual speed of the helicopter was only the speed of a person jogging.

[37] He said he had evaluated all possible risks such as mechanical problems. Had a problem occurred, he could have called “break” at an earlier time. He rated as very low the possibility of an engine failure at precisely the instant he was passing through the hockey players, as his helicopter is maintained to a very high commercial standard and he had plenty of fuel. He said the maneuver happened exactly as planned.

[38] On cross-examination, Mr. Friesen indicated he had flown the helicopter to the mountains on the day previous to the maneuver and realized that lake ice conditions were perfect. These conditions were very rare, to be expected only every five to 10 years. Applying for an SFOC with a 20 business-day wait would mean missing out on the perfect conditions, perhaps for years. He stated: “the conditions presented themselves on that day in that window”, so he made plans to do the ice slide the next day.

[39] Also on cross-examination, he said the hockey players were instructed to be moving away from the helicopter so there would be no chance that if they fell they could be run over. Moreover, the 10-foot gap between the players was set up in advance so that if the helicopter continued on its path and no one had moved, there would have been a foot and a half clearance on either side of the skids. He agreed that had no one moved it would have been more dangerous, saying he wouldn't have liked that at all since that was not what the plan was.

(2) Michael MacKay

[40] Mr. Michael MacKay had been present at the safety briefing and was one of the hockey players on the ice during the maneuver. He reviewed the safety measures that were covered during the safety briefing and also on the lake ice during the maneuver. He described how the hockey players were set in their positions with a 10-foot gap between the players on the left and right side, and the instructions they had received to move.

[41] He described how the helicopter approached in an ice slide toward the players. As it came closer, they were given a loud verbal instruction to move away. He described the speed of the helicopter as slow enough that someone could have jogged or been at a trot next to it. He did not feel rushed at any time and there was no sense of panic.

[42] He is a very tall chap and indicated his height on skates as approaching seven feet. But since he was crouching, he was at a much lower height and did not feel endangered by the helicopter rotor blades.

(3) John Swallow

[43] Mr. John Swallow was qualified as an expert witness on the basis of 24 years in the Royal Canadian Air Force as a pilot, with 15,000 hours of flight experience, including 5,000 hours of helicopter experience. It was noted that his expertise did not extend to the operation of piston engines and that he served for six years as a Transport Canada regional superintendent.

[44] His report was entered as Exhibit A-4. He stated his conclusion that the information he had been provided indicated that the helicopter main rotor was level and thus, at over 10 feet of clearance, “there's no way that the rotor could dip far enough to touch anybody”. It could not flex far enough nor be tilted far enough downward to become a hazard. He noted that no one was in front of the helicopter, and rated the risk of injury as nil.

[45] He said that someone could not be struck by the tail rotor because it was “behind in the centre” of the cockpit, emphasizing “it's in the centre”. He explained it is behind the fuselage and since people were clear of the fuselage, they were also clear of the tail rotor.

[46] From the report he had been provided, it was his opinion that the initial safety briefing was thorough; participants were briefed on site, a walk-through of the event had been conducted, the maneuver had been practiced and demonstrated, there were radios for communication and helicopters on site for medical evacuation, and a highly experienced stunt coordinator providing oversight. He said that apart from not doing the exercise, there were no other safety measures that he himself would have taken or that could have been taken.

[47] On cross-examination, Mr. Swallow said he had based his conclusions solely on information provided by Mr. Friesen and had not conducted his own independent investigation. Moreover, he had not spoken with Mr. Bertram, the Transport Canada investigator, but had read his report.

[48] He said that he himself had conducted an ice slide in a helicopter and that it is not a prohibited maneuver; no permission is required to conduct one.

[49] He was asked for his opinion of risks created by an obstacle on the ice. He noted that the ice sheet in question was, in fact, completely and perfectly smooth and thus there was no risk of hitting an obstacle. In the hypothetical case of hitting an obstacle, he said the result might be a little twitch but in the absence of a large force to the side of the helicopter, there was no risk of the tail rotor coming around to the side and striking someone.

(4) Kirk Couette

[50] Mr. Kirk Couette is a highly experienced stunt coordinator, having coordinated hundreds of stunts for the film industry over a 21-year span. With the exception of a minor twisted knee, not one person has been injured on a film set while he has been coordinating movie stunts. He reiterated the safety precautions taken by Mr. Friesen, adding that he conducted an on-site safety briefing, emphasizing that it was important for participants to not become complacent and to continue to observe the protocols established at the safety briefing regarding the back rotor.

[51] He said the maneuver itself was accomplished according to plan. The eight skaters took their positions on each side of a 10-foot gap, the guys moved out of the way, the helicopter lifted off and circled back, all as planned. He believed that all the bases were covered for safety and would not have done anything differently had he been on a $150-million film set.

[52] He agreed that every stunt does have a certain level of risk. All uncontrolled variables create risk and it is important to control those variables to minimize the risks. In fact, all activities we commonly do have an element of risk.

IV. ARGUMENTS

A. Minister

[53] The Minister submitted that the only issue is whether or not the applicant operated the aircraft in violation of CAR 602.01 “… in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person”. The notion of “likely” introduces the notion of risk.

[54] The video M-2 shows there was a potential risk, and even the applicant said there were positive as well as negative comments posted to the web after the first video.

[55] The precautions that Mr. Friesen undertook, such as providing access to first aid kits and the presence of helicopters for medical evacuation, coupled with the expert witness characterizing the maneuver as not a day to day maneuver, all combine to show the presence of a potential risk.

[56] The Minister said that a defence of due diligence could not apply in this case. According to the stunt coordinator, there was always a risk to the maneuver, thus indicating that Mr. Friesen did not exercise all due diligence. If there is a risk, then CAR 602.01 applies.

[57] The Minister submitted that the reason Mr. Friesen did not get an SFOC is that it was a last-minute idea and he simply did not want to wait the 20 business days to obtain one. The applicant had presented a photo (Exhibit A-3) that was taken the following winter. Since the ice conditions in that photo were identical to those of the day of the maneuver, it could not be argued there was some unique weather phenomenon that had to be taken advantage of. Mr. Friesen didn't apply for an SFOC simply because he didn't want to wait and miss the good weather on the weekend. A prudent and diligent pilot would have obtained an SFOC.

[58] One should not look at the result of an aircraft operation to determine negligence. One must look at the operation itself. The fact that all went as planned is not relevant. One has to look at whether or not it was dangerous.

[59] In summation, the Minister said that evidence is sufficient to show the probability that the maneuver endangered or was likely to endanger the skaters.

B. Applicant

[60] Mr. Friesen's representative submitted that the applicant landed his helicopter on the ice past a group of skaters who were informed, trained and willing participants. The only issue at hand is whether or not the helicopter was operated in such a reckless or negligent manner as to endanger, or be likely to endanger, the life or property of any person. The only evidence of standard of care was presented by the expert witness, Mr. Swallow. The evidence shows that Mr. Friesen acted as a prudent pilot would under the circumstances. He took all safety precautions and thus exercised all due diligence.

[61] The Aviation Enforcement Case Report (M-1) indicates as aggravating factors that Mr. Friesen had been involved in videos where CARs contraventions were noticed. In fact, none of the contraventions have been proven and should not be used against Mr. Friesen. Mr. Bertram's evidence was that without further investigations, the CARs contraventions could not be confirmed. The fact that this report makes reference to these videos is prejudicial and highly inappropriate.

[62] Mr. Friesen was investigated once and was fully absolved. The Short Case Report (A-1) shows that Mr. Friesen was found to have not violated the CARs.

[63] Mr. Friesen comes to this hearing with a clean record. He has had a helicopter licence for approximately 25 years with 3,500 hours of experience, and has never had an infraction. He accepts the Charge 2 because he admits to misreading the regulation, although at the time, he thought he was following the regulation correctly.

[64] The decision to perform the maneuver was made the day before, on Saturday, December 7, 2013. Mr. Friesen had flown his helicopter into the mountains, found the ice conditions perfect, and conducted numerous practice ice slides. Having made the decision to perform the maneuver the next day, Mr. Friesen found willing participants; skaters, helicopter pilots and a stunt coordinator.

[65] On the day of the maneuver, Mr. Friesen gathered the participants together and conducted a safety briefing that included a very strong warning of the potential dangers of the main and tail rotors. Having flown to Consolation Lake, Mr. Friesen then walked the area proposed for the ice slide and confirmed that it was completely free of any obstacles or ice ridges. He then repeatedly practiced and demonstrated the ice slide to all participants. Mr. Couette, the stunt coordinator, conducted a walk-through of the maneuver with all participants, as well as a final safety briefing. All participants were offered the opportunity to decline to participate.

[66] The maneuver itself was then set up with skaters set in roughly a line, abreast position, with a gap between the two helicopter pilot skaters on the left and the remaining six skaters on the right. Radio contact was established between two of the skaters and Mr. Friesen. Mr. Friesen then flew the helicopter onto the ice and returned the cyclic to neutral, thus leveling the main rotor disk. As the helicopter approached the skaters, they were instructed to move away and increase the size of the gap. As the helicopter moved through the gap, the main rotor blades were coned upward as the helicopter was “light on the skids”. The height of the main rotor blades was 10 feet nine inches, and the tallest skater was seven feet in height while wearing skates.

[67] As the helicopter moved through the line of skaters, the closest skater was approximately eight feet from the helicopter, according to the enforcement report. Mr. Friesen had a plan that in the event of an engine failure, he could control the helicopter with his rudder pedals. Mr. Friesen gave evidence that the possibility of an engine failure was very low. The Minister has not introduced evidence that says otherwise.

[68] There are numerous errors in the enforcement report:

  1. The conclusion that the main rotor disk must be tilted in order to provide forward propulsion. Yet, Mr. Bertram conceded in this testimony that the helicopter could slide across the ice with momentum with the blades flat. It was this incorrect information that formed the basis in the report that a rotor strike to one of the hockey players was likely.
  2. The report says that Mr. Friesen had previously contravened the CARs. Yet, no enforcement action had been taken and no proof of such contraventions was offered.

[69] The only evidence of standard of care and due diligence was found in the report of the expert witness, Mr. Swallow, who said that the risk of a strike from the main or tail rotor was nil. Mr. Friesen took all reasonable safety precautions. He agreed that if he himself had been tasked to do the maneuver, he would have done the same thing as Mr. Friesen.

[70] It is not sufficient to say that the maneuver was reckless due to the maneuver itself. Instead, recklessness, as defined in the Transportation Appeal Tribunal of Canada's decision Decicco v. Minister of Transport (Decicco), is a state of mind that Mr. Friesen did not possess.

[71] It is submitted that Mr. Friesen sincerely believed he took all reasonable precautions; he did not perceive a risk and then deliberately decide to run it.

[72] Nor was Mr. Friesen negligent in his conduct, as also defined by the Tribunal in Decicco.

[73] The evidence, as presented, indicates Mr. Friesen took all care that a reasonable and prudent pilot would in the circumstances of conducting the maneuver.

[74] It is the position of Mr. Friesen that the Minister has not introduced evidence that was likely to endanger the life of any person, and anything less than likely does not meet the elements of CAR 602.01. Evidence was presented that the main rotor blades were not tipped forward. Furthermore, the blades were coned upward so that there was three or four feet of clearance to the tallest hockey player. Thus a strike from the main rotor blades was not likely. With respect to the tail rotor, there was a pre-existing gap wide enough for the helicopter to pass through. The closest skater was over eight feet from the tail rotor; at this point all skaters were moving away from the helicopter. Therefore a tail rotor strike was not likely.

[75] With respect to due diligence, the Aeronautics Act, section 8.5, says that “no person shall be found to have contravened a provision of … any regulation… if the person exercised all due diligence to prevent the contravention”. To avoid the issue of liability, the test for due diligence is two-fold: there must be a standard in place and reasonable actions to meet special circumstances. The enforcement report alleges that, based on the actions of others, it can be presumed that Mr. Friesen's precautions were ineffective at mitigating the potential harm in satisfying the due diligence test.

[76] It is submitted that the focus of the test is not what others did but instead what precautions Mr. Friesen took, and whether or not he did what a prudent pilot would have done in the circumstances of the maneuver.

[77] As Mr. Friesen explained, the 20-day waiting period for the SFOC made it unreasonable for him to obtain one in order to take advantage of the rare weather conditions. Mr. Bertram's email in Exhibit M-5 listed some CARs that he thought may be applicable, yet none of them were. An SFOC is obtained when you know you are going to be contravening a CAR and you want to get special permission to be able to do so. You have to outline how you are going to do it safely. In this case, it was not likely that an SFOC would be granted to allow a person to be reckless or negligent. There was no evidence adduced that an SFOC was mandatory, necessary or available.

[78] There was nothing further that Mr. Friesen should have done affecting the safety of the maneuver. He took all safety measures and exercised all due diligence.

C. Minister (in reply and in consideration of the amount of sanction)

[79] This is a strict liability violation. So intention, as in criminal law, is not a consideration. The Minister doesn't have to prove that Mr. Friesen had the intention to cause a danger or a situation likely to cause a danger. That Mr. Friesen did not have the intent to hurt anybody is irrelevant.

[80] It is true that the enforcement report lists under Aggravating Factors that Mr. Friesen was involved in videos where CARs contraventions were noticed, yet no contraventions were proven. The evidence that these “aggravating factors” were not prejudicial to Mr. Friesen is found in the sanction that was actually applied. The $1,000 sanction is the first level sanction, so this reference to aggravating factors did not result in a higher sanction.

D. Applicant (in consideration of the amount of sanction)

[81] Mr. Friesen does not believe he contravened the CARs, however if he was found to have done so, then he would accept the penalty, as it is the minimum amount.

V. ANALYSIS

[82] The standard of proof imposed on the Minister is the civil standard specified in the Transportation Appeal Tribunal of Canada Act, subsection 15(5), “proof on the balance of probabilities”.

[83] There are four issues to be decided:

Issue #1:

[84] Exhibit M-1, the Aviation Enforcement Case Report, contains a statement under Aggravating Factors that Mr. Friesen had been involved in several videos where CARs contraventions were noticed. This statement is unsupported by proven contraventions or even an investigation. Did this statement result in prejudice to Mr. Friesen?

[85] This statement is presented as fact when it is nothing of the sort. I cannot consider whether or not the statement was prejudicial in causing Transport Canada to proceed to a charge of CAR 602.01. I can only consider two questions:

1. Did the unsupported statement result in the sanction being raised inappropriately?

The sanction applied was a first-level sanction, the minimum level applicable under the sanction schedule. Therefore I find that the sanction was not raised inappropriately.

2. Did the presence of this unsupported statement in Exhibit M-1 prejudice Mr. Friesen in this review hearing determination?

I accept Mr. Friesen's position that the Minister put into evidence a statement of fact that is nothing of the sort – certainly a practice to be discouraged. However, I confined my analysis to the conduct of the maneuver in relation to the regulation. I did not consider this unsupported statement in my determination and therefore find that it did not result in prejudice to Mr. Friesen.

Issue #2:

[86] Did the maneuver in question endanger, or was it likely to endanger, the lives of the participants?

[87] To answer this question, I break the maneuver into its two components and ask two further specific questions:

1. Was the ice slide maneuver itself a danger?

Quite a few ice slides were conducted. No evidence was introduced that an ice slide is a maneuver prohibited by regulation or, in this case, that it was outside the operating performance envelope of the helicopter. The only evidence was that they were conducted with precision and skill.

2. Did the act of sliding the helicopter through the gap between the hockey players constitute a danger or a likelihood of danger to them?

Mr. Swallow was accepted as an expert over the objection of the Minister on the basis that his expertise did not extend to piston engine power as it applied to helicopter operations. In qualifying him as an expert, I stated that I would assign appropriate weight to his testimony.

I assign a diminished weight to Mr. Swallow's opinion for several reasons. He did not conduct an independent investigation nor did he contact the Transport Canada enforcement investigator, rather he based his report entirely on facts as told to him by Mr. Friesen. He said in testimony that there was no one in front of the helicopter during the ice slide when the video M-2 clearly showed there was; though not directly in front, the skaters were in the forward area and under the main rotor. His report, Exhibit A‑4, says the main rotor presented no risk at all; whether or not a skater was under the main rotor while the helicopter slid by is immaterial.

In relation to the risk of a person being hit by the tail rotor, he said the tail rotor was in the centre of the fuselage, whereas his submitted report indicated the rotor was on the left side of the helicopter, presumably somewhat to the left side of centre. His report states that all that was required of the skaters was to remain clear of the fuselage and they did so.

I accept his opinion of no risk only insofar as it is predicated on the skaters doing exactly as instructed, that is, to move away from the helicopter as it slid toward them. I note that Exhibit M-3, image A, is a screen shot from the video as the helicopter approaches the players. It clearly shows the players to the left virtually lined up with the left skid of the helicopter, essentially directly in its path. Had they not moved out of the way, there was a very real possibility they could have been struck by the skid. If not struck, they would have been approximately two to three feet from the spinning tail rotor. In my judgment, that is an insufficient distance from the tail rotor for it to pose no risk at all. I base my finding on the fact that the helicopter was at that instant moving; the situation was dynamic, and a yawing motion of only several degrees would have reduced the separation from the rotor to the players even further. I grant that Mr. Friesen is a highly experienced and competent pilot, but at that instant he allowed himself absolutely no margin for the slightest mishandling of the controls.

It is true that Mr. Friesen set up a 10-foot gap between the players. Mr. Swallow's report states the width of the skids to be 86 inches. The resulting clearance from the skids was supposed to be 34 inches, or 17 inches on each side. Even Mr. Friesen said in cross-examination that if they [the hockey players] did not move, it would have been a dangerous situation. Yet Exhibit M-3, image A, shows it unlikely that even 17 inches of clearance would have existed had the players on the left not moved out of the way.

For these reasons, I cannot accept Mr. Swallow's opinion of no risk at all and find that the act of sliding the helicopter through the gap between the hockey players constituted a danger or a likelihood of danger to them.

Issue # 3:

[88] If the maneuver did endanger or was likely to endanger the lives of the participants, was Mr. Friesen reckless or negligent, or both?

[89] In proceeding to decide recklessness or negligence, I note the appeal panel in Decicco quoted the definition of recklessness from Black's Law Dictionary, Fifth Edition:

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

[90] Because M. Friesen took many precautions, such as a conducting a clear and descriptive safety briefing, demonstrations of the ice slide, and positioning the hockey players on the ice, I do not find that Mr. Friesen was reckless.

[91] On the other hand, in the consideration of negligence, I find that Mr. Friesen, in the execution of the maneuver in question, required others to get out of his way in order for a margin of safety to be maintained, that is to say, for a likelihood of danger to not exist.

[92] In effect, he put the safe outcome of the maneuver into the hands of others. They, not him, as pilot in command, now had the responsibility and authority for the safety of the aircraft and, in doing so, created a likelihood of a danger that a reasonable and prudent pilot would not do.

[93] The appeal panel in Decicco also referred to Black's Law Dictionary for the definition of negligence:

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

[94] Mr. Friesen's representative was correct in saying that the applicant should not be judged by what others did, but by what he did. Nevertheless, I note that at the time Mr. Friesen called “break, break, break”, the hockey players were already starting to move. Mr. Friesen was no longer in control of the situation. The helicopter pilot-hockey players had already called the audible signal for all the players to move.

[95] I find that Mr. Friesen was negligent in that he did not operate his helicopter as a reasonable and prudent pilot would have, insofar as others had to move out of the way in order to maintain an adequate margin of safety.

Issue #4:

[96] If the maneuver did endanger or was likely to endanger the lives of the participants, was the danger mitigated by the due diligence of Mr. Friesen?

[97] It is established that Mr. Friesen took many safety precautions to minimize danger to the hockey players. According to the Aeronautics Act, section 8.5, it is required that a person exercise all due diligence. Were there other actions that Mr. Friesen could have taken to minimize the danger to the hockey players? He could have sought relief from the regulations by obtaining an SFOC. It is true that he would have missed the opportunity created by the rare and perfect ice conditions. It is not sufficient for him to say he could not get one because the maneuver was planned for the next day. He could have applied for the SFOC and did not do so. He could have created a wider pre-existing gap between the players, such that they would not have been required to move in order to avert a likelihood of danger.

[98] According to R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299, and quoted in R. v. Chapin [1979] 2 S.C.R. 121:

An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent.

[99] As noted, the applicant has not shown that he took all reasonable steps to minimize the possible dangers in this case. Furthermore, as a finding of negligence has been made, the defence of due diligence is no longer open to him.

[100] Other issues, such as the willingness of the players to participate or the opinions expressed in reaction to the posting of the video, were found to not be relevant to the charge.

VI. DETERMINATION

[101] The Minister of Transport has proven, on a balance of probabilities, that the applicant, Bradley Friesen, contravened section 602.01 of the Canadian Aviation Regulations. The monetary penalty of $1,000 is upheld.

May 7, 2015

Arnold Olson

Member


Appeal decision
Herbert Lee, Tracy Medve, Charles Sullivan


Decision: September 20, 2016

Citation: Friesen v. Canada (Minister of Transport), 2016 TATCE 26 (Appeal)

Heard in: Vancouver, British Columbia, on April 20, 2016

APPEAL DECISION AND REASONS

Held: The appeal is allowed. The Minister has failed to prove that Mr. Friesen violated section 602.01 of the Canadian Aviation Regulations, and the monetary penalty of $1,000 is cancelled.

I. BACKGROUND

[1] On January 14, 2014, the Minister of Transport issued a Notice of Assessment of Monetary Penalty of $1,000 to the appellant, Mr. Bradley Friesen, for a contravention of section 602.01 of the Canadian Aviation Regulations, SOR/96-433 (CARs).

[2] The penalty was assessed against Mr. Friesen in connection with an incident on or about December 8, 2013, at or near Upper Consolation Lake, British Columbia. Mr. Friesen was the pilot-in-command of a Robinson R-44 helicopter and was alleged to have operated the helicopter in such a reckless or negligent manner as to be likely to endanger the property or life of any person by maneuvering the helicopter on the ice through a group of hockey players.

[3] The appellant applied for a review of the Notice by the Transportation Appeal Tribunal of Canada (Tribunal), and the hearing took place on March 10 and 11, 2015. The review member confirmed the Minister's decision to assess a monetary penalty of $1,000.

[4] The appellant filed a Notice of Appeal on June 2, 2015. The appeal hearing took place on April 20, 2016.

[5] The main facts of this case are as follows:

  1. The appellant, as the pilot-in-command of a helicopter, took part in the filming of a video sequence on a frozen alpine lake. The sequence consisted of a choreographed helicopter slide on ice through a group of hockey players.
  2. The video sequence was well planned and practiced with the participation of a professional stunt coordinator and a group of skaters comprised of six experienced hockey players plus two helicopter pilots as skaters.
  3. The appellant took many precautions before the event such as conducting a clear and descriptive safety briefing for the participants, demonstrating the ice slide and positioning the hockey players on the ice on either side of a ten-foot gap.
  4. The maneuver was conducted without incident.

II. REVIEW DETERMINATION

[6] The review member found that the Minister had proven that Mr. Friesen had been negligent and therefore had contravened section 602.01 of the CARs.

[7] The review member considered four separate issues to be decided. The first issue related to a statement contained in the Aviation Enforcement Case Report prepared by the Transport Canada inspector, Mr. Ross Bertram, which was alleged to have caused an inappropriate escalation of the penalty imposed on Mr. Friesen and to have prejudiced Mr. Friesen in the review hearing. The review member found that there was no inappropriate escalation of the monetary penalty and that he had been able to perform his analysis without considering the unsupported statement by the Minister. This issue was not raised as a ground for appeal and will not be considered in this appeal decision.

[8] The second issue considered by the review member was whether the ice slide maneuver endangered or was likely to endanger the lives of the participants. He gave reduced weight to the testimony of the expert witness, Mr. Swallow, for several reasons: Mr. Swallow did not conduct an independent investigation in that he based his opinion solely on facts provided by Mr. Friesen; he said in his report there was no one in front of the helicopter during the slide when the video (Exhibit M-2) showed there were skaters ahead of the helicopter, though not directly in front of it, and under the main rotor; his report (Exhibit A-4) stated that the main rotor presented no risk at all whereas the review member considered it immaterial whether or not a skater was under the main rotor while the helicopter slid; and in relation to the risk of a person being hit by the tail rotor, he said the tail rotor was in the centre of the fuselage, whereas his submitted report indicated the rotor was on the left side of the helicopter, presumably somewhat to the left side of centre.

[9] However, having indicated these as the reasons for diminished weight, he said he accepted the expert's opinion of no risk but only insofar as it was predicated on the skaters doing exactly as instructed, that is to move away from the helicopter as it slid toward them: “I base my finding on the fact that the helicopter was at that instant moving; the situation was dynamic, and a yawing motion of only several degrees would have reduced the separation from the rotor to the players even further.” He went on to find that the slide constituted a danger or likelihood of danger to the hockey players.

[10] The next issue the review member addressed was whether, if the maneuver did endanger or was likely to endanger the lives of the participants, Mr. Friesen was reckless or negligent or both. He determined that Mr. Friesen was not reckless because he took many precautions, but did find Mr. Friesen was negligent because the maneuver required others to get out of his way for the margin of safety to be maintained: “In effect, he put the safe outcome of the maneuver into the hands of others. They, not him, as pilot in command, now had the responsibility and authority for the safety of the aircraft, and, in doing so, created a likelihood of danger that a reasonable and prudent pilot would not do” (review determination, page 17). He cited the Black's Law Dictionary definition of negligence as referred to by the Tribunal's appeal panel in Decicco v. Minister of Transport, CAT File No. C‑1316‑02: “The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.”

[11] The final issue on which the review member decided was, if the maneuver did endanger or was likely to endanger the lives of the participants, was the danger mitigated by the due diligence of Mr. Friesen. The review member acknowledged that the appellant took many precautions to minimize the danger to the hockey players, but that section 8.5 of the Aeronautics Act, R.S.C., 1985, c. A‑2, required a person to have exercised all due diligence in order to avoid the contravention. He concluded that Mr. Friesen could have taken other actions such as seeking relief from the regulations by obtaining a Special Flight Operations Certificate (SFOC), and he could have created a wider gap between the players so they would not have been required to move to avert a likelihood of danger. Citing R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, which states that “[an] accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent”, the review member concluded that Mr. Friesen had not shown that he had taken all reasonable steps to minimize the possible danger and further that “as a finding of negligence [had] been made, the defence of due diligence [was] no longer open to him” (review determination, page 18).

III. GROUNDS FOR APPEAL

[12] The appellant's overarching submission is that a Tribunal member has a duty to follow legal principles in that he or she must conduct the proceedings in a manner that is consistent with procedural fairness and natural justice. In support of his contention that these obligations were not met by the review member in this case, the appellant tendered several grounds for appeal of the review determination as follows:

  1. The Minister did not tender any proof of the standard of care.
  2. The Minister offered no proof that Mr. Friesen breached the requisite standard of care.
  3. The review member applied the wrong test for negligence under section 602.01 of the CARs by deciding on the basis of a possibility of harm rather than a likelihood of harm.
  4. The review member substituted his own opinion for that of the expert.
  5. The review member disregarded the evidence of the expert for reasons that were not valid in law.
  6. The review member took irrelevant considerations into account and failed to consider relevant considerations.
  7. The Minister violated the rule against stating an opinion as to the guilt of the accused.
  8. The review member erred in law by excluding the statutory defence of due diligence on the basis that he had already made a finding of negligence. In doing so, he failed to consider the defence of due diligence before convicting Mr. Friesen on the charge of negligence.

[13] Both parties also made submissions with respect to the matter of the standard of review to apply in this appeal.

IV. ARGUMENTS

(1) The Minister did not tender any proof of the standard of care

(a) Appellant's arguments

[14] The appellant submitted that the Minister did not tender any proof of the standard of care required of Mr. Friesen and that the review member erred in law in finding that the Minister established negligence without first tendering any evidence of the standard of care he was required to meet. The only evidence proffered by the Minister at the review hearing was the testimony of the Transport Canada inspector, who viewed the video in question and had email correspondence with Mr. Friesen.

[15] There was no separate expert evidence tendered by the Minister's representative to show the standard of care or any evidence that there was a breach of that standard. The Transport Canada inspector is not entitled to act as an expert and was neither tendered nor accepted as one. In any event, he could not have been qualified as an expert because he would not have been impartial and independent.

[16] Citing Gadsby v. Macgillivray, 1997 CanLII 3318 (BC SC), and Ostrowski v. Lotto, 1970 CanLII 49 (ON CA), the Bolam test was proffered by the appellant as defining the requisite standard:

But where you get a situation which involves the use of some special skill or competence then the test whether there has been negligence or not is not a test of the man on the top of a clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

[17] At paragraph 93 of the review determination, the review member cited a dictionary definition of “negligence” based on a “reasonable man” standard. The appellant submitted that the dictionary definition does not apply to a charge under a specialized statute. The charge of negligent operation of a helicopter requires proof of acceptable practice for a skilled helicopter pilot, given the conditions, the equipment and safety measures in place. The evidence of Mr. Swallow, the only expert called at the review hearing, showed that there was no risk of injury under the circumstances.

[18] Citing Seiler v. Mutual Fire Ins. Co., 2003 BCCA 696, the appellant argued that it was proper to set aside the conviction because the Minister, who bears the onus of proof, had not tendered expert evidence to establish the standard of care to be met. It was submitted that the review member had not properly considered the correct legal standard applicable for negligence under section 602.01 of the CARs in this case as being that of a skilled helicopter pilot.

(b) Minister's arguments

[19] The Minister's representative submitted that Mr. Bertram was a helicopter pilot himself and explained all the things that could have happened in performing the slide maneuver. He also pointed out that Mr. Friesen himself had acknowledged that there were risks involved in the maneuver (supported by testimony from Mr. Caouette, one of the appellant's witnesses at the review hearing) and that Mr. Swallow, the expert witness, had confirmed this was not a normal helicopter operation.

[20] The Minister's representative also submitted excerpts from the review determination to support his claim that the review member had indeed taken into consideration the proper standard:

[92] [The people on the ground], not him, as pilot in command, now had the responsibility and authority for the safety of the aircraft and, in doing so, created a likelihood of danger that a reasonable and prudent pilot would not do.

[...]

[95] I find that Mr. Friesen was negligent in that he did not operate his helicopter as a reasonable and prudent pilot would have, insofar as others had to move out of the way in order to maintain an adequate margin of safety.

[21] The Minister's representative reiterated that so long as an appeal panel can understand why the review member came to his determination this is sufficient, and the test required in the Dunsmuir case with respect to the standard of review in an appeal has been met.

(2) Minister offered no proof that Mr. Friesen breached the requisite standard of care, and the review member applied the wrong test for negligence

(a) Appellant's arguments

[22] It is the appellant's position that the Minister offered no proof that Mr. Friesen breached the requisite standard of care. The statutory test required a likelihood of danger, and there was no evidence tendered that Mr. Friesen breached the requisite standard of care. The review member used a reasonable pilot test instead of that of a reasonable helicopter pilot with a specialized skill set. And he decided on the basis of a possibility of harm rather than a likelihood of harm. There was no evidence tendered upon which to base the charge. There was no proof by the Minister of any statistical likelihood of injury which could satisfy the Minister's burden of proof.

(b) Minister's arguments

[23] The Minister's representative takes the view that the review member used a proper standard, citing his finding that “he [Mr. Friesen] did not operate his helicopter as a reasonable and prudent pilot would have…”

[24] The Minister's representative also submitted that contrary to the appellant's submission that there was a requirement to prove “likelihood”, it would not be possible to provide a statistical likelihood of endangerment in an instance such as this where it is a first-time or unique event.

(3) The review member substituted his own opinion for that of the expert

(a) Appellant's arguments

[25] The appellant's third argument was that the review member substituted his own opinion for that of the expert. The expert witness, Mr. Swallow, who gave an opinion as to helicopter operations and safety, was the only witness who was qualified to give opinion evidence on helicopter operations. The appellant's submission is that the review member himself could not disagree with that opinion and substitute his own opinion because that would make him a witness and leave no opportunity for the accused to cross-examine him. An adjudicator has to make the decision on the basis of the evidence, not on the basis of what he or she thinks.

[26] The case of Sheddy v. Law Society of British Columbia, 2007 BCCA 96, was cited in support of the appellant's position that the conviction should be set aside as the adjudicators in that case did not confine their decision to the evidence that had been tendered and made findings based on their own experience.

[27] The review member did not indicate that Mr. Swallow lacked credibility. In fact, he accepted the conclusion of the expert with the caveat that he did so based only on the fact that the skaters had moved away from the approaching helicopter.

[28] Further, the appellant argued in support of the case of R. v. Lavallee, [1990] 1 SCR 852, which stated:

As long as there is some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts not proved…the less weight the jury may attribute to the opinion.

While there may be legitimate reasons for ignoring the evidence of a qualified expert, if no such reasons exist, then the evidence proffered by the expert cannot be ignored.

(b) Minister's arguments

[29] The Minister's representative submitted that the review member gave clear reasons for why he decided to give little weight to the expert's opinion. He also submitted cases (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (Burgess), and Workers' Compensation Board of British Columbia v. Flanagan Enterprises (Nevada) Inc., 2016 BCSC 650 (Flanagan)) as support for his position that an adjudicator has the right to give little weight to an expert's opinion when there was a lack of independence and impartiality and explained at length and very clearly the reasons why he decided to give very little weight to an expert's opinion. The Minister submitted that the review member could arrive at his own conclusion apart from what an expert says.

(4) The review member disregarded the evidence of the expert for reasons that were not valid in law

(a) Appellant's arguments

[30] The appellant submitted that the review member erred in law in saying that he did not accept the opinion of the expert because the expert did not conduct an independent investigation. The expert was lawfully permitted to base his opinion on information provided by Mr. Friesen so long as the facts relied upon were established on the record. The appellant submitted that all of the facts relied upon by the expert were proven in evidence and were not refuted by additional expert evidence.

[31] By taking into account irrelevant information (i.e. the failure of Mr. Friesen to obtain an SFOC and the failure of Mr. Friesen to create a wider initial gap between the skaters), the review member exceeded his mandate and jurisdiction. Saying that Mr. Friesen could have applied for an SFOC and speculating whether Transport Canada may have imposed further and other conditions to minimize the risk is pure conjecture on the review member's part. Furthermore, by raising this possibility and since the Minister's witness had confirmed that an SFOC would have been possible the appellant argued that this shows the actions of Mr. Friesen were not negligent as Transport Canada would not have issued an SFOC to do something that was negligent and likely to cause harm.

(b) Minister's arguments

[32] The Minister's representative argued that the review member did not solely base his decision on the fact that the expert witness relied only on the facts provided by the appellant, but on different elements of the expert report which contradict evidence on the record. As a result, the Minister's representative argued that the review member mentioned clearly why he decided to give little weight to Mr. Swallow's testimony and report, and further, the review member was entitled to evaluate the credibility and weight to give to the expert witness testimony and report as mentioned in Burgess.

[33] The Minister's representative submitted that based on the Flanagan decision, the review member could evaluate the evidence, including the expert evidence, determine the weight to be given (with reasons for deciding to give little or no weight) and make a decision on the facts. Therefore, it was open to the review member to disagree with the expert as long as his opinion was within a range of possible outcomes.

[34] Relying on Burgess, the Minister took the position that it was open to the review member to refuse to accept the expert opinion about the risk of the maneuver and “treat independence and impartiality as bearing not just on weight but also on the admissibility of evidence”.

(5) The review member took irrelevant considerations into account and failed to take relevant considerations into account in arriving at his determination

(a) Appellant's arguments

[35] The review member found negligence because the pilot had to depend upon persons on the ground acting responsibly but failed to acknowledge the importance of the fact that the persons on the ground did act responsibly. The reasoning of the review member that reliance on people on the ground to act responsibly meant the pilot was negligent failed to take into account that every helicopter pilot must depend on people on the ground to act responsibly such as in heli-skiing or heli-logging. The behavior of the people on the ground is important to safe operations.

[36] Relying on Canada v. 2431-9154 Quebec Inc., 2008 FC 976, and Khan v. University of Ottawa, 1997 CanLII 941 (ON CA), the appellant submitted that failure to take into account relevant considerations and taking into account irrelevant considerations is a failure to observe the rules of natural justice.

[37] Further, the review member took into consideration the failure of Mr. Friesen to obtain an SFOC. In so ruling, the appellant's position is that the review member accepted that an SFOC could have been obtained and that the maneuver could not, therefore, have been negligent. The review member made a further error in law by considering as an aggravating factor the fact that the players had begun moving away from the helicopter before the signal from Mr. Friesen when that should instead have been considered to be a mitigating factor resulting in a greater margin of safety.

[38] Citing Nova Scotia Teachers Union v. Nova Scotia (Minister of Education), 1998 CanLII 2392 (NS SC), and Campeau Corp. v. Calgary (City), 1978 AltaSCAD 266,the appellant further reinforced the argument that taking into account irrelevant considerations and failing to take into account relevant evidence is an excess of jurisdiction.

(b) Minister's arguments

[39] The Minister's representative submitted in response that the appellant, by requiring the hockey players to move away from the helicopter, transferred the responsibility and authority for the safety of the aircraft to them and, by so doing, completely ignored his responsibility as the pilot-in-command. The Minister's representative submitted that the ultimate responsibility for the safety of the persons or property around the aircraft, the passengers and the aircraft itself belongs to the pilot-in-command.

(6) The Minister violated the rule against stating an opinion as to the guilt of the accused

(a) Appellant's arguments

[40] The appellant submitted that the Minister's representative had violated the rule against stating an opinion as to the guilt of the accused during the review hearing by making the following statement to the review member:

“When I analyze the evidence and the testimony of the witnesses, I came to the conclusion that—and it is my opinion—that both parties agree that there were—there was a potential risk to endanger the life of the skater.”

[41] The concern is that a lay adjudicator may be influenced by a statement of personal opinion. The appellant relied on Boucher v. Her Majesty the Queen, [1955] SCR 16 (Boucher), where Justice Locke stated:

It is improper, in my opinion, for counsel for the Crown…to express his opinion as to the guilt or innocence of the accused.

[42] This is because doing so may have undue influence on the decision-maker, particularly in the event the adjudicator is a lay person. The appellant further submitted that there was an additional flaw in the statement by the Minister's representative in that it referred to “a potential risk to endanger” when the appropriate consideration would have been whether there was a likelihood of danger.

(b) Minister's arguments

[43] The Minister's representative argued that the excerpts from the Boucher decision relied upon by the appellant were taken out of context in that the closing arguments of Crown counsel in that case were found to be inflammatory and vindictive and based on facts that were not put as evidence during the trial. Rather, the Minister's representative submitted that counsel is entitled to refer to properly adduced evidence in closing arguments and that this was what had transpired at the review hearing.

(7) The review member erred in law by excluding the statutory defence of due diligence

(a) Appellant's arguments

[44] The appellant contended that the review member erred in law by excluding the statutory defence of due diligence on the basis that he had already decided there should be a conviction for negligence. The review member failed to consider the defence of due diligence before making his finding of a contravention of the regulations, thereby putting the cart before the horse.

(b) Minister's arguments

[45] The Minister's representative argued that a finding of negligence must be made first, otherwise there is no need to consider whether the accused exercised due diligence. Also, the Minister's representative submitted that the review member did consider the issue of due diligence by finding that the appellant had not taken all reasonable steps to minimize the risk: he had transferred the responsibility for safety to the skaters, he had not applied for an SFOC and he had not requested a wider initial gap between the skaters.

(8) Standard of review

(a) Appellant's arguments

[46] The appellant also made a submission relating to the standard of review for this appeal. The appellant submitted that the standard to be applied by the Tribunal's appeal panel with regard to a review determination (as opposed to the standard for judicial review of a decision of the Tribunal) on matters of law is the standard of correctness. The case of Billings Family Enterprises Ltd. v. Canada (Transport), 2008 FC 17 (Billings), was cited in support of the submission that the appeal hearing is a hearing de novo whereby the appeal panel can substitute its own decision based on the evidence from the review hearing. The appellant also submitted that the issues raised in the grounds for appeal are all matters of law, not fact.

(b) Minister's arguments

[47] Citing Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir), the Minister's representative submitted that the standard of review should be one of significant deference provided the decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law. The Minister's representative proffered Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, Farm Air Ltd. v. Canada (Minister of Transport), 2011 TATCE 20 (Appeal) (Farm Air), and Genn v. Canada (Minister of Transport), 2012 TATCE 7 (Appeal), in support of his position that with regard to findings of fact and issues of credibility, so long as a decision on review is within a range of reasonable outcomes based on evidence that was before the review member, the appeal panel should not interfere with the decision.

[48] He further submitted that contrary to the appellant's position, the questions raised and to be addressed by the appeal panel are questions of fact only. Therefore the standard of reasonableness, rather than correctness, should apply.

V. ANALYSIS

A. Standard of Review

[49] The starting point for analysis of the submissions made in this appeal is the question of the appropriate standard of review to apply. The Dunsmuir case sets out the guiding principles for a judicial review by the Federal Court of a decision from a specialized tribunal. However, in this instance, we are dealing with a statutory appeal within an administrative tribunal. As confirmed by a recent decision from the Federal Court (Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799), the standard of review to apply in such situations goes hand in hand with the statutory intent found in the enabling legislation. This appeal is a proceeding that allows for a revision of the review member's determination by an appeal panel that has the same specialized expertise as the review member. The standard of review, therefore, based on Billings and as applied in subsequent decisions by an appeal panel of the Tribunal(e.g. Farm Air, Canada (Minister of Transport) v. NAV CANADA, 2010 TATCE 28 (Appeal), Canada (Minister of Transport) v. Air Saguenay (1980) Inc., 2015 TATCE 13 (Appeal)),is one of reasonableness for questions of credibility, fact and mixed fact and law, and one of correctness for questions of law.

[50] For matters falling under the standard of reasonableness, a finding by the review member should not be overturned unless there is an entire absence of evidence to support it or, notwithstanding that some evidence supports the finding, it is an unreasonable finding incapable of being supported by the remainder of the evidence. Where the correctness standard applies, the appeal panel can conduct its own analysis of the question and accept the review determination or substitute its own view of the law with no deference given to the review member.

[51] In light of this, a key question in this appeal becomes whether the grounds of appeal are ones relating to errors of law, as posited by the appellant, or questions of fact, as submitted by the Minister. The difficulty posed by differentiating what is a question of law, mixed fact and law and fact was outlined by the Supreme Court in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 35, and reaffirmed in Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 SCR 221, at paragraph 40:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

[52] We find that the main facts of this case are not in dispute:

  1. As part of a crew filming a hockey video on an alpine lake, the appellant piloted a helicopter in such a manner as to have it slide on the ice through a pre-established gap between two groups of skaters.
  2. The video sequence was planned in advance and practiced with the participation of a professional stunt coordinator, six experienced hockey players plus two helicopter pilots as skaters who were intentionally positioned to the left of the helicopter (the side on which the tail rotor was located).
  3. The appellant took many precautions before the event such as conducting a clear and descriptive safety briefing, demonstrating the ice slide to the participants, sliding “light on the skids” with a flat main rotor blade, checking the ice thickness, using an experienced stunt coordinator, arranging for medical evacuation, using competent skaters, placing the skaters who were also helicopter pilots on the rotor side of the helicopter, and positioning the skaters on the ice with a pre-set gap that was to be increased when a “break, break, break” command was given prior to the helicopter sliding between the skaters.
  4. The review member found that the slide was conducted with precision and skill and that no evidence was presented that an ice slide is a maneuver that is prohibited by regulation or outside the operating performance envelope of the helicopter.
  5. The maneuver was conducted without incident.

[53] Based on the preceding, we support the appellant's position that the matters raised in this appeal (the review member's handling of the expert evidence and the issues of standard of care, negligence and due diligence) are questions of law and are therefore subject to the standard of review of correctness.

B. Expert Evidence

[54] The review member accepted Mr. Swallow as an expert but did rightly specify that he would consider the weight to be given to Mr. Swallow's evidence. The case law is clear that so long as there is some admissible evidence to establish the foundation of an expert's opinion, the opinion evidence is admissible. However, any failure to prove parts of the factual foundation of an opinion would go to the weight to be given that opinion (R. v. Abbey, [1982] 2 SCR 24).

[55] We find that the opinion evidence provided by Mr. Swallow was uncontroverted. The only evidence presented by the Minister at the review hearing was that of the Transport Canada inspector, Mr. Bertram, who was not qualified as an expert. While his interpretation of what he saw in the video was different from that presented by Mr. Swallow, he was no more qualified to come to his conclusions than Mr. Swallow. He conducted no greater investigation into the matter than did Mr. Swallow as he only watched the original video and the “Behind the Scenes” video, he corresponded with Mr. Friesen by email and had one telephone conversation with Mr. Friesen. The only difference between the expert evidence and the evidence presented by the Minister is that Mr. Bertram was giving opinion evidence but was not qualified as an expert for the purposes of giving opinion evidence at the review hearing. He could not have been qualified as an expert given that he was at the hearing in his capacity as a representative of the Minister of Transport and could not have been considered independent.

[56] Mr. Swallow was unequivocal in his opinion that based on the facts provided by Mr. Friesen of the events which occurred on the day in question and his review of the videos and the report from Transport Canada, there was no risk of endangerment. All of the facts upon which Mr. Swallow relied to formulate his opinion were proven in evidence at the hearing. There was no evidence presented that Mr. Swallow was not independent or impartial in the formulation of his opinion. And finally, under cross examination Mr. Swallow's evidence did not vary from the opinion he gave in his report.

[57] In his determination, the review member wrote that he gave diminished weight to the expert's opinion for several reasons: he had not conducted an independent investigation; he had said in testimony that there was no one in front of the helicopter during the ice slide when the video entered as Exhibit M-2 clearly showed that the skaters were ahead of the helicopter, though not directly in front of it, and under the main rotor; and he had said the tail rotor was in the centre of the fuselage, whereas his submitted report indicated the rotor was on the left side of the helicopter, presumably somewhat to the left of centre. The review member then went on to state the following:

I accept his [the expert's] opinion of no risk only insofar as it is predicated on the skaters doing exactly as instructed, that is, to move away from the helicopter as it slid toward them. I note that Exhibit M-3, image A, is a screen shot from the video as the helicopter approaches the players. It clearly shows the players to the left virtually lined up with the left skid of the helicopter, essentially directly in its path. Had they not moved out of the way, there was a very real possibility they could have been struck by the skid. If not struck, they would have been approximately two to three feet from the spinning tail rotor. In my judgement, this is an insufficient distance from the tail rotor for it to pose no risk at all. I base my findings on the fact that the helicopter was at that instant moving; the situation was dynamic, and a yawing motion of only several degrees would have reduced the separation from the rotor to the players even further. I grant that Mr. Friesen is a highly experienced and competent pilot, but at that instant, he allowed himself absolutely no margin for the slightest mishandling of the controls.

It is true that Mr. Friesen set up a 10-foot gap between the players. Mr. Swallow's report states the width of the skids to be 86 inches. The resulting clearance from the skids was supposed to be 34 inches or 17 inches on each side. Even Mr. Friesen said in cross-examination that if they (the hockey players) did not move, it would have been a dangerous situation. Yet Exhibit M-3, image A, shows it unlikely that even 17 inches of clearance would have existed had the players on the left not moved out of the way.

For these reasons, I cannot accept Mr. Swallow's opinion of no risk at all and find that the act of sliding the helicopter through the gap between the hockey players constituted a danger or a likelihood of danger to them.

[Emphasis added.]

[58] After stating he agreed with the finding of “no risk,” the review member nevertheless goes on to refute the opinion because he had a different assessment about what he saw on the video and because he concluded that the expert's opinion was predicated on the skaters moving away from the helicopter. But his conclusion on this point is too narrow. Mr. Swallow's opinion took into consideration all the other aspects of Mr. Friesen's actions to mitigate the risk: being light on the skids with a flat rotor, his medical evacuation plan, the safety briefing, using a professional stunt coordinator, measuring the ice thickness, practicing the slides, etc. All these facts were contained in Mr. Swallow's report, were proven in evidence and were unrefuted by any evidence presented by the Minister.

[59] The case of R. v. Lavallee, [1990] 1 SCR 852, presented by the appellant supports the position that, unless the expert relied on facts not proven in evidence, the evidence proffered by the expert cannot be completely ignored. But the Supreme Court in R. v. Molodowic, 2000 CSC 16, also made it clear that it could be unreasonable to reject expert evidence if there is no contradictory evidence and the opinion of the expert is not seriously challenged. We find that this is the circumstance in this case. The facts relied upon by Mr. Swallow were proven in evidence, and the only contrary evidence was the opinion of the Transport Canada inspector about what he saw on the video. And the cross-examination of Mr. Swallow did not produce any significant challenge to the veracity or strength of conviction of his opinion. Finally, there was no suggestion that Mr. Swallow was not a credible witness. Based on the preceding, we find that it was not reasonable for the review member to reject or give diminished weight to the opinion evidence of Mr. Swallow.

C. Standard of Care and Breach of the Standard of Care

[60] For a finding of negligence to be made, it must be established that a requisite standard of care has been breached. The issue here is whether the standard of care owed by Mr. Friesen was established by the evidence presented and, based on that standard, did the evidence support the finding that the standard had been breached?

[61] The appellant has submitted that the review member applied the wrong standard, being that of an ordinary pilot. While the review member did refer to the dictionary definition of negligence in his determination, which references what a reasonable person—the Bolam test's “man on the Clapham omnibus”—would do, he also did go on to say in his findings that Mr. Friesen “…did not operate his helicopter as a reasonable and prudent pilot would have” (paragraph 92 of the review determination) and also that Mr. Friesen “…created a likelihood of danger that a reasonable and prudent pilot would not do.” This language suggests that he did take into consideration a more specialized standard of care as opposed to a more generalized standard of care.

[62] However, for the purposes of this appeal we find that the appropriate standard of care must be that of an experienced helicopter pilot conducting a specialized maneuver involving people on the ground as opposed to the standard of a “prudent pilot”. We arrive at this conclusion on the basis of the Bolam test and subsequent cases presented by the appellant supporting the proposition of a requirement to apply a specialized as opposed to a general standard when reviewing conduct involving specialized skills.

[63] The second submission on this point by the appellant was that the Minister provided no proof of the likelihood of endangerment such as a statistical likelihood of injury and therefore failed to prove the element of negligence required by section 602.01 of the CARs.

[64] The Minister's evidence was presented only by Mr. Bertram, the Transport Canada inspector. Mr. Bertram's testimony was based entirely on viewing the initial and the “Behind the Scenes” videos provided by Mr. Friesen and interacting with Mr. Friesen. His testimony did not address a standard of care. The Minister made no submissions to establish what standard would be required in a circumstance where a helicopter pilot is conducting a unique but not prohibited maneuver involving people on the ground. In presenting only the evidence of Mr. Bertram we have little more than opinion evidence from a witness who was neither presented as nor qualified by the review member as an expert.

[65] Mr. Bertram's testimony was that, after viewing the video, he had concluded: “That it was a dangerous operation. That the players could have been hit by the helicopter. They could have been hit by the rotor blade. They could have slipped on the ice and the helicopter ran over them. There is multiple things that could have happened that would have put those persons in danger.” (Review hearing transcript, page 35, emphasis added.)

[66] So was Mr. Bertram's evidence sufficient to support the “likelihood of endangerment” allegation? Mr. Bertram identified any number of things that “could have” occurred during the helicopter slide sequence. The question is whether “could have” equates to “likely to” as required by section 602.01. The parties did not provide specific case law with respect to this issue. However, in the face of Mr. Swallow's uncontroverted expert opinion that there was no risk of injury, a finding of “likely to endanger” cannot be made and we find that this necessary element of the offence has not been proven.

D. Due Diligence Defence

[67] In R. v. Steinberg's Ltd., [1977] O.J. No. 2441, Justice Harris wrote about due diligence:

To require the steps taken by the company to absolutely prevent these occurrences under any circumstances whatsoever would go beyond due diligence, and would make the company a virtual insurer against any error. I do not think that was the intention of the legislation; the words all due diligence import an area of precaution sufficient to prevent the foreseeable, but not the unforeseen, the unexpected, the unknown or the unintended.

[68] In R. v. Centre Datson Ltd., [1975] O.J. No. 2705, Justice Bennett said:

I think by now that it is trite law that due diligence is synonymous with reasonable diligence, and as well, that the test for reasonableness is a question of fact. It is argued that the test is that of a reasonable man; I think the test is somewhat more than this -- it is the degree of reasonableness within a specialty where a special skill or knowledge or ability is involved, as in the case for example of surgical malpractice; the test is not that of a reasonable man, but that of a reasonable surgeon.

[69] Due diligence depends on the facts of each case, the particular industry or activity, the inherent risks, the likelihood of harm, the extent to which the accused had control over the events, the degree of knowledge expected of the accused and the damage and degree of harm involved. However, the courts have also found that the requirement to take all reasonable steps does not mean taking all conceivable steps or making “superhuman efforts” (R. v. Courtaulds Fibres Canada (1992), 9 C.E.L.R. (N.S.) 304). The accused is expected to take steps that could be reasonably expected in the circumstances (R. v. B.C. Hydro And Power Authority, 1997 CanLII 4373 (BC SC)). The case law also favors looking at due diligence at the time of the incident rather than from the perspective of hindsight.

[70] Justice McFarlane in R. v. Northwood Pulp and Paper (1992), 9 C.E.L.R. (N.S.) 289 stated at page 293:

To constitute a defence, all due diligence must be exercised. While not tantamount to absolute liability, more than the care expected of an ordinary citizen is demanded. In the very least, the care must reflect the diligence of a reasonable professional possessing the expertise suitable to the activity in issue (See R. v. Giftwares Wholesale Co. (1977), 36 C.C.C. (2d) (Man. Co. Ct.), and R. v. Placer Development Ltd. (1985), 4 F.P.R. 336 (Y. Terr. Ct.).) The underlying standard is what is reasonable in the circumstances, but some factors which have been identified are the gravity of harm, the available alternatives, the likelihood of harm, the skill required, and the extent the accused could control the causal elements of the offence. (See R. v. Gonder (1981), 62 C.C.C. (2d) 326 (Y. Terr. Ct.).)

The court must not lose sight of the fact that it is examining the circumstances of the incident in April 1990 after the fact with the benefit of careful consideration by experts. The accused had to approach the problem without the benefit of clear vision that hindsight brings.

In my view, it is not sufficient to speculate on what might have been done, what controls might have been in place, but rather to examine what was done, what controls were in place, what was the state of technology that existed through the evidence of lay and expert witnesses to determine if the accused acted reasonable in the circumstances. Therefore, careful examination of the accused's operation through the evidence of the witnesses is required.

[71] The language found at section 8.5 of the Aeronautics Act is clear: “No person shall be found to have contravened a provision of this Part or any regulation…if the person exercised all due diligence to prevent the contravention.”

[72] Despite the review member having said that the defense of due diligence was not available to Mr. Friesen, he did take into consideration whether Mr. Friesen had exercised “all due diligence” and found that he had not by stating at paragraph 99 of his determination that “…the applicant has not shown that he took all reasonable steps to minimize the possible dangers in this case.” Specifically, he indicated that Mr. Friesen could have applied for an SFOC, or he could have required a wider pre-existing gap between the skaters.

[73] Based on the tests referred to above, the facts established in evidence regarding the steps Mr. Friesen took at the time of the incident to mitigate the risks which were acknowledged to exist with the proposed maneuver and the evidence from Mr. Swallow that the mitigations implemented by Mr. Friesen resulted in a “no risk” scenario, we find that Mr. Friesen did meet the requirement of due diligence allowing him to benefit from section 8.5 of the Aeronautics Act.

E. Violation of the Rule against Stating an Opinion as to the Guilt of the Accused

[74] In light of the findings relating to the substantive matters above, we have determined that it is not necessary to address this ground of appeal.

VI. DECISION

[75] The appeal is allowed. The Minister has failed to prove that Mr. Friesen violated section 602.01 of the Canadian Aviation Regulations, and the monetary penalty of $1,000 is cancelled.

September 20, 2016

Reasons for the Appeal Decision: Tracy Medve, Member (chairing)

Concurred by: Herbert Lee, Member

Charles S. Sullivan, Member