Decisions

CAT File No. C-1304-02
MoT File No. RAP6504-P355432-027039

CIVIL AVIATION TRIBUNAL

BETWEEN:

David Victor Pobran, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A-2, s. 6.9
Air Regulations, C.R.C. 1978, c. 2, s. 520(1)

Negligent or reckless operation of an aircraft


Review Determination
Philip D. Jardim


Decision: October 28, 1996

I have determined that neither negligence nor recklessness has been proved by the Minister under subsection 520(1) of the Air Regulations. I therefore set aside the 14-day suspension of David Pobran's Commercial Pilot Licence and dismiss the Minister's allegation.

A Review Hearing on the above matter was held Tuesday, October 22, 1996 at 10:00 hours at the Sunset Inn, in Sioux Lookout, Ontario.

BACKGROUND

On July 29, 1995, a de Havilland DHC-3 Otter overtook a heavily laden Norseman aircraft, just after take-off from Pelican Lake, Sioux Lookout, Ontario. The pilot of the Norseman filed a report with the Flight Service Station at Sioux Lookout. An investigation by Transport Canada ensued, and Captain David Pobran, the pilot of the Otter, was proceeded against under section 6.9 of the Aeronautics Act and subsection 520(1) of the Air Regulations with a suspension of his Commercial Pilot Licence for 14 days.

Unfortunately, this case has been made more complex by the existence of some intrigue, in that it was borne out at the Review Hearing that the captain of the Norseman was upset at the captain of the Otter for an entirely unrelated matter. The captain of the Norseman actually admitted this during his evidence under oath – more about this later.

THE LAW

Pursuant to section 6.9 of the Aeronautics Act, David Pobran, the captain of the Otter, was alleged to have contravened subsection 520(1) of the Air Regulations which states:

520. (1) No aircraft shall be operated in such a negligent or reckless manner as to endanger or be likely to endanger the life or property of any person.

The Minister has not stated in the Notice of Suspension whether Captain Pobran's actions were either negligent or reckless. It is therefore up to the Tribunal to determine whether there was negligence or recklessness, or perhaps both, from the evidence at this hearing. Definitions of these two terms are succinctly made in Regina vs. Joseph Abat (Provincial Court - Province of Saskatchewan, March 19, 1984):

A finding of either negligence or recklessness is necessary for the charge to be made out. Negligence is simply the failure to excercise reasonable skill and prudence in the circumstances, whether there is advertence or not. Recklessness is aimed at those who are more culpable than merely negligent, as to be reckless is to perceive risk and deliberately decide to run it.

THE EVIDENCE

The Minister fielded seven witnesses, including the Inspector who investigated the report, four passengers from the Norseman aircraft, the captain of the aircraft, and an expert witness who was not present and did not see what happened.

Richard J.C. Gagnon, Inspector T.C. Winnipeg office, produced evidence that identified the Otter C-FITS as the aircraft flown by Captain Pobran. Of particular interest was a photograph taken by one of the Norseman's passengers (Exhibit M-3). This photograph shows the Otter in front of and above the Norseman at a calculated distance of 146 metres (479 feet).

The Otter was very light, with just two on board, and became airborne within about 700 feet.

Sharon Sayers, Gail Hoey, Holly Zarecki and Michelle Holbrook were all passengers in the Norseman. They gave similar evidence as to seeing the Otter pass the Norseman in the general vicinity of the "Iron Bridge" which takes the CNR tracks over Pelican Lake. See Exhibits D-12 through D-15. They could not estimate its distance from the Norseman, but they all agreed that while they were surprised to see the Otter out of the starboard windows, and later the windscreen of the Norseman, none of them was alarmed by the incident.

Gail Hoey was the most nervous. It was her first flight in a floatplane, and she was concerned about being airsick; however, she expressed no alarm at the presence of the Otter, relatively close to the Norseman. She testified that it was windy and rough and that there were waves on the lake surface.

Holly Zarecki was seated on the right-hand side of the Norseman. She described seeing the Otter pass the Norseman on the right-hand side, climbing as it passed, and later crossing in front of the Norseman well ahead of and higher than it. She was not concerned at seeing the Otter. Of the passengers in the Norseman, she was the most observant and precise in her testimony. Her testimony corroborates that given later by Captain Pobran.

Michelle Holbrook was seated directly behind Captain Bryce Stephens on the left-hand side of the Norseman. When she was alerted to the presence of the Otter by other passengers, including her husband, she took a photograph of the Otter through the windscreen of the Norseman (Exhibit M-3) after focussing the camera for "one to two seconds." After having this photograph analysed by Asahi Pentax in Japan, Transport Canada issued a report in which the distance of the Otter is calculated as 146 metres or 479 feet from the Norseman. This photograph corroborates the testimonies of both Holly Zarecki and David Pobran.

Bryce Stephens, Captain of the Norseman, was ill at ease throughout his testimony, speaking in a clipped and low tone. He testified that his Norseman was fully laden at near its maximum all-up weight. During his prolonged take-off run he heard Captain Pobran call him to say that he would be "taking off behind him." As he flew over the "Iron Bridge" he saw the Otter passing his right wing tip. He admitted that the distance of five to ten feet away, stated in his report to Transport Canada, was an exaggeration. He somewhat reluctantly estimated that he thought the Otter was more like 60 feet away – about a wingspan. He claimed that the Otter then proceeded to cut across in front of him such that he felt the effect of wake turbulence and had to make three substantial control movements with aileron and rudder to maintain level flight and stop the Norseman from rolling to the right. It is significant that none of the other occupants of the Norseman felt this. When shown the incident report (Exhibit D-7) that he had made, he was distinctly embarrassed and said that he did not write it. (The report was written up by the Manager of the Sioux Lookout F.S.S. as a result of Stephens' report).

Under cross-examination by Mr. Barnsley, and later under re-examination by Mr. Pratt, Captain Stephens admitted that he would NOT have reported the incident if he had known then what he now knows! In answer to Mr. Pratt as to why, he said that he did not know that the Otter was on a Medivac flight. He further admitted that he bore Captain Pobran a grudge because he believed that Pobran had not supported his application for a job at Bearskin Airlines. He struck David Pobran during a social function at the Golf Club, later the same day. He also told the passengers that they had been "mooned" by someone in the Otter as it passed by. This was not substantiated by any of the witnesses, and it seems that the "mooning" never took place, as no one admitted either seeing it or doing it. This all makes Captain Stephens' evidence questionnable and unreliable. It is also significant that he would not look at either Mr. Pratt or Mr. Barnsley while they were questionning him. He turned his chair so that he would not have to look at them.

Norman F. Wright, Expert Witness, is a pilot in the local area with some 23,000 hours total time, with 5,000 hours on the Norseman and the Otter. He was not an eyewitness to the incident but gave his opinion as to what he had learned of the incident. He stressed, and I must agree, that there should have been more communication between the two pilots. He also expressed the opinion that a one­-minute wait by David Pobran would have resulted in the Otter being able to avoid the Norseman completely. I accept this opinion as the wise and experienced pilot that Mr. Wright is and would strongly recommend that Mr. Pobran take note of this excellent advice in the future.

Mr. Wright acknowledged that, especially as it was lighter, the Otter would have had a significant performance advantage over the Norseman. He stressed that, while he thought that there should have been more communication between the pilots, it was normal procedure in a busy alighting area for the Otter to parallel the take-off path of the Norseman. He would have preferred to have passed behind the Norseman, with the superior performance of the Otter.

This was the Minister's last witness.

David Victor Pobran, Captain of the Otter aircraft, has 5,400 hours as pilot-in-command, some 4,000 of it on floats, and some 1,600 hours on the Otter. Captain Pobran drew an annotated diagram of his flight path (Exhibit D-16).

He testified as follows:

1. He was on a Medivac flight to Lac Seul. There had been a stabbing, and time was of the essence.

2. He called the Norseman and told him that he would be taking off behind him and would pass him on the right-hand side.

3. He paralleled the take-off run of the Norseman, became airborne at about the same time, and accelerated to 125 mph, passing five to seven wingspans to the right of the Norseman – this is about 360 feet.

4. As he drew level with the Norseman, he climbed away until the other aircraft was 30 to 45 degrees behind his left wing.

5. He then started a gradual left turn across the flight path of the Norseman, but well above and in front of it, lowering flaps to increase his height advantage, and set course for Lac Seul which is to the North West of Sioux Lookout. See Exhibit M-6.

Captain Pobran chose the flight path that he did because:

A. The Norseman's wake was substantial, and he would not cross it.

B. He was concerned that cutting behind it would subject him to its wake turbulence.

C. There is high ground to the west of Pelican Lake, identified as "Sioux Mountain" adjacent to the "Iron Bridge" on Exhibit D-16, and visible on the photograph of Exhibit D-17.

D. He was observing section 528 of the Air Regulations which requires overtaking aircraft to pass on the right. As he had advised the Norseman that he would be passing him on the right, Captain Stephens would be expecting him to do so.

E. He wanted to keep over the water for as long as reasonably feasible in the event of a loss of power, while building his speed and height.

Captain Pobran denied that he had deliberately lingered at low level in front of the Norseman to "wash" him in wake turbulence.

I accept his explanations as good airmanship, but I would criticise his lack of use of the radio to keep the Norseman more fully advised of his intentions.

John Henry Bradshaw, co-pilot on the Otter, gave evidence that substantiated Captain Pobran's, but his estimates and recollections of heights and distances were not reliable. He denied "mooning" the Norseman.

Alfred G. Holbrook, Locomotive Engineer CNR, was one of the passengers in the Norseman, accompanying his wife Michelle who took the photograph in Exhibit M-4. His testimony substantiated that of the other witnesses.

Kim Clark, a pilot, has 5,000 hours on float planes. She described what she had heard of the incident as standard operating procedure, in her experience.

Captain Pobran's testimony is substantiated by witnesses in the Norseman and the photograph taken by Michelle Holbrook through the windscreen of the Norseman.

CONCLUSION

I find that neither negligence nor recklessness has been proved in this case. None of the Minister's eyewitnesses, except for Captain Stephens, expressed any concern that anything alarming or dangerous had taken place. For the most part, the witnesses' testimony substantiates Captain Pobran's, particularly that of Ms. Zarecki and Mrs. Holbrook with her photograph. Because of Captain Stephens' admitted "grudge" against David Pobran, his admission that the distance given in his incident report was exaggerated, and his statement that, had he known then what he now does, he would not have filed a report, I have difficulty accepting his testimony against that of the others. In addition, I found his demeanour evasive and his attitude reluctant. He gave the impression of wishing he had not started this whole affair in the first place.

The weather on July 29, 1995 was clear but windy, and the surface of the lake was choppy. There was mechanical turbulence. None of the passengers felt any of the wake turbulence described by Captain Stephens. If there was turbulence when the Otter was in the vicinity of the Norseman, it would more likely have come off the "Iron Bridge" or "Sioux Mountain". An analysis of the wake turbulence produced by the Otter was carried out by the National Research Council (NRC) in Ottawa at the request of the Applicant (Exhibit D-18). The opinion expressed in the NRC study, based upon the distance measured in Michelle Holbrook's photograph, is that wake turbulence from the Otter would not have affected the Norseman.

Notwithstanding that a one minute delay or more prudent communication of Captain Pobran's intentions on the radio might have avoided this incident, I have decided that on a balance of probabilities, supported by credible testimony from even the Minister's witnesses, the actions of Captain Pobran were reasonable and did not endanger the Norseman aircraft. He was under pressure in a potentially life threatening situation, and exercised reasonable skill and prudence. There is no credible evidence of negligence or recklessness.

DETERMINATION

I have determined that neither negligence nor recklessness has been proved by the Minister under subsection 520(1) of the Air Regulations. I therefore set aside the 14-day suspension of David Pobran's Commercial Pilot Licence and dismiss the Minister's allegation.

Philip D. Jardim
Member
Civil Aviation Tribunal