Decisions

CAT File No. C-1316-02
MoT File No. RAP-6504-P-090486-027950

CIVIL AVIATION TRIBUNAL

BETWEEN:

Francis Dominic Decicco, 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: September 23, 1997

Captain Francis Decicco has contravened subsection 520(1) of the Air Regulations. The penalty of a twenty day suspension of his licence as imposed by the Minister must therefore stand. The said suspension will commence on the fifteenth day following service of this Determination.

A Review Hearing on the above matter was held September 5, 1997 at 09:00 hours at the Valhalla Inn, in Thunder Bay, Ontario.

BACKGROUND

On March 4, 1996, Captain Francis Decicco was the pilot-in-command of Bearskin Airlines Beechcraft 99 C-GQAH on two flights into Fort Hope, Ontario. On both flights, he is alleged to have landed on runway 27, before the previous flights had cleared the runway. Five eyewitnesses were concerned that safety was compromised and made reports to Transport Canada. The incidents were investigated, and Transport Canada suspended Captain Decicco's Airline Transport Pilot Licence for ten days on each of the two counts, for a total of twenty days. Captain Decicco applied to the Tribunal for a review of these allegations, hence today's hearing in Thunder Bay.

THE NOTICE OF SUSPENSION

Pursuant to section 6.9 of the Aeronautics Act, the Minister has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

COUNT #1:

Air Regulation 520(1), in that at approximately, 1310 local time on or about March 4th, at or near Fort Hope, Ontario, you did unlawfully operate a Beech 99 aircraft, Canadian Registration C-GQAH in such a negligent or reckless manner as to endanger or likely to endanger the life or property of any person, by reason of the fact that you landed your aircraft on Runway 27 passing in close proximity to a Cessna 180 aircraft which occupied the runway, having landed shortly before and which was being taxied on the runway towards the taxi-way leading to the ramp.

COUNT #2:

Air Regulation 520(1) in that at approximately 1441 local time on or about March 4th, at or near Fort Hope, Ontario, you did unlawfully operate a Beech 99 aircraft, Canadian Registration C-GQAH in such a negligent or reckless manner as to endanger or likely to endanger the life or property of any person by reason of the fact that you landed your aircraft on Runway 27, passing in close proximity to a Piper PA 11 aircraft which occupied the runway, having landed shortly before and which was being taxied on the runway towards the taxi-way leading to the ramp.

Assessment of Penalties as follows:

Count #1:   10 day Licence Suspension

Count #2:   10 day Licence suspension

Total           20 day Licence Suspension

THE LAW

The Minister proceeded under section 6.9 of the Aeronautics Act, and 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 did not state in the Notice of Suspension whether Captain Decicco's alleged actions were negligent or reckless. However, in his summation, Mr. Fred Pratt cited negligence, and left it to the Tribunal to decide whether recklessness was also involved, based on the evidence presented. Succinct and clear definitions of negligence and recklessness are made in Regina v. Joseph Abat (Provincial Court - Province of Saskatchewan, March 19, 1984) as follows:

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

THE EVIDENCE

The Minister fielded six witnesses, including a passenger on one of the Bearskin flights, and four eyewitnesses on the ground. Two of these witnesses were the pilots of the two aircraft which were the subjects of the incidents at Fort Hope on that day. All the witnesses were excluded from the hearing, until it was their turn to testify, except the Applicant, Captain Decicco.

Mr. Ray Brown, Transport Canada Inspector, substantiated the documentation of the flight, Exhibits M-1, M-2 and M-3. Mr. Brown is an experienced Canadian Air force Pilot who has accumulated more than 8,000 hours, much of this on remote airstrips similar to Fort Hope. I accept his opinion as an experienced pilot, that landing over the top of another aircraft by a commercial flight is a questionable practice, devoid of good airmanship.

Chief Solomon Atlookan, Fort Hope First Nation. The Chief was a passenger on the first landing at Fort Hope. He testified that he was seated on the starboard side of the Beech 99 at the rear, and that his attention was drawn to the presence of a Cessna 180 on runway 27 as the Beech 99 was landing. He said that he caught a glimpse of the Cessna's wingtip out of the port aft cabin window, and the touchdown was later than usual, about 700 to 800 feet into the 3,500-foot runway. He testified that the Cessna was approximately 100 feet from the entrance to the taxiway as they flew over the top of it, was concerned that safety was compromised, and made a report to Transport Canada. He also raised the incident in a subsequent meeting with Bearskin Airlines. Solomon Atlookan had never seen this happen before.

Donald Waboose, Ministry of Transportation, Ontario (MTO) Supervisor Fort Hope Airport and Alexander Missewace, Constable, Fort Hope First Nation both witnessed the incident with the Cessna from the ground. They filed reports with diagrams (Exhibits M-6 and M-7), and their testimony independently corroborates that of Chief Atlookan with minor anomalies caused by differences in perception. Landing over the top of another aircraft is not a common practice, and neither of them had ever seen it done before. They were concerned that safety had been compromised. Const. Missewace witnessed the Cessna incident from his vehicle on the parking ramp, and testified that he momentarily lost sight of the Beech 99 landing gear as it passed behind the Cessna, just prior to touchdown. Notwithstanding that his diagram shows the Cessna on the shoulder of the runway, Const. Missewace testified that this was an error in his perception at the time he drew the diagram, and that the aircraft was actually on the edge of the strip, adjacent to the lights. Both witnesses were clear, lucid and credible.

Scott Alan Priebe, Pilot of the Cessna 180, testified that he was trying to expedite clearing the runway, and was "dumbfounded" that the Bearskin flight landed before he had cleared the runway. He was on the south edge of the runway, about five feet from the edge, and the Beech 99 passed about 30 to 50 feet from his left wingtip. At the time he estimated that he was about 150 feet from clearing the runway, onto the taxiway (Exhibit M-8). He had been in radio contact with the Bearskin flight and thought that it should have given him more time to clear the runway by extending its circuit. Mr. Priebe gave credible and clear evidence.

James Trevisanutto, Pilot of the PA-11 Super Cub, gave evidence that substantiated his statement given to Transport Canada. He was clear, lucid and credible. He complained that, had the Beech 99 not crowded its circuit, it would have given him time to clear onto the taxiway. He was definitely concerned and felt endangered, such that he made a report to Transport Canada (Exhibit M-9).

Counsel for the Applicant fielded three witnesses, including the Applicant, Captain Decicco. These witnesses were also excluded from the hearing until their turn to testify, except Captain Decicco.

Captain Gregory Vanlangenhove, Assistant Chief Pilot Bearskin Airlines, testified as to Captain Decicco's expertise and reputation as a safe and reliable pilot, to whom others looked up. He investigated the incidents concerned, determined that they were not serious, and accepted Captain Decicco's denial that he landed while other aircraft were on the runway. He claimed that he had spoken to Mr. Priebe after the incidents; this was denied by Mr. Priebe. Captain Vanlangenhove testified as to Bearskin's policies on schedule keeping. These policies were such as to relieve the crews from stress when they were running late, by merely rescheduling the flights by the amount of the delay. The crew would not have been under any stress to make up time. This was subsequently confirmed by the two pilots.

Mr. Clayton Downton, co-pilot on C-GQAH, and Captain Frank Decicco, pilot-in-command of C-GQAH gave testimony. Both pilots gave completely different interpretations of the events on March 4, 1996 at Fort Hope. They denied that they had touched down on the runway before the two other aircraft were clear. Under intense cross-examination by Mr. Pratt and questions by myself, they remained resolute in their denial. They both acknowledged adjusting their approach on the first landing to give the Cessna time to clear the runway. They were adamant that the aircraft had cleared the runway by the time they landed. Captain Decicco judged that they were 100 to 150 feet above the threshold as the Cessna was clearing the runway onto the taxiway. They both testified that in the second instance the Piper Cub was clear and parked on the ramp as they touched down.

CONCLUSION

In the face of such completely contradictory evidence, one has to make a judgment of credibility. The pilots' accounts of the events of March 4, 1996 are so completely at a variance with the sworn and independent evidence of the Minister's five eyewitnesses, that there is no room to consider that the contradiction is caused by differing perceptions on the ground from those in the air.

I have thoroughly reviewed the evidence for many hours, the verbal summation by Mr. Pratt, and the written submission by the Applicant's Counsel, which is thorough but somewhat repetitive. The fact remains that a prudent pilot would have, with a minimal extension of his circuit, avoided both situations.

With further regard to Counsel's written submission, one does not have to have any aviation experience to observe whether one aircraft has cleared a runway before another one lands on it. Also, the so called "innumerable inconsistencies and discrepancies" contained in the Minister's witnesses' testimony are an exaggeration. Whatever inconsistencies exist are of a minor nature and can be ascribed to either a lack of experience, differences in perspective, or awkwardness in expressing oneself.

I have no doubts about the character references given at the hearing by Captain Decicco's witnesses. There is however overwhelming testimony against him by six independent eyewitnesses, two of whom are fellow pilots. The most catastrophic airline disaster at Teneriffe in the Canary Islands was caused by KLM's most experienced training captain, who could not wait for a Pan American 747 to clear a fogbound runway. More than five hundred and sixty people lost their lives! While these incidents are not in the same league as that one, they both arise out of impatience.

Critical assessments of adherence to safety and good airmanship are ever increasingly being made by the travelling public, in the light of several high profile and highly publicised accidents, involving death and serious injury in Canada and across the world. Pilots in particular, and operators must be aware of the high scrutiny under which they come, and should conduct themselves so that they can bear this scrutiny. Captain Decicco did not pass this scrutiny on March 4, 1996, on two distinct occasions on the same day.

After carefully weighing all the information before me, I can only come to the conclusion that the evidence by Messrs. Clayton and Decicco is not credible.

The questions of negligence and recklessness must now be addressed: I find that the Minister has certainly proved negligence – Captain Decicco did fail to exercise reasonable skill and prudence by not extending his circuit to give both aircraft time to clear the runway. Further, I also feel that he perceived a risk and deliberately decided to run it. This latter judgement is confirmed by his admission that he altered his approach in the first instance so as to touch down well into the runway to avoid the Cessna. In so doing, I am of the opinion that he not only risked clipping the Cessna, but he also risked overrunning the strip, especially due to the fact that there were patches of ice and compacted snow on the strip, which would adversely affect braking. The Minister has therefore proved both negligence and recklessness.

In the circumstances, the sanction of a twenty-day suspension may even be somewhat lenient; however, I shall not increase it, as I believe that it is sufficient to impress upon all concerned that it is simply not worth endangering life and valuable equipment to save seconds or even minutes!

Counsel for the Applicant requested a copy of the transcript of today's hearing before making her written summation. This was granted, and Ms. Atkinson was given until Wednesday, September 17, 1997 to make her written summation. A copy of this summation was made available to the Minister who has declined any further comment.

DETERMINATION

At the conclusion of this hearing, I have determined that Captain Francis Decicco has contravened subsection 520(1) of the Air Regulations. The penalty of a 20-day suspension of his licence as imposed by the Minister must therefore stand.

Philip D. Jardim
Member
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Pierre Rivest, Samuel J. Birenbaum


Decision: April 21, 1998

The appeal is dismissed. The Appeal Panel confirms the 20-day suspension assessed by the Minister of Transport. The said suspension will commence on the fifteenth day following service of this determination.

An Appeal Hearing on the above matter was held before the three designated Tribunal Members Thursday, February 19, 1998 at 10:00 hours at the Federal Court of Canada, in the City of Toronto, Ontario.

BACKGROUND

By Notice of Suspension dated July 22, 1996 Mr. Decicco's pilot licence was suspended for a total of twenty days (ten days for each count) for alleged contraventions of subsection 520(1) of the Air Regulations.

Pursuant to Mr. Decicco's request, a hearing was convened to review the Minister's decision. At the conclusion, the Tribunal Member determined that Mr. Decicco had contravened the Air Regulations as alleged. In making his determination, the Tribunal Member found that the Minister had proved negligence in that Captain Decicco did fail to exercise reasonable skill and prudence by not extending his circuit to give both aircraft time to clear the runway. The Member further determined that Captain Decicco perceived a risk and deliberately decided to run it thus proving negligence and recklessness. The Tribunal Member also confirmed the total twenty-day suspension as assessed by the Minister though the assessment was somewhat lenient in the Tribunal Member's estimation.

GROUNDS FOR APPEAL

Mr. Decicco's counsel appealed the Review Determination on the following grounds:

  1. The Tribunal erred both in fact and in law in its determination as to what constitutes negligent and reckless operation of an aircraft under Section 520 (1) of the Air Regulations.
  2. The Tribunal findings of fact are unreasonable on the face of the record.
  3. The Minister did not prove all elements of the offence.
  4. In the alternative the penalty was excessive.
  5. Any other grounds which may be raised.

THE FACTS

On March 4, 1996, Captain Decicco was the pilot-in-command of Bearskin Airlines Beechcraft 99 C-GQAH on two flights into Fort Hope, Ontario. On both flights he is alleged to have landed on runway 27 before the previous flights had cleared the runway. Concerned witnesses to these allegations reported the incident to Transport Canada, which resulted in the service of the notice of suspension, containing the following particulars:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend the above indicated Canadian aviation document on the grounds that you have contravened the following provision(s):

COUNT #1:

Air Regulation 520(1), in that at approximately, 1310 local time on or about March 4th, at or near Fort Hope, Ontario, you did unlawfully operate a Beech 99 aircraft, Canadian Registration C-GQAH in such a negligent or reckless manner as to endanger or likely to endanger the life or property of any person, by reason of the fact that you landed your aircraft on Runway 27 passing in close proximity to a Cessna 180 aircraft which occupied the runway, having landed shortly before and which was being taxied on the runway towards the taxi-way leading to the ramp.

COUNT #2:

Air Regulation 520(1) in that at approximately 1441 local time on or about March 4th, at or near Fort Hope, Ontario, you did unlawfully operate a Beech 99 aircraft, Canadian Registration C-GQAH in such a negligent or reckless manner as to endanger or likely to endanger the life or property of any person by reason of the fact that you landed your aircraft on Runway 27, passing in close proximity to a Piper PA 11 aircraft which occupied the runway, having landed shortly before and which was being taxied on the runway towards the taxi-way leading to the ramp.

THE LAW

Subsection 520(1) of the Air Regulations 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.

APPELLANT'S ARGUMENT

Counsel for Captain Decicco stated that in order to prove contravention of subsection 520(1) of the Air Regulations, it is necessary to prove both prongs of that subsection, namely; that the act complained of was negligent or reckless and also that it endangered or was likely to endanger the life or property of any person.

Counsel submitted that the Tribunal Member found both negligent and reckless conduct when the Minister of Transport's evidence related only to negligence. Moreover, Appellant's counsel submitted that the finding that the aircraft risked overrunning the strip was not to be found anywhere in the evidence. She asserted that a review of the evidence discloses that no expert witnesses have testified as to the risk of overrunning the airstrip. Hence, the conclusion reached by the Tribunal Member is not supported and not sustainable. Counsel for the Appellant argued that given that the Tribunal Member used evidence that was not in the transcript and given that there have been no admissions made, then the conclusions reached by the Tribunal Member are not valid. She stated that the finding concerning recklessness is not supported and cannot stand and as it applies only to the first allegation, there are no findings regarding the second allegation and it should be overturned.

Regarding the allegations of negligence and recklessness she noted that Mr. Pratt only alleged negligence and not recklessness, and in his closing argument said the action was not reckless but only negligent. The Appellant's counsel argued that it would be a breach of natural justice to find recklessness when the Minister of Transport made no such arguments, citing as authority for this proposition the case of Norbert A. Selbstaedt v. Minister of Transport.[1]

Counsel further alleged that the Tribunal Member failed to address the latter portion of the regulation and did not make a finding at all on the issue of "endanger or be likely to endanger the life or property of any person."

Finally the Appellant's counsel asked that this panel overturn the Tribunal Member's findings as to credibility in that he found the evidence of Messrs. Clayton (Downton) and Decicco not to be credible. She further asserted that the Tribunal Member assumed the role of prosecutor in this case when he compared this fact situation to that of the airline disaster at Teneriffe in the Canary Islands and when he concluded that both incidents had arisen from impatience, there being no evidence of such in this case.

Respecting penalty, counsel for the Appellant argued that the total penalty of twenty days being ten days for each infraction was excessive in the light of the fact that there is nothing in the Air Regulations prohibiting landing over another aircraft.

RESPONDENT'S ARGUMENT

The Minister responded with a detailed analysis of the evidence and urged the panel to find that there was no breach of natural justice regarding the finding of recklessness in that the Notice of Suspension alleged negligent or reckless conduct. The Minister's representative also argued that there were many inconsistencies in the evidence, and the resultant evaluation by the Tribunal Member was not unreasonable and should be upheld. She thus asserted that the Tribunal Member's findings as to credibility should not be overturned.

EVIDENCE OF THE FIRST FLIGHT

It was the evidence of Mr. Atlookan that he was a passenger on the Beech 99 flight landing at Fort Hope. He stated that on final approach the aircraft did not touch down where it normally does. A passenger alerted him to the fact that there was an aircraft on the runway, and he leaned over and saw the wing of that aircraft. He stated that they touched down about a quarter way through the runway at about seven or eight hundred feet. On deplaning Mr. Atlookan spoke with the constable on duty and told him that he did not think it normal practice to land an aircraft when another one was taxiing towards the apron. Subsequently a complaint was made to the Minister of Transport.

It was the evidence of Mr. Waboose that he was awaiting the Bearskin flight and heard it coming in for an approach but did not hear the Cessna clear at that time. He looked out his office window and saw the Cessna taxiing in from the west which is 09, and the Beech 99 approached and landed over the top. He added that this was just over the Cessna and touched down somewhere towards the back of the Cessna. After the incident he decided that he should make a report.

Constable Missewace also testified as to the incident saying that at approximately ten after one he saw a Cessna 180 land from the east side of the runway. It made a safe landing, and as it turned around it taxied toward the off ramp going to the apron and was about 200 to 300 feet from the off ramp when the Beech 99 came in from the east. As the Cessna 180 was taxiing up, the Beech 99 continued, and he thought the planes were going to clip one another, the way that the plane was coming down over the Cessna 180.

The pilot of the Cessna, Mr. Priebe, testified that he landed the Cessna on the runway and stopped as quickly as he could as he knew the Beech 99 was coming in behind him. When he turned around he saw the Beech on short final on the end of the runway. He taxied as fast as he could but realized he was not going to clear in time. He pulled off to the right-hand side of the runway, almost into the runway lights and stopped probably 150 feet from the apron and the Bearskin aircraft landed over top and to the left of the Cessna which was continuing on the runway.

Regarding the first allegation, it was Captain Decicco's evidence that First Officer Downton was the pilot flying and that as they approached the threshold of the runway, the Cessna was clear on the taxiway and they landed. Captain Downton testified that the Cessna cleared the runway onto the taxiway, at which point he concentrated his full attention on controlling the aircraft throughout the remainder of the approach and landing. He stated that there was nothing on the runway at the time of their landing. It was the evidence of both captains that they would not have landed if the Cessna had been on the runway at the time of the Beech 99's landing. It was their evidence as well that had the aircraft been on the runway, they would have exercised the option of doing a missed approach.

EVIDENCE OF THE SECOND FLIGHT

Mr. Trevisanutto was the pilot of a PA-11 aircraft on skis landing at Fort Hope on March 4, 1996. He stated that when he landed, as he rolled out, he stopped the plane as he had to turn around to taxi back to the off ramp. In the process of turning around, his left ski temporarily got stuck on a little patch of gravel. He radioed that he was stuck and got out of the aircraft to move it and then started taxiing toward the off ramp. Mr. Trevisanutto was at the edge of the runway but well clear of the runway lights, and when he got close to the off ramp and still parallel with the runway he observed Bearskin's Beech 99 aircraft ready to touch down. He stated that the Beech 99 was on the threshold and with the Piper still on the runway, the Beech 99 aircraft landed behind the Piper. He stated that the Beech 99 aircraft was down, had rolled out and was on the runway before the Piper had got to the hold line.

It was the evidence of both Captains Decicco and Downton that the Piper PA-11 piloted by Mr. Trevisanutto was well off the runway and in fact parked on the apron at the time of the Beech 99's landing.

DISCUSSION

Issue—Credibility

While acknowledging the fact that there were discrepancies in the evidence in its totality, the Tribunal Member chose to accept the evidence of the Minister's witnesses and to reject the testimony of Captains Clayton Downton and Francis Decicco as not being credible. We do not find this conclusion of the Tribunal Member to be unreasonable, and we accept his findings of credibility as he was in the best position to make this assessment having personally observed the witnesses and heard the evidence.

Issue—Negligent or Reckless

We must now address the concepts of negligence and recklessness in the light of the conduct of the document holder as disclosed by the evidence in order to determine whether that conduct was negligent or reckless so as to endanger or be likely to endanger the life or property of any person.

The Notice of Suspension quite appropriately uses the wording of the regulation in alleging operation of the aircraft in a "negligent or reckless manner." It has long been established that it is not necessary to delineate one or the other means of operation.[2] Rather it is up to the trier of fact to determine on the evidence whether the acts complained of amount to negligent conduct or reckless conduct.

The Minister's representative cites Canadian Law Dictionary definitions from the case of Jason R. Newburg v. Minister of Transport[3] as follows:

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

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

Additionally the case of Norbert A. Selbstaedt v. Minister of Transport[4] cites the following definitions from Black's Law Dictionary, Fifth Edition:

Negligence is defined at page 930:

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

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

Recklessness is defined in the same work at page 1142:

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.

In any consideration of what constitutes negligent or reckless conduct, one must review this conduct in the light of what a reasonable and prudent pilot would do in the same circumstances. Inspector Brown who was not presented to the Tribunal as an expert witness nevertheless gave testimony relevant to this point. His background attests to 31 years as an Air Force Officer, and he has flown several different transport aircraft retiring with approximately 8,000 hours of military flying and has held an airline transport rated licence since 1975. In response to Mr. Pratt's question "Could I ask you if you would ever land over top of another aircraft and, in doing so, reduce your useable runway to something less than 3,500 feet of gravel?" responded "No, I would not." Inspector Brown justified his opinion as follows: "in an instance such as Fort Hope, there are no runway-to-go markers so that once you have overflown the end of the runway, you really don't know where you are along the runway." Additionally, he stated that "when you're flying over something that you don't know.... And, I know of no training course that involves practising flying over another aircraft...if for some reason there was a malfunction that caused you to lose some altitude, then you have...no safety margin for either yourself or that other aircraft."

Additionally Captain G. Vanlangenhove, Assistant Chief Pilot for Bearskin Airlines, gave evidence on behalf of Captain Decicco. He indicated that he had investigated the incidents and had determined that it was a non-event having accepted the version of the events given him from the two Bearskin pilots. In direct examination two diagrams were produced which depicted the fact situations as stated by the Minister's witnesses. Captain Vanlangenhove stated that they did not represent the facts as indicated to him, as on these facts he would have investigated further. When asked for an explanation or rationalization for one aircraft landing over the top of another one that was on the runway, he indicated that this is not something that they advocate. In response to the question of whether the company advocated joining right base for landing at uncontrolled aerodromes, Captain Vanlangenhove indicated that he would not say so and that they advocated correct procedures for circuit joining. The gist of the evidence on the detailed cross-examination was that the flight circumstances of the two landings on March 4, 1996 were unacceptable, having resulted in two aircraft being on the runway at the same time.

In the light of the foregoing evidence, the Tribunal concludes that the conduct complained of in both counts, being landing an aircraft over the top of another one still on the runway and landing before a second aircraft had cleared the runway, falls below the standard expected of a reasonably prudent pilot so as to constitute negligence on the part of that pilot. The pilot's conduct in our view which occurred on two separate landings on the same day demonstrates that he failed to exercise the degree of care or skill required of him, that he failed to exercise good judgment in the adoption of prudent landing procedures.

Respecting the risk undertaken or encountered by the pilot in the first count, the panel acknowledges and agrees with submissions of Appellant's counsel that there was a lack of evidence presented to substantiate a finding as to risk of overrunning the airstrip. On the facts as accepted by the Tribunal Member at review, we determine that the conduct falls short of recklessness, and we do not find that Captain Decicco exhibited a wanton and wilful disregard for the lives and property of persons so as to come within the meaning of the words "reckless manner" as found in subsection 520(1) of the Air Regulations.

However, we are satisfied that this conduct was negligent and did present an unnecessary risk of collision with the other aircraft and occupants in both incidents sufficient to meet the second prong of the subsection, namely, "to endanger or be likely to endanger the life or property of any person." Upon consideration we find the penalty to be appropriate in this case.

While on the basis of the foregoing finding it is unnecessary to decide the issue, it is the opinion of this panel that the Tribunal is not precluded from deciding the issue of recklessness notwithstanding that the Minister's representative did not argue the point at the review hearing. We would hold the same view had the Minister made no argument at all, since the mandate of the Tribunal is to determine whether the offence and penalty alleged by the Minister in the Notice of Suspension is proved on the basis of the evidence presented to and accepted by the Tribunal. Moreover, the wording in the Notice of Suspension makes reference to "negligent or reckless manner".

We wish to thank counsel for both parties for the precise and well-prepared arguments in this case.

DETERMINATION

The appeal is dismissed. The Appeal Panel confirms the 20-day suspension assessed by the Minister of Transport.

Reasons for Appeal Determination by:

Faye Smith, Chairperson

Concurred:

Dr. Samuel J. Birenbaum, Member
Pierre Rivest, Member


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

[2] R. v. Sault Ste. Marie [1978] 2 S.C.R. 1299.

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

[4] Supra, note 1.