Decisions

CAT File No. C-1987-33
MoT File No. RAP5504-040386

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Michael Gilbert Connellan, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.01

Acrobatic manoveuvre


Review Determination
David S. Ahmed


Decision: May 23, 2000

There is indisputable evidence that Mr. Connellan did contravene section 602.01 of the Canadian Aviation Regulations, and I confirm the Minister of Transport's decision to assess him a monetary penalty of $900. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within 15 days of service of this determination.

A Review Hearing on the above matter was held Friday, May 5, 2000 at 10:00 hours at the Provincial Court Building, in Regina, Saskatchewan.

PREAMBLE

Mr. M. G. Connellan is a commercial pilot who used to work for Pro-Flight Ltd. which is an FBO (fixed-base operator) located in Regina, Saskatchewan. On December 24, 1999, he received a letter from Transport Canada indicating that he had been assessed a monetary penalty of $900. The reason given was that he had allegedly contravened section 602.01 of the Canadian Aviation Regulations (CARs) on or about July 9, 1999 while operating a PA-31 aircraft bearing Canadian registration marks C-GPJT in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person. He was accused, more specifically, of conducting a roll in the said aircraft when the aircraft manual stated "No Acrobatic Maneuvers Approved." There was a further allegation that, prior to rolling the aircraft, he had purposely made a low pass over a vehicle and a person. The allegations were that these violations took place during a return flight from Kindersley, Saskatchewan to Regina with a brief stop over at Swift Current, Saskatchewan.

Mr. Connellan was told that the total assessed penalty of $900 must be paid on or before January 28, 2000, which he failed to do resulting in this particular Review Hearing requested by Transport Canada.

A Review Hearing was set for May 5, 2000. On March 30, 2000, the Civil Aviation Tribunal received a letter from Mr. M. T. Megaw, solicitor for Mr. Michael Connellan, requesting that the Civil Aviation Tribunal postpone these proceedings on the grounds that to proceed further at this time would compromise Mr. Connellan's position in another action.

Transport Canada objected to Mr. Megaw's request for an adjournment of the hearing scheduled for May 5, 2000 on the following basis:

  1. Mr. Connellan received the Notice of Monetary Penalty on January 5, 2000 and therefore had ample time to retain counsel and prepare his defence.
  2. The law suit referred to in the Motion to Adjourn may not be settled for a prolonged period, resulting in an indefinite postponement of this matter, which is not acceptable to the Minister.
  3. The Motion to Adjourn contained no rationale as to why a Civil Aviation Tribunal hearing would compromise Mr. Connellan's position in the law suit.

After having carefully considered both arguments, I decided, as the Hearing Officer assigned to this case, that the hearing should proceed as scheduled. Both parties were informed of this decision by facsimile on April 18, 2000. On May 3, 2000, the Civil Aviation Tribunal received a further communication from Mr. Megaw indicating that even though he had received the last communication from the Civil Aviation Tribunal, Mr. Connellan himself had not been served with notice of the hearing scheduled on May 5, 2000 and consequently, in the absence of service, he would not be attending the hearing. He went on to indicate that we should proceed to serve him directly in this regard. As solicitor for the Respondent, Mr. Megaw was served with a Notice of Hearing by registered mail on April 12, 2000.

Once again, after having carefully reviewed the facts, I decided that the Review Hearing should proceed especially in view of the fact that, at no time, had Mr. Megaw indicated that he was no longer acting on behalf of Mr. Connellan.

THE REVIEW HEARING

As stated earlier, Mr. Connellan and Mr. Megaw did not make an appearance at the hearing. We were scheduled to start at 10 a.m., and I waited approximately 20 minutes and then decided to proceed.

As stated earlier, Mr. G. Holbrook was the Case Presenting Officer for Transport Canada. He confirmed that he had no objection to my proceeding with the Review Hearing in spite of the absence of Mr. Connellan and Mr. Megaw.

Mr. Holbrook told the hearing that he had indisputable evidence that Mr. Connellan had indeed contravened section 602.01 of the CARs insomuch as he had not only rolled the aircraft in question but had later on made a dangerous, low pass while departing Swift Current enroute to Regina. He then called upon his first witness, Mr. J. K. Welwood, who was duly sworn in.

MR. WELWOOD'S TESTIMONY

It was established that Mr. Welwood works for Transport Canada in their Civil Aviation Enforcement Branch. He has worked for Transport Canada for over 15 years, and we were furnished with his impressive qualifications. During the course of his evidence, we were provided with six exhibits and, rather than go into exhaustive details regarding each exhibit, I will try to summarize not only their content but the substance of Mr. Welwood's testimony.

It was established that Mr. Connellan was pilot-in-command of a twin-engine Piper Navajo aircraft registration number C-GPJT. The aircraft was returning to Regina, Saskatchewan, from Kindersley, Saskatchewan, with a stopover at Swift Current. Sitting in the right-hand seat of the aircraft was Mr. Stephen Davies who was also the holder of a commercial pilot licence. It would appear that Mr. Davies was not functioning as an official co-pilot on this particular trip but, rather, was an observer who was also expected to help out with the manual duties that are involved with this sort of trip. There were no other passengers on board but the aircraft was carrying several bags of mail which, as is the custom, were safely secured.

The evidence suggested that this was Mr. Connellan's last flight for the particular organization for which he worked. He had been offered employment in Calgary, Alberta, and was going to start there shortly afterwards. In any case, two disturbing events occurred during the return flight from Kindersley to Regina, Saskatchewan. Both of these events were witnessed and subsequently confirmed, under oath, by Mr. Stephen Davies. The first event was of the "buzzing" type in which, shortly after take-off, Mr. Connellan apparently made a low pass over a side road which might have startled a person who was standing outside his truck. The second episode involved Mr. Connellan rolling his aeroplane which is a manoeuvre which is strictly prohibited while operating this particular type of aircraft. The PA-31 aircraft operates under what is known as the "normal category" which means that no acrobatic manoeuvres (including spins) are approved.

It was some months before Transport Canada became aware of the events alluded to above. Their investigations culminated in their requesting an interview with Mr. Stephen Davies to which he agreed. During the investigations he admitted that he had been an observer to the events as depicted. Transport Canada investigators also contacted Mr. Connellan by telephone, and the evidence suggests that even though he did not want the conversation recorded he admitted, in a warned statement, that he had indeed made a low pass and rolled the aircraft in question.

MR. STEPHEN DAVIES' TESTIMONY

Mr. Davies was duly sworn in. He confirmed that Mr. Connellan had indeed made, after take-off, a low pass over a road and a truck with an onlooker. He also confirmed that subsequently Mr. Connellan rolled the aeroplane. He admitted that Mr. Connellan had asked him "if it was okay" to perform this particular type of manoeuvre. He stated that he replied to the question by stating that, because he was not asked about his opinion with regards to the low flying incident, he did not feel that anything he could say or do would prevent Mr. Connellan from performing any manoeuvre in the aircraft that he felt appropriate.

Mr. Davies, upon questioning, admitted that he did not feel in the least bit uncomfortable while the aeroplane was being rolled but, on the other hand, did feel surprised at the fact that Mr. Connellan would perform such a manoeuvre knowing fully well that it was illegal. Mr. Davies also told the hearing that he got the impression from Mr. Connellan that this sort of illegal flying was traditional among pilots who are making their final trip and that he expected him to "keep up the tradition."

DETERMINATION

I am sorry that Mr. Connellan was not able to be present, for whatever reason, at the hearing. Nevertheless, there is indisputable evidence that he did contravene section 602.01 of the CARs, and I strongly endorse the Minister of Transport's decision to assess him a monetary penalty of $900.

David S. Ahmed
Member
Civil Aviation Tribunal