TATC File No. C-2885-02
MoT File No. RAP5504-47836 P/B
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Daniel B. Van Nice, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9
Canadian Aviation Regulations, SOR/96-433, s. 602.02
William Thornton Tweed
Decision: January 30, 2004
Mr. Van Nice is in violation of section 602.01 of the Canadian Aviation Regulations in that he was both negligent and reckless. I confirm the Minister's finding and the seven-day suspension. Said suspension shall commence on the thirty-fifth day following the date of service of this determination.
A Review Hearing on the above matter was held Thursday, November 20, 2003 at 10:00 hours at the Delta Winnipeg, in Winnipeg, Manitoba.
On October 12, 2000 the document holder Daniel Brendan Van Nice was pilot-in-command of a Piper Aircraft Corporation, PA31-350, Canadian Registered C-GPOW. The flight left Winnipeg for Sun Valley, Idaho, USA with planned stops in Saskatoon and Calgary to pick up passengers and a stop in Kalispell, Montana to clear US customs. The flight was unremarkable to Kalispell. Prior to leaving Kalispell, Mr. Van Nice received a weather briefing that indicated he could expect deteriorating weather and that VFR flight along his intended route was not recommended. After leaving Kalispell on a VFR flight plan, he proceeded south, passed Missoula and Hamilton to the vicinity of Lost Trail Pass near the Montana, Idaho border where Mr. Van Nice reversed course. The turn was carried out in a narrow mountain valley by climbing into cloud, turning using the stall warning as a speed reference, descending to re-established visual reference, and proceeding to Hamilton, Montana where the flight ended; all of which was admitted in Mr. Van Nice's testimony and his written response to the Minister dated May 23, 2003.
Four of the nine passengers were called as witnesses. All of them testified to being shaken by the experience. They all testified that they observed deteriorating weather, lowering cloud and reduced visibility. They all said the valley was getting narrower and the valley floor was getting closer. There was testimony that individual trees were distinct, road signs were legible and that faces could be seen in car windows. They all testified that during the turn they could see nothing and a horn was sounding. They all felt they were in danger.
Mr. Van Nice, by his own admission, continued VFR flight into deteriorating weather conditions in an unfamiliar mountain valley that was both narrowing and climbing. He did not know precisely where he was. He was using a World Aeronautical Chart rather than a more detailed sectional aeronautical chart. He did not slow the aircraft and extend flap in anticipation of the need to complete a smaller radius turn. He continued in the valley past the point where he could turn the aircraft within the width of the valley at the altitude and speed he was flying without losing visual reference. He decided to turn when the road he was following unexpectedly switched back on itself. He said his only hope for a successful turn was to climb, presumably to a point were the valley was wider, turn the aircraft without visual reference at a slow speed, then descend back into the valley and re-establish contact for VFR flight back to Hamilton, the closest airport. He succeeded; the flight ended without mishap at Hamilton and the passengers continued on to Sun Valley by rented vehicle.
Mr. Van Nice called three witnesses, all of whom were very credible. They all gave testimony about Mr. Van Nice, and his usual care and attention to detail during his normal flight planning process. None of them gave evidence as to the circumstance of the flight in question.
There was no expert evidence on mountain flying placed before the Tribunal.
Section 602.01 of the Canadian Aviation Regulations (CARs) states:
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.
Negligence is defined as the doing of something a reasonable person would not do or omitting to do something a reasonable person would do. The absence of such care as it is the duty of a reasonable person to take.
The question therefore is: Was Mr. Van Nice exercising such care and doing what a reasonably prudent pilot would do when he entered a valley from which an exit was not visible, at an altitude and at a speed at which the aircraft could not be turned without losing visual reference to the valley wall or floor? Clearly the answer is no.
Was the negligent act reckless? Was it voluntarily done with knowledge of existing conditions that placed the life or property of others at risk? Certainly Mr. Van Nice knew the risk. Controlled flight into terrain is almost always fatal. The passengers certainly felt they were at risk and the evidence of the circumstances leading up to the turn confirms that they were at risk. Continuing flight beyond the point where a turn could be carried out with continued visual reference is in my opinion reckless.
The fact that the turn was successful is not relevant to the finding of negligence and recklessness. The turn itself may have been expertly executed, it may have been luck, or a combination of both, it matters not. The fact that the pilot let the aircraft get into a circumstance where such a turn was the only option is the absence of such care as a reasonable pilot would take and in so doing he put his passengers and his aircraft in danger.
Mr. Van Nice is therefore in violation of section 602.01 of the CARs in that he was both negligent and reckless. I confirm the Minister's finding and the seven-day suspension.
William T. Tweed
Transportation Appeal Tribunal of Canada
 Black's Dictionary; Francis Dominic Decicco v. Minister of Transport, Appeal Determination, C-0316-02.
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