CAT File No. O-1522-33
MoT File No. PAP6504-Z-000004-028084
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Sergei Charles Christopher Lutzak, Respondent
Aeronautics Act, S.C., c.A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s.602.01, 605.03
Flight Authority, Negligent or Reckless Operation of an Aircraft, Due Diligence
Philip D. Jardim
Decision: December 22, 1997
I have determined that, on a balance of probabilities, Sergei Charles Christopher Lutzak did not contravene sections 602.01 and 605.03 of the Canadian Aviation Regulations. Mr. Lutzak demonstrated due diligence in establishing that the aircraft's electrical system was functioning properly before every take-off. I therefore dismiss the allegations made by the Minister against Mr. Lutzak.
The Review Hearing on the above matter was held Wednesday, December 10, 1997 and reconvened Tuesday, December 16, 1997 at the Federal Court of Canada in Toronto, Ontario.
On November 14, 1996, Sergei Lutzak was pilot-in-command of Cessna 172 C-GGHX on a flight which was destined from Buttonville, just North of Toronto, for Nashville, Tennessee, via a number of intermediate stops to be determined, subject to weather and other undisclosed considerations. Mr. Lutzak is a private pilot with a Commercial Pilot Licence and Instrument Rating, and owns a 1/5 share in C-GGHX. He had with him two fellow pilots whom he had invited with the intention of sharing the flying to give them some time and experience on the aircraft on the way back from Tennessee. He checked the weather prior to departure and found it to be generally VFR, with the freezing level at the surface, and with light to moderate rime icing forecasted in cloud. The forecast predicted generally scattered to broken cloud with snow showers especially in the lee of the lakes. There was a northwesterly wind.
The engine would not start due to a weak battery, and Mr. Lutzak "hand-propped" it. The engine started easily, and Mr. Lutzak did a complete engine run-up and electrical load check before departing on the first leg of the trip to Buffalo. The alternator was charging normally, and Mr. Lutzak assumed that perhaps someone had left the master switch on, and this had caused the low battery situation. He quite reasonably assumed that, as the battery was less than two months old, the flight to Buffalo would bring it back up. Unknown to him, however, one of his ownership partners had removed the good battery and replaced it with a dud one, without telling anyone, nor making any entries in the maintenance log.
The flight proceeded without incident to Buffalo in generally clear to scattered conditions. The engine started normally at Buffalo as they departed for a still to be determined point en-route to Tennessee. Twenty minutes out of Buffalo, the weather deteriorated, and Lutzak reversed course and climbed above the overcast to VFR on top, communicating his actions to Air Traffic Control (ATC). He was on a VFR flight plan at this stage and, as the flight proceeded, he received deteriorating weather reports en-route to Tennessee. In the light of these reports and perceiving that the weather to the south west was worsening, Mr. Lutzak decided to land at the nearest airport which at that stage was Clarion, Pennsylvania. While keeping ATC informed, he executed a "shuttle descent" over the Clarion VOR. In the course of this descent he entered cloud fleetingly, and some light deposits of ice were noted on the tyres and rotating beacon. None was observed on the airframe either in flight or after landing.
Mr. Lutzak consulted with his passengers at Clarion over lunch, and they agreed to abandon their plans to proceed to Tennessee that day and return to Canada. An IFR flight plan was filed to Hamilton, Ontario. On departure from Clarion the engine again had to be "hand-propped," and a full electrical load check was again done. The ammeter settled down to indicate a "charge" situation, and the radios and other electrical equipment worked satisfactorily. The flight from Clarion to Hamilton proceeded without incident, but just before landing at Hamilton the number 2 VHF deteriorated, and the aircraft flew through a snow shower for about five minutes. Snow was observed on the tyres again, but none appeared to stick to the wings or tailplane. The weather was clear to scattered between Hamilton, Toronto and Buttonville.
Mr. Lutzak elected to proceed to Buttonville after clearing Canada Customs. Again, he had to hand-start the engine, but a further electrical load check proved satisfactory, except for the #2 VHF. He flew VFR to Buttonville and received clearance from Toronto ATC. However, his #1 VHF transmitter failed after take-off from Hamilton, but the receiver was still working. He was given clearance by Toronto to proceed and was told that they had advised Buttonville of his impending arrival. The landing at Buttonville was made without incident.
Upon investigating the battery situation over the ensuing weeks and on having the electrical system checked, Mr. Lutzak discovered that one of his ownership partners, a Mr. Zachwieja, had removed the serviceable new battery from the aircraft without telling anyone, nor recording his action in the maintenance log book. The radios were found to be loose in their mounts but otherwise serviceable, hence their failure on the final sector of the flight.
Mr. Lutzak reported Mr. Zachwieja's actions to Transport Canada (TC). They investigated the matter and subsequently took action against Mr. Lutzak for alleged infractions of sections 602.01 and 605.03 of the Canadian Aviation Regulations (CARs), under section 7.7 of the Aeronautics Act. A monetary penalty of $250.00 was assessed for each of eight counts under the two regulations above, totalling $2000.00. Mr. Lutzak did not pay the monetary penalty, and the Minister referred the matter to the Tribunal, hence this Review Hearing.
The Minister proceeded under section 7.7 of the Aeronautics Act, and sections 602.01 and 605.03 of the Canadian Air Regulations which state:
Section 7.7 of the Aeronautics Act:
7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,
(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and
(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).
(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.
Section 602.01 of the Canadian Aviation Regulations:
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.
Section 605.03 of the Canadian Aviation Regulations:
605.03 (1) No person shall operate an aircraft in flight unless
(a) a flight authority is in effect in respect of the aircraft;
(b) the aircraft is operated in accordance with the conditions set out in the flight authority; and
(c) subject to subsections (2) and (3), the flight authority is carried on board the aircraft.
(2) Where a specific-purpose flight permit has been issued pursuant to section 507.04, an aircraft may be operated without the flight authority carried on board where
(a) the flight is conducted in Canadian airspace; and
(b) an entry is made into the journey log indicating
(i) that the aircraft is operating under a specific-purpose flight permit, and
(ii) where applicable, any operational conditions that pertain to flight operations under the specific-purpose flight permit.
Schedule "A" of the Notice of Assessment of Monetary Penalty reads:
Canadian Aviation Regulations 602.01, in that on or about November 14, 1996, you, as pilot-in-command of Cessna 172 aircraft, registered C-GGHX, flew as detailed in the following separate counts in such a negligent manner as to endanger or be likely to endanger the lives of your passengers. Specifically you flew in Instrument Meteorological Conditions at night in known icing conditions knowing that the aircraft had electrical problems prior to departure.
Count 1: On November 14, 1996, the aircraft was flown from the Toronto / Buttonville Municipal Airport to the Buffalo N.Y. Airport.
Count 2: On November 14, 1996, the aircraft was flown from the Buffalo N.Y. Airport to the Clarion Pennsylvania Airport.
Count 3: On November 14, 1996, the aircraft was flown from the Clarion Pennsylvania to the Hamilton, Ontario Airport.
Count 4: On November 14, 1996, the aircraft was flown from the Hamilton, Ontario Airport to the Toronto / Buttonville Municipal Airport.
Canadian Aviation Regulations 605.03, in that on or about November 14, 1996, you, as pilot-in-command of Cessna 172 aircraft, registered C-GGHX, flew as detailed in the following separate counts when the Certificate of Airworthiness for that aircraft was not in effect due to the aircraft experiencing electrical problems prior to departure.
Count 1: On November 14, 1996 the aircraft was flown from the Toronto / Buttonville Municipal Airport to the Buffalo N.Y. Airport.
Count 2: On November 14, 1996 the aircraft was flown from the Buffalo N.Y. Airport to the Clarion Pennsylvania Airport.
Count 3: On November 14, 1996 the aircraft was flown from the Clarion Pennsylvania Airport to the Hamilton, Ontario Airport.
Count 4: On November 14, 1996 the aircraft was flown from the Hamilton, Ontario Airport to the Toronto / Buttonville Municipal Airport.
The monetary penalty is assessed as follows:
Count 1: $250
Count 2: $250
Count 3: $250
Count 4: $250
Count 1: $250
Count 2: $250
Count 3: $250
Count 4: $250
The Minister has not stated in his notice of monetary penalty whether Mr. Lutzak's alleged actions were negligent or reckless. Therefore, it is incumbent on me to assess from the evidence tendered whether there are instances which establish one or the other or both. Succinct and clear definitions of negligence and recklessness are made in Regina v. Abat (Unreported, March 19, 1984, Sask. Prov. Ct.):
'Negligence' to mean simply 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 the merely negligent inasmuch as to be reckless one must perceive the risk and deliberately decide to run it.
The Minister fielded four witnesses, including the two passengers on the aircraft who were eye witnesses to the flights in question. The other witnesses were the investigators who assumed the duties of the original investigator, now working out of the country, and a flight examiner, whom the Minister sought to have qualified as an expert witness. I declined to accept him as an expert on meteorology, since his Curriculum Vitae (CV) showed no sign of any special training or experience on that subject, other than that of an experienced pilot. All the witnesses were excluded until it was their turn to testify. Mr. Arbour sought to have his expert witnesses exempted from this ruling on the grounds that they were experts. I declined his request in the interests of fairness and natural justice.
· Mr. Ian Shimmin is a TC Inspector and the investigator of this case who took over this investigation from Inspector Mike Wilcox. He was present during Mr. Wilcox's interview of Mr. Lutzak and the witnesses, and supplied the Minister's Exhibits M-1, M-2 and M-3. These exhibits are respectively, extracts from the aircraft's journey log, the weather forecasts for November 14, 1996, and a handwritten statement by Mr. Lutzak. Mr. Shimmin described the events of the day in question and stated the reasons for the allegations. He alleged that Mr. Lutzak had flown in icing conditions in an aircraft not certified for this, and that, because of electrical problems, this invalidated the Certificate of Airworthiness (C of A).
Mr. Shimmin was hotly cross-examined by Mr. Lutzak who repeatedly questioned him on TC's investigative procedure. I had to rule his line of questioning not relevant to the proceedings here, especially as the Tribunal has no jurisdiction over TC's investigative procedures. It took some considerable time for Mr. Lutzak to accept that this line of questioning was getting him nowhere, before he desisted. In the course of his cross-examination of Mr. Shimmin, Mr. Lutzak tendered as exhibits several documents from the disclosure package which TC had provided to him:
D-4 A witness brief, stating who the witnesses would be at his hearing and what they would say.
D-5 The joint witness statement given by the passengers. This was unsigned, but was later confirmed by both witnesses who had given it.
D-6 A recommended procedure for taking statements by The Insurance Institute of Canada.
D-7 The Notice of Assessment of Monetary Penalty, and an extract from the appropriate CARs.
D-8 A warned statement, (the same as M-3) plus a series of extracts from the Cessna 172 Pilots' Manual and other textbooks and the A.I.P. Canada.
In the course of the hearing, Mr. Lutzak provided an exhaustive list of further exhibits, numbering 15 in all.
He used every opportunity to discredit TC's investigation of this case, citing authoritative publications.
- Mr. John Alves and Miss Kelly Cole. Both were eyewitnesses to the flights on November 14, 1996. Although both were credible, I found that their testimony was tainted by bias consequent on their inexperience with the prevailing conditions. They were both in awe of the sight of snow showers and cloud and declared themselves fearful for their safety. At no time did either of these witnesses see ice on the airframe — only some snow on the tyres and on the rotating beacon after the aircraft's brief spell in cloud during the descent into Clarion, and after flying through the snow shower just before landing at Hamilton. Although they discussed it between themselves over lunch at Clarion, neither of them conveyed their feelings to Mr. Lutzak, except to agree with him that they wanted to abandon the attempt to continue to Nashville. It is clear to me that neither of them is quite sure how to read an ammeter, nor were they quite sure even where it was on the panel. Neither of them had ever seen an aircraft engine hand-propped before, and expressed that they were uncomfortable with the procedure.
The fact that they remained on board seems to indicate that they had confidence in Mr. Lutzak's handling of the flight. Indeed, they said that they had no criticism of the way in which he handled the aircraft. They were relieved and had agreed with him to call it a day when the weather further along the route to Nashville seemed to be worsening.
Although both witnesses are now qualified pilots, at the time of the alleged infractions neither was licensed. They were in training and building time. Both pilots admitted under cross-examination that the weather on departure seemed good — it was clear.
At the conclusion of their testimony, neither witness had actually seen any ice on the aircraft's flying surfaces, either on the ground or in the air. The freezing level was at the surface and had ice accumulated on the aircraft, they would have surely seen it as they exited the doors and walked under the wing. Had there been ice at least some of it would have remained on the airframe since the surface temperatures were below zero on that day.
- Mr. Marc Saulnier, TC Inspector. Mr. Saulnier is an experienced pilot with some 10,000 hours. He conducts flight tests and inspects flying schools for TC. Mr. Arbour sought to establish Mr. Saulnier as an expert on meteorology. His CV showed no sign of any special meteorological training outside of the Airline Transport curriculum, and therefore I declined to accept him as an expert. However I accept that he is a very experienced pilot, in the responsible position of a flight examiner.
In the course of his testimony and cross-examination by Mr. Lutzak, Mr. Saulnier admitted that it was possible for an aircraft to have remained out of cloud and icing conditions on November 14, 1996, after being shown the forecast and the actual weather charts for the time periods in question. He agreed with the statements on the several exhibits presented to the hearing by Mr. Lutzak, which dealt variously with weather, icing and recommended procedures all followed by Mr. Lutzak.
Mr. Saulnier also admitted that the actual weather reports and charts produced by
Mr. Lutzak were indeed better than the forecast. He advised Mr. Arbour on redirect that it was possible for a pilot to have flown around cloud and avoided ice. The weather, he said, was actually improving throughout the period.
He agreed with statements in Exhibit D-12 that light icing is usually not a problem unless an aircraft is exposed for a lengthy period, and that snow and ice crystals do not adhere to a cold aircraft and do not usually constitute an icing problem.
Mr. Sergei Lutzak took the witness stand and was duly sworn. He insisted on reading his statement, Exhibit M-3, into the record as a true and accurate account of the events on November 14, 1996. I find his evidence entirely credible, and his lucid replies to Mr. Arbour under cross-examination demonstrated that he was in control of the situation at all times and did not contravene the regulations as alleged.
Mr. Lutzak impressed me as a responsible individual who does not take risks. He demonstrated this by abandoning his plans to proceed to Nashville in the face of deteriorating weather, and returning home. I believe that while he did enter cloud fleetingly, as he admitted doing, this did not constitute flying in icing conditions for which the Cessna 172 is not approved. Mr. Lutzak demonstrated good judgement and airmanship in dealing with the challenges presented to him on that day. He set out in clear to scattered weather conditions, with a reasonable weather forecast with which TC's flight examiner, Mr. Saulnier, agreed that it was possible to conduct a VFR flight. My own experience also tells me that this was a reasonable and feasible flight. When Mr. Lutzak was confronted with deteriorating weather, he made the responsible decision not to proceed any further, and he returned home. I cannot fault him for this wise decision. His good judgement is further confirmed by the fact that the actual weather reports (Exhibits D-10 and D-15) showed an improvement on the forecast.
With regard to the need to swing the propellor on three occasions to start the engine, I find that, while this should certainly have indicated to him that the battery was flat, he was duly diligent in establishing that the electrical system was operating normally by performing load checks before every take-off. Further, I can understand and accept his statement under oath, that he was under the impression that it was a new battery, fitted not even two months before (see Exhibit D-15). The battery should have been recharged on the hour-long flight to Buffalo, which it was, as the engine started normally on departure from there. The alternator was working properly at all times. A low battery does not necessarily void an aircraft's C of A, when the alternator and voltage regulator and all the other electrical equipment are working properly, as was the case here.
The radio failure on the final leg into Buttonville was not related to the battery problem and could not have been anticipated; it was caused by loose radio mounts.
I find that, on a balance of probabilities, the Minister has not established proof of either negligence or recklessness. Such proof is necessary to enable allegations of a contravention of section 602.01 of the CARs to be made out. I therefore dismiss all 4 counts of offence #1.
With respect to section 605.03 of the CARs, I find that a low battery does not void an aircraft's C of A in itself, if the charging system is working properly. I am satisfied that Mr. Lutzak is being entirely truthful when he stated that he was unaware that one of his partners had switched the battery. Mr. Lutzak genuinely believed that the battery was the new one fitted on September 20, 1996. He reasonably expected the battery to be recharged by the alternator in flight. He was duly diligent in establishing that the rest of the electrical system was working properly, and the ammeter showed a charge situation at all times in flight. I therefore dismiss all 4 counts of offence #2.
At the conclusion of this Review Hearing I have determined that, on a balance of probabilities, Sergei Charles Christopher Lutzak did not contravene sections 602.01 and 605.03 of the CARs. Further, Mr. Lutzak demonstrated due diligence in establishing that the aircraft's electrical system was functioning properly before every take-off. I therefore dismiss the allegations made by the Minister against Mr. Lutzak.
Philip D. Jardim
Civil Aviation Tribunal
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