Decisions

CAT File No. O-1702-02
MoT File No. PAP6504-P-121582-031592

CIVIL AVIATION TRIBUNAL

BETWEEN:

John Youngquist, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, 6.9;
Canadian Aviation Regulations, SOR/96-433, s. 602.01

Reckless Operation of an Aircraft, Helicopter, Negligent or Reckless Operation of an Aircraft, Exclusion of Witnesses, Endanger Life or Property


Review Determination
Samuel J. Birenbaum


Decision: February 16, 1999

I find that the Minister has not proved on a balance of probabilities that Mr. John Youngquist operated his helicopter in such a reckless manner as to endanger or be likely to endanger the life or property of any person. I, therefore, dismiss the Minister's allegation against him and cancel the fourteen-day suspension of his licence.

A Review Hearing on the above matter was held Thursday, January 28, 1999, commencing at 11:15 hours, in the Council Chambers at City Hall, in St. Catharines, Ontario.

BACKGROUND

A Notice of Suspension issued to Mr. Youngquist on October 16, 1998 reads as follows:

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):

Canadian Aviation Regulations, section 602.01, in that, you operated an aircraft in such a reckless manner as to endanger or be likely to endanger the life or property of any person.

On or about June 23, 1998, at approximately 1100 EDT at the St. Catharines/Niagara District Airport, you, as pilot-in-command of a Hughes 369D helicopter, registered C-GWPD, flew close to persons and aircraft situated on the ramp at the St. Catharines/Niagara District Airport in such a reckless manner as to endanger or be likely to endanger the life or property of any person.

Suspension Assessed: 14 days

Mr. Youngquist, the pilot, requested a Review Hearing.

MOTION

Before commencement of this hearing a motion was made for the exclusion of all witnesses. However, the case presenting officer for the Minister requested that his expert witness be permitted to remain present as he wished to ask his opinion about matters that were to be brought forth in evidence. The Applicant objected to this motion stating that he felt that there was a possibility that the expert witness might be biased by being present to hear the evidence of others, and he felt that this would represent a situation prejudicial to his own case.

RULING ON MOTION

After careful deliberation I ruled that the expert witness, along with all other witnesses, was to be excluded because there was a strong perception of unfairness on the part of the Applicant, and it has been traditionally the role of this Tribunal to ensure fairness and natural justice to all who appear before it. In view of Mr. Youngquist's strong feelings that having an expert witness present would be prejudicial, and because I felt that the expert could reasonably be asked his opinion without necessarily hearing each witness individually, I ruled in favour of his exclusion. Mr. Binder objected, and reminded me that he would have the right to appeal this ruling.

THE MINISTER'S EVIDENCE

The Minister's case presenting officer introduced his first witness, Mr. Claude Overholt, who was solemnly affirmed. He operates a tour company and teaches flying, has a commercial pilot licence, with over 10,000 hours of experience, and is currently based at the St. Catharines Airport. He stated that on June 23, 1998 he was sitting in an aircraft parked on the ramp, beside Mr. Stuart McAskill, doing paper work with respect to the certification of an aircraft. There was a light rain falling outside and they entered the aircraft, a Cessna 207, for shelter. While seated in the aircraft, he observed the appearance of a Hughes helicopter, maroon in colour, with Mr. Youngquist, pilot-in-command, which flew approximately eight to ten feet above ground, approximately 30 feet in front of the aircraft in which he was seated. At the time there were two other aircraft on the ramp, and there was a parked DC3 which had its engines running, as well as another aircraft parked in front of the terminal building.

Mr. Binder introduced Exhibit M-1, a sketch of the ramp, with the parked aircraft, indicating by numbers 3 and 4 the path taken by the helicopter as it entered the ramp area, and then exited the ramp area. Numbers 1 and 2 indicate the position within the parked aircraft in which the two observers, including Mr. Overholt, were seated. Mr. Overholt stated that he paced off the distances marked on this diagram, indicating that the aircraft in which he was parked, was approximately 45 metres behind the DC3, and the left wing tip of the aircraft in front of the terminal building was 13 metres from the left tail section of the parked DC3. By reference to the diagram, they indicated that the helicopter flew approximately 30 feet in front of the aircraft but went beyond the sketched area and entered the space between the DC3 and the parked aircraft in front of the terminal building. This differed from what was indicated on the sketch. Mr. Overholt testified that he felt no prop wash in the aircraft in which he was sitting and no obvious turbulence was observed in the helicopter's flight. He was not concerned about any danger on direct questioning and he admitted that there might be some danger if something had happened to the helicopter.

On cross-examination he emphasized that he knew the helicopter in question and knew that no one else flew it but Mr. John Youngquist. He admitted that his drawing was modified and not entirely accurate, and that it was not drawn to scale. He further stated that he felt no prop wash effect from the idling DC3 engines while seated in the aircraft, but before entering the aircraft, there was considerable wind, and this was partly the reason that he sought shelter within the parked aeroplane. When asked if he felt that there was any danger, he answered that he did not feel that this was a dangerous situation. On redirect, he stated that he personally did not draw the path of the helicopter labelled 3 and 4 on Exhibit M-1.

Mr. Binder's next witness, Mr. Stuart McAskill, was sworn. He stated that he is a civil aviation safety inspector with Transport Canada and has 30 years of aviation experience, including 21 years in the military in various countries, flying various aircraft, including the giving of check rides. He has accumulated over 11,000 hours of flying experience. On June 23, 1998 while in St. Catharines Airport, doing an inspection on a new aircraft, he was seated in a parked aircraft on the ramp and observed a maroon light helicopter flying at low altitude, close to his location. He knew the pilot-in-command and later went to his hangar where he confronted him with the question, why he performed the manoeuvre. Mr. Youngquist replied at that time that it was perfectly safe.

Mr. McAskill testified that the sketch, Minister's Exhibit M-1, was drawn by Mr. Overholt, to show the location of the aircraft parked on the ramp area; that he, himself, had drawn the flight path of the helicopter, and had placed the identifying numbers 3 and 4. He agreed that the drawing was not to scale and he also admitted that he placed numbers 1 and 2 at the locations where he was sitting, which is number 1, and where Mr. Overholt was sitting, which is number 2, in the parked aircraft. He stated further that the number 3 indicated the entry path of the helicopter, and number 4 was the exit path. He stated that he first heard, then saw the helicopter on the right side, and first noted its skid less than six feet away from the window of the parked aircraft in which he was seated, and close enough to frighten him. He stressed that he has much formation flying experience and judges distances between aircraft quite well. He felt the down-wash from the rotor blade and felt a buffeting in his aircraft. Furthermore, as the helicopter flew closer to the DC3 with its engines idling, he saw that the helicopter itself was being buffeted by the prop wash from the DC3 aircraft.

Mr. Binder introduced Exhibit M-2, a photocopy of the aerodrome chart of the St. Catharines Airport, showing the ramp area in close proximity to taxiways Bravo and Charlie. The witness further testified that he was concerned about the flight; that it frightened him. The helicopter flew too close to his aircraft, as well as flying too close to the prop wash effect from the idling DC3 engines. The witness learned that the pilot of the helicopter was looking for a fuelling truck to secure fuel. On cross-examination, Mr. McAskill stated that he worked in Europe with other helicopter squadrons. He, himself, flew larger helicopters but had no experience with the Hughes helicopter in question. In his experience he had never seen a helicopter taxi in this manner.

Mr. Binder's next witness was Inspector Douglas Malette. Mr. Malette is an inspector with Transport Canada safety systems who promotes aviation safety. He was a pilot with the Royal Canadian Navy since 1966, and has flown helicopters, T33's, DC3's and other aircraft, in many types of operations, including search and rescue, and has accumulated over 6,000 hours of helicopter experience, as well as 1,500 hours of fixed wing experience. He was accepted as an expert witness and stated that he usually did not air taxi near other aircraft, and would allow one and a half times the diameter of his rotor blades as a safe distance from other obstructions and other parked aircraft. He further testified that he would not descend below 40 feet in this situation, and would not be 30 feet in front of a parked aircraft. He said he would never personally fly into a congested area like this, and would fail a pilot he was testing who would do so. He felt the space was too confined and there was danger from the prop wash of the DC3 to the helicopter, and again from the helicopter prop wash to the other parked aircraft. The helicopter pilot had no way of knowing when the DC3 engines would power up and, in his opinion, such an action would cause problems for the helicopter. He felt that if there had been a loss of power in the helicopter it would have landed hard, flexing its blades, and causing considerable damage. There was further risk by the scatter of debris from the prop wash of the helicopter blades. On cross-examination he admitted that he flew larger helicopters, up to 21,000 pounds, whereas the aircraft in question weighs only 3,000 pounds. The witness, however, did state that he flew a jet ranger helicopter of similar weight. He stated that the drawing labelled Exhibit M-l was not accurate, and that if actual measurements were substantially different from those shown, it would change his mind and his opinion about the safety of this flight.

THE DOCUMENT HOLDER'S EVIDENCE

The Applicant introduced his first witness, Ross Beck, who was sworn. Mr. Beck was one of the investigators of this complaint, and interviewed witnesses on September 2, 1998. He testified that Exhibit M-1 indicated the correct flight path and that it had not been tampered with, but that the notes along the side were made by Mr. McAskill. In the course of his investigation, he testified that he interviewed many potential observers but did not ask people in the tower if they had witnessed any of these events, despite the fact that this was the most ideal vantage point from which to have observed the flight of the helicopter. He stated he was not aware that there were any people in the tower although he knew it was a flight service station. He said he depended mainly on the evidence of Mr. McAskill and Mr. Overholt and less so on the witness, Mr. Thompson, who was on the other side of the airport, and thus did not have as good a view.

Mr. Youngquist next introduced into evidence Exhibits D-1, D-2 and D-3, each containing copies of statements from witnesses Claude Overholt, William Thompson, and John Youngquist, respectively. In these statements, Mr. Youngquist emphasized the contradiction between statements of Mr. McAskill and other witnesses. Mr. McAskill and Mr. Overholt were seated side-by-side in the same parked aircraft and their testimony differed, as well, with respect to the degree of danger of the flight path of the helicopter.

The next witness was Mr. Gilles Vallières who was accepted as an expert. He is a helicopter instructor with instrument ratings and experience in seven types of helicopters and several fixed wing aircraft, and over 6,000 hours of flying time. He has instructed students for over 2,400 hours, operating in three flying schools, and chief flight instructor in two of these. He has worked across Canada in bush, firefighting, sling, training, as well as commercial passenger carrying operations. He is endorsed in the Hughes helicopter. He testified that three feet skid height in hover is perfectly normal, and from three to fifteen feet is considered adequate and not dangerous. Flying close to other aircraft is a necessary part of helicopter operations, and taxiing behind other aircraft with engines running is not a high risk procedure. Being closer than 1.5 times rotor diameter to other light aircraft is satisfactory, and he would consider one half times rotor diameter to be a satisfactory location to park beside another aircraft, with the exclusion of ultra-light aircraft. He testified that rotor tip to wing tip separation with parked aircraft of ten feet is satisfactory. He said that the down-wash could move the wing of a parked aircraft but this is no worse than a breeze, and represents no hazard. He stated that he has simulated the flight path of the helicopter with the pilot and felt that the operation was safe, and that Mr. Youngquist demonstrated careful piloting. He stated that he taught Mr. Youngquist to fly in 1984 and noted that he was always safe and careful, and he was his best student, since he learned to hover in just a few hours, and soloed at the earliest possible time of any of his students at eleven hours. He noted that Mr. Youngquist had purchased his own helicopter shortly thereafter.

Mr. Youngquist asked to show a video which was taken by two photographers, one from inside a Cessna aircraft parked on the ramp at the same location as previously; the other from outside the aircraft, while he flew the helicopter in a simulated path. This video was labelled Exhibit D-4 and clearly it was noted that photographs taken from inside the aircraft show the skid of the helicopter to appear much closer and, indeed, almost dangerously close, whereas the photographs from the camera on the ramp showed a safe distance between the helicopter and the parked aircraft. He further testified that the helicopter in question was powerful, manoeuvrable and controllable, especially at low weight, and would require only 50% power for hovering in ground effect; therefore, there is considerable power available for a climb and other manoeuvres, if these were necessary in an emergency situation. He noted further that Niagara Helicopters which flies tourists on sightseeing trips over Niagara Falls, loads and unloads passengers and refuels while the rotors are moving. He stated he would have no problem flying behind a DC3 with engines on, and in the event of an engine failure, he would be able to land from a short height in a vertical manner without damage.

Mr. Youngquist introduced Exhibit D-5, a number of reproductions of various slides he showed of the area in question, and noted on page two that the ramp area as shown by the aerial photographs he provided was not nearly as congested as it would appear in the Minister's Exhibit M-1. On cross-examination, Mr. Binder reminded the witness that the Niagara Helicopter operations were at a designated heliport which had no other aircraft parked nearby, and certainly did not have a DC3 with idling engines.

The next witness, Mr. William Thompson, was sworn. He is an employee of Mr. Youngquist, a pilot with five years' experience, and considerable helicopter interest, who builds and flies remote-controlled helicopter aircraft. He witnessed the event from across the field and felt there was no risk, and that it was not a dangerous operation. He testified that the helicopter appeared to be stable at all times. Mr. Thompson stated he flew with the Applicant frequently, and never felt any danger, and regarded him as a very competent pilot. He testified that the helicopter flew about twenty feet above the ground, although the skids were less than that distance above the ground, and that the hover height was not unusual that day. On cross-examination he admitted that he was at least 300 to 400 feet away but when indicating on Exhibit M-2 his location, it was calculated that he was over 600 feet away. He testified he did not see the entire flight, only occasionally glancing at it, and was not certain if both engines on the DC3 were operating, or if only one was operating at the time. He never noticed the helicopter to be between the DC3 and the aircraft in front of the terminal building, and was unable to state the distance the helicopter was separated from the other aircraft in the area. He did state that the helicopter was twenty feet above ground, but this could be in the range of ten to thirty feet. His answers were vague because he was uncertain, and did not have complete memory of that particular day in question. He stated he saw no turbulence in the helicopter but admitted he was not watching closely and was catching only occasional glimpses out the window.

The last witness was Mr. John Youngquist who was duly sworn. He started flying fixed wing aircraft at the age of sixteen and bought his first Bonanza at the age of 25, accumulating 5,000 hours, including an instrument rating at the time. He has owned his current Hughes helicopter for fourteen years, without incident or complaint, and carries no hull insurance, operating at his own risk an aircraft with a value of $400,000 to $500,000. He says this also motivates him to fly carefully and safely. He describes himself as an inventor of avionics products, and feels he is well known in the aviation community, and is a member of the Flight Safety Advisory Board to MU2 aircraft owners. He has a licensed heliport at his place of business as well as using the facility at the St. Catharines Airport. He further describes himself as a scientist and an engineer who studies helicopters very closely. He said he flew a path which he considered safe. He knew the DC3 engines were running, but also knew that the velocity of the prop wash would not bother him. If it were necessary, he could simply climb a few feet to get out of the prop wash entirely. He testified that no observer on the ground can tell if a helicopter's flight path is disturbed by turbulence, and said even a sneeze on the part of the pilot can alter the flight path of a helicopter. He stated that Exhibit M-1 was a poor drawing; that the aerial photographs in his Exhibit D-5 are much more accurate; and the differences are quite spectacular; M-1 showing a highly congested ramp area and D-5 showing an adequate area into which a helicopter could safely enter and leave. He pointed to Exhibit D-5, slide 32, which showed that while parked, the helicopter blades would be completely clear of the wing surface of the adjacent fixed wing aircraft. He felt that the Minister's evidence was incomplete, poorly prepared, and "contaminated", and that the investigation was not fair, nor complete. On cross-examination he stated that the DC3 was about thirteen metres from the aircraft, parked in front of the terminal building, and again responded that the risks were acceptable, and probably nearly zero. He stated on cross-examination that he would perform the flight again exactly as he did before.

THE LAW

Section 602.01 of the Canadian Aviation Regulations (CARs):

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.

CLOSING ARGUMENTS

The Minister stated that all elements of the offence had been proven on a balance of probabilities. Mr. Youngquist was the pilot of C-GWPD that flew in a manner that was reckless so as to endanger or likely to endanger the life or property of other persons. This event occurred on June 23, 1998 at approximately 11:00 EDT in St. Catharines, Niagara District Airport.

Mr. McAskill testified that he considered the flight dangerous and Mr. Overholt said it had the potential for being dangerous. The expert witness, Mr. Douglas Malette, said he would not fly into this area, and that particular risk was added by the idling DC3 engines. Mr. Binder made reference to the Tribunal case of Newburg v. Minister of Transport[1], in which the definition of the offence under section 602.01 of the CARs was clearly defined:

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 wilfulness. 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.

Mr. Binder was critical of the Applicant's assertion that he would do the flight again, and feels he has not learned from the experience. He reminded me of the powers of the Tribunal to both alter the penalty, and uphold or deny the allegation. In view of the fact that the Applicant would perform this manoeuvre again, Mr. Binder asserted that I should increase the penalty.

Mr. Youngquist asserted that the allegation was not proven by the Minister, that the evidence was poor and misleading. The drawing, Exhibit M-1, was not accurate nor to scale, and was tampered with by others writing upon it. The failure to check with the tower personnel, who would have been the best witnesses, was an error. The Minister's expert witness failed to have the necessary experience to determine prop wash risks, or safe helicopter operations. He asserted that he had reviewed the Internet and all available sources and could not find a single accident attributed to the prop wash from a DC3 aircraft on a helicopter passing nearby. Thus, the risk of the DC3 engines was imagined and not proven.

CONCLUSION

There is no doubt that on June 23, 1998 at approximately 11:00 EDT Mr. John Youngquist flew a Hughes helicopter registered C-GWPD at low altitude and low speed across a ramp area to a fuelling destination and then exited the area. All the witnesses are experienced, competent pilots who have spent much of their lives around airports and in aviation. The least experienced, Mr. Thompson, has five years of experience, and because he was only casually observing the events, and was located at a far distance away, I do not fully believe that his testimony is useful.

Mr. Stuart McAskill, a civil aviation safety inspector with Transport Canada, and perhaps the most experienced of all the witnesses, was seated in a parked aircraft on the right seat and was frightened by the closeness of the skid he observed through the side window. He obviously felt that the helicopter was too close to the aircraft in which he was sitting, as well as too close to the other aircraft, and that the helicopter was further endangered by the idling DC3 engines. His sketch, Exhibit M-1, was not very useful. Not being drawn to scale, it was, in fact, misleading. It had an incorrect flight path indicated by the numbers 3 and 4, and had additional notes whose authorship I could not, ultimately, determine. I was much more enlightened by the aerial photograph provided by Mr. Youngquist, which had, however, superimposed upon it, various aircraft which were parked at the time of the incident. Nonetheless, there was clear evidence that there was sufficient room in the ramp area for a helicopter, which is flown expertly, to enter and leave safely. Mr. Overholt's evidence contradicted that of Mr. McAskill who was sitting beside him, close enough that their shoulders touched in the parked aircraft. Mr. Overholt did not experience the feeling of danger, and felt that the risk from the DC3 engines was not real. His only fear was that if the helicopter experienced a mechanical problem at this low altitude that an accident might occur. The evidence from the Minister's expert witness, Mr. Douglas Malette, was based on what was told to him and his observation of Exhibit M-1. He was not a witness to the events, and thus, I find his evidence less convincing, since I find Exhibit M-1 to be distorted and faulty.

I was most impressed by the testimony of Mr. Gilles Vallières who informed the Tribunal that low level helicopter operations were a norm and that hover taxi is a safe manoeuvre and a necessary one for rotor wing aircraft to move in a ramp area. If flying low to the ground represents a risk to an aircraft, then all aircraft are at risk with each take-off and with each landing, since they are in close proximity to the ground in both situations. I find Mr. Youngquist to be a sincere, conscientious, intelligent helicopter pilot who takes safety seriously. He provided evidence which was more accurate and informative, but since it was provided by his own efforts, it could not be classified as totally objective. Nonetheless, I found this material to be much more helpful than Exhibit M-1, and I relied most heavily upon it. I was most convinced by his testimony that he flew safely and carefully and was very impressed by the excellent airmanship he has achieved as described by his own instructor.

DETERMINATION

I find that the Minister has not proved on a balance of probabilities that Mr. John Youngquist operated his helicopter in such a reckless manner as to endanger or be likely to endanger the life or property of any person. I, therefore, dismiss the Minister's allegation against him and cancel the fourteen-day suspension of his licence.

Dr. Samuel Birenbaum, M.D., C.C.F.P.
Member
Civil Aviation Tribunal


[1] CAT File No. O-0415-02, Review Determination, August 20, 1993.