Decisions

CAT File No. O-2210-02
MoT File No. PAP 5504-042542

CIVIL AVIATION TRIBUNAL

BETWEEN:

Thomas Blackwell, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act , S.C., c.A-2, s. 6.9
Canadian Aviation Regulations SOR/96-433, ss. 602.01, 602.19(10)

Suspension, Seaplane, Reckless or Negligent Operation of an Aircraft, Landing, Decision Quashed


Review Determination
Philip D. Jardim


Decision: October 16, 2001

As Mr. Blackwell was not in command of DHC-2 Beaver C-GZBH at 10:10 a.m. local time, on August 15, 2000, I quash the decision by the Minister to suspend his licence.

A Review Hearing on the above matter was held Thursday, October 4, 2001 at 10:00 hours at the offices of the Wayne Cormier Insurance Adjusters in Parry Sound, Ontario.

BACKGROUND

On August 15, 2000, the sightseeing vessel "Island Queen" was negotiating the narrows, northbound between Bob's Point and Salt Point, in Parry Sound Harbour. The width of these narrows varies between approximately 360 feet and 1125 feet. The Island Queen is 132 feet long by 30 feet wide. It is alleged that while negotiating these narrows, a deHavilland Beaver C-GBZH passed down the port side of the vessel and landed astern in the opposite direction, proceeding southbound. This incident caused a stir aboard the vessel, such that its owner reported the matter to Transport Canada, and made a statement, outlining his impressions of the incident.

An investigation ensued, and Transport Canada suspended the licence of the alleged pilot-in-command, Mr. Thomas Blackwell, for a total of 26 days. Mr. Blackwell disputed the charges against him, denying that he was pilot-in-command of the aircraft. He contacted Transport Canada to this effect a number of times, denying that he was flying the aircraft, and supplied the name of the pilot. Nevertheless the investigation proceeded, and Mr. Blackwell was issued a notice of suspension under section 6.9 of the Aeronautics Act. He appealed his suspension to the Tribunal, hence this hearing in Parry Sound, today, October 4, 2001.

Mr. Blackwell is President and Chief Executive Officer of 30,000 Island Air [hereinafter Island Air], the owner and operator of the Beaver, C-GBZH. In his letter to the Tribunal requesting the hearing, he highlighted his claim that he was not the pilot-in-command.

THE LAW

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.

­Subsection 602.19(10) of the CARs states:

602.19 [...]

(10) No person shall conduct or attempt to conduct a take-off or landing in an aircraft until there is no apparent risk of collision with any aircraft, person, vessel, vehicle or structure in the take-off or landing path.

EVIDENCE

The Minister called five witnesses, the first of which was Mr. Ian Shimmin, Civil Aviation Inspector, Enforcement Branch. Seventeen exhibits were produced by the Minister, but none of them established who the pilot-in-command of the aircraft was. In his cross-examination of Mr. Shimmin, Mr. Blackwell questioned Mr. Shimmin about his (Blackwell's) attempts to contact him. Mr. Shimmin seemed uncertain of whether he contacted Mr. Blackwell to establish the name of the pilot-in-command. However Mr. Blackwell produced phone records and annotated copies of the letters he had received from Transport Canada, warning him of the impending proceedings against him. These bear out his efforts to advise Transport Canada that he was not the pilot-in-command of the aircraft.

On failing to contact Mr. Shimmin directly, he left at least two messages for him, and also called his superior, Mr. Szwalek, who likewise was unavailable. Neither returned his calls.

Three of the other four of the Minister's witnesses testified that they saw Mr. Blackwell flying the aircraft. These witnesses are Mr. Ron Anderson, the owner of the ship, his son, Steve Anderson, the first mate, and Mr. Keith Salt, the captain of the ship. They all testified that they saw Mr. Blackwell at the controls, as the aircraft passed the ship.

Their estimates of the distance of the aircraft from the ship as it passed down the port side in the landing configuration, varied from about 40 feet to 100 feet. The speed of closing of the vessel and the aircraft would have been at least 90 mph - about 150 km/h. I doubt that the features of a face through the cockpit window and the glass of the bridge of the ship could be made out at that speed to enable recognition of a person with any real accuracy. This is not to question the veracity of the witnesses, but rather to suggest that their apparent recognition of Mr. Blackwell stems from associating him with that aircraft, as they all know him as its owner.

Ms. Beverley Slater, the fifth witness, was in the galley, heard the aircraft, and saw it pass behind the vessel as it landed. She did not see the pilot.

All four witnesses' evidence is consistent in establishing that the aircraft did pass closer to the vessel than is consistent with safety. Further, the statement in Island Air's brochure to the effect that: "We usually 'Buzz' the cruise boats on this flight" does nothing to impress passengers that Island Air is a safety conscious operator (Exhibit M-5).

Mr. Blackwell called his first witness, Ms. Elke Dyck. She is the office manager and dispatch officer for Island Air. She produced the operational flight plan and load record #000815, Exhibit D-21, and testified that Mr. Blackwell was not flying the aircraft. Exhibit D-21 shows that the pilot-in-command of the aircraft was Lawrence Turcotte, and Ms. Dyck confirmed that this was the case. Mr. Blackwell was at his cottage at the time of the incident.

Mr. Donald Ferris, an employee of Island Air, testified that he was aboard the aircraft at the time, and confirmed that the pilot was Mr. Turcotte.

Mr. Lawrence Turcotte testified that he was the pilot-in-command of that flight, although he seemed unsure of the registration of the aircraft. He testified that at no time did he come as close as alleged to the Island Queen, during his landing at 10:10 a.m. on August 15, 2000. He claims that he was half a kilometre from the vessel at the end of his landing run. He landed on the north shore as the vessel entered the narrows. The vessel passed him as he was on the water.

Mr. Turcotte said that he called Transport Canada from Florida to tell them that he was the pilot-in-command of the aircraft, but he was told that this was Mr. Blackwell's issue and they would not speak to him any further. As Mr. Turcotte does not keep a personal flying logbook, he only enters his flying totals in a diary, and does not record the registration of the aircraft that he flies. Exhibit D-22 is an extract from his diary of August 15, 2000. It shows that he flew two hours for Island Air, but neither the registration, nor type of aircraft is recorded. However, he recognizes his writing on sheet 000815 — the operational flight plan and load record for August 15, 2000. The registration of the aircraft on this document just says "DHC." The time of landing does coincide with the time of the incident - 10:10 a.m. August 15, 2000.

Island Air does have two Beavers, but Mr. Blackwell testified that the other aircraft C-FJAB was at Gananoque at the time, and was painted yellow.

Although I do not consider it relevant, at the insistence of Mr. Hector, the Minister's case presenter, I admitted the operational flight plan and journey log extract for this Beaver, which was many miles removed from Parry Sound on August 15, 2000 - the documents show that it was in Gananoque, Ontario (Exhibits M-24 and M-25).

Mr. Blackwell took the stand and testified that he was asleep at his cottage 25 miles away at the time of this incident. This evidence has been very substantially corroborated by his previous witnesses and the documentation. The extract from the journey logbook of C-GBZH for August 15 was filled out by Mr. Blackwell. This is not unusual as it can be filled out by any authorized person.

Mr. Blackwell produced a letter (Exhibit D-23) he had written to Mr. Art LaFlamme of Transport Canada, expressing his indignation at being persecuted by the enforcement branch, when he was not in the aircraft at the time. Mr. LaFlamme had said that he should take this up with enforcement.

CONCLUSION

I find it somewhat bizarre that the enforcement branch of Transport Canada would pursue an investigation into an incident and apparently refuse to listen to the subject of the investigation. Not only did Mr. Blackwell deny to them that he was the pilot-in-command of the aircraft, but he gave them Mr. Turcotte's name, and even had Mr. Turcotte phone them. They refused to speak to Mr. Turcotte.

Without appearing to hold a brief for Island Air and Mr. Blackwell, I can only conclude that this amounts to persecution, is a waste of resources, and brings the department into disrepute. What is also significant is that there is no time recorded on the notice of suspension, just the date is given. Since more than one pilot can fly the same aircraft on the same day, it is vital that the time of the alleged offence is stated on the notice of suspension.

With regard to whether the regulations were breached on that day, there is a credibility issue which is somewhat difficult to resolve: on the one hand we have four witnesses on the vessel more or less corroborating each other that the aircraft was flown dangerously. On the other hand, we have Mr. Turcotte's denial that he was anywhere near the vessel when he landed, corroborated by Mr. Ferris. There is the unfortunate statement in Island Air's brochure that: "We usually 'Buzz' the cruise boats". And, arising out of Mr. Blackwell's evidence, there may be jealousy, backbiting, and sparring between Island Air and the owners of the vessel, who seem convinced that Mr. Blackwell was the pilot, more by associating him with the aircraft than actually recognizing him, as the aircraft sped by at 90 mph.

However, because it is abundantly proven that Mr. Blackwell was not the pilot-in-command, I do not have to resolve this issue conclusively. With that said, I believe that there may well have been infractions of the CARs on that day, and that Island Air should exercise extreme care in conducting its operations, and remove that unfortunate statement from its brochure.

DETERMINATION

As Mr. Blackwell was not in command of DHC-2 Beaver C-GZBH at 10:10 a.m. local time, on August 15, 2000, I quash the decision by the Minister to suspend his licence.

Philip D. Jardim
Member
Civil Aviation Tribunal