Decisions

TATC File No. O-2830-02
MoT File No. PAP5504-0494399

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Leroy C. Simpson, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9
Canadian Aviation Regulations, SOR/96-433, s. 602.01


Review Determination
Philip D. Jardim


Decision: January 20, 2004

The Applicant did contravene section 602.01 of the Canadian Aviation Regulations. However, the suspension of 90 days is reduced to 60 days. Said suspension shall commence on the fifteenth day following the date of service of this determination.

A Review Hearing on the above matter was held Friday, January 9, 2004 at 9:30 hours at the Sheraton Gateway Hotel, Toronto International Airport, in Mississauga, Ontario.

BACKGROUND

On October 8, 2002, Mr. Leroy Simpson, a member of the Brampton Flying Club (BFC), rented a Cessna A152 aircraft, C-GRHT, to fly from Brampton to Barrie, Ontario, and return. Mr. Simpson flew the aircraft to an airstrip, Springwater, which he had built. He did not land at Barrie. Springwater is just to the north of Barrie. In the course of his landing at this newly prepared airstrip, he touched down half way down the strip. The aircraft ran off the end of the airstrip into a drain and some soft earth, the nosewheel dug in, and the aircraft pivoted on it and overturned, such that it came to rest upside down, on its back. Mr. Simpson was not injured, and reported the matter to the BFC. Mr. Richard Wynott, the General Manager and Chief Flying Instructor (CFI), sent Mr. Rantz, the Director of Maintenance, and a recovery team to Springwater to recover Mr. Simpson, and the aircraft.

This accident came to the attention of Transport Canada, which investigated it and issued a three month licence suspension to Mr. Simpson, pursuant to 6.9 of the Aeronautics Act, for an alleged contravention of section 602.01 of the Canadian Aviation Regulations (CARs). Mr. Simpson appealed this penalty to the Tribunal.

THE LAW

602.01 of the 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.

EVIDENCE

The investigating officer, Ms. Oonagh Elliott, Aviation Enforcement Branch of Transport Canada, investigated the accident. She interviewed Mr. Richard Wynott, General Manager and Chief Flying Instructor, and Mr. Richard Rantz, Director of Maintenance, of the BFC. Both of these gentlemen were called as witnesses for the Minister. Ms. Elliott did not inspect the airstrip at Springwater, nor was the aircraft examined. Her investigation relied upon interviews with Messrs. Wynott and Rantz. Mr. Mattis objected to the introduction of an article written by Mr. Wynott on the accident. His point of objection was that this article was opinion and not fact. I sustained this objection.

Mr. Lipiec later re-introduced the article, (Exhibit M-8), during his questioning of Mr. Wynott, its author, who answered questions about it. In essence, while this article provides background to the accident, it does not go to proof, since it forms an opinion expressed by Mr. Wynott, who never saw the runway himself, nor the aircraft after the crash.

Mr. Rantz is the only person who visited the new airfield, Springwater. He rescued Mr. Simpson, and retrieved the aircraft from Springwater. In the course of this, Mr. Rantz took some photographs of the strip, the position in which the aircraft came to rest, and the resulting damage to the aircraft. Mr. Wynott never visited Springwater, nor did he see the damaged aircraft, after it was retrieved. The insurance company wrote off the aircraft.

Mr. Rantz stated that the airfield surface was firm but somewhat soft, and he was concerned that his vehicle might become stuck; however, it did not. Mr. Rantz was able to put the aircraft back on its wheels, and tow it with his vehicle back up the strip. No measurements were taken, but the airstrip is estimated to be 1800 feet long and 80 to 100 feet wide. The surrounding trees, he estimated, were 30 to 50 feet high. He estimated the distance of the trees from the end of the runway to be 100 feet. Mr. Rantz estimated that his vehicle weighed 3000 lbs. and that with four people aboard it was about 4000 lbs.

Mr. Simpson, in renting the aircraft, signed an agreement (Exhibit M-7). One of the conditions of this agreement is: "The pilot in command shall not operate the rented aircraft into or out of an unlicenced airport."

Mr. Simpson has held a glider pilot licence since 1980, an ultra-light licence since 1984, and a private pilot licence since 1996. He is also an instructor on ultra-light aircraft (Exhibit M-2). His total experience was not stated. He learned to fly at the BFC, and is well known to Mr.Wynott, the CFI, as member there. As a result of this accident, the BFC suspended Mr. Simpson from flying solo from November 8, 2002 to November 1, 2003 ( Exhibit M-9). This letter of suspension formally criticizes Mr. Simpson for failing to seek permission from the Club to land at a private airstrip, describing his actions as "a deliberate violation of this requirement."

Mr. Mattis, in representing Mr. Simpson who was present at the hearing, did not call him to testify, nor did he offer any evidence. He chose to make his case by summarizing the evidence presented by the Minister, and criticizing the quality of the investigation. Transport Canada did not visit the airfield at Springwater, nor take measurements, nor inspect the surface of the runway. Ms. Elliott, as investigating officer, chose to rely instead on Messrs. Wynott and Rantz. The latter is the only witness who actually saw the runway, and the crashed aircraft.

Mr. Mattis submits that the main issue is whether the runway is suitable. He cross-examined Mr. Rantz carefully about the properties and bearing strength of the runway. Mr. Mattis himself did not present any evidence to prove the dimensions of the runway, nor did he provide any details of its surface. Both the Minister and the Applicant relied upon estimates of the dimensions of the runway by Mr. Rantz. As to bearing strength, Mr. Mattis relied upon the experience of Mr. Rantz in driving over the runway with his Pontiac Transporter, and the fact that he towed the aircraft along its length to remove it from the site.

The Notice of Suspension issued to Mr. Simpson accuses him of: "landing at an unsuitable aerodrome, thereby endangering the property of the registered owner of the aircraft, and resulting in damage to the aircraft." The Minister has proceeded under section 602.01 of the CARs – operation of an aircraft in a reckless or negligent manner.

Mr. Mattis submits that the Minister has not adduced evidence to prove that the runway was unsuitable for a Cessna 152. No measurements were taken and the investigating officer did not visit the site, nor inspect the aircraft. The Journey Logbook was not tendered, so that the condition of the aircraft prior to flight has not been established. Mr. Mattis says that Transport Canada has not discharged the burden of proof. The quality of this investigation is lacking. Mr. Mattis also submits that the rules of the BFC are not at issue here.

Mr. Mattis sought to question Ms. Elliott as to her opinion on what defects on the aircraft could have contributed to the accident. Mr. Lipiec objected to this question on the basis that if she answered, this would be opinion and not fact. I sustained this objection.

DISCUSSION

The following facts have emerged from this hearing:

Mr. Simpson rented the Cessna 152 from the BFC and proceeded to land it at an unlicensed airfield, in contravention of the rental agreement he signed (Exhibit M-7). This airfield may also have been unsuitable for the Cessna 152, with a relatively inexperienced pilot at the controls.

Mr. Simpson made errors in the handling of the Cessna 152 which caused him to land well into the strip, halfway down the runway, by his statement (Exhibit M-6). This caused him to overrun the strip, causing the aircraft to enter soft ground and flip over on its back. Mr. Simpson made a judgmental error in not overshooting, or going around when he saw that the aircraft was floating into the second half of the runway.

The Transport Canada investigation is incomplete, in that no dimensions were measured nor runway surface evaluation determined at Springwater. We merely have estimates of these from Mr. Rantz, the Director of Maintenance of the BFC. These figures indicate that the runway is approximately 1800 feet long, and 80 to 100 feet wide. The photographs in Exhibit M-11 are consistent with these estimates. These indicate that this runway would be marginal for a Cessna 152, with an inexperienced pilot at the controls.

There is no evidence to show how experienced a pilot Mr. Simpson is, and how well he knew the aircraft. Nor is there evidence to show whether Mr. Simpson made a number of precautionary approaches to this runway, to assess its suitability, prior to attempting the final landing. The fact that Mr. Simpson made judgmental errors in handling the aircraft, referred to above, indicates that he is relatively inexperienced, and should not have attempted landing the Cessna 152 on this marginal runway. This means that he landed the aircraft at an unsuitable aerodrome. It is certainly an unlicensed aerodrome, contrary to the agreement he signed on renting the aircraft.

A reasonable pilot would have done the following prior to attempting such an exercise:

  • He would have sought the advice of his flying instructor, and requested permission from the BFC to operate the flight.
  • He would have had a survey of the airfield with measurements and surface details — bearing strength etc. He would have fitted a windsock at the field, to indicate surface wind direction.
  • He would have practised short field take-offs and landings at a known and familiar airfield, to develop his ability to operate the aircraft into such a runway.
  • He would have filed a flight plan, so that in the event of a mishap, such as occurred, search and rescue facilities would have known where to look for him. No evidence was adduced that a flight plan was filed. Had one been filed, the authorities at Barrie would have been looking for C-GHRT when it failed to arrive. No one would have known where to look for Mr. Simpson.
  • By concealing his true destination, Mr. Simpson risked not receiving medical attention in the event of injury. He is fortunate to have escaped unscathed.

There is no evidence from Mr. Simpson that he did any of these things. Indeed, if anything, he sought to conceal his intentions from the BFC by writing "Barrie" as his destination on the "Flight Sheet" (Exhibit M-10). Mr. Simpson should not have attempted this flight under the circumstances.

Negligence is well defined in a number of dictionaries, including Black's Law Dictionary:

The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

Because of the points raised above, I find that Mr. Simpson was certainly negligent.

Recklessness is defined in Black's Dictionary as follows:

Rashness; heedlessness; wanton conduct. The state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, though foreseeing such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.

Recklessness can otherwise be simply expressed as perceiving a risk and deciding to "run" it. The Minister's investigation has not adduced evidence to support that Mr. Simpson was reckless.

SANCTION

In his summary Mr. Lipiec spoke to sanction. He said that the normal sanction for a first offence under section 602.01 of the CARs is 14 to 30 days. The Minister sought to make an example of Mr. Simpson and levied a 90 day suspension. Mr. Simpson's actions could have cost him his life. By concealing his true destination, he could have cost the search and rescue organization much frustration, a lot of money in a vain search in looking for him, and had he been injured and incapacitated, timely medical assistance would never have reached him.

In an effort to encourage Mr. Simpson to cooperate with Transport Canada, and the Brampton Flying Club, I shall reduce the sanction to 60 days.

DETERMINATION

At the conclusion of this Review Hearing, I have determined that the Applicant did contravene section 602.01 of the CARs. The suspension of 90 days is reduced to 60 days for the reasons given above.

Philip D. Jardim
Member
Transportation Appeal Tribunal of Canada


Appeal decision
Faye H. Smith, Samuel J. Birenbaum, William H. Fellows


Decision: August 20, 2004

The appeal is dismissed. We concur with the reasoned decision of the Tribunal Member at review and uphold the sanction of 60 days suspension for the contravention of section 602.01 of the Canadian Aviation Regulations. Said suspension shall commence on the fifteenth day following the date of service of this decision.

An appeal hearing on the above matter was held before the three designated Tribunal Members on Monday, May 10, 2004 at 10:00 hours at the Federal Court of Canada, in the city of Toronto, Ontario.

BACKGROUND

This appeal resulted from a determination made by Philip Jardim on January 20, 2004, following a review hearing on January 9, 2004. Mr. Leroy Simpson was alleged to have contravened section 602.01 of the Canadian Aviation Regulations (CARs) on or about October 8, 2002, when as pilot-in-command of Cessna A152 aircraft registered C-GRHT he allegedly operated the aircraft in such a reckless or negligent manner, by landing at an unsuitable aerodrome, thereby endangering the property of the registered owner of the aircraft, and resulting in damage to the aircraft.

Mr. Jardim found that Mr. Simpson did contravene section 602.01 of the CARs, and confirmed the Minister's decision to assess a suspension of his private pilot licence. However, in reviewing the particulars of Mr. Simpson's contravention, Mr. Jardim reduced the Minister's original sanction of 90 days suspension to 60 days in an effort to encourage Mr. Simpson to co-operate with Transport Canada and the Brampton Flying Club.

GROUNDS FOR APPEAL

On January 29, 2004, Mr. Mattis, counsel for Mr. Simpson, requested an appeal of Mr. Jardim's determination on the following grounds:

  1. The learned Tribunal erred by answering the wrong question.
  2. The Tribunal committed a jurisdictional error in that it disposed of the matter before it in absence of evidence pertaining to the issue it had to decide.
  3. The Tribunal committed a jurisdictional error in that it received and acted upon inadmissible and irrelevant evidence.
  4. The Tribunal committed a jurisdictional error in that it made capricious findings of fact not supported by the material evidence before it.
  5. The Tribunal's decision is unreasonable on its face.

FACTS

The facts are succinctly stated in the Reasons for Review Determination as follows:

On October 8, 2002, Mr. Leroy Simpson, a member of the Brampton Flying Club (BFC), rented a Cessna A152 aircraft, C-GRHT, to fly from Brampton to Barrie, Ontario, and return. Mr. Simpson flew the aircraft to an airstrip, Springwater, which he had built. He did not land at Barrie. Springwater is just to the north of Barrie. In the course of his landing at this newly prepared airstrip, he touched down halfway down the strip. The aircraft ran off the end of the airstrip into a drain and some soft earth, the nosewheel dug in, and the aircraft pivoted on it and overturned, such that it came to rest upside down, on its back. Mr. Simpson was not injured, and reported the matter to the BFC. Mr. Richard Wynott, the General Manager and Chief Flying Instructor (CFI), sent Mr. Rantz, the Director of Maintenance, and a recovery team to Springwater to recover Mr. Simpson, and the aircraft.

This accident came to the attention of Transport Canada which investigated it and issued a three-month suspension of Mr. Simpson's private pilot licence pursuant to section 6.9 of the Aeronautics Act.

THE LAW

Section 602.01 of the 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.

APPELLANT'S ARGUMENTS

At the outset, Mr. Mattis, counsel for the Appellant, requested that the appeal panel reject the suspension or alternatively that the term of the suspension be reduced to a period of 30 days. He stated that the allegation was that he had chosen an unsuitable area and no allegation had been made regarding recklessness or negligence. He urged that there was no dispute as to the landing area and that the only question was whether the aerodrome was suitable and that this was a question of fact to be decided on the balance of probabilities.

Mr. Mattis gave reasons why he felt the Review Determination did not address this question on the basis of fact:

  • Condition and suitability of the aerodrome was not based on fact.
  • Mr. Simpson's approach to the landing and touchdown point was not based on fact.
  • How soft the area was at the end of the runway was not based on fact.
  • Criteria such as length of runway, state of aircraft (i.e., brakes), surface conditions, distance required to stop, actual cause of tipover, were not investigated.
  • Statement in evidence by the one witness at the site, Mr. Rantz (Maintenance Manager for BFC) did not show how soft the runway was, did not state the runway could not have supported the aircraft and did not ascertain why the aircraft did not slow down more quickly.

Was the Tribunal determination at first instance reasonable, could it have made this determination on the evidence? Counsel for the Appellant says no. He states that the Minister did no investigation to establish these facts but talked to witnesses and this is not a substitute for establishing hard facts.

Mr. Mattis noted his objections raised during the review hearing about the contract between BFC and Mr. Simpson. Mr. Mattis reiterated that he felt the contract said nothing of merit concerning use of grass strips, and nothing about BFC rules being greater or less than other entities. Mr. Mattis referred to page 3 of the Review Determination where it noted Mr. Simpson had failed to receive approval from BFC to land at unlicensed aerodromes, and proposed this statement is not a regulatory question, but one of contract law.

Mr. Mattis further stated that, as a member of the BFC, Mr. Simpson is an owner of the aircraft which he landed at the aerodrome in question, and thus damage to the aircraft was damage to his own property. Mr. Mattis noted that because Mr. Simpson is part owner of the aircraft, the regulatory issue should not apply.

He also stated that the Minister presented no evidence as to Mr. Simpson's experience, yet lack of experience was included in the rationale for the Review Determination.

He noted that the Review Determination stated on page 4 that Mr. Simpson made a judgmental error in not overshooting or going around, and this does not speak to negligence or recklessness, in that a judgmental error should not be called negligence.

Mr. Mattis defined negligence as a situation where a person failed to do something that person had a duty to do. Mr. Mattis suggested that Mr. Simpson's situation was accidental, and an error in judgment, not negligence. The Minister had not shown negligence, in that a party must show (1) breach a duty of care, (2) causation, and (3) damages. The question of judgment goes to the duty of care.

Mr. Mattis suggested that no evidence had been given in the Review Determination as to what a reasonable pilot would do under similar circumstances. He refers to the five points listed on page 4, and he questions how the Tribunal, an expert Tribunal, could make this conclusion and now Mr. Simpson's pilot licence and thus his livelihood is on the line. He stated that the first item — that he should seek advice — does not go to the decision. He urged that it is the Minister who has to prove the second item listed as to airfield measurements, surface detail and wind direction. Further, he adds that we do not know if he filed a flight plan. No one put this in evidence. Finally, by concealing the true destination, he risked not receiving medical attention, Mr. Mattis argued that this is not relevant to the issue before the Tribunal.

Mr. Mattis suggested there was a reversal of onus in this case, and that it is incumbent upon the Minister to prove its allegation, not Mr. Simpson.

In closing, Mr. Mattis asked for fairness in that at the very least, Mr. Simpson's penalty should be reduced to the minimum as per a normal sanction of the CARs of 14 to 30 days for a first offence under section 602.01.

RESPONDENT'S ARGUMENTS

Mr. Villemure, on the Minister's behalf, states that we must ask the question of whether the Minister has proved all of the elements of the offence. The question is — was he negligent or reckless by landing at an unsuitable aerodrome? We must look to the Minister's Exhibit M-6: Faxed statement dated January 16, 2003 from Mr. Simpson to Ms. Elliott.

Mr. Villemure states that Mr. Simpson's faxed statement sent to the Transport Canada investigator admitted certain facts pertinent to the Minister's allegation:

  • the landing spot midway down the runway
  • length of runway
  • weather conditions at the time

Mr. Villemure stated that the Tribunal must answer the question "Did the Minister prove the key elements of the offence, (1) negligence or recklessness, and (2) landing at an unsuitable aerodrome"?

In response to the Appellant's arguments of jurisdictional error, Mr. Villemure argued that the Tribunal having found negligence on the basis of the following facts, therefore, no jurisdictional error existed.

  • Mr. Rantz' description and details concerning the airstrip at Springwater;
  • photographs of the airstrip;
  • landing distance charts showing the airstrip to be marginal for a C152 aircraft;
  • Mr. Simpson's faxed statement speaking to weather, runway dimensions, landing point, and tipover point which was off the end of the runway.

Mr. Villemure then spoke to the Appellant's allegation re inadmissible and irrelevant evidence, pointing out that subsection 15(1) of the Transportation Appeal Tribunal of Canada Act states the Tribunal is not bound by any legal or technical rules of evidence.

Mr. Villemure proposed that the Appellant's objection to introducing the contract between BFC and Mr. Simpson on the basis that it was irrelevant was overruled as it was, in fact, relevant because the Tribunal deemed it relevant, and allowed it.

Re the issue of aircraft ownership, the certificate of registration and the Minister's records clearly show BFC as the registered owner. All members of the BFC own the aircraft; therefore, damage to their property occurred when the aircraft landed and turned over.

Mr. Villemure cited the following findings of fact made by the Tribunal Member at page 4 of his Review Determination as a definitive answer to the Appellant's assertion of capricious finding of fact:

  • This airfield may also have been unsuitable for the Cessna 152, with a relatively inexperienced pilot at the controls
  • Mr. Simpson made errors in the handling of the Cessna 152 which caused him to land well into the strip, halfway down the runway
  • Mr. Simpson made a judgmental error in not overshooting, or going around when he saw that the aircraft was floating into the second half of the runway
  • These figures indicate that the runway is approximately 1800 feet long, and 80 to 100 feet wide. The photographs in Exhibit M-11 are consistent with these estimates. These indicate that this runway would be marginal for a Cessna 152, with an inexperienced pilot at the controls
  • The fact that Mr. Simpson made judgmental errors in handling the aircraft, referred to above, indicates that he is relatively inexperienced, and should not have attempted landing the Cessna 152 on this marginal runway. This means that he landed the aircraft at an unsuitable aerodrome.

He further urged that the Review Determination should not be overturned unless there is an entire absence of evidence or it is unreasonable and incapable of being supported by the evidence:

I am satisfied that a finding of fact by the Hearing Officer should only be overturned on one of two grounds. The first is an entire absence of evidence to support it, which raises a question of law, (R. v. Corbett, 25 C.R.N.S. 296). The second is, notwithstanding that there is some evidence concerning the finding, it is nonetheless unreasonable and incapable of being supported by the evidence.[1]

The Minister's representative submitted that the Tribunal Member appropriately decided the matter on the basis of the evidence that had been adduced before him. In particular, it is suggested, that the term "suitable aerodrome" not only refers to the physical characteristics of the aerodrome for the purpose of landing the aircraft but can also be influenced by external factors. The Tribunal Member proceeded to establish that Mr. Simpson's lack of experience constituted an external factor.

Mr. Villemure listed evidentiary items from the review hearing which he felt indicated a lack of experience on the part of Mr. Simpson:

  • Runway length was 1800 feet
  • Width of runway was 80 to 100 feet
  • Runway surface was seen to be undulating
  • There was a soft/muddy area at the end of the runway
  • There were trees around runway from 30 to 50 feet high, and they were 100 feet from either end
  • Runway surface was soft, and a concern to Mr. Rantz, a witness on site
  • The aircraft floated down the runway
  • Pilot did not go around
  • Aircraft landed halfway down runway
  • Judgmental error in not going around
  • Photographs taken at the site reinforce evidence
  • No precautionary approach was made
  • No evidence showing experience in this type of aerodrome
  • No evidence of having consulted with an instructor

Mr. Villemure proposed that Mr. Jardim's decision in the Review Determination was based on an analysis of the evidence, and that Mr. Jardim had enough evidence to support his decision.

Furthermore, the Minister submits that the error in judgment was equal to negligence. The Minister stated that the Member made a reasonable person test and that test was reasonable and appropriate. The Member's conclusion that Mr. Simpson was inexperienced resulted from his consideration of the short field technique approach on Exhibit M-3 and the figures entered. The fact that the pilot had floated over half of the runway convinced the Tribunal Member that an experienced pilot would have overshot the runway. His landing distance was very short and he concludes that the pilot is inexperienced.

DISCUSSION OF NEGLIGENT OR RECKLESS

We must address the concept of negligence and recklessness in the light of the conduct of the document holder as disclosed by the evidence in order to determine whether the conduct was negligent or reckless so as to endanger or be likely to endanger the life or property of any person.

For reference we would cite the definitions included in Black's Law Dictionary as referenced by the Tribunal Member at review:

Negligence:

The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.

Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

Recklessness:

Rashness; heedlessness; wanton conduct. The state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, though foreseeing such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.

In our consideration of this matter, the appeal panel had to decide whether Mr. Simpson was guilty of a succession of errors of judgment or was he in fact negligent? Did he act as a reasonably prudent pilot in choosing to land at that airstrip?

The Tribunal Member at review found that Mr. Simpson rented the Cessna 152 from the BFC and proceeded to land it at an unlicensed airfield, in contravention of the rental agreement he had signed (Exhibit M-7). He also found that the airfield may have been unsuitable for the Cessna 152, with a relatively inexperienced pilot at the controls.

In stating that the Minister's investigation was incomplete in that it did not determine the dimensions of the runway but rather used the estimates provided by Mr. Rantz, the Director of Maintenance of the BFC, the Tribunal Member accepted these figures which indicated that the runway was approximately 1800 feet long and 80 to 100 feet wide which were consistent with the photographs in Exhibit M-11, and he thus concluded that this runway would be marginal for a Cessna 152, with an inexperienced pilot at the controls.

As stated, there is no evidence to show Mr. Simpson's experience as a pilot, or how well he knew the aircraft. As well, there was no evidence as to whether Mr. Simpson made any precautionary approaches to the runway to assess its suitability prior to landing.

The Tribunal Member at review found that Mr. Simpson made errors in the handling of the Cessna 152 which caused him to land well into the airstrip, halfway down the runway, (Mr. Simpson's statement — Exhibit M-6). This caused him to overrun the strip, causing the aircraft to enter soft ground and flip over on its back. And he concluded that he made a judgmental error in not overshooting or going around when he saw the aircraft floating into the second half of the runway.

The Tribunal Member did conclude that the fact that Mr. Simpson made judgmental errors in handling the aircraft indicates that he is relatively inexperienced and should not have attempted landing the Cessna 152 on this marginal runway. This means that he landed the aircraft at an unsuitable aerodrome. It is certainly an unlicensed aerodrome, contrary to the agreement he signed on renting the aircraft.

In any consideration of what constitutes negligent or reckless conduct, one must review this conduct in the light of what a reasonable and prudent pilot would do in the same circumstances.

Upon conducting his analysis the Tribunal Member concluded that a reasonable pilot would have done the following prior to attempting such an exercise:

  • He would have sought the advice of his flying instructor, and requested permission from the Brampton Flying Club to operate the flight.
  • He would have had a survey of the airfield with measurements and surface details — bearing strength, etc. He would have fitted a windsock at the field, to indicate surface and direction.
  • He would have practised short field take-offs and landings at a known and familiar airfield, to develop his ability to operate the aircraft into such a runway.
  • He would have filed a flight plan, so that in the event of a mishap, such as occurred, search and rescue facilities would have known where to look for him. No evidence was adduced that a flight plan was filed. Had one been filed, the authorities at Barrie would have been looking for C-GHRT when it failed to arrive. No one would have known where to look for Mr. Simpson.
  • By concealing his true destination, Mr. Simpson risked not receiving medical attention in the event of injury. He is fortunate to have escaped unscathed.

As there was no evidence before him that Mr. Simpson had done any of the above, the Tribunal Member at review found that Mr. Simpson was certainly negligent in failing to live up to the standard of the reasonably prudent pilot in the circumstances of this case. He added that the Minister's investigation has not adduced evidence to support that Mr. Simpson was reckless.

On reflection we have concluded that Mr. Simpson was the pilot-in-command and as such had an obligation to assume the responsibilities that go with that position, and he knew or ought to have known the natural and probable consequences that his actions of landing well into the strip, halfway down the runway, could cause the aircraft to enter soft ground and flip over.

We conclude that the evidence in support of the findings by the Tribunal Member does support the key elements of the allegation of negligent operation of the aircraft in landing at an unsuitable aerodrome. We find no reviewable error in the analysis as set out in the reasons for the Review Determination.

DECISION

The appeal is dismissed. We concur with the reasoned determination of the Tribunal Member at review and uphold the sanction of 60 days suspension for the contravention of section 602.01 of the CARs.

Reasons for Appeal Decision by:

William H. Fellows, Member

Faye Smith, Chairperson

Concurred:

Dr. Samuel Birenbaum, Member


[1]Trent Wade Moore v. Minister of Transport (Appeal) CAT File No. C-0138-33.