Decisions

TATC File No. O-2991-33
MoT File No. PAP5504-051305

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Patrick J. J. Tillaart, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, s. 602.01

Negligent or reckless operation of an aircraft


Review Determination
Philip D. Jardim


Decision: September 14, 2004

Mr. Patrick Tillaart did contravene section 602.01 of the Canadian Aviation Regulations. He is guilty of both negligence and recklessness on each of the two counts; therefore, I confirm the penalty of $1,000 for each of the two counts. The total penalty of $2,000 must be paid to the Receiver General for Canada and received by the Tribunal within thirty five days of service of this determination.

A review hearing on the above matter was held Tuesday, August 17, 2004 at 10:00 hours at the Courthouse, in Peterborough, Ontario.

BACKGROUND

On July 9, 2003, Mr. Patrick Tillaart was the pilot-in-command of Cessna 150, C-GXID. In the course of his flights Mr. Tillaart flew over the farm of the Knox family, taking aerial photographs. It is alleged by the farmer, Mr. Knox, that the aeroplane flew low enough as to rattle the windows in his farmhouse, such that he could clearly read the registration marks on the wing as C-GXID. Mr. Knox observed the aircraft doing steep turns and climbs such that he was alarmed that the aircraft was out of control. Using his 70-foot high silos as a reference, Mr. Knox estimates the height of the aircraft was as low as 200 feet. Further, Mr. Knox was concerned that the aircraft was endangering his family, property and dairy herd. He filed telephone and written reports with Transport Canada.

On the same day, Lindsay Airport received other unspecified complaints about a low flying aircraft and confirmed that C-GXID was operating from there. At that time, there was also an Air Cadet training programme in progress at Lindsay Airport. It was being conducted by the Kawartha Lakes Flight Centre, using Cessna 152 aircraft. The chief flight instructor, Mr. Mark Brereton, also complained to Transport Canada about the conduct of Mr. Tillaart in the circuit at Lindsay. He is alleged to have taken off on a reciprocal runway, 31, to the runway in use, 13, and having to turn sharply at low level to avoid a collision with another aircraft approaching on 13. Further, Mr. Tillaart is alleged to have entered the aerodrome circuit and, in violation of approved circuit procedure, cut off other Air Cadet aircraft in the circuit by doing a steep descending turn to the runway in use and landing ahead of them.

Transport Canada conducted an investigation into these incidents and fined Mr. Tillaart $1,000 on each of two counts, totalling $2,000, for violation of section 602.01 of the Canadian Aviation Regulations (CARs) – recklessness or negligence. Mr. Tillaart did not pay the fine and applied to the Tribunal for a review hearing.

THE LAW

Section 602.01 of the CARs states:

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 Minister brought five witnesses to the hearing, including the investigating inspector, Mr. Jeff McEvoy. The Minister also sought to qualify Mr. Lindsay Cadenhead, a flight test examiner, as an expert on aerodrome circuit procedures. I accepted his credentials and experience and Mr. Tillaart did not object. There were no pre-hearing agreements, and Mr. Tillaart acknowledged that he had received full disclosure.

While the Minister was producing evidence to prove that Mr. Tillaart was the pilot of the C-GXID at the times in question, Mr. Tillaart readily admitted that he was indeed flying that aircraft on July 9, 2003 at the times stipulated.

Mr. John Knox, the farmer who reported the low and dangerous flying over his farm on July 9, 2003, read from his letter of complaint. He further confirmed that he felt for the safety of his family, animals and property on that day and immediately reported the incident to Transport Canada. His letter is articulate (Exhibit M-7) and he is a credible witness. Mr. Knox testified that on the first of three passes, the aircraft rattled the windows in his house. The family was assembled at a birthday lunch for his five-year-old daughter — the noise was loud enough that his son thought that a motorcycle had ridden into the yard. On the third pass he went outside to see what was happening; he saw the aircraft coming from the east, appearing to be climbing, and that it went over them at approximately 200 feet. They could clearly read the registration letters C-GXID and estimated the height of the aircraft as three times the height of his 70-foot silos — approximately 200 feet. The aircraft performed a series of manoeuvres including steep turns, climbs and "wobbling its wings." This created an impression with him that the aircraft was almost out of control.

In cross-examination by Mr. Tillaart it was revealed that Mr. Knox had subsequently bought photographs taken during that flight from Mr. Ghassan Chehadi who is Mr. Tillaart's employer — Homestead Aerial Photography. It seems that Mr. Knox did not realize that the photographs that he had bought were taken during that flight on July 9, 2003. In answer to Mr. Shimmin's re-direct, he said that he would not have bought them had he known who had taken them. Mr. Tillaart produced an invoice to prove that the photographs were indeed bought by Mr. Knox from his company.

The next witness was Mr. Mark Brereton. He was chief flight instructor of the Kawartha Lakes Flight Centre, and acting manager of the Lindsay Airport on July 9, 2003. Mr. Brereton had written a report to Transport Canada about incidents arising at Lindsay between July 9 and 14, 2003 involving Mr. Tillaart and C-GXID. This report involved the events listed in count 2 of the charge by Transport Canada against Mr. Tillaart, in addition to other incidents arising out of his (Tillaart's) presence at Lindsay during the period July 9 to 14, 2003.

Specifically, Mr. Tillaart took off from the reciprocal runway 31 to that in use (13) and headed directly at an approaching Cessna 152 which was on ½ mile final for 13. Mr. Tillaart had to execute a steep turn to the right immediately after becoming airborne to avoid colliding with the landing aircraft. Further, at another time on July 9, 2003, Mr. Tillaart entered the circuit from the east while there were three other Air Cadet Cessna 150's in the circuit ahead of him. He proceeded to fly an extremely tight circuit inside of the other aircraft, one of which was on ¾ mile final approach for runway 31. He executed a steep descending turn and landed in front of the approaching aircraft, thereby cutting it off. Mr. Brereton witnessed these events from the apron of the airport. Mr. Brereton was listening to the UNICOM frequency and heard transmissions from the balked aircraft to C-GXID (see Exhibits M–8, M–9 and M–10).

Mr. Brereton had words with Mr. Tillaart on a number of occasions during this period, advising him that residents in the Fenelon Falls area had phoned in reports of his flying at 200 feet over their properties and some had reported him to the OPP. Mr. Brereton also admonished Mr. Tillaart for his dangerous practices in the circuit at Lindsay, including those mentioned in count 2 of the Notice of Assessment of Monetary Penalty, dated February 24, 2004. Mr. Brereton suggested to Mr. Tillaart that he should leave the airport and not return.

In his cross-examination of Mr. Brereton, Mr. Tillaart denied that there was an aircraft on ½ mile final for 13 when he took off on 31. He also denied seeing any aircraft in the circuit or hearing any radio transmissions protesting at his actions.

Major Terry Bremner was in charge of the Air Cadets. He had made a report to Transport Canada on August 12, 2003 about the incidents involving Mr. Tillaart at Lindsay the week of August 9, 2003. He generally confirmed Mr. Brereton's evidence. However he was of the opinion that the tight circuit landing infraction took place on runway 13 rather than 31. It seemed that Major Bremner was somewhat disoriented and confused about the layout of Lindsay Airport. Mr. Shimmin made no attempt to try to orient him by the use of a diagram. While this appears to be a contradiction in evidence I believe that the witness was confused. The all-important observation was that he saw Mr. Tillaart in C-GXID cut off the other aircraft in the circuit by making a steep descending turn to the button of the runway. Major Bremner expressed concern at the poor airmanship example that Mr. Tillaart was giving to the Air Cadets. He was most concerned about their safety and regarded Mr. Tillaart as a threat.

Mr. Lindsay Cadenhead was the Minister's expert witness. He explained circuit procedures in detail, referring to the A.I.P. Canada[1] and the Flight Training Manual[2]. He described the actions of Mr. Tillaart as dangerous, reckless and irresponsible. Mr. Tillaart cross-examined him about gliding as opposed to power approaches and the relative safety of a gliding approach compared to a powered approach. It seemed that Mr. Tillaart was attempting to justify his steep descent to the runway as a gliding approach in the interests of safety.

Mr. Tillaart took the stand and was sworn. He denied flying at 200 feet over the Knox farm. He produced calculations (Exhibit D-14) and a photograph (D-15) he took of the farm to attempt to prove that the photograph could not have been taken at 200 feet. Whether Mr. Tillaart's calculations are accurate or not, this photograph was taken at 1/2000 second and only represents a minuscule time during his flight over the farm. There is also no way of confirming exactly when the photograph was taken.

Mr. Tillaart also introduced his employer, Mr. Ghassan Chehadi, as his witness. Mr. Chehadi is the owner of Homestead Aerial Photography. He supported Mr. Tillaart's assertion that the camera used, which was brought to the hearing, could not have taken the photograph from 200 feet. Mr. Tillaart's calculations say that the photograph had to have been taken from 700 feet. This denial flies in the face of credible eyewitness testimony from Mr. Knox.

Mr. Tillaart asserts that Mr. Knox is lying. He also points out that there are no cattle visible in the photograph. He says that he is an expert on aircraft spooking cattle and denies that this occurred. He also asserts that Major Bremner's testimony is untrue and unjustified.

Mr. Tillaart introduced an email that he had sent to Mr. David Bland, Regional Manager, Aviation Enforcement, following the receipt of the Notice of Assessment of Monetary Penalty, dated February 24, 2004. Mr. Tillaart read the letter as evidence to the hearing (Exhibit D-17). This letter reiterates Mr. Tillaart's denial that he committed any infraction.

Credibility

We have an issue of credibility to resolve here. On the one hand there are witnesses from Transport Canada who I find fully credible, because they are consistent and have no reason to fabricate evidence against Mr. Tillaart. While there is a contradiction in Major Bremner's testimony, compared with Mr. Brereton's regarding the runway on which the landing took place, I ascribe this to a lack of orientation by Major Bremner. He is a credible person. Other than this explicable exception, all of the Minister's witnesses corroborated one another. There is also evidence in the written statements of both Messrs Brereton and Bremner that Mr. Tillaart was persistently irresponsible at the Lindsay aerodrome over a five-day period, between July 9 and 14, 2003.

The fact that Mr. Knox bought a photograph of his farm which had been taken by Mr. Tillaart is not an issue, as it does not alter the fact that there was dangerous low flying which rattled the windows of the Knox farmhouse.

Mr. Tillaart denies both infractions. He has also accused the Transport Canada witnesses of lying. After careful consideration, I cannot accept his denial. I do not believe him. His evidence is unsubstantiated, and the calculations he has done do not go to prove that he never flew lower than 700 feet. The photograph tendered was taken at an instant (1/2000 sec). There was no evidence to prove exactly when the photo was taken (Exhibit D-15). Further, it is unlikely that Mr. Knox could have read the registration marks at 700 feet. There was evidence in Messrs Brereton's and Bremner's statements that complaints had been received from other farmers in the Fenelon Falls area, including a local councillor. These complainants were all reported to have identified C-GXID.

DECISION

The Minister has charged Mr. Tillaart with negligence or recklessness. These are defined in the Canadian Law Dictionary from the Tribunal case of Newburg v. MoT[3] as follows:

Negligence: Negligence is the omitting to do something that a reasonable [person] would do or the doing something which a reasonable [person] would not do... It is really the absence of such care as it was the duty of the defendant to use...

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.

Count 1. I find that Mr. Tillaart's flight over the Knox farm was both negligent and reckless. His actions endangered the lives, property and livestock of Mr. Knox and so alarmed the farmer that he said that he immediately called to report the incident. He flew low enough to rattle the windows of the farmhouse on his first pass; this suggests that he may have been even lower than 200 feet on this first approach. This is highly unnecessary, in violation of the regulations and reckless. Further, on his second and third approaches he was unnecessarily putting life and property at risk. He claims to be highly aware of possible engine failure, hence his steep gliding approaches to the runway, while here, he pays no heed to its possibility at low level over people and their property.

Count 2. I find Mr. Tillaart's disregard for the inexperienced Air Cadets in training at Lindsay and his flouting of safe circuit procedures are inexcusable. I do not accept his denial that he neither saw the other aircraft nor heard radio transmissions from the instructors accompanying them. He knew that there was training taking place in the circuit at Lindsay, yet he not only flouted the circuit procedures, but in doing so endangered his own life and those of the cadets who he cut off. He is certainly guilty of both negligence and recklessness on this count.

It is unfortunate that he does not seem to accept or care that he endangered and annoyed other people by his actions. Had he indicated some remorse for his actions, there would have been some room for leniency. In the circumstances therefore I have to confirm the substantial fine of $1,000 for each of the two counts of the charge against him, totalling $2,000.00.

Philip D. Jardim
Member
Transportation Appeal Tribunal of Canada


[1] Aeronautical Information Publication.

[2] Transport Canada Aviation Flight Training Manual, 4th edition.

[3] Jason R. Newburg v. Minister of Transport, CAT File No. O-0415-02.