Decisions

CAT File No. A-1467-02
MoT File No. 6504-P-413124-29479

CIVIL AVIATION TRIBUNAL

BETWEEN:

Daniel Brendan Van Nice, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9, 7.3(3)
Canadian Aviation Regulations, SOR/96-433, s.602.01

Reckless or negligent operation of aircraft


Review Determination
Philip D. Jardim


Decision: September 15, 1997

That Daniel Brendan Van Nice committed no infringement of aviation safety. The Minister has not proven negligence. I therefore dismiss the allegations against Mr. Van Nice and cancel the 14-day suspension of his licence.

The Review Hearing on the above matter was held Tuesday, September 9, 1997 at 10:00 hours at North Head Grand Manan, New Brunswick.

BACKGROUND

On February 26, 1997, a Cessna 172 Skyhawk under the command of Captain Daniel Van Nice landed at the airfield on Grand Manan Island, New Brunswick. An airfield inspection by Transport Canada and the owners of the airfield was in progress. The aircraft radioed its intention to land, and the vehicle containing the inspection team left the runway. The aircraft landed, and the Transport Canada airfield inspector deemed that the landing with the vehicle off on the shoulder of the runway constituted negligence likely to endanger life or property. Captain Van Nice was issued a Notice of Suspension on May 13, 1997 suspending his licence for fourteen days, commencing June 12, 1997. Captain Van Nice appealed to the Tribunal for a Review Hearing, hence the proceedings today at the North Head Community Hall, Grand Manan Island.

NOTICE OF SUSPENSION

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 602.01 in that on or about February 26, 1997, at approximately 1445 UTC, at or near Grand Manan Airport, Grand Manan, New Brunswick, while pilot-in-command of an aircraft, to wit: Cessna 172 aircraft bearing Canadian registration marks C-GMME, you did, while landing, operate the said aircraft in a negligent manner as to endanger or was likely to endanger the life or property of a person thereby committing an offence contrary to and in violation of section 7.3(3) of the Aeronautics Act, ...

PRE-HEARING AGREEMENT AND MOTION FOR CASE DISMISSAL

There was a pre-hearing agreement between the parties establishing Daniel Van Nice as the pilot-in-command of the aircraft C-GMME, and the owner as Manan Air Services Inc. Mr. Klaus Sonnenberg moved to have me dismiss the case before hearing it on the following grounds:

  1. That the Minister has no evidence to support negligence. In his view "neglect involves repeated acts," and there were no such repeated acts.
  2. That allegations should have been made more specifically under section 301.08, subsection 602.19(10) and paragraph 602.96.2(a) of the Canadian Aviation Regulations. (Exhibit D-1).
  3. The vehicle was on the runway illegally. The Mayor of Grand Manan Village, Joey Green, and Transport Canada were in the vehicle. There was an unlicensed and uncalibrated radio in use in the vehicle. Howard Ingalls, who maintains the airfield and operates the snow plough in winter, was the driver of the car.
  4. Statements were taken from eyewitnesses weeks and months later, rather than within twenty-four hours of the incident.
  5. No statement was taken by Transport Canada from the passenger in the aircraft.

Mr. Sonnenberg produced an unnotarized statement purportedly made by the passenger, a Mr. Alan J. von Weiler. This was accepted as Exhibit D-2.

I reasoned with Mr. Sonnenberg that I was not aware of any of the points he had raised until I had heard the case. I dismissed his motion and invited the Minister to proceed.

THE LAW

Section 602.01 of the Canadian Aviation Regulations 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 7.3(3) of the Aeronautics Act states:

(3) Except as otherwise provided by this Part, every person who contravenes a provision of this Part or any regulation or order made under this Part is guilty of an offence punishable on summary conviction.

The Minister has specifically mentioned negligence in the allegation. A succinct and clear definition of negligence is made in Regina v. Abat (Provincial Court – Province of Saskatchewan, March 19, 1984).

Negligence is simply the failure to exercise reasonable skill and prudence in the circumstances, whether there is advertence or not.

THE EVIDENCE

The Minister fielded two witnesses, both of whom were Transport Canada employees carrying out the airfield inspection. All witnesses except the Applicant were excluded until it was their turn to testify. Mr. Miles said that he would prove that on a balance of probabilities, Mr. Van Nice was negligent in landing his aircraft while the vehicle was in the position it occupied off on the shoulder of the runway.

Michael Reid, Aerodrome Safety Inspector, Transport Canada, testified that he was on an airfield inspection at Grand Manan Airport. There were five people in the car, including the Mayor and the airfield supervisor. They had a radio, and when they were on the runway about 900 feet from the threshold of runway 24 they heard a transmission from C-GMME indicating that it was on final for runway 24. They looked up, saw the aircraft on a short right base at about 200 to 300 feet estimated height. The driver left the runway and parked about 25 feet off the south shoulder of the runway, facing the aircraft. The aircraft continued its approach and landed without incident.

Mr. Reid expressed alarm that the aircraft had chosen to land while the inspection vehicle was off on the shoulder of the runway at a distance he estimated as 75 feet from the wingtip of the Cessna as it passed by on its landing. He subsequently approached Mr. Van Nice and remonstrated with him for so doing. Mr. Van Nice replied that it was normal practice for him to do so, as he had landed when the snow plough was off the runway during the winter. He judged that it was safe to do so as there was no danger of collision, since his momentum would take him past and well clear of the vehicle should any malfunction, such as a seized brake occur.

During cross-examination by Mr. Sonnenberg, Mr. Reid admitted having seen aircraft land at other uncontrolled airfields while lawnmowers etc. were off on the shoulder. Mr. Sonnenberg advised that Mr. Van Nice had circled overhead at 1,300 feet prior to landing, but Mr. Reid denied having seen the aircraft. He felt that Mr. Van Nice had not given them enough time to clear the runway. Mr. Sonnenberg also advised Mr. Reid that Mr. Van Nice had called ten miles out, but Mr. Reid denied having heard any other transmission from the aircraft. Mr. Reid opined that calling ten miles out was "unacceptable behaviour." I could not accept this statement as a reasonable one; indeed the reverse is true. A discussion ensued on the adjustment of the squelch (sensitivity) of the receiver in the car, with Mr. Sonnenberg saying that because the radio was unlicensed, Mr. Ingalls, the driver probably did not know how to adjust it. Mr. Sonnenberg then sought to have me censure the operator of the radio because it was unlicensed. I ruled this as irrelevant to the current proceedings.

John Peyton, Aerodrome Safety Officer, Transport Canada, was also in the car at the Grand Manan airfield on February 26, 1997. Although he witnessed the incident, he could cast no further light on the landing. He had no opinions on how far the car was from the aircraft. He did not hear the radio, nor did he know how far the car was from the edge of the runway. He appeared to have no strong feelings on the matter. He said that he was sitting in the back of the car, and his view was partially obscured.

Pilot Daniel Van Nice also works as an Emergency Medical Technician (EMT). He has 1,100 hours, mostly at uncontrolled airports. He was briefed by his employer on operating from uncontrolled airports, and as such he regularly calls to alert traffic to his presence at 10 miles out, overhead and on final. He did so on this day. Mr. Van Nice said that when he saw the vehicle move off the runway after his call, it indicated to him that the people in the vehicle were aware of his presence. As the car was well clear of the runway, he judged it safe to land, and took the precaution of touching down just past the car so that there would be no likelihood of any danger of collision. He had 2,100 feet of runway left, which is more than adequate to stop a Cessna 172 safely. Had he not been satisfied that the vehicle was aware of his presence, Mr. Van Nice said that he would have flown over the runway at 200 feet to alert the vehicle to his presence.

Diane Livingston, Flight Service Supervisor at Saint John, New Brunswick, was qualified as an expert witness on the movement of aircraft on uncontrolled aerodromes. She stated that it was normal practice for vehicles to be present off on the shoulder of runways. It was the pilot's responsibility to ensure that it was safe to land and take off with these vehicles present. She judged from what she had heard of the incident that there was no compromise to safety.

Melanie Sonnenberg, Manager Grand Manan Air Service, Ann McGarvey, Paramedic Coordinator and EMT instructor, and Gordon Kinghorn, RCMP, were all called as character witnesses for Mr. Van Nice. They expressed their admiration of his adherence to procedure, his thoroughness and meticulous attention to detail and safety.

CONCLUSION

I have determined from the evidence presented to this Review Hearing that Mr. Van Nice is a careful and cautious pilot. On his approach and landing at Grand Manan Airport on February 26, 1997, he displayed reasonable caution and airmanship and was not negligent.

The main evidence against him is from the Minister's first witness, Mr. Reid, who with his experience should be more aware of the presence of aircraft on airfields, particularly when driving in a vehicle on an uncontrolled airport. It seems that Mr. Reid was totally surprised by the aircraft's call on final and on seeing it there. I believe that those on airport runway inspections should be far more vigilant and observant than seems to have been the case on this day. Radios should always be carried and turned on and properly adjusted. While this does NOT remove the responsibility from pilots ensuring that it is safe to land, I am satisfied that, when Mr. Van Nice saw the vehicle move off the runway immediately after he called, he was right in assuming that they had heard him and were aware of his presence. Mr. Reid's evidence corroborates this.

DETERMINATION

There was no negligence on Mr. Van Nice's part, and I therefore dismiss the Minister's allegations against him and cancel the 14-day suspension of his licence.

Philip D. Jardim
Member
Civil Aviation Tribunal