Decisions

CAT File No. P-2237-05
MoT File No. EMS 40067

CIVIL AVIATION TRIBUNAL

BETWEEN:

Edwin Wayne Webber, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act., S.C., c.A-2, s. 8.5, s.6.9
Canadian Aviation Regulations, SOR/96-433, ss. 602.96(3)(c), 602.21

Uncontrolled Aerodrome, Traffic Circuit, Traffic, Suspension, Sanctions, Mid-Air Collision, Landing, Circuit


Review Determination
Sandra Lloyd


Decision: July 27, 2001

The Minister's allegation with respect to the contravention of section 602.21 of the Canadian Aviation Regulations is dismissed.

A Review Hearing on the above matter was held Monday, July 9, 2001 at 14:00 hours at the Sinclair Centre in Vancouver, British Columbia.

BACKGROUND

It was undisputed at the hearing that the allegations in the Notice of Suspension in this matter arose out of a mid-air collision that occurred on May 16, 1999 at 108 Mile House aerodrome. The original Notice of Suspension included two allegations: that the Applicant, Mr. Webber, contravened firstly, section 602.21 of the Canadian Aviation Regulations (CARs), and secondly, paragraph 602.96(3)(c) of the CARs. Two 7-day suspensions were levied against Mr. Webber, one in respect of each allegation. These suspensions were served prior to the hearing. Nevertheless, by letter dated March 7, 2001 from Mr. Webber's counsel to this Tribunal, the Applicant requested a review hearing in respect of the 602.21 suspension.

At the hearing, I was provided with a revised Notice of Suspension which had been issued to Mr. Webber on March 5, 2001 and which included only the 602.21 suspension under review. For clarity of the record, this revision was marked as an exhibit at the hearing.

THE LAW

Section 602.21 of the CARs:

602.21 No person shall operate an aircraft in such proximity to another aircraft as to create a risk of collision.

Paragraph 602.96(3)(c) of the CARs:

(3) The pilot-in-command of an aircraft operating at or in the vicinity of an aerodrome shall

[...]

(c) make all turns to the left when operating within the aerodrome traffic circuit, except where right turns are specified by the Minister in the Canada Flight Supplement or where otherwise authorized by the appropriate air traffic control unit;

[...]

Section 8.5 of the Aeronautics Act:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

RESPONDENT'S EVIDENCE

The Respondent, Minister of Transport, called one witness, Mr. Mike Hardie. Mr. Hardie was employed with Civil Aviation Enforcement for eight years and for four years was a superintendent of investigations. He identified a copy of a Canadian Aviation Daily Occurrence Reporting System (CADORS) report dated 1999/05/16. This was a report that Enforcement received in May 1999 with respect to an accident at 108 Mile House aerodrome. Mr. Hardie said that two aircraft collided and that there were three survivors. The Respondent asked that the CADORS report be entered as an exhibit. Counsel for the Applicant stated that he had no objection to the report being entered as evidence of something that Enforcement received in the course of their investigation. Accordingly the report was marked as an exhibit.

Mr. Hardie testified that on the basis of the CADORS report, a Mr. Bachinsky was assigned to investigate the accident. He is no longer employed with Enforcement. Mr. Hardie took over the file. Another investigator was also involved. Mr. Hardie said he was the investigator most involved in the case that was in the area at this time.

Mr. Hardie's evidence was that toward the end of the investigation, they concluded that two violations had been made by each pilot involved in the collision.

Under cross-examination, Mr. Hardie identified a seven-page excerpt from the aeronautical information publication A.I.P. Canada, Rules of the Air and Air Traffic Services (RAC) section, including Aircraft Operations - Uncontrolled Aerodromes, paragraphs 4.5.1 through 4.5.8.2. Paragraph 4.5.2 describes recommended traffic circuit procedures at uncontrolled aerodromes. Mr. Hardie's evidence was that the aircraft which collided with the Applicant's aircraft on May 16, 1999 did not follow these recommended procedures but rather followed a straight-in approach to the 108. Mr. Hardie agreed that a pilot flying such an aircraft would not have the opportunity to survey the circumstances on the runway and would be unable to observe the traffic. He agreed that that is why the straight-in approach is not a recommended procedure.

Mr. Hardie also agreed that the A.I.P. Canada specifies that left-hand turns shall be flown in the circuit unless a right-hand circuit has been specified in the Canada Flight Supplement.

NO-EVIDENCE MOTION

At the conclusion of the Minister's evidence, Mr. Ross, counsel for the Applicant, asked that I grant a no-evidence motion on the basis that there was no evidence that would support the conclusion that Mr. Webber had any hint as to the presence of any other aircraft in the vicinity and that knowledge of something else being in the vicinity is essential to making out a 602.21 offence. He suggested that there must be some moral culpability to make out the offence. He submitted that it cannot be said that since there was a collision, then the offence was made out. He likened the present case, where the pilot had not been proven to have had knowledge of the other aircraft, to a situation where one aircraft simply falls out of the sky onto another.

Mr. McDonald, for the Minister, countered that mens rea is not required to make out the offence. Mr. McDonald's view was this: since Mr. Webber's aircraft was not following recommended procedures (i.e., had flown a left-hand circuit where a right-hand circuit was required), and there was a collision, then the offence of 602.21 was proved.

I ruled that I was not prepared to grant a no-evidence motion on the narrow basis that Mr. Webber needed to have knowledge of the presence of the other aircraft in order for the offence to be made out. Section 602.21 of the CARs does not require intent on the part of the accused. Rather, it is a strict liability offence. In my view, one would not need to know of the presence of other aircraft in every case in order for a 602.21 offence to be made out.

An example is an aircraft taking off from a runway reciprocal to the active runway and with a strong tailwind, contrary to what is suggested by RAC 4.5.2 and by the practice of good airmanship. Suppose the pilot of this departing aircraft failed to observe an aircraft that was on short final for landing on the active runway, and on initial climb-out had a near-miss with that aircraft, head-on. This is an example in my view of a situation where a 602.21 offence could be made out without the pilot having had knowledge of the presence of the other, landing aircraft, since it was his poor method of operation that directly caused the proximity of the aircraft and created the risk of collision.

APPLICANT'S EVIDENCE

The Applicant, Mr. Webber, gave evidence on his own behalf. He said that he had been flying his Cessna from the right seat at the time of the collision. Another pilot was sitting in the left seat handling the radio work. When they approached 108 Mile House aerodrome they were at 1,000 feet above aerodrome elevation (AAE). They broadcast their intention that they would cross midfield. They also called downwind left-hand for runway 32. They called on final for runway 32. Mr. Webber had some concerns about the new motor and propeller on his aeroplane so he decided to do a touch and go and another circuit. Accordingly, they called touch and go and that they would join a left-hand circuit for runway 32. At circuit height, 1,000 feet AAE, they called on a long downwind for runway 32. Mr. Webber reduced power somewhat on base leg. They called joining final runway 32. Mr. Webber extended one notch of flap. He reduced power further then put a second notch of flap on. He said he was descending straight ahead toward the runway. He said that after being on final for about one minute, at about 300-500 feet above ground level, he felt an impact. He heard a crunch of metal. He thought that the tail of his aircraft had been hit. He applied full power, went nose up and felt the tail of his aircraft was being pulled down. He thought his life was over. That was the end of his memory of the collision. He woke up 1½ days later in Kamloops hospital.

On cross-examination, Mr. Webber stated his belief that the other aircraft struck the belly of his aircraft at the rear passenger seat and that the wings of his aircraft were ahead of the propeller of the other aircraft. The tail of his aeroplane was actually not struck. His evidence was that his aircraft was in a virtually power-off glide. He believes the other aircraft came in from behind him with power on, straight in and faster than his aircraft, and struck his aircraft belly from behind.

Under re-examination, Mr. Webber's evidence was that he was watching for other aircraft at all times and at no time prior to the collision did he see or hear any other aircraft.

SUBMISSIONS

Mr. McDonald submitted that the Minister had investigated an accident and had determined that the pilots of both aircraft operated outside the recommended practices. He pointed out that Mr. Webber admitted that he was flying his aircraft when it was involved in the collision. Mr. McDonald submitted that he had established that the Applicant operated his aircraft outside of the regulations and was in a collision on final. He also submitted that intent was not required, that neither pilot saw the other aircraft, and that in his view the Minister had proved the required elements of the charge.

Mr. Ross allowed that Mr. Webber admitted to operating in violation of paragraph 602.96(3)(c) of the CARs, in that he made left-hand turns when right-hand turns were required, and was not challenging the suspension attached to that allegation. He also pointed out that Mr. Webber had no inkling of the presence of the other aircraft until the collision occurred. He argued that the defence of due diligence set out in section 8.5 of the Aeronautics Act had been made out. To that end he pointed out that Mr. Webber had followed the A.I.P. Canada recommended procedures for joining the circuit, except that he had flown a left-hand circuit instead of a right. In Mr. Ross' view, however, the difference in the circuit direction was irrelevant. There was no link between the circuit direction and what occurred. The evidence was that Mr. Webber was on final for one minute before he was struck. He was struck in a manner that led him to believe that he was struck from behind. Mr. Ross' view was that there was no causal connection between the infraction of flying a left-hand circuit and the resulting collision.

Mr. McDonald replied that the actions of Mr. Webber were akin to a driver going the wrong way down a one-way street and that the defence of due diligence did not apply when a pilot was not following the Canada Flight Supplement.

DISCUSSION

The evidence of the Minister and the admissions of the Applicant, Mr. Webber, prove that he was the owner and pilot of aircraft C-FBVW on May 16, 1999 when it was involved in a mid-air collision at 108 Mile House aerodrome. The admission of Mr. Webber to the 602.96(3)(c) offence also proves that, prior to the collision, Mr. Webber had made left-hand turns in the circuit when right-hand turns were specified in the Canada Flight Supplement. I agree with Mr. McDonald that intent is not a required element of a 602.21 offence. Nor does the pilot need to have knowledge of another aircraft in order for the offence to be made out.

However, I do not agree with the Minister's view that simply because the Applicant was guilty of the 602.96(3)(c) offence, and was thereafter involved in a collision, that the 602.21 offence is proved. I also do not agree with his view that the case is analogous to a driver going the wrong way down a one-way street who is involved in a head-on collision.

The evidence presented indicates that the case is analogous to the following: a driver makes an illegal turn onto a one-way street. He then drives down the street in the correct direction. After one minute, he is rear-ended by another car.

In that example, there is no causal connection between the illegal turn of the first car driver and the collision. Similarly, as Mr. Ross suggests, in the case before me, no causal connection has been established between the illegal left-hand circuit flown by the Applicant and the collision which occurred one minute later on final.

My view is that to prove a 602.21 offence the Minister must prove a causal connection between the improper practice of the alleged offender and the risk of collision created; some action of the alleged offender must be shown to have caused his aircraft to be in such proximity to the other aircraft so as to create a risk of collision. The Minister presented no evidence at this hearing that showed any such causal connection.

The only evidence on this point was that of Mr. Webber, whose evidence suggested that proximity of the aircraft and the risk of collision was created not by his method of operation but by the operation of the other pilot, who conducted a straight-in approach, apparently made no radio communications, and hit Mr. Webber's aircraft from behind.

I therefore conclude, after having taken the opportunity to consider all of the evidence and the submissions of the parties, that the Minister has not proved, on a balance of probabilities, each element of the offence as alleged. Since the offence has not been proved, I need not address the due diligence defence.

I would also like to state some observations regarding evidence and proof in order to ensure there are no misunderstandings. Firstly, a CADORS report is not proof of any facts it asserts. It is merely a preliminary and unsubstantiated report of an aviation occurrence. As Mr. Ross suggested, the presentation of such a report at a Tribunal hearing, such as was done in this instance, serves only to show that it was a document received by the investigator in the course of his investigation. No fact is proved merely by an investigator reading a CADORS report into the record.

Secondly, the fact that investigators reach the conclusion, at the end of an investigation, that an offence was committed, is not in and of itself evidence that an offence was committed by the document holder who challenges such conclusion. Except in medical cases, there is no onus on the document holder to disprove the conclusions of investigating officers. Rather, the onus is on the Minister at Tribunal hearings to prove, on a balance of probabilities, each element of the challenged offence as alleged, through the sworn witnesses with personal knowledge of the facts.

CONCLUSION

The Minister has not proved on a balance of probabilities that the Applicant violated section 602.21 of the CARs.

DETERMINATION

The Minister's allegation with respect to the 602.21 offence is dismissed.

Sandra K. Lloyd
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, David S. Ahmed, Keith Edward Green


Decision: December 14, 2001

As we have concurred with the Member's determination that no offence was proven, the Minister's Appeal is dismissed.

An Appeal Hearing on the above matter was held Friday, November 23, 2001 at 10:00 hours at Robson Square at Vancouver, British Columbia.

BACKGROUND

This hearing stems from an unfortunate mid-air collision between two aircraft near 108 Mile House, British Columbia in May of 1999. On that day, Mr. Webber and a companion flew from 108 Mile House to 100 Mile House and back. Mr. Webber flew the aircraft from the right-hand seat while his companion operated the radios. They departed with a downwind condition from runway 14 at 108 Mile House directly en route to 100 Mile House. Arriving overhead 100 Mile House, he felt that the crosswind there was excessive so returned to 108 Mile House. Upon arriving in that vicinity, they called and crossed mid-field at 1,000 feet above the aerodrome. Next, they called for and joined downwind for a left-hand circuit although right-hand circuits are specified in the Canada Flight Supplement. They called and turned onto final for runway 32. Mr. Webber was not satisfied with the setup and had concerns regarding the engine so decided to do a touch and go.

They touched down and then proceeded to go around, calling for and executing a left-hand circuit again. Calls were made advising a long downwind for runway 32, and advising turning final. At no time did another aircraft respond to their radio transmissions. After about a minute on final descent, at somewhere around 300 to 500 feet above ground, the aircraft was struck by another. Both aircraft crashed to the ground.

Subsequently, Transport Canada alleged violations against Mr. Webber. The allegation that was subject to review stated:

Canadian Aviation Regulations section 602.21, in that at approximately 13:28 local time on or about May 16, 1999, at or near 108 Mile House, B.C., the pilot in command, operated a Cessna 172 aircraft bearing Canadian registration marks C-FBVW in such proximity to Canadian registered aircraft C-GWAC as to create a risk of collision. Pursuant to the Aeronautics Act section 8.4(1), Mr. Edwin Wayne Webber as the registered owner of C-FBVW is liable for the penalty provided for the contravention.

The matter was heard before a member of the Tribunal on July 9, 2001. At the conclusion of the hearing, it was determined the Minister's allegation be dismissed.

The Minister of Transport has appealed that decision in the following form:

  1. The Member erred in law in that, having correctly instructed herself as to the need to establish a causal connection between the improper practices of the alleged offender and the risk of collision, she failed to properly apply that test to the facts of the case;
  2. The Member's finding, that there was no action by the alleged offender which caused his aircraft to be in such proximity to the other aircraft so as to create a risk of collision, was patently unreasonable;
  3. The Member's finding, that there was no causal connection between the illegal left hand circuit flown by Webber and the collision which occurred one minute later on final approach, was patently unreasonable;
  4. The Member erred in law by failing to apply the doctrine of res ipsa loquitur to the facts of the case;
  5. Such further and other grounds in fact and in law that the transcript of the proceedings may disclose.

PARTIES SUBMISSIONS

Appellant, Minister of Transport

Mr. Hector appeared on behalf of the Minister. He submitted that the Member was correct in the interpretation of the section, in that some action of the alleged offender must be shown to have caused his aircraft to be in such proximity to the other so as to create a risk of collision. However, she was in error in stating that the Minister presented no evidence that showed a causal connection.

In his view, the actions that contributed to placing the aircraft in the position were:

a) the concern with the new engine and propellor;

b) the left-hand turn after the touch and go;

c) flying the aircraft from the right seat; and d) the long downwind.

It was asserted that some of Mr. Webber's actions exhibited a careless attitude toward good airmanship.

Alternatively, Mr. Hector maintained that the very fact of the collision provided circumstantial evidence of the elements of the offence.

Respondent, Mr. Webber

Mr. Ross appeared as counsel for Mr. Webber. He concurred that there must be a causal connection between an improper practice of the pilot and the risk of collision created, but argued that the Member properly concluded that there was no evidence of such a causal connection.

Mr. Ross asserts that Mr. Webber's attitude is irrelevant but in any case there is no evidence that would support the contention that he exhibited a careless attitude toward airmanship.

None of the actions that the Minister claims are causative could be said to result in the proximity that resulted in the collision. He also contended that Mr. Webber's flying evidenced care and good airmanship so as to have engaged the defence of due diligence.

DISCUSSION

We concur with the Member's finding that to prove an allegation of this particular offence the Minister must prove a causal connection. That is some action of the alleged offender must be shown to have caused the aircraft to be in such proximity to the other aircraft so as to create a risk of collision. Both parties have concurred in that proposition although alternative arguments were advanced.

The facts are not in dispute but the interpretation of them is. We find that the four actions of Mr. Webber cited by the Minister as contributing to placing the aircraft at risk are not evidence of a causal connection.

The concern with the engine and propeller was on a circuit prior to the one on which the occurrence happened.

The left-hand circuits were no doubt improper but no matter which direction the circuit is flown, the aircraft still ends up on a final approach leg in the same position.

Flying the aircraft from the right-hand seat is in no way improper. The Minister argued that being in the right-hand seat while flying left-hand circuits would have the effect of impeding the pilot's view. However, if the pilot flying was from the left-hand seat, which the Minister infers he should have been, and flew the required right-hand circuit the very same impediment would occur. In either case, we do not see that as being connected to the eventual collision.

It would seem that the Minister's contention is that the "long" downwind placed the aircraft in proximity to the other. But on downwind, both aircraft are quite some distant apart laterally travelling in opposite directions. It was only after the downwind, after the base leg, after reversing direction 180 degrees from the direction on the downwind and on final for about one minute having descended from 1,000 to about 500 to 300 feet that the collision occurred. We do not see how the position on the "long" downwind contributed to the aircraft's close proximity. The transcript reveals that the pilot was making the required radio transmissions in the circuit. No response to any of the transmissions was received. As there was no known traffic to position himself with on the downwind leg it could be flown at whatever distance the pilot deemed necessary.

Operating outside of normal or recommended practices does not necessarily lead to fault in a collision. We agree with the Member that none of the actions cited caused the aircraft to be in such proximity to the other as to create a risk of collision.

We reject the alternative ground that the constituent elements of the offence are proven by the fact of the collision as we have found a causal connection must be established. Something more than the mere presence at the crash site must be shown. If that were all that was necessary, pilots of both aircraft involved in a collision could always be charged with this offence which would in effect make it an absolute liability offence. It must be established if it was the operation of aircraft A in such proximity to aircraft B that created a risk of collision or if it were the other way around or if both contributed to the fault. In this instance, as the hearing Member noted, the only evidence on the point was Mr. Webber's suggestion that the proximity of the aircraft and risk of collision was created by the other pilot's straight in approach.

The Minister's assertion regarding the Respondent's attitude is irrelevant, as the attitude of the pilot forms no part of the alleged offence.

As we have concurred with the Member's determination that no offence was proven, the defence of due diligence has no application.

CONCLUSION

For the foregoing reasons, the Minister's Appeal is dismissed.

Reasons for Appeal Determination by:

Allister Ogilvie, Vice-Chairperson

Concurred:

Dr. David Ahmed, Member
Keith E. Green, Member