Decisions

TATC File No. P-3171-02
MoT File No. EMS 56703

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Michel Rouch, 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, ss. 602.01, 602.96(3)


Review Determination
Sandra Lloyd


Decision: May 10, 2006

The Minister has proven the offences as alleged. The penalty for the CAR 602.01 violation is reduced to 14 days and the penalty for the CAR 602.96(3) violation is reduced to 7 days, for a total suspension of 21 days. The said suspension will commence on the thirty-fifth day following service of the present determination.

A review hearing on this matter was held February 16 and 17, 2006 at the Ramada Inn and Conference Centre in Abbotsford, British Columbia at 10:00 hours.

BACKGROUND

The applicant is Chief Flying Instructor ("CFI") for Pro Wings Aviation Ltd. ("Pro Wings") at Chilliwack Airport, British Columbia. Pursuant to a revised Notice of Suspension ("Notice"), the Minister of Transport (the "Minister") alleged that the applicant:

1) On or about March 25, 2005, operated a Piper Aztec C-FPWL in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person, thereby contravening section 602.01 of the Canadian Aviation Regulations (CARs) and

2) On or about May 17, 2005, as pilot-in-command of a Cessna 150 C-GEAC, did not conform to or avoid the pattern of traffic formed by other aircraft in operation thereby contravening subsection 602.96(3) of the CARs.

Both alleged offences occurred at or near the Chilliwack Airport, British Columbia. Chilliwack Airport has a single runway, 07-25. The airport is uncontrolled and has no mandatory frequency. There is an Air Traffic Frequency ("ATF") published for the airport, for use by pilots to advise each other of their position and activities at or near the airport.

PRELIMINARY MATTERS

Originally, the Minister alleged that the applicant had committed three offences. At the outset of the hearing, the Minister advised that the second allegation had been dropped and made a motion to file an amended Notice. Mr. Rouch had received the revised Notice from the Minister on October 31, 2005. I granted the Minister's motion to amend the Notice.

Also at the outset of the hearing, I made an order for the exclusion of witnesses. Mr. Rouch made a motion that two other individuals who wished to be observers at the hearing should be excluded. Both individuals were apparently connected with a competitor of Pro Wings at Chilliwack. Mr. Rouch said that all complaints made to the Minister against him originated from people connected with that competitor. He was concerned that the people he sought to exclude would interfere with witnesses.

Transportation Appeal Tribunal of Canada (TATC) hearings are public proceedings. The offences alleged in this matter raise serious issues of aviation safety. In the interests of aviation safety and the integrity of the hearing process, the public has a right to observe TATC proceedings and ought not to be excluded from observing such proceedings unless there is a convincing reason to exclude them.

The individuals whom Mr. Rouch sought to exclude identified themselves at the hearing and gave their personal undertakings that they would not discuss the hearing with any witnesses before the conclusion of the hearing. Finding no convincing reason to exclude them, I denied Mr. Rouch's motion for exclusion.

EVIDENCE

General

Mr. Stephen Bailey is the inspector who was assigned to investigate three complaints made against the applicant in the spring of 2005. Mr. Bailey met with Mr. Rouch at least twice in May 2005 to discuss the complaints. He warned Mr. Rouch that there was an investigation. Mr. Rouch was cooperative and willingly provided him with information such as logbooks, a copy of an insurance report claim, and access to aircraft. Mr. Bailey also gathered licence, aircraft and airport information from Transport Canada databases and publications, took photos at the Chilliwack Airport and of aircraft involved in the alleged offences, and interviewed other witnesses.

Mr. Bailey reached the conclusion that three CARs violations had occurred, two of which were pursued by the Minister at the hearing of this matter. The first was when Mr. Rouch piloted an Aztec aircraft C-FPWL ("PWL") that hit a runway threshold light at Chilliwack Airport. The other was when Mr. Rouch piloted a Cessna 150 C-GEAC ("EAC") involved in an alleged near-miss at Chilliwack.

CAR 602.01

Chilliwack Airport manager, Mr. Ed Wilkins, testified that Mr. Rouch attended at his office at about 1330 local time on March 25, 2005 to let him know he had struck a threshold light on runway 07. Mr. Wilkins cleared the resultant FOD (foreign object debris) from the runway with brooms and brushes. He did not stop airport traffic in order to accomplish this, but did the work in between aircraft movements. By 1630 Mr. Wilkins had finished clearing the FOD and had replaced the broken light. He billed Mr. Rouch for the expenses incurred.

Coastal Pacific flight instructor, Ms. Kyleen Stanton, testified that on March 25, 2005, she was conducting a dual cross-country flight with a student and in the course of that flight landed on runway 07 at Chilliwack Airport. They cleared the runway, taxied down taxiway "A", then waited for two aircraft to land before proceeding onto the runway for take-off. Ms. Stanton said there was congestion at the airport. After taxiing to position, they waited for a landing aircraft to clear. There were aircraft waiting behind at the hold line as well. While holding in position on the runway, Ms. Stanton heard someone say over the ATF, in a rude and aggressive way, words to the effect that she should "get it moving now". Ms. Stanton believed that the statements came from the Aztec aircraft that was lined up for take-off behind her. She said she told her student to ignore it and did not look back. They took off when the aircraft ahead had cleared the runway.

Mr. Heinz Goertzen holds a commercial pilot licence and has 400 hours flying experience. Mr. Goertzen was in the right seat of PWL when it struck the threshold light. Mr. Rouch was in the left seat. Mr. Goertzen recalled that a Cessna 172 had been holding on the runway in front of them, then seemed to start a take-off roll, although it did so in a jerky motion, starting and stopping, which was confusing to him. He said that Mr. Rouch made a standard call entering the runway. Mr. Goertzen said to Mr. Rouch, "[w]atch out for the 172, he's not gone yet". He was worried that if the 172 was not rolling that they would strike the back of it. He gathered that Mr. Rouch's focus shifted to the 172 and trying to avoid smacking it. The Aztec shifted to the right. Mr. Goertzen heard a loud noise, saw something flying through the air, and knew they had hit something. He said he knew they were trying to avoid the 172 and that they had taxied so as to use the full length of the runway for take-off.

Mr. Goertzen said that after they hit the light, Mr. Rouch turned the aircraft back to the left, stopped, then taxied back to the apron where Mr. Rouch secured the aircraft.

Under cross-examination, Mr. Goertzen reiterated that they had crossed the hold line as it appeared that the 172 was commencing its take-off roll, but that it was not a clear and decisive take-off.

Mr. Lorence Exner is a licenced pilot. On November 17, 2005, he was flying the Aztec PWL and noticed that when he applied the brakes, the aircraft veered to the right. Mr. Exner said the aircraft had flown very little between March and November 2005. He had an aircraft maintenance engineer ("AME") check the aircraft but no problem was found. On November 21, 2005, Mr. Exner flew the aircraft again and noticed the same problem. He took the aircraft back to the AME and suggested to the AME what the problem could be. It was an intermittent sticky brake piston. The AME then fixed the brakes.

Mr. Exner also testified about some personal incidents that indicate an acrimonious relationship between the applicant and the competition at Chilliwack Airport. Mr. Exner said he considers Mr. Rouch to be a safe pilot.

Mr. Rouch testified that on March 25, 2005, the Cessna 172 in front of him seemed to be unsure of its intentions. He said he tried to make radio contact with the aircraft and got no response. He said that he called "Number 2 for take-off" and that as the 172 moved forward its pilot called "rolling for take-off". Mr. Rouch then started to taxi to position. The 172 stopped so he was forced to stop halfway on the taxiway and halfway on the runway. He said he asked the aircraft to move ahead and the 172 moved then stopped hard. He said this forced him to stop hard. His aircraft shifted to the right, and since he was busy with the 172, he did not realize the aircraft shifted as much as it did.

Mr. Rouch said he does not believe he was reckless or negligent in this incident. He told the airport manager about the incident immediately after it occurred. He admitted he did not think to advise other aircraft about the glass. However, he was sorry he hit the light, did not do so intentionally, did not try to hide it, and cooperated with the Minister's investigation. He was stunned when the Minister charged him.

CAR 602.96(3)

Mr. Bailey provided excerpts from the Canada Flight Supplement ("CFS") and the Aeronautical Information Publication ("AIP") that provide information relevant to the second alleged offence.

The CFS specifies that right-hand circuits shall be flown for runway 07 at Chilliwack Airport.

The AIP, in effect at the time of the second incident, set out Traffic Circuit Procedures - Uncontrolled Aerodromes, at section 4.5.2. It provided a diagram of a standard circuit pattern. It also provided:

2. [...]

(a) Joining the Circuit

[...]

(v) Aerodromes not within an MF area: Where no MF procedures are in effect, aircraft should approach the traffic circuit from the upwind side. Alternatively, once the pilot has ascertained without any doubt that there will be no conflict with other traffic entering the circuit or traffic established within the circuit, the pilot may join the circuit on the downwind leg [...]

Witness Mr. Jason Krul is a licensed pilot. He was returning to Chilliwack Airport in Cessna 150 C-FQML ("QML") from a practice flight on May 17, 2005 when he made a radio broadcast on the ATF over the Vedder Canal. He also heard Mr. Rouch call from EAC over Sumas Lake Canal. He saw traffic at his 8 o'clock position above him. Mr. Krul then advised on the ATF that he was going over the city to the Chilliwack Airport. When he was about to cross the airport, he heard a call from EAC that it was going to fly a practiced forced landing.

Mr. Krul drew a diagram of his circuit pattern on a map showing the Chilliwack Airport. He had approached the circuit from the upwind side, crossed over the airport midfield, joined downwind, and then turned right base. On right base, he saw an aircraft coming straight at him on the opposite base leg, descending toward his altitude. Mr. Krul said he had to descend under the other aircraft in order to avoid a collision. The decision he made was to pull power, throw out the flaps, and do a right turn straight down toward the runway in order to avoid a collision. He believed the two aircraft came within 250-300 feet of each other. After landing, Mr. Krul said he rolled past taxiway "C", looked behind over his shoulder, then sped his aircraft up to clear the runway on taxiway "B" since he saw EAC behind him doing a touch-and-go while he was still on the runway. He believed that on the ground the closest point that the two aircraft came to each other was about 150 feet. He had heard no call that EAC was on final.

Mr. Krul ran into the airport and told his instructor what had happened. His instructor came with him to see Mr. Rouch and according to Mr. Krul, Mr. Rouch said it was all Mr. Krul's fault. Mr. Krul immediately wrote down a statement and typed it later so that he would remember all that happened.

During cross-examination, Mr. Rouch had Mr. Krul draw his flight path again on a different map of the Chilliwack area, to show the relationship of his circuit pattern to buildings in the area. However, Mr. Krul said he does not fly his circuit in relation to buildings, but with reference to the runway.

Mr. Krul was sure it was Mr. Rouch in EAC because of Mr. Rouch's accent. He also said he was not coached by anyone when he made his written statements and that nobody was with him when he wrote his statements. He heard several radio calls from EAC that day. He said he understood all the transmissions except he admitted that due to Mr. Rouch's accent, he did not understand Mr. Rouch's aircraft position when Mr. Rouch called inbound at 3,000 feet for a simulated forced approach. He was sure he did hear later a call from EAC stating that EAC was 2,000 feet over the airport crossing midfield for a simulated forced approach. Mr. Krul said at that point, Mr. Krul was downwind at 1,000 feet.

Also under cross-examination, Mr. Krul said he kept his downwind a little closer to the runway than he normally would in an effort to ensure there was no collision with the other inbound aircraft. He also said that he was not doing a practice forced landing; that in his circuit he was within gliding distance of the airport at all times; and that he was alone in his aircraft.

Mr. Krul then admitted that he did not actually see EAC do a touch-and-go when he looked over his shoulder but that he believed EAC was in a flare and not an overshoot because it was so close to the ground.

Under re-examination, Mr. Krul reiterated that he did a standard right-hand circuit, joined at midfield, flew the circuit square and normally, except that it was a bit tighter than usual, and that the other aircraft was on the north side of the runway when he saw it at 12 o'clock when he was on base.

Mr. Rouch testified that on May 17, 2005, he was instructing a student Ms. Kyoko. He said he called on the ATF frequency when he was over the Vedder Canal, not the Sumas Lake Canal. He also called at 3,000 feet over the city.

Mr. Rouch described his standard practice forced landing procedure, which he had the student use. He said he ensures there is no traffic conflict before he sets the aircraft up in a glide. He makes use of two "key points", over Yale Road to the north and over Cottonwood Mall to the south of the final approach to the runway. The student is to fly a figure 8 pattern between the two key points along a railway until the aircraft is at the appropriate altitude to glide directly to the runway. He made radio calls during the procedure to advise other aircraft of his position. He received no response from other aircraft.

Mr. Rouch said that his was the first aircraft to the airport when he started the practice forced landing. However, he also admitted that he thought he had heard an aircraft call crossing midfield, but that he was not sure because the other aircraft's radio was noisy. He also admitted that he knew aircraft QML was returning to the Chilliwack Airport, so that is why he made at least three calls between the Vedder Canal and the city.

Mr. Rouch thought he had lost about 1,000 feet between his northern key point and Cottonwood Mall, but that he did not pay attention to the exact altitude. He thought he was at about 1,500-2,000 feet when he turned back north toward the airport at Cottonwood Mall.

Mr. Rouch said that while turning northbound, he saw an aircraft directly below him coming toward him. However, he also said that he saw the tail of the aircraft and the back window. He said the aircraft came from behind him. Mr. Rouch's evidence was that his aircraft continued north as it still had excess altitude. The other aircraft was heading directly for the runway. He said the other aircraft was faster than him and below him.

Mr. Rouch did not see the other aircraft again until he saw it on the runway. His aircraft did an overshoot from the threshold of the runway at 100 to 200 feet above the runway.

Mr. Rouch said his competitor company has its pilots fly circuit patterns that are too large. He said he has brought this to the attention of Transport Canada but they have done nothing. He complained of the lack of courtesy between Pro Wings and the competition.

Under cross-examination, Mr. Rouch admitted that he knew another aircraft was in the area and that he did the overshoot because he saw the other aircraft on the runway.

SUBMISSIONS

CAR 602.01

Mr. Bertram submitted that the Minister is concerned about Mr. Rouch's behaviour as a CFI and a multi-engine pilot. He said that Mr. Goertzen's evidence that he had to warn Mr. Rouch, and the fact Mr. Rouch had to brake so hard that the aircraft shifted to the edge of the runway, show that Mr. Rouch was in a rush while he was preparing for take-off on March 25, 2005. Mr. Bertram submitted that a prudent pilot would wait, would not taxi off the centerline, and would stay clear of any obstacles on the approach end of the runway. If he was concerned about the behaviour of an aircraft in front of him, a prudent pilot would wait before moving.

Mr. Rouch submitted that a problem was created because the 172 ahead of him moved forward in a jerking, stop and go fashion. Mr. Rouch said he did not hit the light deliberately, recklessly or negligently. He said he has been a pilot for 20 years and has never had an accident previously. He submitted further that the accident occurred due to several factors: he did not estimate the proper distance between the propeller and the light when he stopped the second or third time; the 172 was holding an unreasonable amount of time on the runway after a landing aircraft had cleared; he thought the 172 had started its take-off roll but then stopped; and he asked the 172 pilot for an explanation but did not get an answer. He said the result was an accident and he is sorry about that.

CAR 602.96(3)

Mr. Bertram submitted that the evidence shows that Mr. Rouch did not conform to a standard circuit nor avoid the traffic pattern of other aircraft on May 17, 2005. Mr. Rouch knew that another aircraft was approaching the airport. Mr. Bertram submitted that a prudent pilot would have determined the location of the other aircraft and would have avoided any irregular procedures until other aircraft had gone or had landed, unless he had seen the aircraft and had determined that there was no conflict. Mr. Bertram said that standard procedures exist to ensure an orderly and safe flow of traffic, and that dire consequences may result if those procedures are not followed.

Mr. Bertram also noted that a CFI is responsible not only for the safe operation of his own flights but also has responsibility for his students.

Mr. Rouch submitted that the Minister is wrong in alleging that he did not conform to the pattern of traffic. He submitted that he did nothing wrong except be at a place where another pilot flew a long downwind leg, so long that it is hard to say whether the aircraft really was still in the circuit or not. Mr. Rouch believed he was far enough out from the Chilliwack Airport during the practice forced landing procedure to make it lawful and thought he had been at a safe altitude, above circuit height.

He said he conducts practice forced approaches at the Chilliwack Airport because a Transport Canada flight test examiner requires students to do this on flight tests. He also believes he is justified in doing so by CAR 602.96(5)(k).

Mr. Rouch submitted that he is a proficient and safe pilot who has trained hundreds of pilots with efficiency and care. He said that the fact that no one answered his radio calls contributed to the problem. He therefore assumed that no aircraft were within the circuit. He further submitted that his aircraft was in the circuit first and that he did not know where the other aircraft came from. He asked who created the danger – he at 1,500-2,000 feet, or the aircraft that was out of the circuit?

Mr. Rouch also suggested that a third aircraft had the near-miss with QML.

Mr. Rouch said the time taken to do the overshoot may have been longer than usual because the student was doing the overshoot. He noted that Mr. Krul was not sure if EAC had touched down or not, and that it would not have been possible for Mr. Krul to have seen much by glancing over his shoulder as he taxied down the runway.

Mr. Rouch said that all the complaints against him came from a competitor company and suggested that the Minister, in pursuing these complaints, had become an agent of that competitor. He alleged that the Minister had not done a good investigation.

LAW

Section 602.01 of the CARs:

Reckless or Negligent Operation of Aircraft

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 602.96(3) of the CARs:

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

(a) observe aerodrome traffic for the purpose of avoiding a collision;

(b) conform to or avoid the pattern of traffic formed by other aircraft in operation;

(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;

[...]

(4) Unless otherwise authorized by the appropriate air traffic control unit, no pilot-in-command shall operate an aircraft at an altitude of less than 2,000 feet over an aerodrome except for the purpose of landing or taking off or if the aircraft is operated pursuant to subsection (5).

(5) Where it is necessary for the purposes of the operation in which the aircraft is engaged, a pilot-in-command may operate an aircraft at an altitude of less than 2,000 feet over an aerodrome, where it is being operated

[...]

(k) for the purpose of flight training conducted by the holder of a flight training unit operator certificate.

DISCUSSION

CAR 602.01

There is no question that the applicant, Michel Rouch, operated PWL on March 25, 2005 when its right propeller struck a runway light at Chilliwack Airport. There also is no doubt that property was endangered during this incident: the threshold light was shattered, and the resultant broken glass was scattered on the runway.

The issue for me to determine is whether Mr. Rouch operated the Aztec in a negligent manner within the meaning of section 602.01 of the CARs.

An appeal panel of the Civil Aviation Tribunal considered the issue of negligence in Decicco v. Minister of Transport[1]. The appeal panel said that "[i]n 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."

The relevant details surrounding Mr. Rouch's conduct in this incident are:

1) He began to taxi the Aztec toward the take-off position on the runway when he believed that the Cessna waiting in position for take-off was commencing its take-off roll;

2) the Cessna had not in fact cleared the area when Mr. Rouch began to taxi to the runway;

3) Mr. Goertzen stated that Mr. Rouch had taxied so as to use the full runway length for take-off. I understand this to mean that he intentionally taxied close to the runway end;

4) The pilots in the Aztec believed the Cessna started the take-off roll and stopped before recommencing the take-off;

5) Mr. Rouch asked the pilot of the Cessna to move ahead to accommodate his own aircraft movement;

6) Mr. Goertzen became sufficiently concerned about the Aztec's proximity to the Cessna that he issued a verbal warning to Mr. Rouch;

7) Mr. Rouch's reaction to the verbal warning was to hit the brakes hard;

8) It is likely that there was a problem with the brakes that caused the Aztec to pull to the right when the brakes were hit hard; and

9) When the aircraft pulled to the right, the Aztec's right propeller hit a runway threshold light.

I agree with Mr. Bertram's submission that a reasonable and prudent pilot would have waited until the Cessna was well down the runway before commencing to taxi to position on the runway. If that meant waiting for another aircraft to land, so be it. An aircraft pilot ought not to taxi so close behind another aircraft that he is unable to stop safely if the preceding aircraft stops unexpectedly.

Further, a reasonable and prudent pilot taxiing onto a runway ought to maintain, at all times, an acute awareness of the position of any aircraft ahead of him. The fact that Mr. Goertzen felt it necessary to give Mr. Rouch a verbal warning about the Cessna, and that Mr. Rouch's reaction to Mr. Goertzen's verbal warning was to hit the brakes hard, indicate to me that Mr. Rouch was paying insufficient attention to the position of the aircraft ahead of him and that he was taxiing too close to the aircraft. I infer from those facts, together with the fact that Mr. Rouch found it necessary to ask the pilot of the Cessna to move ahead, that Mr. Rouch was attempting to rush the take-off process, thereby compromising safety.

Mr. Rouch's operation of the Aztec in this instance falls short of the standard we expect of a reasonable and prudent pilot.

It is unfortunate for Mr. Rouch that there was a problem with his aircraft brakes that caused the aircraft to pull to the right when the brakes were applied. However, it was Mr. Rouch's negligent conduct that created the situation that led to him slamming on the brakes, and it was his own conduct that gave him insufficient time or room to safely react to the brake problem.

The evidence presented at the hearing proves that Mr. Rouch operated the Aztec in such a negligent manner as to endanger or be likely to endanger the life or property of any person, contrary to CAR 602.01.

CAR 602.96(3)

Both Mr. Rouch, in aircraft EAC, and Mr. Krul, in aircraft QML, broadcast their position and intentions on the ATF while approaching the Chilliwack Airport for landing on May 17, 2005. Both Mr. Rouch and Mr. Krul knew that at least one other aircraft was approaching the airport at approximately the same time as he was. However, the radio communications were not clearly understood or heard by the pilots at all times. The pilots did not respond to each other's broadcasts. They were not always sure of the other aircraft's position. There is no evidence that either aircraft had its landing lights on.

Mr. Krul approached the airport in accordance with the procedures set out in the CFS and the AIP. Mr. Rouch did not follow those same procedures, because he was instructing a student on forced landing procedures.

Mr. Krul knew that Mr. Rouch was planning to fly a practice forced landing procedure at Chilliwack. Mr. Rouch either knew, or ought to have expected, that QML was approaching the airport by crossing midfield and joining downwind for a rectangular right-hand circuit pattern, because that is the standard practice outlined in the CFS and AIP.

Mr. Rouch did not see QML at the same time that Mr. Krul saw an aircraft descending toward him. There are discrepancies between Mr. Rouch's and Mr. Krul's evidence as to EAC's altitude and the position and the proximity of their aircraft at that point. Mr. Rouch admits he may have been as low as 1,500 feet.

Since Mr. Krul, flying at 1,000 feet, saw the aircraft heading while descending straight toward him, it is not surprising that he would be concerned, even if the aircraft were not as close as 250-300 feet as he thought.

Mr. Rouch said that as he turned northbound in the figure 8 pattern, he saw the tail and rear window of QML below him. I conclude that this sighting occurred shortly after Mr. Krul's sighting of the other aircraft, and after Mr. Krul had commenced his increased descent path directly toward the runway.

There was some suggestion that it was a third aircraft that Mr. Krul saw on base leg. However, I conclude that it was EAC that Mr. Krul saw because EAC was immediately behind QML when QML landed on the runway.

Mr. Krul thought he heard EAC crossing midfield at 2,000 feet when he was downwind at 1,000 feet. However, Mr. Rouch's evidence was that he descended from 3,000 feet from his northern key point towards his southern key point, west of the runway. I infer that it was the third aircraft that Mr. Krul heard crossing midfield behind him.

I conclude from the cross-examination of Mr. Krul and from Mr. Rouch's testimony that EAC did not do a touch-and-go but did an overshoot. However, Mr. Rouch made no call on final and the overshoot was done at a low altitude while QML was on the runway, again causing concern to Mr. Krul.

I agree with the Minister's submission that it is not reasonable that Mr. Rouch would persist in flying a practice forced landing procedure when he is aware that another aircraft is approaching the airport at approximately the same time. Mr. Rouch's belief that a third aircraft was approaching the airport ought to have provided even more reason for Mr. Rouch to break off his own practice forced landing procedure in order to conform to the standard traffic pattern. From his own experience at Chilliwack, Mr. Rouch ought to have anticipated that QML would likely be farther west in the circuit than he would prefer.

Mr. Krul said he flew a tighter pattern than normal in an attempt to avoid a collision with the other inbound aircraft. One diagram he drew shows that he turned base at about 1.4 miles from the runway. This indicates that his downwind leg was somewhat longer than what is required in order for a Cessna 150 to remain within gliding distance from the airport. However, the first diagram he drew showed that his circuit pattern was much closer to the airport.

Since Mr. Rouch was approaching the airport in a non-standard manner, I find the greater onus lies on him to avoid or conform to the pattern of traffic formed by QML. In my view it is unsafe for a pilot to conduct a forced landing procedure at an airport unless he is absolutely certain there will be no conflict with other air traffic. It is likely an unwise practice altogether to practice a forced landing procedure at Chilliwack Airport at any time. There is no air traffic control to ensure traffic separation, and not even a mandatory frequency. It is apparent that many small aircraft and many inexperienced pilots use the airport. The safer choice is to approach the Chilliwack Airport using standard circuit pattern procedures only, and to confine practice forced landing procedures to areas where there is less likelihood of conflict with other air traffic.

CAR 602.96(5)(k) does not apply to this situation since Mr. Rouch was not charged with flying over the airport at less than 2,000 feet. Further, that a flight test examiner may require students to perform practice forced landings at Chilliwack on flight tests does not excuse Mr. Rouch from complying with CAR 602.96(3)(b) when there are other aircraft approaching the airport and he is pilot-in-command.

I find that the evidence presented at the hearing proves on a balance of probabilities that Mr. Rouch violated CAR 602.96(3) as alleged.

Sanction

Mr. Bertram submitted that the suspensions levied by the Minister in these matters are significant because of the enforcement history of Mr. Rouch. Mr. Rouch has admitted two previous CARs infractions. Mr. Bertram said the Minister is concerned that Mr. Rouch is not passing safety on to his students. Pro Wings also has a record of previous infractions.

Mr. Rouch said his two previous infractions related to his failure to sign logbooks appropriately and he paid monetary penalties for those infractions. He believes the suspensions levied in this case are excessive and that the Minister is out to inflict maximum damage without extenuating circumstances. He submits that the Pro Wings offences are maintenance related. He says he felt bullied into admitting previous infractions and is now sorry that he did.

In deciding the appropriate penalty for the violations here, I do not think it is appropriate to take into account previous infractions that were not in Mr. Rouch's name.

CAR 602.01

In the eleven most recent TATC/CAT cases involving violations of CAR 602.01, the penalties assessed ranged from a $750.00 monetary penalty to a 90-day licence suspension.

Factors in favour of a lesser penalty for Mr. Rouch are: he has had no previous accidents and has many years' experience as a flying instructor; he has no previous CARs infractions related to his aircraft handling; the physical damage caused to others by his section 602.01 violation was minimal and he has been billed for it.

Factors in favour of a more severe penalty are that Mr. Rouch is a CFI with responsibility for setting safe operating standards for his students and that he has two recent CARs infractions on his record. Most importantly, Mr. Rouch does not seem to accept or admit that he made an error in judgment when he entered the runway behind the Cessna and attempted to rush his own and the other aircraft's take-off process.

In my opinion the 30-day suspension is excessive in view of the consequences to Mr. Rouch as a professional pilot, and the actual or potential damage caused by Mr. Rouch's negligence in comparison to other cases.

I therefore reduce the length of the suspension for the CAR 602.01 violation to 14 days.

CAR 602.96(3)

In two cases I located involving CAR 602.96(3)(b) violations, fines were levied. One was for $500.00 and the other, $250.00. The first involved a pilot that took off on the opposite end of the runway that was in use by two other aircraft. The second is a recent case that involved an airline transport pilot that joined right base for the runway in use even though the published circuit was left-hand. This action forced the pilot of another aircraft to complete a 360-degree turn for traffic separation. These sanctions are significantly less severe than what the Minister has levied in this case. Both were apparently first offences.

It is of concern that Mr. Rouch does not seem to accept or admit that it is unsafe to practice a non-standard approach procedure with his students when he knows that another aircraft is approaching the airport at the same time. Mr. Rouch failed to answer QML's transmissions, to maintain awareness of QML's position, or to maintain visual contact with QML.

Factors favouring a reduced sanction include: Mr. Rouch's uncontested evidence that a Transport Canada examiner requires students to perform simulated forced landing procedures at the Chilliwack Airport; and Mr. Krul's failures to answer EAC's calls, to ensure he understood EAC's position, or to maintain visual contact with EAC.

Considering all of the circumstances including the significant impact that a suspension will have on Mr. Rouch, I reduce the licence suspension for the CAR 602.96(3) violation from 14 days to 7 days.

DETERMINATION

The Minister has proved the offences as alleged. I reduce the penalty for the CAR 602.01 violation to 14 days and I reduce the penalty for the CAR 602.96(3) violation to 7 days, for a total suspension of 21 days.

May 10, 2006

Sandra K. Lloyd,
Member
Transportation Appeal Tribunal of Canada


[1] Francis Dominic Decicco v. Minister of Transport, appeal determination, [1998], C-1316-02.


Appeal decision
E. David Dover, Faye H. Smith, Keith Edward Green


Decision: January 22, 2007

Citation: Rouch v. Canada (Minister of Transport), 2007 TATCE 3 (appeal)

Heard at Vancouver, British Columbia, on October 17, 2006

Held : The appeal is dismissed. The appeal panel confirms the review determination and the penalties assessed being 14 days for breach of section 602.01 of the Canadian Aviation Regulations, SOR/96-433 (CARs), and 7 days for breach of section 602.96(3) of the CARs for a total suspension of 21 days. The said suspension will commence on the 15th day following service of this decision.

I. BACKGROUND

[1] On July 8, 2005, a notice of suspension (revised October 27, 2005 and amended at the request of the Minister of Transport at review) was sent by the Minister of Transport to the appellant, Michel Rouch, assessing a combined suspension of 44 days of Mr. Rouch's commercial pilot licence for two alleged contraventions of the CARs. Both incidents occurred at or near the Chilliwack Airport in British Columbia where the appellant is chief flying instructor for Pro Wings Aviation Ltd. Chilliwack Airport is uncontrolled, has no mandatory frequency and has a single runway, 07-25. There is an aerodrome traffic frequency published for the airport for use by pilots to advise each other of their position and activities at or near the airport.

[2] The first incident occurred on March 25, 2005, at the Chilliwack Airport, at which time the appellant was pilot-in-command of a Piper Aztec C-FPWL that was behind another aircraft, a Cessna 172 C-GIJB, on the taxiway waiting to take off. The appellant's aircraft veered off the taxiway and its right propeller hit a threshold light on runway 07. The appellant was charged with contravening section 602.01 of the CARs (operating an aircraft in a reckless or negligent manner so as to endanger, or be likely to endanger, the life or property of any person). A 30-day suspension of the appellant's commercial pilot licence was imposed.

[3] The second incident occurred on May 17, 2005, while the appellant was airborne in a Cessna 150 C-GEAC (EAC) instructing a student in the vicinity of Chilliwack Airport. This situation involved a near-miss with another aircraft C-FQML (QML) and resulted in a charge of contravening section 602.96(3) of the CARs (failing to conform to or avoid the pattern of traffic formed by other aircraft in the vicinity of an aerodrome). A 14-day suspension of the appellant's commercial pilot licence was imposed.

[4] The review hearing was held on February 16 and 17, 2006 in Abbotsford, British Columbia. In her decision dated May 10, 2006, the Member held that the Minister had proved the offences as alleged and reduced the penalties for the 602.01 violation from 30 days to 14 days and for the 602.96(3) violation from 14 days to 7 days, for a total of 21 days.

II. GROUNDS FOR APPEAL

[5] From that finding, Mr. Rouch filed a notice of appeal as follows:

. . .

On the charge of CAR 602.01 my request for an appeal is based in part on the following grounds:

1) That one of the statements made by the witness, Mr. Goertzen, was misinterpreted by the Member to be a verbal warning when it was meant to be a statement of surprise that the Cessna was stopping again.

2) That my testimony that I hit the brakes hard was misinterpreted by the Member. Due to the fact that English is not my first language it appears that I did not explain what happened as clearly as I could have in French. A more precise rendering of what I was trying to say is that I hit the brakes quickly.

On the charge of CAR 602.96(3) my request for an appeal is based in part on the following grounds:

1) That the Review Determination did not take into proper account that Principal Air is my direct competition and was the source of the accusations against me.

2) That reasonable doubt exists as to the validity of the testimony of the witness, Mr. Krul:

a) He works for Principal Air

b) He modified his testimony twice — once with his diagram and once in relation to whether or not I did a touch and go.

Furthermore, it should be taken into account that I was sick on both days of the Review Hearing and under the circumstances was not able to present my case as coherently as I could have. My request to have the Review Hearing postponed was denied on the first day of the Hearing . . . .

III. APPELLANT'S SUBMISSIONS

[6] Respecting the last paragraph of his notice of appeal, Mr. Rouch stated that on the day of the review, he had the flu and had no ability to present his case and further stated that it was hard for him to function. He indicated that at page 1 of the transcript of February 16th, lines 10-28, he had asked for an adjournment as he was too sick to proceed but that the Tribunal Member ignored his request and proceeded to ask the Minister's representative if he was ready to proceed and then did proceed without further addressing his request for adjournment.

[7] Mr. Rouch also argued that the Member erred in that 95 percent of the complaints came from his competition. He stated that one of the witnesses for the Minister, Jason Krul, was also trained by Principal Air, his competitor. He stated further that Mr. Krul told him that he would get him whichever way he could and that Mr. Krul had fabricated his evidence. He referred to page 14 of the review determination regarding factors favoring reduction of sanction and reiterated that his only reason to do a forced landing was that Transport Canada requested it as part of the flight training.

[8] Respecting the first incident, the alleged violation of section 602.01 of the CARs, Mr. Rouch stated that he did not believe that there was recklessness or negligence. He asked himself whether he was too close to the 172 when they started and stopped. He said that he was confused and did not know what they would do next and that he did not know what to do.

[9] He said that the 172 was rolling for take-off as it had called and he was entering the runway and someone was on the runway on base leg. Mr. Rouch said that his error was in believing the aircraft was starting to move, but it did not, and that he was induced to believe that something was happening and it was not.

[10] He then reviewed the evidence of Heinz Goertzen who recalled that a Cessna 172 had been holding on the runway in front of them, then seemed to start a take-off roll, although it did so in a jerky motion, starting and stopping, which was confusing to him. Mr. Goertzen had said that Mr. Rouch made a standard call entering the runway and that he told Mr. Rouch to watch out for the 172. He was worried that if the 172 was not rolling that they would strike the back of it. He gathered that Mr. Rouch's focus shifted to the 172 and trying to avoid smacking it. The Aztec shifted to the right and Mr. Goertzen heard a loud noise, saw something flying through the air, and knew they had hit something. He said he knew they were trying to avoid the 172 and that they had taxied so as to use the full length of the runway for take-off. Mr. Rouch next referred to pages 55 and 56 of the transcript of February 16th respecting the glass on the runway. He said that he did not notify pilots of the glass on the runway as he was unaware of it at the time. He stated that he realized he hit something but did not know what it was and that they assumed they hit the light and they did not see the glass. He urges that since he did not know there was glass on the runway they cannot say he was negligent for this reason.

[11] Regarding the second incident, the alleged contravention of section 602.96(3) of the CARs, he stated that Mr. Krul flew a wide circuit and did not make proper radio calls. Although he knew that Mr. Rouch was there, he failed to make the calls.

[12] Mr. Rouch stated that QML piloted by Mr. Krul was well beyond gliding distance. He indicated that he (EAC) was outside the circuit, at least one-quarter of a mile, and at no time did he go below 1 500 feet. He made sure he was outside the circuit and at this point his altitude ensured landing as a forced landing. He cited part of the affidavit of his student, Kyoko Kataoka, (exhibit A-4):

. . . I chose two keypoints (Cottonwood Mall and a point east of the runway) and was losing altitude by starting a figure 8 pattern along a line between the keypoints. I do not remember the exact words, but somebody said "Simulated forced approach" and I tried to find him. When we saw him he was in front of us and he was very low. At that time we were around 2000 feet over the highway (Cottonwood Mall - key point). We decided to overshoot and come back for landing . . . .

[13] Mr. Rouch stated that at this point there could be conflict and he was outside and above it. He further stated that the diagram in exhibit M-23 shows the flight path and not Mr. Krul's position. He indicated that the diagram in exhibit A-2 shows Mr. Krul revising his position to show where he was in relation to the ground and asserted that Mr. Krul had flown too far out of the circuit.

[14] Mr. Rouch said that they were too high at Cottonwood Mall to make approach to the runway and as they approached, they saw Mr. Krul below them and they were at 1 700 feet. Mr. Rouch argues that Mr. Krul cut him off. He urged that he was training the student to do a forced landing at Chilliwack Airport although he did not think they should be doing this at Chilliwack. He concluded his submission by stating that he conformed to the regulation to a higher standard and that Mr. Krul was not showing good airmanship at the time.

IV. MINISTER'S SUBMISSIONS

[15] The Minister's representative advised that the matter of the glass on the runway was not considered to be part of the charge. He further cautioned the appeal panel that it cannot consider the explanations given by the appellant which vary from the testimony at the review hearing.

[16] Specifically regarding the allegation on March 25, 2005, the Minister's representative referred to paragraphs 16 and 17 of his submissions as follows:

16. The Appellant's aircraft entered taxiway "A" at approximately 1:20 p.m. on the date in question. Immediately ahead of the Appellant was a Cessna 172 (C-GIJB) whose PIC was a Ms. Kyleen Stanton, a flight instructor with Coastal Pacific Aviation. A student was actually piloting the Cessna at that time. The appellant stationed his aircraft approximately 10-20 ft. behind IJB.

. . .

17. Ms. Stanton testified that the Cessna held up at the runway waiting for landing aircraft to finally clear the runway. She stated that,

While we were waiting we were rudely told by the aircraft that was waiting behind us to basically get it moving in a very obnoxious way. I was with a student at the time and was quite shocked by it, but I said to just ignore it, don't respond, we're on the runway, its our runway so we leave when we think its safe to leave. Probably waited about another 30 seconds 'til we were sure that the other aircraft was off the runway and then started our take-off roll. And from that point never heard from the other aircraft again and didn't see the other aircraft again either, but just went on our way.

[17] The Minister's representative cited from paragraph 19 of his submissions from the appellant's examination-in-chief, wherein he described the post-radio call events as follows:

Then the Cessna 172 started to move forward either — either for take-off or to let me in. That was my interpretation. But it stopped again. I also started to move again, but had to stop hard and when the Cessna 172 started to move forward it was not a very far distance it was maybe a few — a few feet, but that forced me to stop hard.

As I was stopping hard the aircraft shifted to the right about two to three feet to my recollection. But since I was busy with Cessna 172 stopping /go I did not see that our aircraft had shifted that much. Since I'd been clear of the light in the first place, I believed that I was clear of it. To my surprise and dismay I hit the light. That's what happened.

[18] The Minister submits that all of the essential elements of the offence of having operated an aircraft in a reckless or negligent manner were established and urges the appeal panel to uphold the conclusion of the Member with respect to the first incident.

[19] Turning now to the allegation of May 17, 2005, the Minister's representative cited from paragraphs 22 to 25 of his submissions as follows:

22.  . . . the appellant was conducting an instructional flight in a Cessna 150 aircraft (C-GEAC) in the vicinity of Chilliwack airport. The object of the instruction was to teach the student (Ms. Kyoto [sic]) how to conduct a forced landing . . . .
[references omitted]

23. At the same time as the appellant was airborne a second aircraft was approaching the Chilliwack airport. This aircraft was also a Cessna 150 (C-FQML) and was piloted by Mr. Jason Krul. Mr. Krul was returning from a solo practice flight. While approaching the airport Mr. Krul made a radio broadcast announcing that he was clearing the practice area he had been flying in and was over the Vedder Canal. He then heard a radio broadcast from EAC that they were over the Sumas Lake Canal which was behind Mr. Krul. He looked behind him and saw the other aircraft at approximately eight o'clock. Mr. Krul then made a second radio call announcing his route to the airport and his intention to there join the appropriate circuit. He then heard another radio call from EAC announcing their altitude and intention to conduct a simulated engine failure. Mr. Krul then made a final call to say, in effect, that he had joined the circuit and was turning onto the downward leg.
[references omitted]

24. As Mr. Krul turned onto base leg he saw another aircraft descending and coming straight at him. He immediately took evasive action to avoid a collision. He cut power, flew underneath the other plane and made an immediate right turn down to the runway. According to his estimate the two aircraft passed within 250-300 feet of each other. Mr. Krul, after landing, looked behind him and saw that the other aircraft was attempting to land immediately after him. He increased speed in order to reach taxiway "B" as soon as possible in order to clear the runway. He believed he saw EAC perform a "touch and go" but it did not land and, in fact, overshot the runway. Mr. Krul estimated that the aircraft came within 150 feet of each other at this time. After landing, Mr. Krul informed his instructor of the incident and wrote a narrative account of the incident.
[references omitted]

25. The appellant's evidence was that he made three radio calls between the Vedder Canal and the city advising of intentions and altitude because he was aware that QML was returning to the airport. In the immediate vicinity of the airport the Appellant suddenly noticed another aircraft passing underneath him about 300-500 feet below. When coming into land he then discovered the same aircraft ¾ of the way down the runway. The appellant instructed his student to overshoot the runway which she did. It was the Appellant's position that the aircraft of Mr. Krul was not in the circuit at the time the appellant's aircraft arrived at the airport. Mr. Krul's path, the appellant argued, had taken him out of the circuit's parameters and that consequently, there was no obligation on the appellant to conform to Mr. Krul's traffic pattern.
[references omitted]

[20] The Minister's representative asked that the appeal panel uphold the finding of the Member regarding the incident of May 17, 2005 as stated in the review determination.

V. DISCUSSION

[21] As his last ground of appeal, Mr. Rouch stated that it should have been taken into account that he was sick on both days of the review hearing and under the circumstances was not able to present his case as coherently as he could have. He further stated that his request to have the review hearing postponed was denied on the first day of the hearing.

[22] It is apparent at page 1 of the transcript of the first day of the proceedings that Mr. Rouch is concerned about his health as he has the "flu". He does state that he "will try to proceed this morning", and the Member responds "so you're prepared to begin at this point and then we'll see how it goes?" No specific ruling as to an adjournment was made at this time.

[23] When asked by the appeal panel what he would have done differently at the time of the review had he been feeling as well at that time as he felt now, Mr. Rouch stated he would have been more precise in his arguments and deposition. On reading the transcript of the proceedings, we conclude that the evidence put forth, the cross-examinations and the summation of the appellant's case were not substandard in any way. On the contrary, Mr. Rouch as represented by his agent and on his own behalf presented his case very well and we therefore conclude that further consideration of this ground of appeal is unnecessary.

[24] Regarding the first issue as to whether Mr. Rouch operated the Aztec in a reckless or negligent manner so as to contravene section 602.01 of the CARs, we find that the Member at review properly considered Mr. Rouch's conduct regarding this incident. In following Decicco v. Canada (Minister of Transport), [1998], appeal determination, CAT file no. C-1316-02, [1998] C.A.T.D. no. 22 (QL), she reviewed all of the relevant details relating to the incident at page 10 of the review determination in the light of what a reasonably prudent pilot would do in such circumstances.

[25] We agree that a reasonable and prudent pilot taxiing onto a runway ought to maintain, at all times, an acute awareness of the position of any aircraft ahead of him. The fact that his co-pilot, Mr. Goertzen, felt it necessary to give Mr. Rouch a verbal warning about the Cessna and that Mr. Rouch's reaction to this was to hit the brakes hard indicated that Mr. Rouch was paying insufficient attention to the position of the aircraft ahead of him and that he was taxiing too close to that aircraft and found it necessary to ask the pilot of the Cessna to move ahead.

[26] Respecting the appellant's second ground of appeal, we the panel do not find any appreciable difference in the use of the words "hit the brakes hard or hit the brakes quickly" in the context of the facts of this case. We concur that the manner of operation of the Aztec by Mr. Rouch did compromise safety and fell short of the standard expected of a reasonable and prudent pilot in the circumstances. We conclude that Mr. Rouch did operate the Aztec in such a negligent manner as to endanger or be likely to endanger the life or property of any person, contrary to section 602.01 of the CARs.

[27] With respect to the second incident regarding whether Mr. Rouch failed to conform to or avoid the pattern of traffic formed by other aircraft in operation so as to contravene section 602.96(3) of the CARs, we uphold the determination of the Member. The facts as stated at page 11 of the review determination indicated that both Mr. Rouch, in aircraft EAC, and Mr. Krul, in aircraft QML, broadcast their position and intentions on the aerodrome traffic frequency while approaching the Chilliwack Airport for landing on May 17, 2005. The Member found that both Messrs. Rouch and Krul knew that at least one other aircraft was approaching the airport at approximately the same time as they were. The radio communications were not clearly understood or heard by the pilots at all times and they were not always sure of the other aircraft's position. Mr. Krul knew that Mr. Rouch was planning to fly a practice forced landing procedure at Chilliwack Airport. She also found that Mr. Rouch knew, or ought to have expected, that QML was approaching the airport by crossing midfield and joining downwind for a rectangular right-hand circuit pattern, as this is the standard practice outlined in the Canada Flight Supplement and Aeronautical Information Publication.

[28] Mr. Rouch did not see QML at the same time that Mr. Krul saw an aircraft descending straight toward him. The Member states that there are discrepancies between Messrs. Rouch's and Krul's evidence as to EAC's altitude and the position and the proximity of their aircraft at that point. However, we accept her conclusions as follows: 1) that the third aircraft that Mr. Krul thought he saw on base leg was in fact EAC which was immediately behind QML when QML landed on the runway; and 2) that the aircraft crossing midfield at 2 000 feet behind Mr. Krul when he was downwind at 1 000 feet was not EAC but rather was a third aircraft since it was the evidence of Mr. Rouch that he descended from 3 000 feet from his northern key point towards his southern key point, west of the runway. Based on the cross-examination of Mr. Krul, she also concluded that EAC did not do a touch-and-go but did an overshoot, made no call on final and did the overshoot at a low altitude when QML was still on the runway.

[29] Hence, the Member agreed with the Minister's submission that it is not reasonable that Mr. Rouch would persist in flying a practice forced landing procedure when he is aware that another aircraft is approaching the airport at approximately the same time. And further, Mr. Rouch's belief that a third aircraft was approaching the airport ought to have provided even more reason for Mr. Rouch to break off his own practice forced landing procedure in order to conform to the standard traffic pattern. The Member stated that since Mr. Rouch was approaching the airport in a non-standard manner, the greater onus lies on him to avoid or conform to the pattern of traffic formed by QML and thus found that the evidence proved that Mr. Rouch violated section 602.96(3) of the CARs.

[30] The third ground of appeal raised by Mr. Rouch was that the review determination did not take into proper account that Principal Air is his direct competition and was the source of the accusations against him. At various times throughout the review hearing, Mr. Rouch made reference to an acrimonious relationship with his competitor and in his closing summation stated that the reason that Principal Air made the complaints about him was to put him out of business.

[31] In deciding whether it can be said that there was failure to take this relationship into proper account, we concur with the submission of the Minister's representative that evidently the Member determined that the relationship of acrimony between the appellant and Principal Air was minimally relevant to the issue of whether the Minister proved sufficient facts to sustain the charges. Regardless of the source of the complaints, the facts they allege must be evaluated on their merits. The origin of some of the complaints is merely one factor to be considered in evaluating the overall strength and probative value of the evidence. On the facts before us, we agree with the Member's assessment of the relevant evidence and find no basis upon which to disturb her conclusions for reasons that the complainant was a direct competitor.

VI. DECISION

[32] We confirm the review determination and the penalties as assessed being 14 days for breach of section 602.01 of the CARs and 7 days for breach of section 602.96(3) of the CARs for a total suspension of 21 days.

January 22, 2007

Reasons for appeal decision:

Faye Smith, Chairperson

Concurred by:

E. David Dover, Member
Keith Green, Member