Decisions

CAT File No. A-2397-02
MoT File No. MA5504-43371

CIVIL AVIATION TRIBUNAL

BETWEEN:

Merrick Willis Adams, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33 (1st Supp), s. 6.9
Canadian Aviation Regulations, SOR/96-433, ss. 602.01, 703.14(2)

VFR flight, Negligent/ reckless, Near collision, Immediate threat to aviation safety, Flight in Icing Conditions


Review Determination
Philip D. Jardim


Decision: April 19, 2002

The 30-day suspension for offence 1 is upheld. Offence 2, count 1 was withdrawn by the Minister. Count 2 is dismissed. The 14-day suspensions for counts 3 and 4 are upheld.

The suspensions for counts 3 and 4 of offence 2 are to be served concurrently, and the suspensions for offences 1 and 2 are to be served consecutively, for a total suspension of 44 days. The said suspension will commence on the fifteenth day following service of this determination.

A Review Hearing on the above matter was held Thursday, March 21, 2002 at 9:00 hours, at the Town Hall, in Gander, Newfoundland.

BACKGROUND

On December 11, 2000, Capt. Merrick Willis (Rick) Adams, chief pilot of Springdale Aviation Ltd., was pilot-in-command of a Piper Seneca (PA-34-200) aircraft, from Springdale, Nfld. to Charlottetown, Nfld. Springdale Aviation's air operator certificate (AOC) permits VFR operations only, and Capt. Adams is not instrument rated, but he does have some 30 years flying experience in Newfoundland and Labrador. There were three passengers on board. Capt. Adams received a weather briefing for the intended route from the NAV CANADA flight service station (FSS) at St. Anthony. Generally, this weather briefing indicated marginal visual meteorological conditions (VMC) for the intended route, with the possibility of instrument meteorological conditions (IMC), in snow showers in towering cumulus, altocumulus castellanus and stratus cloud. Light rime icing in cloud was also a possibility. The aerodrome forecast (TAF) for the destination area was generally VMC, but with the possibility of reduced visibility of one mile in snow showers. The northwesterly airstream indicated to Capt. Adams that visibilities along his intended route should be reasonably good in the "on-shore flow".

In the course of the flight, Capt. Adams ran into increasing cloud and precipitation as he approached the coast of Labrador, necessitating a considerable amount of manoeuvring in order to remain visual and to find his destination, Charlottetown, Nfld. He successfully landed at Charlottetown, but at least one of his passengers was concerned at the safety aspects of the flight. This passenger is not a pilot, was sitting in the right hand seat of the Seneca, and gave a particularly damaging statement to Transport Canada. This passenger, Lee Noel, was also a witness at today's hearing.

Further, after Capt. Adams landed at Charlottetown, two other aircraft arrived: a Labrador Air Twin Otter, and a Springdale Aviation Cessna 185, and there was a third aircraft on final for runway 28. There was light snow, reducing visibility from one to two miles. Capt. Adams disembarked his passengers and baggage, and despite being aware of the approaching aircraft on runway 28 decided to take off on runway 10, right into the path of the aircraft on final for runway 28. This aeroplane, a Cessna Caravan of Labrador Airways, took avoiding action, averting a catastrophe.

A report of this incident was made to the FSS at St. Anthony and a Civil Aviation Daily Occurrence Reporting System (CADORS), Number 200OA0725, was issued. Transport Canada initiated an investigation, conducted by Inspector Terry Thompson. This resulted in a Notice of Suspension, dated December 6, 2001, being issued to Capt. Adams. He applied to the Tribunal for a stay of suspension and this review hearing.

THE LAW

Capt. Adams was charged pursuant to section 6.9 of the Aeronautics Act, for contraventions of section 602.01 and four counts of subsection 703.14(2) of the Canadian Aviation Regulations (CARs). His licence was suspended for a total of 44 days for two offences.

Section 602.01 of the CARs:

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 703.14(2) of the CARs:

[...]

(2) The operations personnel of an air operator shall follow the procedures specified in the air operator's company operations manual in the performance of their duties.

In the case of offence 2, Transport Canada has penalized Capt. Adams twice for breaches of the same section of the CARs: namely, counts 1 and 4 both breach the rules for icing, and counts 2 and 3 both breach the rules for VFR over-the-top. The "double jeopardy" rule dictates that one cannot be penalized twice under the same regulation or rule for the same incident. Hence, the suspensions for two of the counts should be quashed. I shall address this issue later in my decision.

EVIDENCE

The Minister of Transport's case presenting officer, Mr. Kim Trethewey, sought to have one of his witnesses classified as an expert witness on AOCs. After hearing his experience and credentials, I agreed that Mr. Paul Bennett met the criteria as an expert on AOCs. Capt. Adams accepted this. Mr. Trethewey brought six other witnesses to the hearing. These witnesses included the investigator, Mr. Terry Thompson, the NAV CANADA FSS specialist, Mr. Todd Hickey, two of the passengers, Messrs. Lee Noel and Randy Tibbo, and the pilots of the two Air Labrador aircraft, which were at Charlottetown on December 11, 2000.

Capt. Adams brought two witnesses who were his sons, one of whom, Larry Adams, was flying a Cessna 185,
C-GMIR, which landed at Charlottetown just after Mr. Adams. The other son, Robert Adams, was also flying that day to another airfield, Port Hope Simpson, in a Cessna 172.

Offence 2

Mr. Trethewey dealt with offence 2 first, to keep things in chronological order. The evidence adduced from his witnesses was all credible, and pointed to the marginal VMC prevailing during the flight, becoming IMC at times. However, after all of the witnesses had testified, Mr. Trethewey conceded that the evidence adduced in respect of count 1 of offence 2 had not been proven on a balance of probabilities. He therefore withdrew count 1.

With respect to counts 3 and 4, the evidence of passenger Lee Noel was articulate, powerful and credible, supported by a signed statement, an extract from his diary, and photographs taken on the ground at Charlottetown. Even though the other passenger, Mr. Tibbo, said that he had not noticed any ice on the windscreen, Mr. Tibbo admitted he had been "dozing" during the flight, and he was seated in one of the rear seats. On a balance of probabilities, there is little doubt that there was some light clear ice accretion on the aircraft during the flight, in the vicinity of the Labrador coast. This ice was noticeable on the windscreen, where Mr. Noel testified that there were two small clear patches immediately in front of each pilot's seat, which is where the demisting ducts are located.

The conditions encountered at or near the Labrador coast, and the low visibility, cloud, freezing drizzle and snow showers encountered gave cause for great concern to Mr. Noel, such that he expressed great relief when they finally arrived over Charlottetown and landed.

Because the Seneca is not fitted with de-icing equipment, and Capt. Adams is not instrument rated, this is a clear contravention of Springdale Aviation's AOC, and section 5.21 of its operations manual. These documents form Exhibits M-7 and M-8.

With respect to counts 2 and 3 of offence 2, Capt. Adams filed a VFR flight plan, not VFR over the top. The NAV CANADA package, forming Exhibit M-4, page 6, confirms this. Notwithstanding this, the evidence adduced from passengers Noel and Tibbo points to the flight entering IMC from time to time, and therefore breaching the conditions for VFR flight in Springdale's operations manual, section 5.6 (Exhibit M-8).

However, I believe that Capt. Adams must have made every effort to remain legal, but winter conditions in Newfoundland and Labrador, indeed in Canada as a whole, make keeping to the letter of the law in a VFR operation very difficult and render a VFR only operation unreliable at best. Pilots with less experience than Capt. Adams may either have turned back, which he should have done, or may have come to grief.

In his sworn statement, Capt. Adams did not specifically deny that there was ice on the windshield, nor did he deny that the aircraft was in cloud and marginal visibility from time to time. Indeed, in Exhibit M-4, page 6, he passed a pilot weather report (PIREP) to the FSS at 15:15Z, on his return flight to Springdale. This report describes "moderate mixed icing in mixed precipitation within 20 NM south of Charlottetown." Although this report was filed on his return flight to Springdale, which is not at issue here, it speaks volumes about the prevailing conditions on that day and corroborates the evidence of his two passengers.

Offence 1

I shall deal first with the allegation that Capt. Adams announced on the air traffic frequency, 122.8, that he was using runway 28 at Charlottetown for take-off. The only evidence adduced to this effect, was that of Joey Monger, the captain of the approaching Cessna Caravan. Capt. Adams denies that he did so, and points to the fact that the pilot of the Cessna 185 reported that he was backtracking runway 28 (although at the time he was actually backtracking runway 10). I accept Capt. Adams's testimony that he did not make such a transmission, and I accept his suggestion that Capt. Monger heard the transmission from the C-185, misunderstanding it as a transmission from Capt. Adams in the Seneca. It is also significant that neither of the other two pilots, on the ground at that time, heard Capt. Adams make this transmission.

We now come to Capt. Adams's take-off on runway 10, into the path of the approaching Caravan's final approach for runway 28. Capt. Adams testified that he made a transmission to the effect that he was "rolling on 10" and asking the Caravan to slow down or hold off until he had cleared. This transmission never made it to the Caravan, since Adams's microphone plug had become disconnected - Capt. Adams testified that he only became aware of this after he left the ground. Capt. Adams was fully aware of the approach of the Caravan, yet he elected to take off right into its path in conditions of reduced visibility, variously reported as one-half to two miles.

Further, in a surprising admission, Capt. Adams said he was not aware of the priority of landing aircraft over aircraft manoeuvring on the ground, or taking off. This is disconcerting, considering his 30 years' experience, to say the least. Had it not been for a transmission from Capt. Kevin Hann, the captain of the Twin Otter, to Capt. Monger in the Caravan, warning him of the Seneca's departure on runway 10, directly into his path, a catastrophe might well have resulted. To his credit Capt. Adams thanked Capt. Hann for his timely transmission, saying, "that was a bad one." (Exhibit M-20, Capt. Hann's statement). Capt. Adams repeated his gratitude to Capt. Hann for warning Capt. Monger of his departure on runway 10, at the commencement of his cross-examination today.

In his summary at the end of this hearing, Capt. Adams soberly admitted that he was "reckless."

DISCUSSION AND DETERMINATION

In the light of Springdale Aviation's restrictive VFR only, and no icing AOC, the company will face continued challenges operating as it does, in some of the most challenging winter weather anywhere. To avoid future infractions such as these, and to ensure a safe and more reliable service to its customers, it would be well advised to equip at least one of its aircraft with de-icing gear, and employ a pilot with an instrument rating.

The above will not solve the infraction in offence 1: Capt. Adams, in a bad moment, on a bad day, made a potentially lethal mistake in taking off on runway 10 at Charlottetown on December 11, 2000, instead of awaiting the arrival of the approaching Caravan.

Capt. Adams knew that the Caravan was on final for runway 28 and the visibility was poor. He thought that he had warned the Caravan of his take-off, asking it to slow down, but carelessly had caused the headset/microphone jack to become disconnected. From this evidence, Capt. Adams perceived the risk in taking off on runway 10 and deliberately decided to run it. This was an action that a reasonable man would not do. It displays a lack of proper caution and a careless attitude to the consequences. I find this surprising for a man with his experience.

This constitutes both negligence and recklessness as defined in Francis Dominic Decicco v. Minister of Transport (CAT File No. C-1316-02) and Jason R. Newburg v. Minister of Transport, (CAT File No. O-0415-02). The Decicco decision states:

A finding of either negligence or recklessness is necessary for the charge to be made out. Negligence is simply the failure to exercise reasonable skill and prudence in the circumstances, whether there is advertence or not. Recklessness is aimed at those who are more culpable than merely negligent, as to be reckless is to perceive risk and deliberately decide to run it.

On the issue of "double jeopardy" with respect to the multiple counts in offence 2, both counts 2 and 3 refer to the conditions for VFR over the top in the operations manual. From the evidence adduced, I shall dismiss count 2 and uphold count 3. Count 1 has been withdrawn by the Minister as not proven on a balance of probabilities. Count 4 has been proven on a balance of probabilities.

Therefore, at the conclusion of this hearing, I have decided for the reasons given above to establish the suspensions as follows:

Offence 1: upheld 30 days
     
Offence 2, Count 1: withdrawn by the Minister  
  Count 2: dismissed  
  Count 3: upheld 14 days
  Count 4: upheld

14 days

The suspensions for counts 3 and 4 of offence 2 are to be served concurrently, and the suspensions for offences 1 and 2 are to be served consecutively, for a total suspension of 44 days.

Philip D. Jardim
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Elizabeth M. Wieben, Faye H. Smith


Decision: January 6, 2003

Offence 1 is dismissed. We find Capt. Adams did not act in a negligent or reckless manner. The Appeal Panel overturns the Review Member's finding and dismisses count 3 of offence 2. The Panel upholds both the finding of a contravention and the sanction imposed in count 4 of offence 2. The 14-day suspension for count 4 of offence 2 will commence on the fifteenth day following service of this determination.

An appeal hearing in the above matter was held Thursday, November 7, 2002, at 10:00 hours in the Council Chambers, in Gander, Newfoundland.

BACKGROUND

Captain Rick Adams is a very experienced pilot, having spent many years flying in the Newfoundland-Labrador areas. On December 11, 2000, he operated a Piper Seneca aircraft, C-GOOO, between Springdale and Charlottetown, Nfld with three passengers on board.

Prior to departure he had obtained from the St. Anthony flight service station (FSS) a weather briefing for his intended flight. It revealed marginal visual meteorological conditions (VMC) with the possibility of encountering instrument meteorological conditions (IMC) in snow showers and the possibility of light rime icing in cloud.

Springdale Aviation, the company for which Capt. Adams flies, has an air operator certificate which restricts its company's flights to being conducted in only VMC. Capt. Adams himself was licensed to fly only by visual flight rules (VFR), in VMC.

En route to Charlottetown, Nfld, the flight ran into increasing cloud and precipitation as it approached the coast of Labrador. However, he succeeded in reaching the destination.

Capt. Adams landed on runway 28 and proceeded to the tarmac. The passengers and their gear were off loaded and the aircraft was quickly readied for the next leg. In that time two other aircraft had arrived, a Labrador Air Twin Otter and a Springdale Aviation Cessna 185. Capt. Adams taxied back onto the runway to allow room for the Cessna 185 to reach the tarmac. He then took off from runway 10, the reciprocal of the runway on which he had landed. At the time the visibility was one to two miles in light snow.

As he was taking off on runway 10 another aircraft, a Cessna Caravan, was on final for runway 28. The approaching aircraft took evasive action to avoid a collision. A report of the incident was made to the FSS at St. Anthony.

As well one of the passengers on the aircraft had become concerned with the safety of the flight. He reported that during the flight the aircraft had been in cloud at times and that ice had accumulated on the aircraft's windshield.

Transport Canada conducted an investigation into the circumstances of the flight. Subsequently it alleged that Capt. Adams had violated section 602.01 of the Canadian Aviation Regulations (CARs) during his take-off from Charlottetown in that he had operated an aircraft in a reckless or negligent manner so as to be likely to endanger the life or property of persons.

Transport Canada also alleged four violations of subsection 703.14(2) of the CARs, the regulation that makes it mandatory for the personnel of an air operator to follow the procedures specified in the air operator's company operations manual while in the performance of their duties. These violations were alleged to have taken place on the flight between Springdale and Charlottetown.

A hearing of that matter was heard before Mr. Philip Jardim, a member of the Civil Aviation Tribunal, on March 21, 2002 in Gander, Nfld.

He determined that Capt. Adams had acted in a negligent and reckless manner during his take-off from Charlottetown.

Regarding the four counts of offence 2 — failing to follow the procedures specified in the air operator's company operations manual:

  • Count 1 was withdrawn by the Minister.
  • Count 2 was dismissed.
  • Count 3 was upheld.
  • Count 4 was upheld.

The Member concluded that Transport Canada had penalized Capt. Adams twice for breaches of the same section of the CARs, namely counts 2 and 3, both breach rules for VFR over-the-top (OTT). He stated that the double jeopardy rule dictated that one cannot be penalized twice under the same regulation. Count 2 was dismissed on that basis.

GROUNDS OF APPEAL

Capt. Adams has appealed the Member's determination. In doing so he states:

I wish to appeal the decision made by Mr. Philip Jardim on the grounds that much of the evidence given at the hearing has been misinterpreted or overlooked.

One case in point is on page 3 under 'evidence' he said that I have a son Robert and that Robert flew into Port Hope Simpson on December 11, 2000. I do not have a son Robert and I do not have a son who landed at Port Hope Simpson on that day.

Pursuant to that request for an appeal the Civil Aviation Tribunal convened a hearing by a three-member panel on November 7, 2002, in Gander, Nfld.

SUBMISSIONS OF THE PARTIES

The Appellant

Capt. Adams presented oral argument supplemented by a written submission. He detailed what he considered to be conflicts in the testimony of witnesses and urged the panel to accept his interpretation of the factual circumstances. In speaking to the events of December 11, 2000 he stated that there had been a serious breakdown in communications in Charlottetown that day. He felt that several events had taken place, such as miscommunications and the sequencing of events. Each of these had contributed to the situation which had arisen. Capt. Adams requested that the offences be dismissed.

The Respondent

Transport Canada's representative, Mr. Hector, presented oral argument and a written submission. He maintained that the review Member's determinations were based upon several findings of facts. Generally findings of facts should not be disturbed on appeal unless they are unreasonable. For authority he cites the Phillips[1] and Moore[2] cases. In his opinion Mr. Jardim's findings could not be said to be unreasonable. Therefore, the determinations should be upheld.

THE LAW

Section 602.01 of the CARs:

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 703.14(2) of the CARs:

703.14 [...]

(2) The operations personnel of an air operator shall follow the procedures specified in the air operator's company operations manual in the performance of their duties.

Count 1 — Withdrawn

Count 2 — subparagraph 5.8 c) ii. of the company operations manual

Count 3 — subparagraph 5.8 b) ii. of the company operations manual

Count 4 — paragraph 5.21 a) of the company operations manual

Springdale Aviation Limited Operations Manual:

5.8 VFR OVER THE TOP

a) Company aeroplanes will not be operated VFR Over the Top during any cruise portion of a flight during the day unless authorized to do so in the Air Operator Certificate;

b) When authorized to do so, the following requirements must be met:

i. during the day, flight visibility is not less than five (5) miles;

ii. the aircraft is operated at a vertical distance from cloud of at least 1,000 feet;

iii. when the aircraft is operated between two cloud layers, the vertical distance between the layers is 5,000 feet.

c) The weather at the aerodrome of destination is forecast to have a sky condition of scattered cloud or clear and a ground visibility of at least five (5) miles with no forecast of precipitation, fog, thunderstorms or blowing snow, and these conditions are forecast to exist:

i. where the forecast is an aerodrome forecast (TAF), for the period from one (1) hour before to two (2) hours after the estimated time of arrival; and

ii. where an aerodrome forecast (TAF) is not available, and the forecast is an area forecast (FA), for the period from one (1) hour before to three (3) hours after the estimated time of arrival.

[...]

5.21 FLIGHT IN ICING CONDITIONS

a) No Company pilot will conduct a take-off or continue a flight when icing conditions are reported to exist or are forecast to be encountered along the route to be flown unless the aircraft is equipped to operate in those conditions and the Type Certificate authorizes flight in those conditions.

DISCUSSION

Offence 1

We find that Capt. Adams did not engage in a reckless or negligent operation.

In coming to that conclusion it was helpful to itemize each element of the offence. Offence 1, as stipulated in the Notice of Suspension, contains the following elements:

  • after completing a radio broadcast prior to take-off advising the intention to take off on runway 28,
  • you took off from runway 10,
  • in weather reported to be estimated at ceiling 1,300 feet above ground, visibility ½ mile,
  • endangering or being likely to endanger the life of pilot Monger,
  • Monger being in the vicinity of Charlottetown, Nfld. approaching to land on runway 28,
  • in an aircraft operated by Labrador Airways.

These various elements then form a continuum, one linked to the other, to constitute the alleged reckless or negligent manner of operation by Capt. Adams.

However, Mr. Jardim accepted Capt. Adams' testimony that he did not make a transmission stating that he was using runway 28. Therefore, the first part of the allegation has not been proven. The offence might be dismissed on that basis. But Mr. Jardim goes on to find negligent and reckless conduct. In light of that circumstance we feel that it is necessary to explore his reasoning.

As to offence 1 the Member first dealt with the allegation regarding the take-off announcement as noted above, accepting Capt. Adams' testimony that he did not make such a transmission. He next addressed the take-off on runway 10 allegedly into the path of the approaching Caravan. In his determination he found that Capt. Adams knew that the Caravan was on final for runway 28 and that the visibility was poor.

We are unable to ascertain the evidence upon which the Member found that Capt. Adams knew the Caravan was on final. The record before us contains consistent denials of Capt. Adams' knowledge that the Caravan was on final when he was on take-off.

The Member addresses Capt. Adams having thanked Capt. Hann for his timely transmission quoting Capt. Adams as having said "that was a bad one." That partial quote must be understood in its full context. In Capt. Hann's statement to Transport Canada, he stated, "After Rick Adams departed, I called him on the radio and said 'Do you realize that you just took off with an airplane landing on the opposite runway?' He said 'No, that was a bad one.'"[our emphasis]

That denial was made contemporaneously with the event when speaking to a fellow pilot. Because of the coincidence in time of the statement to the event, there would be little time for calculated insincerity and no problem with faulty memory. Capt. Hann reiterated that statement in his testimony. Capt. Adams also repeated it during his testimony.

The take-off scenario was not explored in cross-examination but upon its completion the Member interceded on the subject. He first asked Capt. Adams whether he was aware that Capt. Monger was on two mile final when Capt. Adams took off on runway 10. Capt. Adams said no but attempted to explain the circumstance. The Member then restated his question asking Capt. Adams if he knew when he initiated take-off from runway 10 that an aeroplane was diametrically opposed to him landing on 28 to which Capt. Adams replied "No, not a chance, no..." Capt. Adams went on to explain that he expected the other aircraft to see him as it passed over mid field.

Nonetheless in the face of the evidence the Member found that Capt. Adams did know as he states in the determination: "Capt. Adams knew that the Caravan was on final for runway 28..." and further: "...Capt. Adams perceived the risk in taking off on runway 10 and deliberately decided to run it."

We must conclude that Mr. Jardim did not believe Capt. Adams regarding that portion of his testimony. But he did not tell Capt. Adams why he believed some portions of his testimony and did not believe others. He made no finding regarding Capt. Adams' credibility.

In Pitts v. Director of Family Benefits Branch,[3] Justice Reid stated:

The task of determining credibility may be a difficult one but it must be faced. If the board sees fit to reject a claim on the ground of credibility, it owes a duty to the claimant to state clearly its grounds for disbelief. The board cannot simply say, as the member did here, 'I feel that I have not received credible evidence to rescind the decision of the Respondent.' Some reason for thinking the evidence not credible must be given if an appearance of arbitrariness is to be avoided.

Some reasons for thinking the evidence of Capt. Adams not credible would also have assisted us in deliberation. The finding of credibility is best left to the initial trier of fact. Mr. Jardim did make findings regarding the credibility of the Minister's witnesses. However, regarding Capt. Adams, the accused, he did not.

Mr. Jardim may have been influenced by Capt. Adams' summary as he stated in the determination that "...Capt. Adams soberly admitted that he was 'reckless.'"

In preparing the decision for the appeal, it was of significant benefit to have the full written transcript and be able to review the circumstances several times. In reviewing the transcript it is clear that Mr. Adams never admitted to the charge of being a reckless pilot. He did state that if a breakdown in communication and misunderstanding was a reason for a person to be called reckless and negligent then he was guilty. It is clear from the context that he did not think that was the case.

Capt. Adams was certainly aware that the Caravan was in the vicinity of the aerodrome as he testified to having attempted to radio it with a message to slow down. That transmission never made it to the Caravan as Capt. Adams' microphone plug had become disconnected. However, as to the Caravan's position he stated that when he taxied he considered it to have been four minutes or about eight miles back. Capt. Monger also stated that he was still four or five minutes back when he heard what he thought to be Rick Adams taxing for runway 28.

As there was no adverse finding regarding Capt. Adams' credibility, we see no reason to reject his testimony. In light of the evidence on the record we do not see the basis upon which the Member bases his finding. Accordingly we conclude that his finding is not supported by the testimony and hence is unreasonable.

It is our opinion that none of the three pilots involved in the incident were acting in a reckless or negligent manner. Each pilot contributed to the dangerous situation that arose by their actions or inactions and each was a link in the chain of events that could have caused an accident.

Some of the factors contributing to the incident taking place were:

(1) the fact that although the aerodrome has a published aerodrome traffic frequency (ATF), the pilots were using and expecting MF procedures in which they were communicating with each other or a ground agency rather than using the more correct ATF procedure of a visual inspection by crossing overhead the field. This ATF procedure is necessary because aircraft without a radio are permitted to use the aerodrome. Even the published instrument approach for this aerodrome specifies the requirement for a visual inspection;

(2) Rick Adams' aircraft, the Seneca, experienced a communications failure, a disconnected microphone, when the weather was at or below minimums specified for VFR and all the aircraft were operating by VFR rules;

(3) ramp space was tight with the arrival of four aircraft to be parked on the apron;

(4) the pilot of the C-185 erred in his radio transmission by saying he was backtracking on 28 when he was actually backtracking on 10;

(5) the C-185 was slow backtracking on the runway;

(6) several of the pilots were lax in their radio procedures, not giving all details or following up on transmissions received.

All of this set the stage for something to happen. The Caravan pilot (Monger) did not know that there were three aircraft on the ground. He assumed that the Seneca that called departing and the C-185 were one. He did not do a visual inspection of the field. He should not have been doing a straight-in approach. He did get radio calls that indicated an aircraft was departing but did not verify by radio communication that the runway was clear.

Rick Adams was attempting to do things right, making the required radio calls, trying to communicate with Capt. Monger to coordinate their positions and called his departure for runway 10. He was unaware that his radio transmissions were not being heard.

Kevin Hann, observing the problem develop, stepped in to avert the chance of collision between the two aircraft.

We dismiss offence 1 as we find on the evidence in the record that Capt. Adams' operation was not reckless or negligent.

Offence 2

Count 2

The Member dismissed count 2 on the basis of a finding of double jeopardy. As no appeal was taken on that issue we were not required to address it.

Count 3

We overturn the Member's finding and dismiss the count.

The allegation reads:

By descending into or close to cloud you did not follow the procedures specified in the Springdale Aviation Limited Operations Manual, s.5.8(b)(ii), which requires, in part, for VFR over the top of cloud that the aircraft is operated at a vertical distance from cloud of [at] least 1 000 feet. [our emphasis]

The Member at review did not make a finding that the aircraft was operated VFR OTT. Paragraph 5.8(b) provides the criteria that are applicable when the flight is authorized for VFR OTT. From the Member's determination we see that he found that circumstance was not operative.

Note that in the background information at page 2 he states that Capt. Adams ran into increasing cloud and precipitation as he approached the coast, necessitating a considerable amount of manoeuvring in order to remain visual and to find his destination. He did not state that by doing so the flight was operated VFR OTT.

Regarding that issue, he found in "evidence" at page 4:

With respect to counts 2 and 3 of offence 2, Capt. Adams filed a VFR flight plan not VFR over the top. The NAV CANADA package, forming Exhibit M-4, page 6, confirms this. Notwithstanding this, the evidence adduced from passengers Noel and Tibbo points to the flight entering IMC from time to time, and therefore breaching the conditions for VFR flight in Springdale's operations manual, section 5.6 (Exhibit 8). [emphasis on not is the hearing Member's]

He goes on to state that he believed Capt. Adams must have made every effort to remain legal but that winter conditions make keeping to the letter of the law in a VFR operation very difficult.

We find that he thought that the flight was not operated VFR OTT as he concluded the flight was in breach of section 5.6 of the operations manual which addresses VFR flight in uncontrolled airspace rather than section 5.8, which addresses VFR OTT. That conclusion is consistent with the evidence. Nowhere do we see evidence that Capt. Adams actually operated OTT. Various testimony indicated that the flight was at times in cloud or icing without visual reference to the ground. That does not necessarily equate to being operated OTT. It is just as consistent with being in cloud or flying in marginal or unacceptable visual conditions.

The Minister does recognize this as in the summation he states: [transcript 288] "The conclusion that I would argue must be reached, based on Mr. Noel's testimony, in particular, that ground or water could not have been seen is that the aircraft was operated either above or into cloud, neither of which are acceptable." [our emphasis] Although he recognized that the aircraft could have been operated into cloud he ultimately concluded that it was operated above cloud.

Although he argued that the aircraft was either in cloud or above cloud, he only alleged that the operation was above cloud, i.e., VFR OTT. We dismiss count 3 on the basis that the Member erred in making a finding of a breach of the conditions of section 5.8 when the evidence he accepted and his own conclusion was that the operation breached section 5.6 of the operations manual.

Count 4

We uphold the Member's determination. Mr. Jardim accepted the evidence of passenger Noel as being credible. On Mr. Noel's evidence he concluded that there was little doubt that there was some light clear ice accretion on the aircraft during flight. He also noted that Capt. Adams did not specifically deny that there was ice on the windshield.

The weather reports predicted icing conditions in cloud. The Member had made a finding that the aircraft had run into increasing cloud and precipitation during its flight.

As the evidence showed that the aircraft was not fitted with de-icing equipment Mr. Jardim concluded that there was a clear contravention of section 5.21 of the operations manual and thus a violation of subsection 703.14(2) of the CARs.

We uphold both his finding of a contravention and the sanction imposed.

Reasons for Appeal Determination by:

Allister Ogilvie, Vice-Chairperson
Elizabeth Wieben, Member

Concurred:

Faye Smith, Chairperson


[1] Minister of Transport v. Thomas Ritchie Phillips, CAT File No. C-0014-33.

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

[3] 51 O.R. (2d) 302 at 10.