Decisions

TATC File No. A-2865-33
MoT File No. MA5504-048624

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Minister of Transport, Applicant

- and -

Bradley MacKay, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, s. 7.7
Canadian Aviation Regulations, section 602.01


Review Determination
Allister W. Ogilvie


Decision: December 23, 2003

The Minister has not proven each element of the allegation. The low flight over the farm has not been established. Therefore the additional issue of whether the flight was conducted in a negligent or reckless manner does not arise. The allegation is dismissed.

A review hearing on the above matter was held Thursday, November 20, 2003 at 10:00 hours at the Truro Justice Centre Court House, in Truro, Nova Scotia.

BACKGROUND

The Rockey family resides on a farm at 2752 Highway 289 in the general vicinity of Middle Stewiacke, Nova Scotia. On September 1, 2002 in the early evening, Mr. and Mrs. Rockey were in their residence on the farm and their son Corey was working in a garage yard close to the house.

At about 6:30 p.m. their attention was drawn by a loud noise. Mrs. Rockey was inside the house and was not afforded a view but stated that she had heard an aircraft fly low overhead. Mr. Rockey was in the house watching television but looked out the window toward the barn where he saw an aircraft approaching from that direction. It continued on and accelerated over the property. Mr. Corey Rockey, outside in the yard, also saw an aircraft approach from over the barn and fly over the property. Neither of the gentlemen was able to ascertain a registration number but both were later able to provide a general description of the aircraft.

Mr. Rockey contacted Transport Canada to complain about the incident. An investigator came out after the weekend to look into the matter. The general description of the aircraft provided by the men matched that of an aircraft which was utilized on a nearby airfield for a parachute school. After further inquiries about the parachute school the inspector concluded that a contravention had taken place. Transport Canada made an allegation against the person they believed to have operated the aircraft in the following form:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

Canadian Aviation Regulations, s. 602.01, in that at approximately 18:30 hours local time, on or about September 1, 2002, at or near Middle Stewiacke, Nova Scotia, you operated a Cessna 182 aircraft bearing Canadian Civil Registration marks C-FNXM, in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person.

Specifically, by flying low over a farm, you endangered the lives and property of persons on that farm.

[Penalty: $1,000.00]

THE LAW

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.

EVIDENCE

Transport Canada

The residents of the Rockey household provided the direct evidence for the Minister's case.

Mr. and Mrs. Rockey were in the house at about 6:30 p.m. when they heard a loud noise. Mrs. Rockey did not see the aircraft but testified to having heard a very loud aircraft noise passing from the back to the front of the house. Mr. Rockey's attention was drawn to the window by the noise. Upon looking out the window he observed an aircraft overfly the barn and descend further such that he could see the wheels below the barn's roof when it was between the barn and house. Then it accelerated over the house and out of sight. Although he did not see the registration numbers he noted that it had a black belly and was otherwise grey but with black wing tips. He was familiar with this aircraft as he had seen it many times before. He estimated that the flight would have been about 25 feet above ground level. Mr. Rockey expressed concern for the safety of his house and livestock as he thought the aircraft was dangerously low.

Mr. Corey Rockey was working in the yard between the house and garage when he heard a noise and looked up toward the barn. There he saw an aircraft skim low over the barn, swoop down lower over the corral before revving up and flying over the house. He did not get the registration but was able to see that it was grey and black. The black was on the hood, the belly and the wing tips. He too was familiar with the aircraft as he had seen it before and knew it was based at a field down the road. Mr. Corey Rockey also expressed concerns for the safety of the flight. He and his father went to check on the horses after the incident.

Photographs of the house, barn, yard, and other outbuildings and surrounding areas and a photo of an aircraft, CF-NXM (NXM) were entered through Transport Canada's investigator. She ascertained that this aircraft was a Cessna 182 registered to Skydive Unlimited.

The picture of the aircraft shows that it is grey with the lower portion of the fuselage, top of the cowling, wing tips and tops of the vertical stabilizer and rudder being black.

A hand drawn depiction of the general area of the flight estimates the distance between the barn and the house to be about 125 feet (Exhibit M-5).

Document Holder

Bradley MacKay admits to being the pilot-in-command of Cessna 182, CF-NXM on September 1, 2002 between 09:35 and 20:10 local time. He denies having overflown the Rockey property.

The aircraft was being utilized as a jump plane for paradrop operations. Mr. MacKay says that he remembers the day in question because it was the busiest day of the year. He flew 17 loads of jumpers during the course of the day. It would have been a waste of his time to go over the Rockey residence.

An aerial photo of the area depicts the paradrop area, airfield and surroundings including the Rockey farm. Mr. MacKay illustrated on the map the approach he makes to the airfield which is at a 45-degree angle to it. That flight path would avoid overflying adjacent property such as the complainant's.

Mr. MacKay is of the opinion that the flight, as described by the Rockeys, could not be accomplished. The aircraft could not descend to the level stated in the space available and climb out again given the close proximity of the house, trees and power lines.

DISCUSSION

It is incumbent upon the Minister to prove each element of the alleged offence on a balance of probabilities. In this case he must establish:

  • that Mr. MacKay was the pilot-in-command of Cessna 182 CF-NXM at about 6:30 p.m., on September 1, 2002 near Middle Stewiacke, Nova Scotia;
  • that Mr. MacKay flew low over the farm in a negligent or reckless manner;
  • that in doing so he endangered the lives and property of persons on that farm.

ISSUE

The time, date and place of a flight in NXM with Mr. MacKay as pilot-in-command are established by his agreed statement. What remains in issue is whether he flew low over the farm as alleged and if so did the flight endanger the life and property of persons on the farm.

The evidence in that regard is in stark contrast.

The Rockeys describe a low flight over their property by an aircraft which fits the description of NXM.

Mr. MacKay admits to being the pilot of the aircraft NXM at the time of the alleged flight but denies that he flew over the farm property.

Held:

The Minister has not proven each element of the allegation. The low flight over the farm has not been established.

REASONS

Certainly one party or the other has not been forthright with me, but I am unable to ascertain, on the evidence before me, which version of "the facts" is to be believed.

The Rockeys seemed forthright and honest in their testimony. Mr. Rees Rockey has complained about aircraft operations in the past. However, I know of no plausible reason as to why they would totally fabricate such a story, one that could be so easily refuted. The description of the flight descending below the level of the barn before pulling up to go over the house is most unlikely, given the close proximity of the buildings. However, I believe the description may be tempered by the perspective from which a moving object was viewed against the background coupled with an admitted ignorance by both witnesses of aircraft operations.

But the pilot was also believable in testimony. His described approach path would keep him clear of local buildings. He testified that on the busiest day of the year it would have been a waste of time to overfly the complainant's property. Why would he take the time on a busy day to fly low over a property that is known to be noise sensitive in a recognizable aircraft knowing that it would be sure to provoke a complaint?

The Minister has not provided sufficient evidence upon which to make a determination. I note from the testimony and viewing documentary evidence that there were sources of possible corroborative evidence that Transport Canada did not pursue. The series of photos entered show a residence across the road from the Rockeys that was noted as being in the aircraft's departure path. If the residents were at home surely they too would have seen or heard the aircraft. Passenger manifests of the staff and jumpers carried in the aircraft were available which would have named potential witnesses. It was stated that jump masters were on the paradrop flights, people who supervised the jumps and then returned with the aircraft. A jumpmaster returning on the aircraft on the salient flight could have been a witness to whatever event actually transpired.

It was suggested to Mr. MacKay in telephone conversation with the investigator that he might supply some of these items such as the manifests or jump masters' names. However, it is incumbent on the Minister to prove the elements of the offence not for the alleged offender to disprove them.

CONCLUSION

The Minister has not proven that the low flight over the farm took place. Therefore the additional issue of whether the flight was conducted in a negligent or reckless manner does not arise. The allegation is dismissed.

Allister Ogilvie
Vice-Chairperson
Transportation Appeal Tribunal of Canada