Decisions

CAT File No. Q-0451-02
MoT File No. NAP6504-P272075-25285

CIVIL AVIATION TRIBUNAL

BETWEEN:

Guy Marcoux, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.9
Air Regulations, C.R.C. 1978, c. 2, s. 520(1)

Negligent Or Reckless Operation Of An Aircraft, Interpretation Of The Terms


Review Determination
Pierre Rivest


Decision: November 16, 1995

TRANSLATION

I uphold the Minister's decision to the effect that the alleged offender contravened subsection 520(2) of the Air Regulations, resulting in suspension of the Applicant's pilot licence pursuant to section 6.9 of the Aeronautics Act; however, I reduce this suspension from fourteen (14) days to three (3) days. Mr. Marcoux's pilot licence shall be returned to the regional office of Transport Canada within 15 days of service of this determination.

The Review Hearing on the above matter was held November 2, 1995 at the Court House in Sept-Îles, Quebec.

BACKGROUND

Mr. Guy Marcoux's pilot licence was suspended on December 28, 1994 after he allegedly committed an offence around 12:16 hours on September 7, 1994 which contravened subsection 520(1) of the Air Regulations.

This suspension was imposed pursuant to section 6.9 of the Aeronautics Act.

Specifically, as pilot-in-command of an Embrier aircraft, flight GIO 707, Mr. Marcoux allegedly took off from Lourdes-de-Blanc-Sablon airport on runway 23, head-on to another aircraft, Air Nova flight ARN 803 approaching runway 05.

A near-miss situation followed and the two aircraft had to take evasive action.

The pilot licence was suspended for 14 days for recklessness potentially endangering the life or property of any person.

The Applicant is appealing to the Civil Aviation Tribunal for review of this penalty.

THE FACTS

I. Introduction

After the customary introductions, I summarized the allegations and explained the proceedings I intended to conduct.

The parties confirmed that except for the documents preceding the hearing, no other document or written or oral exchange was made by the parties.

Elements of proof contained in a letter from Transport Canada dated October 26, 1995 (Exhibit D-1) and signed by the Applicant were admitted by both parties.

Exclusion of witnesses was neither requested nor deemed necessary by the Tribunal. All witnesses were sworn in.

A large number of references will be made to times, distances, speeds and places. These should be read as indicated below:

  • time: 12:10:15 means 12 hours, 10 minutes and 15 seconds;
  • distance: NM means Nautical Mile;
  • speed: Kts means Knots;
  • DASH-8 aircraft: D-8;
  • Lourdes-de-Blanc-Sablon: Blanc-Sablon;
  • Lower North Shore of the St. Lawrence: the Shore.

II. Respondent's first witness: pilot Serge Valade

On September 7, 1994, Mr. Valade, a co-pilot, was in command of Air Nova aircraft D-8, flight ARN 803, approaching runway 05 at Blanc-Sablon airport, and thus is deemed one of the primary eye witnesses to the incident. His testimony is summarized below:

  1. As he was preparing for an instrument approach (IFR) known as "LOC/DME" for runway 05 (Exhibits D-4 and D-4a), he communicated with the flight information station (FSS) at Sept-Îles at 12:04:50 (for all times, refer to Exhibit D-3, 3 pages, which represents the communications transcript for all aircraft flying over or around Blanc-Sablon airport with the Sept-Îles FSS station during the incident). The exhibit, entered into evidence, was accepted as D-1.
  2. Radio communications were normal.
  3. At 12:10:56, he received a weather report that included reference to a ceiling of 1,200 feet, visibility of 1½ NM and wind from 110° at 10 Kts. The witness explained that it was the wind, a headwind but at a cross angle of 60°, that dictated his choice of runway 05.
  4. The approach speed of a D-8 ranges from 120 to 130 Kts, and from 110 to 120 Kts on final approach.
  5. At 12:15:00, the witness heard a radio transmission from another aircraft preparing to take off. At that time, this caused him no special concern.

    At 12:15:50, he referenced his vertical position to AKATA radio beacon (Exhibit D-4), as the aircraft was still in cloud. At 12:16:50, the Sept-Îles station informed him that the aircraft on the ground was rolling for take-off and would execute a left turn after take-off.

    Upon clearing the clouds, between 400 and 500 feet above the ground, approximately 3 NM from the runway, pilot Valade saw the aircraft in question approximately 100 below him, flying toward him.
  6. He then began a left turn at 20° to 30° banked attitude, which he considered normal. He then executed a very tight right turn (approximately 45° banked attitude).

    All this occurred at the base of the cloud cover.

    He subsequently landed without incident.

After discussing the incident with the pilot-in-command, he decided, after returning to Halifax, to file a report with the authorities.

III. Cross-examination

Mr. Desrosiers had the witness confirm the following:

  1. There is no control tower at Blanc-Sablon; all radio communications along the Shore are directed to the Sept-Îles FSS station; several radio frequencies are used, as each airport has its own, and communications are conducted equally in French and English.
  2. Mr. Desrosiers then stated that pilot Marcoux, the Applicant, does not understand English. However, the communications with the Air Nova flight were conducted in English.

After reading the transcript of radio transmissions that Mr. Desrosiers showed him (Exhibit D-3), witness Valade noted that the FSS had informed him that flight GIO 707, which was preparing for take-off, was to turn left (12:16:50), while if we look to 12:16:37, we find that the pilot of the Embrier had clearly stated that he would execute a turn to the right. The witness concluded that an error had been made by the FSS.

IV. Additional examination

  1. The witness confirmed that he had heard the radio exchange of 12:16:37 (right turn as soon as airborne) but did not remember whether this was after or before he had begun his initial turn; it was not so much the message from the FSS station that had influenced him at that point to turn left as the sight of the other aircraft.
  2. He executed a left turn because of obstacles, especially an antenna which he knew to be to his right, since he was fairly familiar with Blanc-Sablon.

There were no further questions by either party.

V. Respondent's second witness: André Bouchard

Mr. Bouchard testified as an expert witness accepted by all parties; his testimony covers primarily the manoeuvres of the two aircraft involved.

  1. Between 12:04:50 and 12:13:12, he found nothing abnormal in the radio communications. He found that in addition to the Air Nova flight, there were two other aircraft communicating with Sept-Îles from Blanc-Sablon.
  2. Based on the weather report (12:10:56), he could easily imagine the Air Nova flight making a direct approach to runway 05 on instrument flight rules (IFR).

    He then specified that, because of the wind, the pilot of the Embrier should have taken off into the wind, on runway 05, especially since he knew he was taking off toward an approaching aircraft.
  3. Then, determining the approximate take-off and climbing speeds (which were not subsequently disproved) for the Embrier aircraft (about 100 to 110 Kts) and considering the speed of the D-8 (between 120 and 130 Kts) flying toward it, he calculated closing speeds from 220 to 240 Kts; a distance of 3 NM, for example (the distance at which the two pilots spotted each other's aircraft), would be covered very quickly, in just a few seconds.

    Using calculations, the witness quoted in feet what may have occurred between the time the Air Nova D-8 broke through the clouds and the time the Régionn Air Embrier took off (see Exhibit D-5 front and back).

    He concluded that the two aircraft came to within about ½ to ¾ NM of each other or about 7 or 8 seconds away from a collision had it not been for their evasive manoeuvres.
  4. Since there is no air control at Blanc-Sablon, any pilot, before take-off, should consider the following:

    1. the traffic; if there is more than one aircraft moving, wait on the ground until the aircraft in flight has landed, unless the two pilots reach an agreement;
    2. ensure that the aircraft in flight can be seen before taking off;
    3. choose the runway favoured by the wind direction and existing air traffic.
  5. A pilot preparing for take-off must also allow for contingencies that may occur on take-off such as mechanical problems or even birds, which are common in coastal areas and may collide with an aircraft. The same applies to an aircraft preparing to land.

    Under instrument flight rules (IFR), two aircraft must never be together in the approach zone.
  6. Placed in the same circumstances, before taking off, he would have considered:

    1. first, the distance of the aircraft in flight from the airport;
    2. from 9 to 10 NM on final approach, take-off would have been reasonable;
    3. but as described, he found this "tight";
    4. and in any event, take-off should have been executed in the same direction as the aircraft on landing approach; never the opposite.
  7. The witness believed that turns with a banking attitude between 17° and 20° (occasionally 30°), especially under instrument flight rules, were normal (called a rate one turn); a banking attitude of 45° was not normal.
  8. He summarized his remarks by stating that the pilot on the ground should have waited until the aircraft in flight landed before taking off, unless an agreement had been reached (radio communications), which was not the case.

VI. Cross-examination

At the start of his cross-examination, Mr. Desrosiers raised certain issues that were irrelevant to the case and involved other aircraft over other airports. I therefore will disregard them.

As for the incident in question, the following stands out:

  1. Mr. Desrosiers had the witness list his qualifications and state that:

    1. he was very familiar with the Shore;
    2. had virtually no knowledge of pilot Marcoux;
    3. the Shore presented difficult flight conditions;
    4. in Blanc-Sablon, under instrument flight conditions, pilots had to communicate on frequency 122.0;
    5. many other frequencies are used, depending on the airport, and all radio transmissions are directed to the Sept-Îles FSS station; thus, there were many conversations on the air and this often led to confusion; pilots did not necessarily hear each other, from one airport to another; only the Sept-Îles station could pick up all the traffic, and often more than one conversation at a time.
  2. The witness was then asked to confirm that between the communication of 12:16:37 and that of 12:16:50 (Exhibit D-3, page 3), there was a major contradiction that could have caused an accident (right turn is translated into English as left turn).
  3. On the weather issues, the witness confirmed the following:

    1. based on the FS reports in Exhibit R-1, between 12:00 and 13:00 hours on September 7, conditions improved significantly;
    2. so when asked what conditions might have been at 12:30 hours, the witness could not answer because he was not present;
    3. Mr. Desrosiers alleged that when there were major changes in weather conditions, the observer had to publish a special bulletin, which does not appear to have been the case.
  4. In response to several other questions, the witness confirmed the following:

    1. when two aircraft are approaching each other, head on, the regulations require that each turn right;
    2. however, while this applies under visual flight rules (VFR), it does not apply under instrument flight rules, since the pilots cannot see each other;
    3. the same applies to the pattern of traffic (circling the runway) which, under VFR, must move to the left at an uncontrolled airport; this does not apply under IFR, when a direct approach such as that executed by the Air Nova pilot is correct;
    4. although he did not know by memory the arrival and departure procedures at Blanc-Sablon, customary airmanship required that the pilot taking off have the approaching aircraft in view; otherwise, it was customary that the pilots of the two aircraft communicate with each other;
    5. finally, the witness repeated that even though he had to make some assumptions in his calculations, the apparent space between the Air Nova D-8 and the Régionn Air Embrier was very "tight" and the two came close to colliding.
  5. Mr. Desrosiers then had the witness state that it was common in a controlled airport to authorize take-off with rapid clearance to the right or left but, the witness specified, under VFR only or with much greater separation between the aircraft; in any event, this did not apply to Blanc-Sablon, which was not a controlled airport.

End of Respondent's evidence.

VII. Applicant's first witness: Guy Marcoux

Mr. Desrosiers began by establishing the witness' qualifications:

  • he was born along the Shore and was very familiar with it;
  • as owner of Régionn Air, he now worked from Sept-Îles to Blanc-Sablon;
  • he had piloted several types of single-engine aircraft, up to the ATR-42 for Inter-Canadien, from which he was on leave without pay;
  • he had logged 10,000 hours of flight time and had already served as chief pilot for Trans-Côte in Blanc-Sablon;
  • he had never had an aircraft accident nor had he been subject to disciplinary action for contravention of the regulations.

With regard to the incident of September 7, 1994, the witness related the following:

  1. He was pilot-in-command of the Embrier; a copilot and one passenger were also on board.
  2. At that time there was a great deal of traffic: a Navajo, a helicopter, the DASH-8 and himself. Thus, it was difficult to communicate by radio, but he had heard the D-8 and was aware of its arrival, although its distance from the airport was not certain; in fact, at 12:12:13 the D-8 reported that it was 13 NM away, and at 12:13:24, 1 minute 11 seconds later, it was still 13 NM away.

    Note: it should be pointed out that in the second transmission, the pilot reports that he is at 13 NM DME, which may be different from his first position.
  3. He then confirmed that he was on the runway by communicating his intentions to the Sept-Îles station; at that time, because of the D-8's landing lights, he had it in view about 6 to 7 NM away.

    Upon taking off, at the time of rotation, he estimated the D-8 to be 3 NM away.
  4. After taking off, as agreed, he turned right but realized that the D-8 was turning to its left, thus coming toward him; he therefore tightened his right turn.

    The aircraft passed within about 1 NM of each other over the village of Blanc-Sablon.
  5. The witness specified that the procedures he followed at that time were normal in Blanc-Sablon and that this had been done for the 15 years he had been flying there.
  6. He also believed that the weather conditions had improved, that visibility was 7 to 8 NM and the ceiling was 2,000 feet.
  7. Finally, the witness did not consider the situation unusual except for the left turn by the D-8, which surprised him; he did admit, however, that it would have been preferable for him to communicate with the D-8 pilot, but he had not felt comfortable enough to do so in English.

    He never believed he had created a hazardous situation. He had confirmed and summarized all the facts in a letter to Transport Canada (Exhibit R-2) dated November 16, 1994.

VIII. Cross-examination

Mr. Tamborriello had the witness again describe the manoeuvres at and after take-off; with the exception of the few details that follow, everything was consistent with the first version:

  • the turn after take-off was executed 200 feet above the ground at a banking attitude of 20°; upon seeing the D-8 heading toward him, he increased his banking attitude to 45°; he was then at 400 feet; 10 to 15 seconds must have elapsed between the two turns;
  • he considered a turn 200 feet above the ground normal and not hazardous, especially since the aircraft was fairly light, with only one passenger on board;
  • he confirmed that the two aircraft approached to within ¾ of a mile of each other;
  • following the radio communications from the D-8, he knew that it was on approach to the airport.

Note: the wording of the communications beginning at 12:14:50 does not make the flight identification very clear, as one refers to GIO 707 and the other, the FSS station, repeats GIO 706!

In addition, the witness stated a short time earlier that he had difficulty with the English language but states here that he knew what was happening with the D-8. In any event, his understanding of the English language has never been questioned.

His choice of runway 23 over 05 was dictated by the fact he was already almost in take-off position; he had been unable to communicate his intentions earlier because of the traffic and the many communications; however, he repeated that he knew an aircraft was approaching the airport; such a situation was normal along the Shore; he knew that Blanc-Sablon was an air zone with a mandatory frequency and that pilots had to communicate with Sept-Îles before moving over the runway, but once again, that morning, because of the traffic and number of radio transmissions, he was unable to convey his message earlier, as the take-off was executed 1 minute 50 seconds after his first communication at 12:14:50.

IX. Applicant's second witness: Douglas Monger

Witness Monger was serving as copilot aboard Régionn Air flight GIO 707, on which Mr. Marcoux was the pilot-in-command.

Mr. Desrosiers told the Tribunal that his plan would be to ask precisely the same questions put to witness Marcoux simply to corroborate what had been said.

I therefore agreed to eliminate this part of his testimony, taking for granted that he would confirm the same allegations as witness Marcoux, although his testimony would be subject to cross-examination.

Witness Monger's qualifications are as follows:

  • 4,000 hours flight time on several types of aircraft;
  • very familiar with the Shore;
  • had submitted to regular competency tests with Transport Canada;
  • his competence and experience were beyond doubt, which the Tribunal acknowledged.

X. Cross-examination

  1. The witness stated that, during the flight, he was handling the radio communications, and he confirmed that all statements by witness Marcoux were consistent with his own observations.
  2. He repeated that there was a great deal of traffic that day and that he had made several attempts to reach Sept-Îles; he knew that Blanc-Sablon was a mandatory frequency zone; he thought that if the radio transmissions from other airports were added to those from Blanc-Sablon, the Sept-Îles station could not pick up all the transmissions.
  3. After this, since he was busy conducting the usual checks in preparation for take-off, he made no further communications attempts until he was ready for take-off; between the first communication and the decision to enter the runway, about 2½ minutes had elapsed.

He found this period fairly long.

XI. Second intervention by Mr. Desrosiers

Mr. Desrosiers then had witness Monger state that he did not have the impression he was committing a reckless act on September 7, that this was regularly done along the Shore in similar conditions and that he had not felt the need to object to the pilot-in-command's decision, as the whole operation involved team work.

XII. Reexamination of witness Marcoux

Mr. Desrosiers asked and was granted leave to reexamine witness Marcoux.

He simply had the witness state that it would have been possible for the pilot of the D-8 to turn right instead of left because he was over the village, that there was no obstacle in this location and that his altitude allowed this.

XIII. Cross-examination

Under cross-examination, the Minister's representative had the witness admit that when the two aircraft crossed over the village, the D-8 was about 2 NM from the airport, thus very close to the AKATA radio beacon antenna, and that the separation between the two aircraft was about ¾ of a mile.

End of evidence.

ARGUMENTS

I. Arguments by Mr. Tamborriello, representing the Respondent

Mr. Tamborriello argued that before and at the time of the incident, the pilot of the Embrier, the Applicant Marcoux, committed several breaches of the air regulations and airmanship. He cited a long series of sections in this regard. To avoid fastidious repetition, I will reproduce these sections in my analysis, with the allegations of both parties' representatives as well as my comments (starting on page 17).

In addition to citing the regulations and certain principles of airmanship, Mr. Tamborriello added:

1. That the expert witness found that pilot Marcoux had created a "tight" situation; in addition, by his calculations, he obtained the same estimate as the D-8 pilot for the closest separation of the two aircraft, ¾ of a mile, and this distance was also confirmed by witness Marcoux;

2. That this case involves recklessness, not solely negligence, as described in subsection 520(1) of the Air Regulations;

3. That the Applicant had admitted the day, time and aircraft present;

4. That the D-8 had been forced to execute an evasive manoeuvre to avoid colliding with the other aircraft;

5. That this easily could have been avoided if pilot Marcoux had abided by the regulations, which were in place specifically to help pilots operate in total safety;

6. That the simplest option would have been to wait for the other aircraft to land (about 2½ minutes) before taking off; for example, if we refer to section 485.7 of the Air Traffic Control Operations Manual (document X-4), a separation of five minutes is required when two aircraft are approaching head-on; although this case does not involve a controlled airport, this directive gives an idea of the safe separation that should prevail in such circumstances, which are similar to today's case (see note at page 17);

7. With regard to the term recklessness, which is not defined in the air regulations, we can refer to several definitions and to case law:

(a) Le Petit Robert dictionary (document X-5);

(b) decision by the Civil Aviation Tribunal (CAT File Nos. O-0104-02/O-0105-33), Edmondo R. Sanchez and Minister of Transport, page 6, 7th paragraph (document X-6, French version); it emphasizes the word deliberately;

(c) in the same decision, page 8, the 2nd paragraph specifies the term recklessness;

(d) in another Tribunal decision (CAT File No. O-0415-02) (document X-7, French version), Jason R. Newburg and Minister of Transport, at page 6, we find several definitions that all resemble each other; the best summary is found in the right-hand column:

A person is reckless if, knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he takes that risk even though it is unreasonable for him to take it, having regard to the degree and nature of the risk he knows to be present. The risk must be of such a type and extent that the person's failure to appreciate, taking into account the object of his conduct and the circumstances known by him, includes a gross deviation from the level of care that a reasonable and prudent individual would have undertaken in the person's circumstances.

At page 7 of the same decision, paragraph 4, counsel refers to another case, Shanivigan v. Vokins and Co. Ltd., in which the word recklessness is defined as follows:

Reckless means grossly careless – the doing of something which in fact involves risk, whether the doer realizes it or not.

(e) finally, Mr. Tamborriello cited two other Tribunal cases (CAT File Nos. C-0338-02/C-0339-33): Daniel William Haseloh and Minister of Transport (document X-8), pages 3 and 4 and Jules Proulx and Minister of Transport, last page (document X-9, French version) in which a nuance is added:

The absence of "mens rea" does not release him from his obligation to act prudently.

8. Mr. Tamborriello closed by stating that the expert witness as well as all examples produced demonstrated that pilot Marcoux had not shown prudence, that he should have waited for the other aircraft to land before taking off or, at the least, should have communicated with the other crew, that as a pilot, it was his duty to control the controllable as much as he could and that he committed a serious act that could have had unfortunate consequences.

The penalties assessed by the Minister were intended to discourage a repetition and to set an example to promote aviation safety.

Instead of a 30-day suspension, the Minister believed that in this instance, 14 days was sufficient, but the Tribunal may reconsider this penalty if the Applicant is found guilty.

II. Arguments by Mr. Desrosiers, representing the Applicant

Mr. Desrosiers raised the following points:

  1. Blanc-Sablon is not Dorval, or Quebec City or even Sept-Îles, which are controlled airports;
  2. On the other hand, Blanc-Sablon reports to Sept-Îles, which is farther from Blanc-Sablon than from Montreal.
  3. In fact, air operations at Blanc-Sablon resemble bush operations where there is no air control; it then is incumbent on the pilot to exercise his judgment, use his skills and experience, and decide the best course of action; this is not always easy since there are no specific standards on which to rely.

    Pilot Marcoux is a very experienced pilot with a spotless disciplinary record, despite working in difficult conditions; in brief, his past performance is an indicator of his future conduct.
  4. The same is true of the copilot. Based on their judgment, both these pilots did not believe they were creating a hazard and did not act with negligence or recklessness.
  5. The weather conditions at the time of the incident had changed from marginal to good (see the reports in Exhibit R-1); at the time the Embrier took off, they had already improved significantly.
  6. Upon take-off, the pilot informed the Sept-Îles station that he was executing a right turn; why did the aircraft in front of them turn in their direction? Because of an error by the Sept-Îles FSS station which translated virage à droite (right turn) by "left turn".

    This error is very serious and there was an attempt to downplay its importance by criticizing pilot Marcoux rather than the station.

    Why did the pilot of the D-8 turn left instead of right as required by the regulations? Because of this error by the FSS station; unless the pilot of the D-8 was below the permitted altitude limits at that time and was concerned about obstacles! However, let us accept the first possibility.
  7. On the definitions given for the word recklessness, Mr. Desrosiers stated his agreement with the case law but did not accept the English meaning of "reckless" which is much stronger than in French because it means "gross negligence", "criminal act", "something crazy" involving "disregard for consequences".

    This certainly is not the case here, in which the pilot reported in, indicated his position and his intentions, while he had the aircraft in view.

    It therefore would be unfair to transfer the full weight of the error committed by the Sept-Îles station to the shoulders of pilot Marcoux.
  8. In brief, this was an unfortunate incident that occurred in difficult working conditions, caused in large part by the Sept-Îles FSS station (this is understandable, he noted, given the large number of frequencies to which its staff must respond); in addition, doubt can be cast on the weather reports from Blanc-Sablon where there certainly is no observer.

Note: there is a weather observation station at Blanc-Sablon with two observers.

Mr. Desrosiers concluded by stating that the severity displayed by Transport Canada in this matter gave cause for concern.

III. Second intervention by the Respondent's representative

Although the arguments had been completed, Mr. Tamborriello requested leave to add a few comments.

I granted his request on condition that the other party intervene in turn if it saw fit. However, I pointed out that I would accept no further interventions following this.

Mr. Tamborriello therefore added the following:

  • he used the sections of the regulations not as points of allegation, but to indicate that pilots have a variety of tools available to help them make decisions (see page 17);
  • with regard to the error by the FSS station, the pilot of the D-8 does not appear to have been influenced by this: it was primarily the obstacles that concerned him;
  • the recklessness occurred at the time the Embrier took off, and was not attributable to the Sept-Îles station, which in any event has no authority to issue instructions but only information;
  • finally, paragraph 521(b) of the Air Regulations refers to conforming with the pattern of traffic and does not authorize a change of pattern (see page 18).

Mr. Desrosiers' rebuttal to this intervention was to state that the information, if it is not an instruction, still must be accurate and must not contain errors, otherwise it is useless.

ANALYSIS AND FINDINGS

I. Analysis

There can be no doubt that the incident of September 7, 1994 at Blanc-Sablon came very close to ending in catastrophe: ¾ of a mile between two aircraft at approaching speeds of close to 240 Kts, above a built-up area, sends chills up the spine.

I have identified four causes related to this incident; I will cite them in order of importance, from the most to least serious:

  • the take-off, downwind, counter to the established pattern, by the Régionn Air Embrier (flight GIO 707), head-on to the Air Nova DASH-8 aircraft (flight ARN 803) on final approach;
  • an error by the Sept-Îles FSS station which translated virage à droite (right turn) by "left turn";
  • a certain disorder or laxity in air operations along the Lower North Shore of the St. Lawrence;
  • a certain lack of attention by the crew of the DASH-8.

To better assess the share and degree of responsibility we must assign to each of these causes, let us review the major points of evidence and arguments produced by both parties.

1.

(a) Pilot Valade, while serving as copilot, was in command of the D-8; we can assume that the pilot-in-command was handling radio communications;

(b) based on the weather report at 12:10:56, this was a flight under instrument rules (IFR); witness Valade reported that communications a short time before the incident were normal;

(c) but when flight GIO 707 announced that it was taking off on runway 23, he was not overly concerned;

(d) we can assume that at the time the Embrier took off, the weather conditions had not improved significantly, since only 6 minutes elapsed between the D-8's first communication and the Embrier's take-off, especially since no special bulletin was issued (contrary to Mr. Desrosiers' claim, there is a weather observation station at Blanc-Sablon which must observe certain criteria for issuing its bulletins – document X-2);

(e) it is odd that the crew of the D-8 (with two pilots aboard) failed to make the link between the announced intentions of the Embrier's pilot to turn right after taking off and the information received from the FSS station, which told them that the same aircraft was going to turn left; although the communications with Sept-Îles were conducted in English by the crew of the D-8, copilot Valade, who was in command, is a Francophone, and demonstrated in his testimony that he speaks and understands French well; under instrument flight rules, especially in an uncontrolled zone, pilots must mentally monitor the moves of other aircraft flying in the same zone and pay attention to all radio communications.

Thus, there was some negligence or laxity by the D-8 crew, which should have been more concerned and obtained information on what was about to actually occur, either by communicating again with the FSS or with the crew of the Embrier.

2. The disorder or laxity that appears to have prevailed along the Shore with regard to air traffic and the applicable procedures is quite obvious to me. As proof of this, I cite the admissions of all pilots on duty, who have just testified. This situation has already struck me, in the case I heard in Blanc-Sablon itself (Wilkins and Minister of Transport – CAT File No. Q-0453-33). In this instance, I believe this situation is partly responsible for the incident.

3. The error committed by the Sept-Îles FSS station obviously is much more serious. If I add to this the fact that the identification of flight GIO 707 was changed to GIO 706 during all exchanges between the Embrier and the station, I am forced to conclude that something obviously was not right. Either the pilot made a mistake, or the station did. In either case, this identification should have been corrected. Is this also laxity? Or is it a result of the excessive number of radio frequencies and transmissions? It is not the Tribunal's place to answer.

The mistranslation of the direction of turns certainly contributed to consciously or unconsciously creating some confusion in the mind of the D-8 pilot.

4. Finally, the decision by Pilot Marcoux to take off from runway 23 is by far, to my mind, the primary cause of the incident; were it not for this decision, all the rest loses its significance; I therefore find he was reckless, regardless of the definition or meaning attributed in French or English, and without this recklessness, the incident never would have occurred. It is even more serious since it was totally unnecessary. I will return to this in my conclusion.

5. Other considerations: the regulations and principles of airmanship cited by Mr. Tamborriello and Mr. Desrosiers' allegations on this point.

Note: the following documents were produced by Mr. Tamborriello as references only and are not numbered as exhibits entered into evidence for the purpose of making allegations. For quick reference, I have given them a number beginning with an X.

5.1 Air Navigation Order, Series V, No. 34:

(a) paragraph 5(a), (document X-1):

The pilot-in-command of an aircraft at an uncontrolled aerodrome for which a mandatory frequency has been designated ... shall

(a) report his intentions prior to entering the manoeuvring area of the aerodrome;

This was not done and two witnesses (Bouchard and Marcoux) confirmed that this was a mandatory frequency zone;

(b) paragraph 6(b):

The pilot-in-command of an aircraft departing from an uncontrolled aerodrome for which a mandatory frequency has been designated ... shall

(b) prior to take-off, ascertain by radio on the mandatory frequency and by visual observation that no other aircraft or vehicle is likely to come into conflict with the aircraft during take-off;

Quite clearly, this also was not done; as evidence of this, the two aircraft were forced to take evasive action. The paragraph in question states that the pilot must not only see but also avoid creating a conflict.

5.2 A.I.P. Canada (document X-2):

(a) section 3.15.2 sets out the criteria that require a weather observer to issue a special bulletin when weather conditions change; since no report was issued between that of 12:00 hours and the time the Embrier took off (12:16:37), we can assume that the conditions were stable, that is, visibility of 1½ to 3 NM, with light precipitation;

(b) section 9.14, 2nd paragraph (document X-3):

A straight-in IFR approach to a landing should not be used at uncontrolled airports where air-to-ground advisory is not available to provide the necessary weather and runway condition reports required to conduct a safe landing ...

Since the information was available (and received by the D-8 crew), a direct approach was allowed, thus there was no fault committed by the D-8 crew on this point.

5.3 Section 529 of the Air Regulations stipulates:

Where an aircraft is in flight or manoeuvring on the ground or water, the pilot-in-command shall give way to other aircraft landing or about to land.

This section is very clear and speaks for itself. The D-8 had begun its approach and was preparing to land. If we refer to the dictionaries, the definition of preparation or to prepare is also very clear: "to put things or oneself in readiness", with a concept of "imminence".

5.4 Section 531 of the Air Regulations:

No person shall take off or attempt to take off in an aircraft until such time as there is no apparent risk of collision with any other aircraft.

The pilot therefore should not even attempt to take off; in this instance, pilot Marcoux knew that another aircraft was attempting to land directly in front of him; he had even planned his turn after taking off to move out of the way; he therefore was aware of the situation. In Mr. Desrosiers' opinion, this section translates into an issue of judgment by a pilot; yet considering what almost happened, I tend to believe that pilot Marcoux did not display judgment.

5.5 Section 521 of the Air Regulations:

(a) paragraph (b):

The pilot-in-command of an aircraft operated on or in the vicinity of an aerodrome shall conform with or avoid the pattern of traffic formed by other aircraft in operation

Quite clearly, pilot Marcoux did not conform with the existing traffic; at 12:07:53, another aircraft had taken off from runway 05, not 23; the D-8 was on approach to runway 05;

(b) paragraph (d):

make all turns to the left ... and after taking off, unless otherwise directed ...

Once again, the pilot of the Embrier disregarded this paragraph by turning right.

(c) paragraph (e):

land and take off, insofar as practicable, into the wind unless otherwise authorized ...

The pilot defied the regulation by taking off with the wind at his back. Although the wind was not very strong, and was at a fairly large cross angle, as pointed out by Mr. Desrosiers, the regulations still required take-off from runway 05.

6. Mr. Desrosiers' rebuttal to Mr. Tamborriello's allegations are summarized below:

This was an unfortunate incident that occurred under difficult working conditions, and was caused in large part by the Sept-Îles FSS station.

He did not believe that the regulations cited could apply here, much less in the manner described by Mr. Tamborriello, since the allegations were based on the word recklessness, using primarily the English meaning of the term, not negligence; yet this did not constitute imprudence in the sense of "recklessness", which was much too strong.

Mr. Desrosiers stated that the basic rules of evidence require proof of key points of the offence beyond a reasonable doubt since this was a penal charge; the rules governing burden of proof did not change with the Tribunal and those of the balance of probabilities did not apply here.

In the Tribunal's view, all the sections cited above do in fact apply to today's case, and since he did not comply with them, the Applicant acted recklessly, beyond all doubt, in the French sense of the term.

As for Mr. Desrosiers' allusion that this was more in the nature of a "bush" flight than anything else, and that we then had to consider the context of this type of air operation, I take the liberty of denying this claim.

At Blanc-Sablon, although we are in an isolated region, the airport, communications and navigation infrastructure does exist and is not inferior to that required for line flights. In fact, Air Nova and Régionn Air are operating line flights, not bush flights.

In addition, I object to this view that a bush flight means anything is allowed.

II. Conclusion

I therefore conclude that the Applicant, pilot Marcoux, demonstrated recklessness under the terms of subsection 520(1) of the Air Regulations and that this recklessness could have been avoided by delaying his departure a few minutes.

On the other hand, I take into account the error committed by the Sept-Îles FSS station, which translated virage à droite (right turn) as "left turn".

I also add that the crew of the Air Nova DASH-8 could have asked more questions about what was happening and could have been more vigilant by also communicating with the crew of the Embrier or communicating again with the FSS station.

Finally, I cannot ignore the lax attitude that appears to prevail along the Lower North Shore of the St. Lawrence with regard to air traffic and the in-flight procedures applied by everyone, especially since everyone agrees that the working conditions are difficult in this area and involve hazards inherent in coastal areas, especially with regard to weather conditions. This is all the more reason to be vigilant, disciplined and avoid taking risks or, at least, avoid unduly increasing the existing level of risk.

Transport Canada thus has a role to play here that extends beyond simple disciplinary measures.

Given the gravity of the actions committed, I would tend to increase the penalty assessed by the Minister. However, since I must apportion the responsibility among all those involved and to avoid unduly penalizing the public in this area, which often is totally dependent on air services for travel, I believe it is fair and reasonable to reduce the penalty given my view that this decision will not be adverse to aviation safety.

DETERMINATION

I therefore uphold the Minister's decision that the alleged offender contravened subsection 520(1) of the Air Regulations, for which the Applicant's licence was suspended pursuant to section 6.9 of the Aeronautics Act; however, I reduce this suspension from fourteen (14) days to three (3) days.

Pierre Rivest
Member
Civil Aviation Tribunal


Appeal decision
Faye H. Smith, Jacques Blouin, Suzanne Jobin


Decision: May 22, 1996

TRANSLATION

We allow the appeal. The minister's decision to impose a suspension on the appellant is reversed.

An Appeal Hearing on the above matter was held Friday, May 3, 1996, at 10:00 hours in the offices of the Régie du bâtiment du Québec, in the city of Sept-Iles, Quebec.

BACKGROUND

On November 28, 1994, the Minister of Transport issued Mr. Guy Marcoux a Notice of Suspension, which reads, in part, as follows:

Pursuant to section 6.9 of the Aeronautics Act, the Minister of Transport has decided to suspend your Canadian aviation document referred to above on the grounds that you have contravened subsection 520(l) of the Air Regulations.

On September 7, 1994, at Blanc Sablon, Quebec, while you were pilot-in-command of flight GIO 707, the aircraft was operated in such a reckless manner as to endanger the life or property of the persons on board flight ARN 803 headed for runway 05.

The Minister imposed a 14-day suspension for the contravention.

Subsection 520(1) of the Air Regulations stipulates that:

520. (1) No aircraft shall be operated in such a negligent or reckless manner as to endanger or be likely to endanger the life or property of any person.

A Review Hearing on this matter was held in Sept-Iles on November 2, 1995, before Pierre Rivest. In his decision, the member of the Tribunal confirmed the Minister's position to the effect that Guy Marcoux had contravened subsection 520(1) of the Air Regulations. Mr. Marcoux's pilot licence had been suspended pursuant to section 6.9 of the Aeronautics Act. Mr. Rivest did, however, reduce the suspension to three days.

Mr. Marcoux appealed this decision on the following grounds:

(a) Member Pierre Rivest erred in penalizing the Applicant for confusion caused by an error of the Sept-Iles FSS, which translated "virage à droite" by "left turn";

(b) Member Pierre Rivest also erred in assigning responsibility to the Applicant for a situation that was also attributable to the crew of the DASH-8;

(c) Member Pierre Rivest erred in finding that it was the Applicant's decision to take off from runway 23 that was the primary cause of the incident;

(d) Finally, Member Pierre Rivest erred in law by giving an erroneous interpretation to the term "reckless manner" ("imprudence") used in subsection 520(1) of the Air Regulations;

(e) Member Pierre Rivest also erred in law by not requiring that the allegation be proven beyond a reasonable doubt and by not giving Guy Marcoux the benefit of reasonable doubt that must be applied in such instances.

In conclusion, the Appellant asks that the Review Determination be overturned.

Transport Canada, for its part, maintains that the Minister has met the burden of proof, and asks the Tribunal to uphold the decision of the first instance.

DISCUSSION

At issue, then, is whether the panel member who presided at the hearing of the first instance erred in ruling that on September 7, 1994, the Applicant operated an aircraft in a reckless manner.

Transport Canada had to prove not only that the aircraft had been operated in a reckless manner, but also that the conduct in question had endangered the life or property of others. The Appellant had no obligation to prove that the alleged offence did not take place.

In the Notice of Suspension, Transport Canada referred only to a contravention pursuant to subsection 520(1) of the Air Regulations, alleging no other contraventions of specific legislative or regulatory provisions.

The appeal is based largely on a matter of legal interpretation. According to the Appellant, Member Rivest erred in law by giving an erroneous interpretation to the term "imprudence" (in French). According to his claims, the Tribunal should give this term its English interpretation, not the French interpretation Member Rivest gave it in his decision.

The Civil Aviation Tribunal has ruled several times on this matter, and has concluded that the meaning to be given the term "imprudence" in this context should be that given the English term "reckless."

In Earl McFarland and Minister of Transport, (December 20, 1988 – CAT File A-0045-02), the Appeal Tribunal relied on the definition given by the Concise Oxford Dictionary, which defines the term "recklessness" as "lacking caution regardless of consequences", while the Respondent defined this term as "willingly assuming obvious risk."

In Norbert A. Selbstaedt and Minister of Transport (August 18, 1988 – CAT File C-0081-02), the Tribunal used the following definition of "recklessness", found in Black's Law Dictionary, 5th edition:

Rashness; heedlessness; wanton conduct. The state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, though foreseeing such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.

Although we are not bound by these determinations, in the opinion of the Appeal Tribunal the meaning to be given the term "imprudence" (in French) is indeed that previously accepted by the Tribunal. In his determination, Member Rivest obviously based his decision on an erroneous interpretation of the term "reckless". In the circumstances, and in view of the foregoing, the Tribunal does not consider it appropriate to address each and every ground invoked for the appeal.

DETERMINATION

After having examined the evidence on the record and considered all the arguments of the parties, we conclude that the Minister of Transport has not proven that Guy Marcoux operated his aircraft in a reckless manner on September 7, 1994.

We therefore allow the Appeal. The Minister's decision to impose a suspension on the Appellant is reversed.

Reasons for Appeal Determination:

 Suzanne Jobin, Member

Concurring:

Faye Smith, Chairperson
Jacques Blouin, Member