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Exploring the Parameters of Negligence: Two Recent TATC Decisions
by Beverlie Caminsky, Chief, Advisory and Appeals (Transportation Appeal Tribunal of Canada-TATC), Regulatory Services, Civil Aviation, Transport Canada
In this issue, the Advisory and Appeals Division of Regulatory Services again wishes to share with our readers some interesting developments in Canadian aviation case law. Two recent cases released by the Transportation Appeal Tribunal of Canada (TATC) deal with the issue of negligent conduct on the part of pilots. In one of the cases, the TATC Review Hearing findings are being appealed by the pilot. In the other, the pilot chose not to appeal. As is our practice, the names of the people involved have been deleted, as our goal remains simply to be educational.
In the first case, the Applicant was the pilot-in-command of a small private aircraft approaching a rural airport. Two other aircraft were conducting circuits around the airport. The pilot joined the circuit, and it was agreed by all three aircraft that in the order of landing, the Applicant would be last. However, after joining the circuit, the Applicant made a sudden hard right turn on right base for the runway, ahead of the other planes. This action caused the other two aircraft to take evasive action. The Applicant was charged with flying in a “reckless or negligent manner” contrary to Canadian Aviation Regulation (CAR) 602.01.
At the Review Hearing, the Member upheld the Minister’s decision. She found that the Applicant’s actions were negligent and they endangered life and property. Both elements have to be established to uphold a violation of CAR 602.01. She also found that the defence of necessity was not established. However, the fine was reduced, given the fact that one of the other two planes was flying circuits in the wrong direction, which partially contributed to the situation.
The evidence established that the Applicant’s sudden turn out of the circuit created a hazard. As there was no intention to create a conflict, the actions did not constitute recklessness, only negligence. The fact that all the pilots felt compelled to take evasive action proved that the situation endangered life and property.
The defence of necessity was raised by the Applicant, who argued that he initiated the turn because he was low on fuel and had to make an immediate landing. Existing jurisprudence identifies three elements that must be established by those seeking to plead necessity. First, a situation of imminent peril existed. Second, no reasonable legal alternative to the actions taken existed. Third, the danger caused by the contravention must have been less than the danger caused by complying with the law. Additionally, the defence is not available to those who, through their own actions, create the danger complained of.
The Member found that the Applicant’s actions belied the imminence of the danger, as the pilot flew for several minutes after the evasive action before landing. Consequently, the defence failed.
The second case concerns an Applicant who, while taxiing to take off, hit a runway threshold light at another small rural airport. A few months later, the same individual was involved in an alleged near-miss incident, at the same location while failing to conform to the pattern of traffic. These incidents led, respectively, to charges under CAR 602.01 and CAR 602.96(3).
At the Review Hearing, the Member upheld both charges, but reduced the length of the licence suspension.
With regard to the first charge, the Member found that the Applicant was taxiing closely behind another plane. When that plane suddenly stopped, the Applicant’s plane, in part due to an unfortunate brake malfunction, veered to the right and hit the runway threshold light. The Member found that the Applicant was “attempting to rush” the take-off process, and that such conduct falls below the standard expected of a reasonable and prudent pilot.
The second charge resulted from the Applicant’s conduct of a practice forced-landing procedure while a second aircraft was approaching the airport at the same time. The Member found the Applicant to have been unreasonable in not breaking off his training procedure in order to conform to the standard traffic pattern.
After considering various mitigating and aggravating factors, the Member reduced the total length of the licence suspension from 44 days to 21 days.
The first charge is a standard example of the workings of the negligence provisions of CAR 602.01. The charge was sustained because the evidence established that the Applicant’s conduct fell below the standard of care expected of a reasonable pilot and it resulted in the endangerment of life or property.
The second charge was upheld largely because of the safety implications resulting from the Applicant’s actions. As he was approaching the airport in a non-standard manner, it was incumbent on him to conform to the pattern of traffic formed by the other approaching aircraft. This, the Member implied, was what would be expected of a reasonable pilot in the same situation. That meant abandoning his training procedure, and by failing to do so, he engaged in negligent conduct.
The essence of negligence has been described as, “the omitting to do something that a reasonable person would do or the doing [of] something which a reasonable person would not do.” The two cases discussed above illustrate how this basic principle is applied in aviation situations. It is quite often simply an exercise in common sense. In both cases, the pilots undertook actions that were ill-advised in the sense that they created situations of unnecessary risk. The risk was to others (as well as themselves) and to property. Given the gravity of the potential consequences of unnecessary risk within the aviation context, the decisions reached by the TATC are not surprising. While the exercise of common sense, prudence and the avoidance of negligent behaviour are important characteristics in all our activities, they are particularly so in the world of aviation.
Bill C-6, an act to amend the Aeronautics Act and to make consequential amendments to other acts, was introduced in the House of Commons on April 27, 2006. The Aeronautics Act establishes the Minister of Transport’s responsibility for the development, regulation and supervision of all matters connected with civil aeronautics and the responsibility of the Minister of National Defence with respect to aeronautics relating to defence.
The Act last underwent a major overhaul in 1985. Many of the amendments made at the time were aimed at enhancing the compliance and enforcement provisions of the Act, including the establishment of the Civil Aviation Tribunal (CAT), which was later converted into the multi-modal Transportation Appeal Tribunal of Canada (TATC). As a result of discussions with stakeholders, and in continuing efforts to enhance aviation safety and security, the following changes are proposed in Bill C-6.
The Department of Transport (TC) is re-shaping its regulatory programs to be more “data-driven” and to require aviation organizations to implement integrated management systems (IMS). These types of programs are increasingly required by the International Civil Aviation Organization (ICAO) and implemented by leading aviation nations. The enabling authority for the safety management systems (SMS) regulation is valid and authorized under the existing Aeronautics Act. However, for greater clarification and to provide the SMS framework with additional statutory protections from enforcement, as well as protection from access under the Access to Information Act, TC needed to expand the Minister’s authority under the Aeronautics Act.
Amendments to the Aeronautics Act are also required to provide expanded regulatory authority over such issues as fatigue management and liability insurance. The current enabling authority related to fatigue management does not extend to all individuals who perform important safety functions, such as air traffic controllers. The current enabling authority related to liability insurance does not extend, for example, to airport operators. The amendments will also provide for the designation of industry bodies that establish standards for, and certify, their members, subject to appropriate safety oversight by TC.
In order to obtain as much safety data as possible, the amendments also propose the establishment of a voluntary non-punitive reporting program, allowing the reporting of safety-related information, without fear of reprisal or enforcement action taken against the reporting party.
Since the maximum level of penalties for non-compliance has not been updated since 1985, amendments are required not only to align them with similar legislation recently enacted, but also to act as a deterrent to future non-compliance. The proposed amendments will increase the maximum penalties for corporations in administrative and summary conviction proceedings (currently capped at $25,000) to $250,000 and $1 million, respectively.
Civilian sectors are now delivering some flight services to the Canadian Forces. These flights are considered“military,” but as the Aeronautics Act is currently written, the Department of National Defence (DND) does not have all the authorities it needs to carry out a flight safety investigation that may involve civilians in a military aircraft occurrence. The proposed amendments would provide DND flight safety accident investigators with powers similar to those of civilian accident investigators under the Canadian Transportation Accident Investigation and Safety Board Act when investigating military aircraft accidents involving civilians. The amendments would also clarify the authorities of the Minister of Transport in relation to those of NAV CANADA under the Civil Air Navigation Services Commercialization Act.
For any additional information, please visit our Web site at www.tc.gc.ca/eng/civilaviation/regserv/affairs-menu-730.htm.
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