TATC Decisions

I THEREFORE FIND THT THE AIR REGULATIONS WERE CONTRAVENED AS SET OUT BY THE MINISTER, BUT I RULE THAT THE FINE BE REDUCED FROM $500. TO $250. THIS AMOUNT, PAYABLE TOT HE ORDER OF THE RECEIVER GENERAL FOR CANADA, IS TO BE RECEIVED BY THE CIVIL AVIATION TRIBUNAL AT THE ABOVE ADDRESS WITHIN 15 DAYS OF SERVICE OF THE PRESENT DETERMINATION.

The Review Hearing on the above matter began on January 19, 1993 at the Tax Court of Canada, Motions Room, Second Floor, Centennial Towers, 200 Kent Street, Ottawa, Ontario and reconvened on January 20, 1993 at the Offices of the Civil Aviation Tribunal, Fourth Floor Boardroom, 344 Slater Street, Ottawa, Ontario commencing at 10:00 hours both days.

BACKGROUND

This Review Hearing results from a NOTICE OF ASSESSMENT OF MONETARY PENALTY dated August 11, 1992 issued pursuant to section 7.7 of the Aeronautics Act. The Minister assessed a monetary penalty on the grounds that Mr. Brookes contravened the following provision:

"Air Regulations, s.534(2) (a), in that, on August 25, 1991, you as pilot-in-command flew a Firefly 8 balloon registered C-FKDW over the built-up area of a settlement at or near Manotick, Ontario at an altitude of approximately 100-300 feet above ground level."

EVIDENCE

Under motions, Mr. Adrian Brookes argued that the Hearing should not continue on the grounds that:

• the original NOTICE OF ASSESSMENT OF MONETARY PENALTY was never received by him;
  
• the replacement Notice was received in November, well after the one year limit had expired;
  
• the said Notice should have been sent by registered mail;
  
• the Canada Evidence Act spells out that "notices" should be sent by registered mail; and
  
• the Canadian Charter of Rights spells out that all Acts should be treated the same, and since the Aeronautics Act specifies the use of regular mail; therefore, Canadian aviation document holders are not treated equally.

Mr. Brookes had subpoenaed a member of the Civil Aviation Tribunal personnel. The Hearing Officer stipulated she could only testify that she called Mr. Brookes on October 28, 1992, in the course of her regular duties, to begin the process of scheduling a Tribunal Hearing and that Mr. Brookes told her at that time that he had not received the NOTICE OF ASSESSMENT OF MONETARY PENALTY. She could further testify that on October 29, 1992 she called Transport Canada to apprise them of Mr. Brookes' statement. With Mr. Loan's agreement, the Tribunal personnel member was not called, and she returned to her office.

Speaking to the motion Mr. Loan first entered as Exhibit M1, portions of the Air Regulations dealing with definitions and low flying; Exhibit M2, portions of the Aeronautics Act dealing with definitions and, in particular, the manner and timing of sending notices; Exhibit M3, a copy of pages from Black's Law Dictionary dealing with appropriate explanations of terms; and Exhibit M4, a copy of portions of the Interpretations Act.

Using the above mentioned documents, Mr. Loan set out the Minister's position stating that each step had been correct according to the various Acts and interpretations governing the Tribunal.

In response, Mr. Brookes repeated his previous arguments.

I ruled that the hearing could and should proceed. I did so on the basis of my understanding pertaining to the Aeronautics Act, as it relates to the Civil Aviation Tribunal, and the Tribunal's Rules themselves.

Mr. Loan, beginning the formal presentation for the Minister, read the charge. Inspector Oscar William Binder was sworn. Exhibit M5, a photocopy of a computer printout dealing with Mr. Brookes' file was introduced.

Inspector Binder gave details of his background and details of the investigation. Mr. Loan introduced Exhibit M6, a Toronto VFR Navigation Chart and an enlarged photocopy of a portion of the Chart south of Ottawa. Inspector Binder marked a yellow coloured wedge as the approximate flight path extended toward the Ottawa Airport stating the information came from a Mr. de Witt.

Mr. Loan introduced Exhibit M7, a photocopy of a surface weather record from Ottawa Airport dated August 25, 1991. Mr. Binder reviewed the winds at the time of the incident.

Mr. Loan introduced Exhibit M8, a copy of a registered letter of investigation to Mr. Brookes dated May 29, 1992. Inspector Binder explained the details and purpose of the letter. A copy of Mr. Brookes' faxed response asking for an extension was introduced as Exhibit M9. The fax carried the notation that the extension to July 15, 1992 had been granted.

A faxed letter from Mr. Brookes to Mr. Loan in answer to the letter of investigation was introduced as Exhibit M10. In it Mr. Brookes states, among other things, that, due to unsuitable upper winds at 500 feet AGL, the flight was flown at altitudes of between 300 and 500 feet.

Claiming this to be unsatisfactory, the Minister sent Mr. Brookes a NOTICE OF ASSESSMENT OF MONETARY PENALTY on August 11, 1992. As the amount specified in the Notice had not been received by the prescribed date, Transport Canada, turned the matter over to the Civil Aviation Tribunal. When Mr. Brookes reported not having received the Notice, Transport Canada sent another copy of the said Notice. This resulted in a letter dated December 2, 1992 from Mr. Brookes to the Regional Manager, Transport Canada asking for disclosure of evidence. This letter was marked Exhibit M11.

Mr. Loan then introduced two documents showing a new address for Mr. Brookes. The document dated September 9, 1992 was marked Exhibit M12, and the other dated September 22, 1992 was marked Exhibit M13.

Mr. Loan introduced as Exhibit M16, an affidavit from Betty Melville, an employee of Transport Canada responsible for the mailing of the NOTICE OF ASSESSMENT OF MONETARY PENALTY to Mr. Brookes.

During Mr. Brookes' cross-examination of Inspector Binder, red marks were put on Exhibit M6 showing the towns of Manotick and Osgoode. After lengthy discussion regarding Exhibits M7, M8 and M10, it was agreed the winds that evening were varying. They were 00/00 at 18:00 hours; 170/09 at 19:00 hours; 180/06 at 20:00 hours; and 200/04 at 21:00 hours.

With Mr. Loan's agreement, Mr. Brookes called his first witness, Mr. Robert Arthur McBain who was sworn. Mr. McBain stated that he has a balloon pilot licence and he flew Balloon C-GGAN in tandem with C-FKDW on the evening in question. They were launched from an area near an arena south of North Gower, commonly used for balloon launching. The winds were light, under 5 knots. C-FKDW was off first, followed closely by C-GGAN

Mr. McBain contacted the Ottawa tower and was told to remain under 1,000 feet until further instructed. Since both balloons carried two radios, both heard the tower and each was in contact with their chase or retrieval vehicle. Mr. McBain stated the winds at 1000 feet were more from the North West; therefore, the balloons stayed between 500 and 700 feet.

Mr. McBain testified that at one point his balloon was at 1,000 feet and above Mr. Brookes', but the wind had turned further north. He also stated that he tried a practice approach once but that most of the time the two balloons were roughly level.

Mr. Brookes introduced as Exhibit D1 a map marked 31 6/4 taped together with a portion of a map marked 31 G/5. These made a map of the flight area. Mr. McBain drew a wedge on the map from the take-off point near North Gower to the landing site east of Manotick.

Under cross-examination by Mr. Loan, Mr. McBain repeated his previous testimony adding that the initial contact with the Ottawa Airport tower was made at approximately 150 feet and that the whole flight was made below 1,000 feet but not below 500 feet except for the practice landing and the actual landing.

After a brief lunch break Mr. H.F. de Witt was sworn and questioned by Mr. Loan. Mr. de Witt testified that he had been a pilot for many years, and he had a commercial pilot licence when he ceased flying about four years ago. Mr. de Witt and his wife were paying passengers on the flight as a result of a birthday gift. He carried a Sony V5000 Hi8 video recorder.

Mr. de Witt was obviously disappointed in the flight saying he had expected to cross Ottawa at 2-3000 feet but instead crossed Manotick at treetop level. He video taped along the route, claiming that the balloon was never above 250 feet and that the two balloons were at roughly the same altitude most of the time.

Mr. de Witt wrote to Transport Canada to complain about the flight. He loaned the tape he had filmed to Mr. Loan and Inspector Binder who had it duplicated into VHS format. Discussion followed regarding the tapes made. It was obvious the copy made for Mr. Brookes was 30 seconds shorter at the beginning than the copy submitted by Mr. Loan as Exhibit M15. Only the original was viewed for discussion purposes at the Hearing.

The tape was viewed once without interruption and was viewed a second time with stops for comments at various points. Mr. de Witt expounded on camera angles, focal length, etc. to show that the balloon was always under 300 feet. At one point Mr. de Witt stated that the treetops were only 12 feet under the basket.

Because the Hearing room would soon be closed, and Mr. Brookes felt he would need at least 1 1/2 hours to cross-examine one of the two witnesses who had waited all day, the procedure was changed to hear the two defense witnesses.

Mrs. Janet Cooney was sworn. When questioned by Mr. Brookes, she testified that:

• she is a Registered Nurse;
  
• she and her husband were on the flight (C-FKDW with the de Witts) also as a birthday present;
  
• she was not concerned by the release form she had signed;
  
• she had not looked at the instruments in the balloon;
  
• she had not been worried about the height of the balloon;
  
• she thought the flight was over one hour; and
  
• she remembered flying over a built-up area near, but not necessarily, Manotick.

Mr. Brookes introduced as Exhibit D2, a copy of the release form signed by Mrs. Cooney and as Exhibit D3, a copy of the flight certificate given to Mrs. Cooney after the flight.

Mrs. H.F. de Witt was sworn but could contribute only that she remembered crossing the Rideau River once.

On January 20, 1993 at 10:00 am, the Hearing reconvened in the boardroom at the Civil Aviation Tribunal offices on Slater Street in Ottawa with Mr. Brookes cross-examining Mr. de Witt.

Mr. Brookes introduced as Exhibit D4, a copy of a portion of C-FKDW's journey log which showed the flight lasted 1.2 hours. Mr. de Witt was questioned at length regarding his previous testimony during the viewing of the video tape. Without consulting notes, he gave answers that were almost identical to the previous day's answers.

Throughout a lengthy cross-examination Mr. de Witt confirmed his previous testimony.

Mr. Theo van Vliet was sworn and was deemed qualified as an expert on aerial photography and map making. During thorough questioning Mr. van Vliet repeatedly stated that it was impossible to estimate the height of the balloons based on the information given. He did offer at one point that C-FKDW was below C-GGAN but that they both could have been at 500 feet or more.

Cross-examined by Mr. Loan, Mr. van Vliet agreed that he was at the Hearing as Mr. Brookes' friend.

Mr. Brookes introduced as Exhibit D5, an affidavit from Mr. Greg Kowal of Vancouver, B.C. who had been in the chase vehicle on the day in question.

Mr. McBain returned to state that he had a total of 150 hours in balloons including 100 of those on C-GGAN. During direct questioning, cross-examination and redirect Mr. McBain answered a number of questions on balloon flying in general, the effect of different winds at different altitudes and landing a balloon. Distances and approaches to Ottawa Airport were brought up, and Mr. Brookes introduced a copy of the Ottawa chart from Canada Air Pilot East as Exhibit D6.

Mr. Loan introduced data on the winds aloft for August 25, 1991 as Exhibit M17 and a photocopy of a portion of "Balloon Digest" dealing with winds and landing data as Exhibit M18.

After a brief recess Mr. Brookes was sworn. Testifying on his own behalf he stated that the flight in question was roughly as set out in previous testimony. The passengers on the flight were Brenda Beatty, the Cooneys and the de Witts. The balloon was below maximum weight. The flight was over one hour at levels of about 1,000 feet above sea level (ASL), had made one landing approach south of Manotick and resumed altitude, crossed the river south east of Manotick outside the built-up area and landed east of Manotick, south of the Ottawa Airport. He claimed no violation of paragraph 534(2)(a).

During cross-examination, Mr. Loan noted that a request for a copy of the log book had been made by registered letter dated November 29, 1992, but the log book was not supplied. He further noted that in answer to the letter of investigation, Mr. Brookes had said that there were four passengers when in fact there were five, that the flight had been as low as 300 feet while in direct testimony he had claimed never to be under 500 feet. He also stated that while Balloon C-FKDW was not registered commercially, it was so insured and did carry paying passengers.

Mr. Loan pointed out that the journey log showed the total number of persons on board as 5 when there were actually 6. The log showed no weights despite Mr. Brookes' statement that the balloon was under maximum weight.

In summary, Mr. Loan reviewed the evidence, stating that the charge under paragraph 534(2) (a) was made after a thorough review of the letters and the tape. While the charge states 100 to 300 feet, he feels those numbers should not be taken literally and that under 500 feet should prove the charge. If the flight had taken place only 100 to 200 feet below the limit, no charge would have been laid. Mr. Brookes' letter admitting heights of 300 feet alone proved the charge.

Mr. Loan made the point that Mr. de Witt interpreted the heights based on the tape as well as from inside the balloon basket, while Mr. van Vliet could not make the same interpretation as he had not been a passenger.

Mr. Loan further claimed that Mrs. Cooney's statements proved the charge over Manotick.

Mr. Loan entered a portion of the Regulatory Compliance Manual dealing with different types of defence as Exhibit M19 and the schedule of maximum amounts for penalties as Exhibit M22. The following previous decisions by the Civil Aviation Tribunal were offered as exhibits:

• CAT File No. Q-0243-10 as Exhibit M20,
• CAT File No. 0-0153-33 as Exhibit M21, and
• CAT File No. 0-0067-33 as Exhibit M23.

In summary Mr. Brookes read the charge, stressing the height of 100 to 300 feet. He claimed the Minister must prove those heights within 2,000 feet of a built-up area exempting the attempted landing. He compared Mr. de Witt's estimate of a flight time of 30-50 minutes to Mrs. Cooney's estimate of over one hour; the flight was actually 1.2 hours. He then compared Mr. de Witt's estimates of height based on the tape to Mr. van Vliet's statement that he could not estimate but said the height might be as much as 3,000 feet.

Even though he was a pilot, Mr. de Witt had not looked at the altimeter during the flight. Mr. Brookes found it hard to believe Mr. de Witt had asked no questions.

Mr. Brookes entered as Exhibit D7 a number of CAT cases disallowing low flying charges.

Mr. Loan spoke briefly to sanctions as outlined on Exhibit M23.

The Hearing adjourned at approximately 4:00 pm.

PRECEDENTS

During the Hearing, both Mr. Brookes and Mr. Loan offered as exhibits previous decisions by the Civil Aviation Tribunal in regard to low flying and other matters before the Hearing. This Hearing Officer read them all but also decided to read as many decisions on low flying or flying over built-up areas by balloons as he could find. A serious problem quickly emerged.

Various Members including this Member have determined differently in cases that could be said to be similar. In each case the vagueness of the Act, as it applies to balloons, can be said to be at the root of the differences. While it is not necessary for the purpose of making a determination in this Review Hearing, this Member, in addition to other members from reading their comments, is of the view that paragraph 534(2) (a) of the Air Regulations is more applicable to fixed wing aircraft and helicopters.

There are instances in balloon flying where following the Air Regulations would be less safe than the contravention thereof. Clarity and accurate definitions in the regulations would go a long way towards reducing the number of charges and strengthening the charges that are laid.

What is sadly clear is that, of the thousands of balloon flights that take place in the Ottawa area each year, only a very few names representing both sides of the issues appear repeatedly before the Tribunal.

SUMMARY

Having set out the foregoing precedents, the following sets out the difficulties in deciding the outcome of this particular Hearing. It is obvious that all the sworn testimony cannot be accurate.

The charge is that Balloon C-FKDW flew over a built-up area between 100-300 feet. The charge originated from a letter written by Mr. H. de Witt, who had videotaped some six minutes of the flight.

Mr. Brookes, in different parts of his testimony, claims different elevations. In his letter, Exhibit M10, he states altitudes of between 300 and 500 feet. In his sworn testimony he states 1,100 feet ASL (approximately 800 AGL). On balance, I do not find Mr. Brookes' testimony to be credible in this respect.

Mr. van Vliet, an acknowledged expert in aerial photography, and a friend of Mr. Brookes for many years, said that he was unable to tell elevations accurately from the tape without much more data and that they could be within a wide range.

Mr. de Witt's testimony based on the tape is suspect despite his detailed exposition. His camera is the type used for hobby and without detailed angles, exact focal lengths and comparison ground measurements, the room for error is far too great. However, because Mr. de Witt filmed for only six minutes of the 1.2 hour flight, I am prepared to give credence to his statement that he was 12 feet above the treetops. He was exact in estimating a similar known measurement when asked by this Member.

There is one other place where the tape can be given credence. At one point, when the camera points almost straight down on the head of a man cutting grass, it is obvious that the flight is over houses, swimming pools, etc. One can question Mr. de Witt's height estimate of 200 feet plus/minus 50 feet, but one cannot question being over a built-up area. Despite this, Mr. Brookes, in his letter Exhibit M10, claims the balloon was south-east of Manotick and not over the built-up area.

A few other discrepancies in Mr. Brookes testimony, while not relevant to the immediate charge, give rise to general concern. In the M10 letter Mr. Brookes claims 4 passengers; there were 5. In the journey log, the total of persons on board appears as 5; there were 6. Mr. Brookes claims the weight was within limits; there were no weights given for this or any other flight listed. Mr. Brookes does not list the balloon as commercial with Transport Canada but does insure it thusly and obviously uses it in this manner.

Finally, in the course of preparation for a flight, Mr. Brookes claims to determine first where he wants to land and then work out a point of departure with the relevant wind information. In fact many balloonists regularly use the take-off point used in this flight as a generally accepted launch area.

Transport Canada does not escape unscathed in this instance. The non-delivery of the first Notice is of little importance. The vagaries of the mails, or any of a number of accidents could explain this. It must be taken as given that the first Notice was sent in the usual manner.

What is of concern is that there were two balloons flying closely together on August 25, 1991. If the investigation was as detailed as the Hearing was told, and the charge was made on the strength of the video tape, then should there not have been two charges? In addition, is it realistic or fair to take until two weeks before the deadline to send out the Notice?

While it is not entirely free from doubt, I am persuaded on a balance of probabilities that the Air Regulations were contravened in the manner set out in the charge. In all of the circumstances however, it is my opinion that a more appropriate fine would be $ 250.00.

I THEREFORE FIND THAT THE AIR REGULATIONS WERE CONTRAVENED AS SET OUT BY THE MINISTER, BUT I RULE THAT THE FINE BE REDUCED FROM $500 TO $250.