Decisions

TATC File No. C-3593-33
MoT File No. Z 5504-066443 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

David Mitchell Bouchard, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96-433, para. 602.14(2)(b)


Review Determination
Franco Pietracupa


Decision: March 29, 2010

Citation: Bouchard v. Canada (Minister of Transport), 2010 TATCE 5 (review)

Heard at Brandon, Manitoba, on January 14, 2010

Held: The Minister of Transport did prove, on a balance of probabilities, that David Mitchell Bouchard contravened paragraph 602.14(2)(b) of the Canadian Aviation Regulations. However, I also find that the Applicant is not liable for the said contravention by virtue of section 8.5 of the Aeronautics Act, having demonstrated to the Tribunal that he exercised all due diligence to prevent the contravention. Consequently, the Notice of Assessment of Monetary Penalty of $750, issued against the Applicant on May 13, 2009, is dismissed.

I. BACKGROUND

[1] On May 13, 2009, the Minister of Transport issued a Notice of Assessment of Monetary Penalty ("Notice") of $750 against the Applicant, David Mitchell Bouchard. It is alleged that, at approximately 01:00 UTC, on or about July 19, 2008, at or near Tilston, Manitoba, Mr. Bouchard operated an aircraft at a distance of less than 500 feet from a Manitoba Hydro power line, thus contravening paragraph 602.14(2)(b) of the Canadian Aviation Regulations ("CARs").

[2] Schedule A of the Notice provides as follows:

COUNT #1: $750.00

Canadian Aviation Regulation 602.14(2)(b), in that, at approximately 0100 hours UTC, on or about July 19, 2008, at or near Tilston, Manitoba, you did operate an aircraft, to wit, a Piper Aircraft Corporation, PA25-235, bearing Canadian Registration marks C-GBXE, at a distance less than 500 feet from a structure, namely, a Manitoba Hydro power line.

The total assessed penalty of $750.00 must be paid on or before June 15, 2009.

Count #1 $750.00

Total Penalty: $750.00

[3] As such, the issues that must be considered and the Determination that will be rendered by the Transportation Appeal Tribunal of Canada ("Tribunal") are based on the following questions:

  1. Was a hazard caused to persons or property on the surface, in contravention of paragraph 602.14(2)(b) of the CARs, thus rendering section 602.15 of the CARs non‑applicable?
  2. Did Mr. Bouchard, the Pilot-in-Command, exercise due diligence to prevent the incident from occurring?
  3. Was aviation safety seriously compromised by Mr. Bouchard's actions? If this is the case, was it appropriate for the Minister to assess a monetary penalty of $750?

II. STATUTES, REGULATIONS AND POLICIES

[4] Subsection 7.7(1) of the Aeronautics Act ("Act") provides as follows:

7.7(1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.

[5] Paragraph 602.14(2)(b) and section 602.15 of the CARs provide as follows:

602.14(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

. . .

(b) in circumstances other than those referred to in paragraph (a), at a distance less than 500 feet from any person, vessel, vehicle or structure.

602.15(1) A person may operate an aircraft at altitudes and distances less than those specified in subsection 602.14(2) where the aircraft is operated at altitudes and distances that are no less than necessary for the purposes of the operation in which the aircraft is engaged, the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated

(a) for the purpose of a police operation that is conducted in the service of a police authority;

(b) for the purpose of saving human life;

(c) for fire-fighting or air ambulance operations;

(d) for the purpose of the administration of the Fisheries Act or the Coastal Fisheries Protection Act;

(e) for the purpose of the administration of the national or provincial parks; or

(f) for the purpose of flight inspection.

(2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

(a) paragraph 602.14(2)(a), where operation of the aircraft is authorized under Subpart 3 or section 702.22; or

(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

(i) aerial application or aerial inspection,

(ii)   aerial photography conducted by the holder of an air operator certificate,

(iii)  helicopter external load operations, or

(iv)  flight training conducted by or under the supervision of a qualified flight instructor.

III. EVIDENCE

A. Minister of Transport

(1) Joe Gaudry

[6] Joe Gaudry, Aviation Enforcement Inspector, Transport Canada, was assigned to the investigation of a possible contravention of paragraph 602(2)(b) of the CARs, pertaining to the alleged damage to a Manitoba Hydro service power line of Manitoba Hydro. Mr. Bouchard was the Pilot‑in‑Command of the aircraft involved.

[7] Inspector Gaudry stated that he was made aware of the incident through a Civil Aviation Daily Occurrence Reporting System ("CADORS") Report that had been issued on the matter by the Transportation Safety Board ("TSB") and distributed within Transport Canada (Exhibit M-1). The Report indicated that, on July 19, 2008, at approximately 01:00 UTC, a Piper PA25‑235, Canadian Registration C‑GBXE, while conducting aerial spraying near Tilston, Manitoba, had struck a farm service power line.

[8] Inspector Gaudry testified that he began the investigation by calling Manitoba Hydro, who confirmed that a service power line had been severed on July 19, 2008, and repaired the following day. A Public Contact and Damage to Corporate Plant Report was provided to Inspector Gaudry by Manitoba Hydro (Exhibit M-6). A follow-up through the Distributed Air Personnel Licensing System and the Civil Aviation Registry of Transport Canada confirmed that the owner of the aircraft was Mr. Bouchard.

[9] Inspector Gaudry testified that Mr. Bouchard was informed by a letter dated August 5, 2008 (Exhibit M-3) and a subsequent telephone call that an investigation was being conducted on the incident of July 19, 2008. During his telephone conversation with Inspector Gaudry, Mr. Bouchard admitted that he had been the Pilot‑in‑Command of the aircraft, had struck the service power line and had reported the incident himself to the TSB and Manitoba Hydro. Further to this conversation, Inspector Gaudry requested a copy of the Aircraft Journey Log and proof of insurance.

B. Applicant

(1) David Mitchell Bouchard

[10] Mr. Bouchard testified that, on July 19, 2008, while conducting aerial spraying, he was the Pilot‑in‑Command of aircraft C-GBXE that had severed the farm service power line. Within the next 24 hours, Mr. Bouchard had informed both the TSB and Manitoba Hydro of the incident.

[11] Mr. Bouchard stated that he has been conducting aerial spraying since 1998, and that all due diligence has been carried out to the best of his abilities prior to spraying the field in question.

[12] In accordance with the Canadian Aerial Applicators Association ("CAAA") and the Wire Watch Program guidelines, Mr. Bouchard stated that he informed the TSB, the owner of the field in question and Manitoba Hydro of the incident. At that time, Mr. Bouchard felt that the incident was closed.

[13] Mr. Bouchard testified that, when he inspected the field from his aircraft, he noticed that the power line poles were obstructed and, in spite of his best efforts, the line was severed.

[14] In cross-examination, Mr. Bouchard was asked why the CAAA was not present at the Review Hearing to testify on his behalf. He replied that he did not know. Mr. Bouchard was asked if he had inspected the area of spraying prior to the application, by walking the area in question. His response was "no". Mr. Bouchard stated that he had conducted two precautionary passes over the field and had noted the hazards prior to commencing spraying. The severed power line was not visible at the time. Mr. Bouchard did not dispute that damage had occurred to the service power line.

IV. EVIDENCE, LEGISLATION AND POLICY ANALYSIS

[15] Both the Minister and the Applicant have agreed that Mr. Bouchard was the Pilot‑in‑Command of aircraft C-GBXE on July 19, 2008, and that a Manitoba Hydro service power line was struck and damaged during an aerial spray flight.

(a) Applicable Regulations

[16] Paragraph 602.14(2)(b) of the CARs states that a person may operate an aircraft at a distance less than 500 feet from any person, vessel, vehicle or structure, if that operation is permitted under paragraph 602.15 (2)(b) which states:

602.15(2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

. . .

(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of aerial application or aerial inspection

. . .

[17] It is the Tribunal's opinion that the key word in paragraph 602.15(2)(b) of the CARs would be "hazard", and more importantly, the intent of not creating a hazard. Inherently, the operation of aerial spraying in itself carries hazard and thus risk. Under most conditions, it would be simple to equate risk proportionally to the hazard when all factors are equal. In his testimony, the Applicant indicated that, to the best of his abilities, the hazards of the operation at hand were taken into consideration and the risks mitigated. Paragraph 602.14(2)(b) of the CARs allows a person to descend below 500 feet from any person, vessel, vehicle or structure without creating a hazard. It is the belief of the Tribunal that the Applicant has been able to mitigate, to the best of his abilities, the risk inherent with descending below 500 feet, and as such, he met the requirement of paragraph 602.14(2)(b) of the CARs. At no time was the flight conducted in a reckless matter, so as to create a hazard.

(b) Due Diligence

[18] During his testimony, Mr. Bouchard clearly indicated that he was duly licensed and qualified for aerial application flights. He meets the requirement of paragraph 602.14(2)(b) of the CARs. Therefore, the statement, "the aircraft is operated without creating a hazard to persons or property on the surface", needs clarification.

[19] As discussed earlier, the following questions remain: Was a hazard created in the conduct of this flight? Understanding that the activity in itself can be deemed hazardous, the important question to consider in regard to this incident is: Was it conducted in a matter so as to mitigate the hazards to persons or property? Mitigating hazards to what we would call an acceptable risk factor involve planning and preparedness.

[20] Although we can debate the level of preparedness and planning, the Applicant testified that the conduct of the flight was conformed to the standards of planning and due diligence to the best of his ability. Geological and geophysical data, which were filed in evidence and not disputed by the Minister, show that several precautionary passes were conducted to identify hazards and obstacles (Exhibit A-4). A picture of the field in question shows obstructed power line poles, which may have hindered the ability of Mr. Bouchard to properly identify all hazards (Exhibit A‑5).

[21] The Minister's witness, Inspector Gaudry, testified that no inspection of the incident was conducted on-site and that the investigation was initiated following the issuance of a CADORS Report (Exhibit M-1). The question is whether more could have been done to eliminate all hazards in this particular case. The Minister raised the fact that a physical ground inspection prior to the aerial spraying did not occur.

[22] From the Applicant's evidence, a physical ground inspection would seem difficult, as access to the field in question seemed restricted. The occupational hazard of aerial spraying cannot be simply ignored, but understood and minimized. Although we can argue that such an inspection could have been conducted, from the evidence presented, this may not have been feasible. Written and oral evidence from the Applicant indicates that this unfortunate incident was accidental and that reasonable precautions in the conduct of this aerial application mission were taken.

(c) Aviation Safety

[23] In the Minister's closing argument, the issue of aviation safety was raised as a contributing factor to the monetary penalty imposed. Most experts in the aviation industry would agree that the key is safety. It must be the underlying common thread in all policies, operational practices and regulatory oversights in aviation.

[24] One such safety net is the need for pilots to use occurrence reporting systems, such as the Wire Watch Program, for the benefit of the aerial application industry. Both the CAAA and Transport Canada have gone on record as stating that the Wire Watch Program contributes to safety in the Aerial Application Industry (Exhibit A-6). It is further noted that most reporting systems are voluntary in nature.

[25] In this particular incident, it was shown that all steps to mitigate the possible damages to property and persons were carried out. The Applicant informed the owner of the field in question, advised Manitoba Hydro and reported the severed power line to the TSB.

[26] Voluntary reporting programs such as the Wire Watch Program play a critical role in our aviation safety net. Ultimately, it would be important that the message from the regulatory agencies involved be one of support and encouragement for operators and pilots to participate in them.

V. DETERMINATION

[26] The Minister of Transport did prove, on a balance of probabilities, that David Mitchell Bouchard contravened paragraph 602.14(2)(b) of the Canadian Aviation Regulations. However, I also find that the Applicant is not liable for the said contravention by virtue of section 8.5 of the Aeronautics Act, having demonstrated to the Tribunal that he exercised all due diligence to prevent the contravention. Consequently, the Notice of Assessment of Monetary Penalty of $750, issued against the Applicant on May 13, 2009, is dismissed.

March 29, 2010

Franco Pietracupa

Member