Decisions

TATC File No. Q-3902-33
MoT File No. N5504-076855

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Jean Beauregard, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Canadian Aviation Regulations, SOR/96 433, subparagraph 602.14(2)(a)(ii), pursuant to section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A-2


Review Determination
Suzanne Racine


Decision: July 2, 2014

Citation: Beauregard v. Canada (Minister of Transport), 2014 TATCE 23 (Review)

[Official English translation]

Heard in: Ottawa, Ontario, on April 9, 2014

REVIEW DETERMINATION AND REASONS

Held: The Transportation Appeal Tribunal of Canada considers that the Minister of Transport has proven, on a balance of probabilities, the three elements under review at this proceeding. The Tribunal upholds the fine of $750 imposed by the Minister for a contravention of subsection 602.14(2)(a)(ii) of the Canadian Aviation Regulations (CARs).

The total amount of $750 is payable to the Receiver General for Canada and must be received by the Tribunal within thirty-five (35) days of service of this determination.

I. BACKGROUND

[1] Jean Beauregard contests the Notice of Assessment of Monetary Penalty, dated July 9, 2012, of $750 for a contravention of subsection 602.14(2)(a)(ii) of the CARs.

[2] Pursuant to Schedule “A” of the Notice for the contravention, Mr. Beauregard, according to the Minister, flew, on or around August 20, 2011, at around 6:49 a.m. local time, a hot-air balloon with registration C-FVFV over a built-up area in Saint-Jean-sur-Richelieu, at less than 500 feet above the highest obstacle situated at a horizontal distance of 500 feet or less from the hot-air balloon.

II. STATUTES AND REGULATIONS

[3] Section 7.7 of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act), reads in part 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.

[…]

[4] Paragraph 602.12 (1)(a) and subparagraph 602.14 (2)(a)(ii) of the CARs read as follows:

602.12 (1) For the purposes of this section and sections 602.14 and 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons if the built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon; or

[…]

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

a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

[…]

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or...

III. PRELIMINARY MATTERS

[5] The Minister submits to the Tribunal a document entitled Admissions of the applicant [translation] (Exhibit M-1) signed by the parties on April 9, 2014. Mr. Beauregard confirms therein:

  • having been at the controls of the hot-air balloon with registration C-FVFV on August 20, 2011, during a flight that took off from Campus Fort Saint-Jean (allegation 3);
  • having attended the pre-flight meeting on the morning of August 20, 2011 (allegation 2);
  • having understood the “general briefing” on the website of the International Balloon Festival of Saint-Jean-sur-Richelieu, and having signed a form attesting to this on August 9, 2011 (allegation 1);
  • being present at the festival only for the second weekend, i.e. August 19 to 21, 2011 (allegation 4);
  • having no previous law enforcement record (allegation 5).

IV. EVIDENCE

A. Minister

(1) Véronik Blanchette

[6] Ms. Blanchette is testifying in her capacity as investigator for Transport Canada, responsible for law enforcement. At the time of her testimony, Ms. Blanchette had been in her position for less than a year. The witness has previously worked as an air taxi pilot and has taught meteorology and aviation regulations. She has a glider's licence but no experience of flying a hot-air balloon. She is familiar with Saint-Jean-sur-Richelieu airport and its surroundings.

[7] On June 5, 2013, Ms. Blanchette, on board a helicopter over the city of Saint-Jean-sur-Richelieu, took 14 aerial photographs of the Richelieu River and the built-up area on the eastern bank of the river opposite the city (Exhibit M-2). She states that these photographs were taken at different angles and distances, at an altitude of around 1,000 feet above ground level (AGL). Photographs 1 to 6, 10, 11 and 14 show the Richelieu River, a bridge between the east and west banks, buildings, a marina, docked ships and a long dock that stretches into the river. Photograph 1 also shows Campus Fort Saint-Jean, located on the west bank, on the right. Photographs 7, 8 and 9 show the city of Saint-Jean-sur-Richelieu, taken from the east bank of the Richelieu River, while photographs 12 and 13 show the built-up area on the east bank of the Richelieu River.

[8] According to the witness, the distance between the east and west banks of the Richelieu River at the height of the marina is 1,000 feet. She calculated this distance using a map of the area obtained on the Google website. The witness also mentions that the built-up area, i.e. the area where buildings are located, extends to where the water begins.

[9] Cross-examination revealed that the photographs were not all taken at an altitude of 1,000 feet AGL. The witness considers a built-up area to be a place with man-made infrastructure, such as a bridge, a dock or a building. On the excerpt of a topographic map of the city of Saint-Jean-sur-Richelieu (Exhibit A-1) submitted by the applicant, Ms. Blanchette points out that the built-up area is clearly identified by the colour pink. This built-up area does not include an area in white in which certain buildings are located along the east and west banks of the Richelieu River.

(2) Omer Lemaire

[10] Mr. Lemaire has been a civil aviation safety inspector at Transport Canada for 25 years. He has an airline transport pilot's licence and has accumulated over 10,000 flight hours in various types of aircraft. He states that for 18 years, he has been responsible for ensuring that requests for air shows, parachuting activities and hot-air balloon festivals meet the applicable standards, issuing Special Flight Operations Certificates (SFOCs), approving each pilot's flight schedule and ensuring safety through ground surveillance. Mr. Lemaire is not a hot-air balloon pilot but has spent 18 hours in hot-air balloons as a passenger.

[11] On August 20, 2011 at around 5 a.m., Mr. Lemaire went to the pilots' tent at the Saint-Jean-sur-Richelieu hot-air balloon festival to ensure that the organising committee gave the additional safety presentation that had to be delivered before the morning flight scheduled for 5:30 a.m. In order to ensure that the pilots complied with the prescribed altitudes and distances following take-off, the witness calculated the expected trajectory of the hot-air balloons according to the meteorological data received from the festival's official meteorologist (Exhibit M-3, page 1) and his own notes (M-3, page 2). He decided to station himself at the marina to get a view of all the hot-air balloons, which he anticipated would travel on a south-west to north-east trajectory. The black dot on photograph 14 (M-2) and the red dot circled on the map (Exhibit M‑4) indicate the location of the witness.

[12] Mr. Lemaire corrects the place of take-off of the hot-air balloon with registration C‑FVFV on the map (M-4) by moving it slightly to the south of the place he had drawn on the map. The new place of take-off is located on the far right of photograph 1 (M-2). Page 3 of the document (Exhibit M-5) submitted as evidence shows a map of the land flown over on the site of Campus Fort Saint-Jean. The witness traces the trajectory of the applicant's hot-air balloon as he observed it from the marina. This is marked as number 1 (M-4). He also traced the trajectory observed on photograph 10 (M-2).

[13] Around 6:30 a.m. on August 20, 2011, five hot-air balloons, including the applicant's, attracted the attention of the witness. They were all more or less following the expected trajectory. Mr. Lemaire estimates that the hot-air balloon flown by Mr. Beauregard, with the number 094 on its basket, was flying at an altitude of no more than 300 feet when it passed in front of him at 75‑80 degrees above the water and less than 200 feet horizontally from the dock as it flew along the west bank of the Richelieu River at a north-east angle. The applicant maintained this altitude by carrying out small warm-ups. He flew slowly and everything seemed fine on board. Then, two or three minutes later, Mr. Lemaire saw the applicant's hot-air balloon climb steadily over the Gouin bridge.

[14] The witness calculated an altitude of 300 feet by stacking up three or four times the height of the applicant's balloon, which he estimates to be 75 feet. To calculate the horizontal distance of 200 feet, Mr. Lemaire mentioned that he had often walked a distance of 100 feet in order to confirm the measurements of take-off areas for hot-air balloons. He calculated the horizontal distance to be twice that which he normally walked.

[15] Mr. Lemaire points out to the Tribunal that the Saint-Jean-sur-Richelieu hot-air balloon festival 2011 pilot's guide (Exhibit M-6) clearly illustrates with diagrams the regulations on minimum altitudes and distances to be complied with when taking off in a built-up area (page 55) and flying in a built-up area (page 58).

[16] Cross-examination of Mr. Lemaire revealed the following main points:

  • Mr. Lemaire has never flown a hot-air balloon;
  • Mr. Lemaire has been sole responsible for hot-air balloon festivals since 2006 only;
  • Mr. Lemaire does not issue Special Flight Operations Certificates (SFOCs) himself but rather recommends that they be issued;
  • From his observation post at the marina, Mr. Lemaire was able, depending on the prevailing winds, to observe the hot-air balloons taking off from sites 1, 2, 4 and 8 of Campus Fort Saint-Jean;
  • Mr. Lemaire recognizes that the applicant is a very experienced pilot. He also mentioned that he was sometimes daring;
  • The distance between the take-off site of the applicant's hot-air balloon and the observation post of the witness is approximately 1 kilometre;
  • Mr. Lemaire explains that the five hot-air balloons he observed all followed a similar trajectory given that they were all exposed to the same wind direction, despite being in different places;
  • According to the witness, the five hot-air balloons he observed all stopped climbing once they had flown past the riverbank. In fact, their altitude even decreased slightly before stabilising;
  • When he had more time to observe the applicant's hot-air balloon over the river, Mr. Lemaire noticed that it was stable and controlled;
  • Five minutes elapsed between the time when the witness first noticed the applicant's hot-air balloon over the river and its position directly above the Gouin bridge;
  • The method used by the witness to calculate the altitude of the applicant's hot-air balloon, using the height of the balloon (around 75 feet) and stacking it as many times as necessary, is an acceptable technique for assessing the approximate altitude of a hot‑air balloon, regardless of the angle of observation;
  • Mr. Lemaire trusts his past experience to assess the speed of hot-air balloons. The rate of climb, wind strength and the weight of the balloon also provide an estimate;
  • The witness is able to determine whether a hot-air balloon is in descent, climbing or in level flight by observing it in relation to the horizon or nearby landmarks, seeing whether the details on the balloon become more or less clear as it rises and falls, or examining the balloon's shape;
  • Mr. Lemaire did not evaluate whether the applicant had encountered a problem, an emergency or any another operational issue, nor did he see fit to meet the applicant;
  • The CARs do not include any definition of the notion of a built-up area. It is thus necessary to rely on case law and common sense, according to the witness, to define this concept;
  • The witness did not recognize the applicant when he saw his hot-air balloon at a distance of less than 200 feet from the dock;
  • Mr. Lemaire realized towards the end of 2011 or the beginning of 2012 that he had made a mistake with regard to the place of take-off of the applicant's hot-air balloon, placing it 100 feet further north than the place where it in fact took off;
  • There were no boats on the Richelieu River that morning.

B. Applicant

(1) Daniel Perrault

[17] Mr. Perrault is a hot-air balloon pilot from Saint-Jean-sur-Richelieu. He is familiar with the area, having trained as a hot-air balloon pilot there and flown in the area for 15 years. He is also co-director of the Gatineau hot-air balloon festival. He explains to the Tribunal that there is a southerly wind in Saint-Jean-sur-Richelieu blowing from Lake Champlain, leading to acceleration caused by nearby mountains, thus creating a wind tunnel situated at an altitude of between 250 and 300 feet above the Richelieu River.

[18] According to the witness, the best place to land a hot-air balloon in Saint-Jean-sur-Richelieu is to the west of Mount Saint-Grégoire because this avoids the prohibited landing areas to the east of the mountain. He has previously flown the hot-air balloon with registration C‑FVFV and states that it is equipped with electronic instruments indicating the rate of climb in feet per minute. He adds that a hot-air balloon does not react instantly, unlike other types of aircraft, so it is necessary to prepare a flight plan and to be vigilant throughout the flight. According to Mr. Perrault, a hot-air balloon following a trajectory over water flies in a non‑built‑up area. The witness is also of the opinion that the place of take-off of the applicant's hot-air balloon, Campus Fort Saint-Jean, is located in a non-built-up area. Finally, he explains that he uses maps supplied by the festival organizers to prepare for his flight.

[19] During cross-examination, Mr. Perrault emphasises that a reasonable rate of climb for a hot-air balloon is 200 feet per minute. It is difficult for a pilot to predict exactly where he will land because of possible sudden changes in wind speed and direction. He explains that in a built‑up area, the pilot should climb steadily in order to comply with aviation regulations and maintain a minimum altitude of 500 feet above the area.

(2) Jean Beauregard

[20] The applicant has held a hot-air balloon pilot's licence since 1986. He has accumulated 1,800 flight hours on 30 types of hot-air balloons. He has flown in controlled areas in major cities such as Chicago in the United States and Antwerp in Belgium. He has also held a private pilot's licence since 1991 and has been an air traffic controller since 1993. He was an air traffic controller at the control tower of Saint-Jean-sur-Richelieu airport before becoming control tower supervisor at the Ottawa airport (Exhibit A-5). In 2006, Mr. Beauregard was co‑director of the Gatineau hot-air balloon festival. Mr. Lemaire told him at the time that his presence brought great credibility to the festival. As part of his job at the control tower, he performs demanding tasks and applies clear rules with the principal aim to ensure safety, which he does with great care and in an almost obsessive manner, according to his account (Exhibit A‑6).

[21] Mr. Beauregard submits as evidence three photocopies of photographs 2, 3 and 10 taken by witness Blanchette (M-2) and the topographic map of Saint-Jean-sur-Richelieu (Exhibit A-7) from which he extracted document A-1. The area shaded by Mr. Beauregard shows the non‑built-up area, according to the key in the margin of maps A-7 and A-1. These photographs also show, according to him, that the buildings located in this area are not as densely grouped as those in the non-shaded area.

[22] The applicant has marked with an “x” in the bottom right-hand corner of the satellite image (Exhibit A-9) the place he chose according to the winds present for his flight from Campus Fort Saint-Jean on the morning of August 20, 2011.

[23] Mr. Beauregard draws the Tribunal's attention to the trajectory he followed on the morning of August 20, 2011, tracing it on map M-4; this trajectory is marked with the number 2.

[24] On the morning of August 20, 2011, the applicant took off (A-9) with the intention of landing safely to the west of Mount Saint-Grégoire. From his place of take-off located, according to him, in a non-built-up area, he climbed gradually at a rate of 200 feet per minute while ensuring that he was far enough apart from the other hot-air balloons. He was flying at an altitude of 300 feet when he reached the Richelieu River, then descended to 100 feet above it to take advantage of the wind current above the Richelieu River, knowing that it would take him north in the direction of Mount Saint-Grégoire. En route over the river, he climbed back up to 200 feet above an anchored boat, identified by a dot on document M-4. All this is in accordance with the diagram on page 59 of the 2011 pilot's guide (M-6). He then climbed to 500 feet because he was approaching the Gouin bridge. Mr. Beauregard insists that he took off in a non‑built-up area and remained in that area before climbing to a regulated height once he reached the Gouin bridge.

[25] Mr. Beauregard has difficulty understanding why the case report prepared by the investigator responsible for enforcement at Transport Canada (Exhibit A-4) differs from the detection notice prepared by Mr. Lemaire (Exhibit A-3). The case report mentions that the applicant maintained an altitude of 100 feet for five minutes at less than 200 feet horizontally from the built-up area. In contrast, the detection report indicates that he maintained an altitude of around 300 feet AGL for at least five minutes before reaching the regulated altitude at the Gouin bridge.

[26] According to Mr. Beauregard, Mr. Lemaire must have been overworked and may have been mistaken in what he thought he saw when observing and taking notes on the trajectories, altitudes and distances of at least five hot-air balloons in just ten minutes on the morning of August 20, 2011.

[27] Mr. Beauregard finds it strange that Mr. Lemaire did not recognize him when he saw him pass at a distance of 200 feet. He mentions to the Tribunal that he has experience of being on the balcony of the 85-foot-high control tower at the Ottawa airport. He was capable of recognizing a person he knew at the end of the parking area at a distance of 250 feet (measurement determined by Google) from his vantage point (photograph 1, Exhibit A-10), or of distinguishing between a man and a woman if he did not know the person. However, he was incapable of recognizing a person he knew on the other side of the other parking area located 512 feet away (distance determined by Google), although he was able to distinguish whether the person was male or female.

[28] The applicant insists, under cross-examination, that he followed a trajectory over the middle of the river, locating his hot-air balloon much further than the distance of 200 feet horizontally from the dock observed by Mr. Lemaire, and that he is in the best position to testify to that fact.

V. ARGUMENTS

A. Minister

[29] The Minister submits that the applicant's hot-air balloon was clearly flying over a built‑up area when it was observed by Mr. Lemaire. The applicant took off near a site located not far from Campus Fort Saint-Jean on which there is infrastructure such as buildings, including the marina and condos/apartments, their respective parking areas, a park that stretches along the river with pathways and docks able to accommodate medium-sized boats (photographs 6, 7 and 8 and Exhibit M-2). This built-up area was recognizable from the air and ended at the river. Since aviation regulations do not provide a definition of a built-up area, the Minister refers the Tribunal to its previous decisions, particularly the case of Kipke v. Minister of Transport, File No. C‑3449‑33 (Review) (Kipke). Generally, the Tribunal has in the past considered a built-up area to be an area with man-made structures such as houses, schools and all the structures required for their use and enjoyment, particularly access roads.

[30] The applicant cannot, as he has attempted to do, invoke the take-off exception provided for in section 602.14(2) of the CARs to prove that his hot-air balloon was entitled to be less than 500 feet above the highest obstacle situated at a horizontal distance of less than 500 feet from the hot-air balloon. The Minister submits that the applicant had planned to fly level at an altitude of less than 500 feet before steadily climbing to 500 feet on approach to the Gouin bridge, which is a significant distance from his place of take-off. The applicant should, in the Minister's opinion, have taken off at the rate of climb necessary to reach gradually the minimum altitude of 500 feet above the highest obstacle and to distance himself as soon as possible from the built-up area by a horizontal distance of at least 500 feet. Indeed, the applicant has admitted that there was nothing preventing him from climbing to 500 feet on take-off.

[31] The pilot's guide written for the Saint-Jean-sur-Richelieu hot-air balloon festival (M-6) reminded the applicant of the altitudes and distances to be complied with during the event with the help of diagrams.

[32] On the issue of horizontal distance, the Minister submits that Mr. Lemaire reported having seen the applicant's hot-air balloon at a horizontal distance of around 200 feet from his observation post, and that he is credible.

[33] The applicant cannot invoke the defence of necessity because the evidence does not prove that he was in any danger.

B. Applicant

[34] The applicant submits that neither Campus Fort Saint-Jean from where he took-off or the Richelieu River are in a “built-up area”. The take-off and the flight over the river were performed in accordance with regulations, even though he was preparing to cruise in the best possible position while travelling north-east in the direction of Mount Saint-Grégoire. He claims to have flown safely and in compliance with regulations.

[35] The applicant believes that the regulations concerning minimum distances and altitudes are not clear. On one hand, too many sections dealing with the subject overlap, thus making them more difficult to understand. On the other hand, the notion of a “built-up area” is not defined therein, leaving it open to interpretation. He has no problem complying with regulations insofar as they are not ambiguous or open to interpretation. It is inconceivable, according to the applicant, that a pilot should consult case law before a flight to ensure compliance with the rules.

[36] The map available to the applicant during the flight indicated that the place of take-off and a lot of the neighbouring east and west banks were in a non-built-up area (area shaded in white, A-1).

[37] The applicant submits that he flew over the centre of the river at a horizontal distance of approximately 500 feet from the dock where Mr. Lemaire observed him. He claims that he was in the best position to know this because he had an overall view, unlike the one Mr. Lemaire had from his position on the ground at the marina (photograph 14, M-2 and Exhibit M-4). Mr. Lemaire does not, in his opinion, have the expertise to identify the operational reasons justifying the actions and decisions of a hot-air balloon pilot.

[38] Finally, the applicant felt ensnared by Mr. Lemaire's surveillance, all the more so because several other pilots have performed similar manoeuvres and not been sanctioned.

[39] He requests that the Tribunal find in his favour and declare the complaint frivolous, and award him costs.

VI. ANALYSIS

[40] The Minister must prove, on a balance of probabilities, each and every one of the elements in contravention of subsection 602.14(2)(a)(ii) of the CARs, namely:

  • On or around August 20, 2011;
  • Around 6:49 a.m. local time;
  • In Saint-Jean-sur-Richelieu;
  • Having flown a hot-air balloon with registration C-FVFV;
  • Over a built-up area;
  • At an altitude of less than 500 feet above the highest obstacle;
  • Situated at a distance of 500 feet or less from the hot-air balloon, measured horizontally.

[41] Of the seven elements cited above, only the last three are under review at this proceeding, the first four having been admitted by the applicant (M-1).

Built-up area

[42] First of all, it is important to examine the notion of a “built-up area” mentioned in subsection 602.14(2)(a)(ii) of the CARs in view of the evidence submitted.

[43] Section 603.01 of subsection 3 of the CARs entitled “Special Flight Operations” stipulates that holding a special aviation event is prohibited unless the provisions of the SFOC issued by the Minister are complied with. This certificate was issued by the Minister to the Saint-Jean-sur-Richelieu hot-air balloon festival corporation on August 8, 2011 (A-2), thus permitting the event to be held August 13 to 21, 2011.

[44] Clause 6 of the SFOC specifies that flights must be carried out pursuant to section 603.07 of the CARs.

[45] Section 603.07 reads as follows:

603.07 No person shall operate an aircraft in a special aviation event at a distance from, or at an altitude above, a spectator area, a built-up area or an occupied building if that distance or altitude is less than the minimum specified in section 623.07 of the Special Flight Operations Standards. (Emphasis added.)

[46] Chapter 2 of Standard 623 specifies the procedures to be followed for retention of the SFOC during hot-air balloon festivals. The minimum safe distances and altitudes from spectators, built-up areas and occupied buildings are set out in subsections 4(a), (b) and (c) of Standard 623.07. Clause 15 of the SFOC issued to the Saint-Jean-sur-Richelieu hot-air balloon festival corporation, in accordance with the Standard, permits hot-air balloons to fly at a minimum distance of 200 feet from a person, ship, vehicle or structure, except over a built-up area. The information note attached to section 4(a) of Standard 623.07 indicates that there are frequent requests to fly over a stretch of water in the area downwind from the launch site, in this case the Richelieu River, thus enabling boaters to watch the hot-air balloon show from the water. It is made clear, both in the Standard and in Clause 15 of the SFOC, that this authorisation does not apply in built-up areas.

[47] Clause 16 of the SFOC permits minimum altitudes in accordance with the Standard on approach, enabling hot-air balloons to fly at low altitude, under certain conditions, over the spectator area. These two special authorisations of minimum distances and altitudes are granted only for special aviation events, particularly hot-air balloon festivals. They constitute an exception to the general flight rules set out in subpart 2 of the CARs and allow:

  • among other things, the take-off of a hot-air balloon in a built-up area at a positive rate of climb up to a maximum altitude of 500 feet above the highest obstacle situated at a distance of at least 500 feet from the hot-air balloon, measured horizontally (in accordance with subparagraph 602.13(3)(e)(i) of the CARs). It should be understood that this regulation allows the pilot to be below the regulated 500 feet without penalty provided that he performs the climb without delay.
  • flying a hot-air balloon, except on take-off, approach or landing, over a built-up area at an altitude of at least 500 feet above the highest obstacle situated at a horizontal distance of at least 500 feet from the hot-air balloon (in accordance with subparagraph 602.14(2)(a)(ii) of the CARs).

An aircraft is deemed to be flown over a built-up area for the purposes of section 602.14 of the CARs if the built-up area is at a distance, measured horizontally, of 500 feet or less from a hot-air balloon (in accordance with paragraph 602.12(1)(a) of the CARs).

[48] It is important to note that these regulations apply when the hot-air balloon is over a built‑up area. However, as indicated by the parties during the hearing, the expression “built-up area”, which is essential for understanding the prohibitions and conditions concerning low-altitude flights, is not defined in section 101 of the CARs. Section 3 of the Act does not provide any more guidance on this. The Minister requests that the Tribunal rely on the case law it has developed on the subject. The applicant considers it inconceivable that a pilot should know the definition of a built-up area as developed in case law.

[49] In the absence of a definition in the CARs and the Act, it seems appropriate to look to the dictionary for the definition of these terms and to interpret them in the fairest and broadest sense compatible with their purpose (in accordance with section 12 of the Interpretation Act, R.S.C., 1985, c. I-21). The Petit Larousse dictionary defines “zone” [“area”] as a stretch of land in a region, city, territory or district defined by certain characteristics; and “bâtie” [“built-up”] as property or land on which buildings or structures are constructed.

[50] Furthermore, this notion of a built-up area should also be reflected in the situation on the ground. Indeed, an appeal panel of the Tribunal, in the case of Minister of Transport v. Foxair Heliservice Inc., 2002, CAT File No. Q-2427-37 (Appeal), referring to the case of R. v. Crocker, 1977, 33 N.S.R. (2d) 177, upheld the judge's suggestion that an assessment of whether or not an area is built-up must take into account the situation on the ground, namely that the pilot must be able to recognize built-up areas from the air. In other words, are there high-level structures constructed on the land identifying this area as built-up?

[51] In the Kipke case, the member reviewed the Tribunal's case law on the notion of a built‑up area. This notion must be decided according to the facts of each individual case in accordance with Minister of Transport v. Farm Air Ltd., 2004, TATC File No. C-2810-41 (Review).

[52] The member points out that a built-up area comprises not only built structures, but also their surroundings such as access roads and parking areas.

[53] Although the Tribunal is of the opinion that it is not the pilot's responsibility to be aware of all the case law on this subject, it does, however, believe the pilot to be capable of distinguishing between a built-up area and a non-built-up area both on the ground and from the air. A built-up area suggests that man has erected, constructed or put up structures such as houses, schools and other buildings, in accordance with the case of Minister of Transport v. Vincent, 2003, CAT File No. Q-2531-33 (Review). A non-built-up area, by contrast, is an area devoid of man-made structures.

[54] None of the photographs submitted by the Minister in M-2 enable us to distinguish clearly the place of take-off chosen by the applicant on August 20, 2011, although Mr. Lemaire located it at the far right of photograph 1. The latter has the merit of showing us the surroundings of the site, but satellite photograph A-9 shows us the take-off site as identified by the applicant with an “x” in the lower-right corner. The proximity of the take-off site to the presence of man-made structures is clear to see.

[55] Map A-1, an extract of the topographic map of Saint-Jean-sur-Richelieu (A-7), shows that the take-off site is situated close to an area less dense than the city of Saint-Jean-sur-Richelieu and in a green environment. We can see, however, that the take-off site is in the vicinity of certain buildings appearing in grey on map A-1 and in black on A-7 and forming part of Campus Fort Saint-Jean. We can see these nearby structures connected by access roads on photographs 1 to 11 inclusive (M-2).

[56] The built-up area is perfectly recognizable from the air, as is clear from satellite photograph A-9.

[57] The applicant states that he took off in a non-built-up area because the take-off site is located in the area shaded in white on map A-1, as opposed to the area shaded in pink defined in the key as Built-up Area [in English in the original]. According to the Tribunal, this interpretation is wrong. With reference to map A-7, from which map A-1 is extracted, the key indicates the term Agglomération/Built-up area for the area shaded in pink and the terms rue [“street”], parc [“park”] and terrain de sport [“sports facilities”] for the area shaded in grey. The Petit Larousse dictionary defines “agglomération” as a group of houses. The area shaded in pink on maps A-7 and A-1 (agglomération/built-up area) is associated with a residential area, as opposed to a commercial, industrial or other area for the areas shaded in grey or white. Witness Blanchette also states under cross-examination that the built-up area is clearly identified by the colour pink on map A-1, but she adds that there is also another area, shaded in white, where there are some buildings along the east and west banks of the Richelieu River. The notion of a built-up area [in English in the original] as defined in the Harrap's dictionary as an [area covered with buildings] (i.e., an urban area), should not be confused with the [more general] notion of a built‑up area. The expressions “built-up area” and “urban area” are not synonyms; a built-up area can be located both in an urban area and in the countryside or a less dense area. Indeed, even in the white (A-1) or grey (A-7) areas, there are various buildings or structures designed for purposes other than residential. The situation on the ground certainly does not mean that this is not a built-up area. For that reason, the Tribunal does not share the applicant's opinion that the shaded areas on the three photographs (A-8) represent non-built-up areas.

Altitude of less than 500 feet and horizontal distance of less than 500 feet

[58] Was the altitude and distance of the trajectory followed by the applicant's hot-air balloon on the morning of August 20, 2011 below that prescribed in the regulations over a built-up area?

[59] From his observation post at the marina, Mr. Lemaire states that the hot-air balloon flown by the applicant was flying at a maximum altitude of 300 feet when it passed in front of him at 75-80 degrees above the water. The hot-air balloon was at a horizontal distance of less than 200 feet from the dock when it flew along the west bank of the Richelieu River at a north-east angle. The line marked with the number 1 on map M-4 represents, in his opinion, the trajectory of the hot‑air balloon he witnessed on the morning of August 20, 2011, as does the blue line traced in ink on photograph 10 (M-2).

[60] Furthermore, the applicant traces on the same map (M-4) a very different trajectory marked with the number 2. After taking off at a rate of climb of 200 feet per minute, he was flying at an altitude of 300 feet when he reached the Richelieu River then descended to 100 feet above the river to take advantage of the wind current there. He flew over the centre of the Richelieu River at around 500 feet from both sides. He climbed to 200 feet above an anchored ship and eventually climbed steadily to 500 feet northeast on approach to the Gouin bridge.

[61] The Tribunal has been given two very different testimonies. The Minister calculated the altitude of the hot-air balloon to be 300 feet, whereas the applicant testified that it was 100 feet. The Minister calculated the horizontal distance between the hot-air balloon and the built-up area to be 200 feet, whereas the applicant states that it was around 500 feet, over the centre of the Richelieu River.

[62] Faced with two conflicting testimonies, the Tribunal must assess them and attempt to decide, in light of the circumstances, which of the two is more credible (in accordance with the case of Minister of Transport v. Albert, 2000, CAT File No. Q-1878-33 (Review)). A Tribunal always sets about evaluating testimony with the presumption that witnesses who have sworn to tell the truth will do so, but it may be the case that even when they believe they are telling the truth, witnesses who seem eminently credible are mistaken. There is a contradiction concerning one crucial fact, namely the trajectory followed by the hot-air balloon on the morning of August 20, 2011. Mr. Perrault's testimony provides no additional information on the trajectory followed by the hot-air balloon, nor was he an eyewitness on the morning of August 20, 2011.

A. Minister

[63] According to the Minister's explanation, the hot-air balloon flew over a built-up area at less than 500 feet above the highest obstacle (at 300 feet) and a distance of less than 500 feet from the hot-air balloon measured horizontally (at most at 200 feet).

[64] On the morning of August 20, 2011, the Minister's witness, Mr. Lemaire, was given the task of monitoring the hot-air balloons that took off from Campus Fort Saint-Jean, choosing an appropriate observation post according to wind strength and direction. The location proved adequate because the five hot-air balloons observed that morning all stabilised at low altitude over the river and in the expected direction.

[65] Witness Lemaire gradually compiled and noted his observations for the five hot-air balloons, including the applicant's, which was the second to be observed. The evidence shows that the hot-air balloons were not travelling very fast and were naturally spread out, enabling witness Lemaire, who was certainly very busy carefully noting his observations, to calculate the distances and altitudes maintained by each hot-air balloon. The Tribunal does not believe that he could have been so overworked as to miscalculate, as the applicant states, because he had at least three to four minutes between each observation (M-3) and his notes are relatively well ordered.

[66] Mr. Lemaire testified clearly before the Tribunal, even remembering the angle at which he noticed the applicant's hot-air balloon. Indeed, Mr. Lemaire calculated that the hot-air balloon flown by Mr. Beauregard was travelling at a maximum altitude of 300 feet, measured at an angle of 75-80 degrees, and that he maintained this altitude before climbing steadily on approach to the Gouin bridge. The angle of 75-80 degrees was not contested. The altitude of 300 feet calculated by Mr. Lemaire seems realistic taking into account the presence of a wind tunnel situated at an altitude of between 250 and 300 feet above the Richelieu River, as stated by Mr. Perrault.

[67] If Mr. Lemaire saw the applicant's hot-air balloon at an altitude of 300 feet and an angle of 75-80 degrees from his observation post, the Tribunal has calculated that the hot-air balloon was situated, on a horizontal basis, within around 80 feet of the witness assuming an angle of 75 degrees. The hot-air balloon was even closer, within around 50 feet, if we assume an angle of 80 degrees. These figures are the mathematical result of the tangent of an angle defined as the quotient between the opposite side (300 feet) and the adjacent side (distance between the hot-air balloon and the observer). These figures, calculated using trigonometry, suggest that the hot-air balloon was not over the centre of the river as stated by the applicant, and therefore the latter did not comply with the aviation regulations in force in a built-up area.

B. Applicant

[68] According to the applicant' explanation, the hot-air balloon took off from and flew over a non-built-up area at all times and the minimum altitudes and distances prescribed in subsection 602.14(2)(a)(ii) of the CARs did not apply to his flight.

[69] The Tribunal, however, questions the assertion that the applicant flew over a non-built-up area at all times. The presentation of three photocopies, 2, 3 and 10 (A-8) of photographs 2, 3 and 10 (M-2), claiming that the shaded part is in a non-built-up area, suggests that, in the applicant's opinion, his flight complied with the regulations. The Tribunal has previously rejected this interpretation. It even questions the fact that a seasoned pilot having accumulated 1800 flight hours in 30 types of balloons, and the co-director of the Gatineau hot-air balloon festival, is unsure of the notion of a built-up area.

[70] In his testimony, Mr. Beauregard mentions that he was flying at an altitude of 300 feet when he reached the Richelieu River, then descended to 100 feet to take advantage of the wind tunnel above the river. However, Mr. Perrault, a hot-air balloon pilot familiar with Saint-Jean-sur-Richelieu due to having trained as a pilot there and flown there for 15 years, told the Tribunal that there is usually a southerly wind in the area, creating a wind tunnel at an altitude of between 250 and 300 feet above the river. Is the applicant's change in altitude realistic taking into account that, according to Mr. Perrault, a wind tunnel is generally located 250-300 feet from the river? His testimony, as well as that of the applicant, tends to confirm rather than deny the Minister's position. Furthermore, at an angle of observation of 75-80 degrees, a hot-air balloon at an altitude of 100 feet, according to the applicant, would be around 25 feet from the observer (calculation of the tangent). The calculation places the hot-air balloon closer to the built-up area on the west bank than to the centre of the river. The Tribunal is of the opinion that the altitude of 300 feet observed by Mr. Lemaire is more likely than the altitude of 100 feet reported by the applicant.

[71] Mr. Beauregard finds it strange that Mr. Lemaire did not recognize him on board the hot‑air balloon. The Tribunal considers the applicant's observations at the Ottawa control tower irrelevant. The fact that Mr. Lemaire saw a person wearing a helmet on board and did not recognize that person is of no importance to this case. The Tribunal is of the opinion that he had other means at his disposal to identify the pilot on board the hot-air balloon and his attention was focused more on the balloon, its distance, its altitude and on taking notes in the three minutes separating the applicant's hot-air balloon from that of the third participant (M-3).

[72] The evidence submitted does not permit the Tribunal to conclude that the trajectory of the applicant's hot-air balloon would have been different if the applicant's hot-air balloon had taken off from the first site mistakenly identified by the witness Lemaire and situated 100 feet to the north-east of the actual take-off site. The same applies to the possibility of operational issues. The presence of an anchored boat upstream from the position occupied by Mr. Lemaire is not relevant in the circumstances, given the version favoured by the Tribunal.

[73] The Minister's case is not, therefore, frivolous in the sense of section 19(1)(a) of the Transportation Appeal Tribunal of Canada Act, as claimed by the applicant, and the latter may not be awarded costs.

VII. DETERMINATION

[74] The Tribunal considers that the Minister has proven, on a balance of probabilities, the three elements under review at this proceeding. The Tribunal upholds the fine of $750 imposed by the Minister for a contravention of subsection 602.14(2)(a)(ii) of the CARs.

July 2, 2014

Suzanne Racine

Member


Appeal decision
Caroline Desbiens, Franco Pietracupa, Gary Drouin


Decision: June 3, 2015

Citation: Beauregard v. Canada (Minister of Transport), 2015 TATCE 12 (Appeal)

[Official English translation]

Heard in: Ottawa, Ontario, on January 22, 2015

APPEAL DECISION AND REASONS

Held: The appeal is dismissed. The Transportation Appeal Tribunal of Canada confirms the determination made by the review member on July 2, 2014 and upholds the fine imposed by the Minister.

The total amount of $750 is payable to the Receiver General for Canada and must be received by the Tribunal within thirty-five (35) days of service of this decision.

I. BACKGROUND

[1] The appellant disputes the notice of July 9, 2012 assessing a penalty in the amount of $750 for a contravention to subparagraph 602.14(2)(a)(ii) of the Canadian Aviation Regulations, SOR/96‑433 (CARs), issued pursuant to section 7.7(1) of the Aeronautics Act, R.S.C., 1985, c. A‑2(Act) by the Minister of Transport (Minister).

[2] Schedule “A” of the notice of assessment alleges that the appellant, on or around August 20, 2011, at around 6:49 a.m., operated a hot-air balloon with registration C-FVFV in Saint‑Jean‑sur‑Richelieu above a built-up area, at an altitude lower than 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon.

[3] The review hearing was heard on April 9, 2014 in Ottawa, Ontario, by Transportation Appeal Tribunal of Canada (Tribunal) member Suzanne Racine. On July 2, 2014, the member rendered her review determination, deeming that the Minister had proven, on a balance of probabilities, the three elements being challenged by the appellant. The Tribunal upheld the $750 fine imposed by the Minister for a contravention to subparagraph 602.14(2)(a)(ii) of the CARs.

[4] During the review hearing, a document entitled “Admissions of the applicant” [translation] (Exhibit M-1) signed by the parties on April 9, 2014 was filed. The appellant confirmed therein:

  • having been at the controls of the balloon with registration C-FVFV on August 20, 2011, during a flight that took off from Campus Fort Saint-Jean;
  • having taken part in the pre-take-off session during the morning of August 20, 2011;
  • having followed the “general briefing” on the website of the International Balloon Festival of Saint-Jean-sur-Richelieu and having signed a form attesting to this on August 9, 2011;
  • only being present at the festival during the second weekend, i.e. from August 19 to 21, 2011; and
  • having no previous law enforcement record.

[5] Paragraph 602.12(1)(a) and subparagraph 602.14(2)(a)(ii) of the CARs read as follows:

602.12 (1) For the purposes of this section and sections 602.14 and 602.15, an aircraft shall be deemed to be operated over a built-up area or over an open-air assembly of persons if the built-up area or open-air assembly of persons is within a horizontal distance of

(a) 500 feet from a helicopter or balloon; or

[…]

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

(a) over a built-up area or over an open-air assembly of persons unless the aircraft is operated at an altitude from which, in the event of an emergency necessitating an immediate landing, it would be possible to land the aircraft without creating a hazard to persons or property on the surface, and, in any case, at an altitude that is not lower than

[…]

(ii) for balloons, 500 feet above the highest obstacle located within a horizontal distance of 500 feet from the balloon, or

[6] According to the review member's analysis, the Minister had to prove, based on the balance of probabilities, all of the elements of the contravention to subparagraph 602.14(2)(a)(ii) of the CARs, namely:

  • on or around August 20, 2011;
  • at around 6:49 a.m. local time;
  • in Saint-Jean-sur-Richelieu;
  • having operated a balloon registered with C-FVFV;
  • above a built-up area;
  • at an altitude of less than 500 feet above the highest obstacle;
  • located within a horizontal distance of 500 feet or less from the balloon.

[7] Only the last three elements were the subject of a request for review from the appellant, who did not dispute the first four (Exhibit M‑1).

[8] The review member ruled that the expression “built-up area”, which is essential for the understanding of prohibitions and qualifications pertaining to low-altitude flight, is defined by the applicable case law since it is not defined in section 101 of the CARs. After analyzing the case law which interprets the notion of a built-up area and after verifying the plain-language meaning of the words making up this expression as provided in dictionaries, the member concluded that the expression suggests an area where man has erected, built or put up structures such as houses, schools and other buildings and that a built-up area not only includes erected structures but also areas around these structures, such as access roads and parking areas. She decided that in this case, the appellant was “capable of distinguishing between a built-up area and a non-built-up area both on the ground and from the air” (paragraph 53 of the review determination).

[9] As for the last two elements that the respondent had to prove for the contravention to subparagraph 602.14(2)(a)(ii) in the CARs, namely the altitude of the appellant‘s balloon in relation to the highest obstacle and its distance measured horizontally, the review member noted that she was faced with two very different versions. On the one hand, the Minister's witness had estimated the altitude of the balloon to be between a maximum of 200 to 300 feet above the Richelieu River while the appellant had testified that it was more likely 100 feet above the river. As for the horizontal distance, the Minister's witness had assessed the distance between the balloon and the built-up area at a maximum of 200 feet while the appellant had asserted that he was in the middle of the Richelieu River, which has a width of around 1,000 feet, thus putting him at more or less 500 feet from this built-up area.

[10] In the presence of two conflicting pieces of evidence, and having assessed all testimonies and conflicting evidence on file, the review member concluded that the respondent Minister had discharged his burden of proving on a balance of probabilities that, on the morning of August 20, 2011, the appellant's balloon was at an altitude less than 500 feet and at a horizontal distance less than 500 feet from the dock, this being the place where the respondent's eyewitness, Mr. Omer Lemaire, was positioned. According to the member, there was no doubt that the dock where witness Lemaire was located constituted a man-made structure, as well as the surrounding area between the dock and the take-off area, where, as shown in the aerial photographs (Exhibit M-2), several man-made structures on the bank of the Richelieu River crossed by the appellant can be seen. By taking into account the altitude of 300 feet observed by witness Lemaire under an angle of 75° to 80° from his observation post and by using trigonometry-based mathematical calculations, the review member pointed out that the distances calculated in this way corroborated the observations by the respondent Minister's witness Lemaire, since these calculations demonstrated that the balloon was, on a horizontal basis, within a radius of approximately 80 feet from the witness taking into account the 75° angle and within a shorter radius of approximately 50 feet with the 80° angle, therefore suggesting that the balloon was not at the centre of the river as the appellant had asserted during the review hearing.

[11] In an email dated July 26, 2014, the appellant appealed the Tribunal's review determination based on the following grounds:

[Translation]

1 - The member did not take into consideration the fact that the notice of violation from Transport Canada relies on a regulation that, in Transport Canada's own opinion, does not apply in this situation.

2 - The member did not take into consideration the various phases of the flight which were in accordance with the Transport Canada-approved diagrams.

3 - The member made errors and omissions in applying trigonometry and in calculating distances, which led her to base her determination on a trajectory that I never flew.

4 - The member did not take into consideration the many errors in Transport Canada's file in assessing witness Lemaire's credibility and in determining the balance of probabilities.

5 - The member estimated the difference between the take-off site imagined by witness Lemaire and the actual take-off site to be 100' but it is in fact a difference of more than 1,800'.

6 - The member did not take into consideration the instruments available to the applicant or the fact that the applicant was in a better position to evaluate his aircraft's position, while witness Lemaire relied only on rough estimates. The resulting balance of probabilities is therefore in my favour rather than in witness Lemaire's.

7 - The member did not take into consideration the particular performance of a hot-air balloon.

8 - The member commits linguistic discrimination in attempting to define a built-up area.

9 - I consider myself to be fully accountable for my decisions and actions but I ask to be judged according to my actual trajectory, not a trajectory that wasn't mine such as that which the member relied on in making her determination.

10 - At the April 9 hearing, one of my witnesses was stranded abroad due to weather and could not make it to the hearing. I would like to have the opportunity to have him heard at the appeal hearing. He is a land surveyor whom I had hired to explain to the Tribunal the method of determining an object's position in space.

[12] At the appeal hearing, the appellant withdrew the arguments appearing in points 1 and 10 above.

II. PRELIMINARY MEANS

[13] At the beginning of the appeal hearing, the appellant asked to provide new evidence, namely an aerial map from the Google Maps website showing the Richelieu River and the take‑off site on which he had transposed the trajectory of his balloon. According to the appellant, this evidence aimed to justify the measurements of his trajectory and to present his position more clearly without, in his view, actually adding new evidence.

[14] The respondent objected to this new evidence since it was available at the time of the review hearing. Specifically, under section 14 of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, the appeal panel may, if it considers it necessary for the purposes of the appeal, hear evidence not previously available. The respondent submitted that this evidence was available during the review proceedings and that it constituted new evidence since the trajectory indicated on the new map aimed to call into question the point which had been debated previously and that had been settled by the member. Besides, the respondent argued that the appellant had several maps at his disposal that were filed during the review hearing, in particular Exhibits M‑4 and A‑9, which show his trajectory and his actual take-off location, and which he could use for the purposes of his appeal argument. Lastly, the respondent pointed out that accepting this new evidence would be detrimental to him since he had not been able to cross-examine the appellant with respect to this evidence and he did not have the possibility of examining the interpretation of the trajectory on this map provided by the appellant with the help of his witnesses so as to compare it and verify if there was any divergence with the trajectory laid out by the appellant on Exhibit M‑4.

[15] The respondent referred to section 14 of the aforementioned Transportation Appeal Tribunal of Canada Act in support of his objection and provided the determination of the Tribunal in the Makarowski v. Canada (Minister for Transport) case[1]. In this case, the appellant attempted to file an excerpt of the Kenn Borek Air Ltd. Company Manual while recognizing that this element was available at the time of the review hearing. The appeal panel rejected the request of the appellant on the grounds that this document could have been produced at the time of the review hearing and also because the appellant had not proven that it was relevant to the appeal proceedings.

[16] In the case at bar, the appeal panel rejected the appellant's request aiming at providing a new aerial map showing the trajectory of the appellant's balloon for the reasons that this map was available at the time of the review hearing and that the appellant had not demonstrated that it would be necessary to admit it at the appeal hearing given that the documents on the case file, including Exhibit M‑4 (topographical map), on which the trajectories were indicated, and Exhibit A‑9 (Google Earth map), provided by the appellant and showing his take-off location, were sufficient to allow him to present his argument on appeal. The appeal panel also emphasized, on the one hand, that an appeal hearing does not aim to fill any gaps in the evidence introduced during the review hearing where the documents were available and, on the other hand, the addition of a trajectory on a new map could cause prejudice to the respondent who no longer had any witness to provide counter-evidence, if need be.

III. GROUNDS OF APPEAL AND APPELLANT'S ARGUMENTS

(1) The review member erred in fact and in law regarding the notion of “built-up area”

[17] The appellant did not bring forward all the grounds of appeal which he had raised in his letter of July 26, 2014 and presented his arguments differently. His first ground of appeal is that the review member erred regarding the notion of “built-up area”, since according to her conclusion, any structure could constitute a built-up area, therefore rendering any exceptional cases provided for by the CARs as useless, including the situation illustrated in the diagram on page 57 of Exhibit M‑6 in the case of an approach that can be made within an altitude of 500 feet. This argument includes the one set out in point 2 of his letter of July 26, 2014 outlining his grounds of appeal. Moreover, he submits that since training flights with an instructor can pass within an altitude of 200 feet above a road, a road cannot be deemed as being a structure to be included in the expression “built-up area”.

[18] According to the appellant, the review member also erred in concluding that the Richelieu River constitutes a built-up area since there is no structure above the river. The review member also failed to consider that the appellant's take-off had been carried out in a non-built-up area. In summary, the appellant argues that the review member failed to consider the fact that he took off in a non-built-up area and that his trajectory was still carried out in a non-built‑up area up to the middle of the Richelieu River. In support of this claim, the appellant argues that Exhibit A‑9, which he filed and on which he indicated with an “X” the location he took off from, shows that there is no structure around the place where he took off. The appellant submits that Mr. Lemaire, during his cross-examination, might have even admitted that the river constituted a non-built-up area. On this point, the appellant refers back to line 25 of page 78 of the review hearing transcript, where the witness seems to imply that when balloons leave the territory of the City, they leave the “built-up area”.

[19] In addition, the appellant thus submits that even if he were in a built-up area, which he denies, he was in a take-off phase up to the river, which allowed him to be at an altitude lower than 500 feet, and that, subsequently, he was on the approach phase to land, which still allowed him to be within 500 feet in altitude, according to him, as illustrated in the diagrams on pages 57 and 58 of Exhibit M‑6.

[20] By referring to paragraph 54 of the review determination, where the member points out that satellite photograph A‑9 shows that man-made structures are present near the take-off site, the appellant argues that the review member also failed to consider that he was allowed to take off from a site located close to man-made structures. The appellant specifies that one can take off from a site where buildings are erected since the take-off phase constitutes an exception to the minimum altitude rule.

[21] The appellant also submits that the review member erred in concluding that the built-up area was perfectly recognizable by the appellant from up high on the basis of the satellite photograph (Exhibit A‑9). According to the appellant, this satellite photograph does not provide the same outlook as the one that he had since he was at a 130-metre altitude (accounting for a ground elevation of 30 metres and his altitude of 300 feet above ground level), while Exhibit A‑9 is a photograph taken at an altitude of 1.59 kilometres. The appellant therefore submits that the member had to take his actual position into account which, being lower, does not provide the same perspective with respect to the perception of a built-up area from the balloon.

[22] The appellant further submits that the review member erred when she differentiated the notion of an urban agglomeration from that of a built-up area in paragraph 57 of her determination in connection with topographical map A‑7 and when she pointed out that a built‑up area can be in an urbanized area as well as in a less densely organized space and that the expressions “built-up area” and “urbanized area” are not synonymous. The appellant argues that the notion of “urban agglomeration” is not known to pilots. According to the appellant, he was entitled to trust topographical map A‑7 to conclude that the agglomeration area identified in pink was equivalent, according to him, to a built-up area (which he transposed onto map A‑1) excluding his take-off location and which shows that the white area on map A‑1 would be equivalent to the grey area (in his view, a “non-built-up” area) on map A‑7 and located outside the agglomeration. According to him, this grey area on map A‑7, which includes his true take-off site and the marina, would not be included in the notion of “built-up area”, contrary to what the member concludes in paragraph 57 of her determination.

(2) The review member erred in granting credibility to the error-ridden testimony of Mr. Omer Lemaire, whereas she should have granted more credibility to his own evidence, to the extent that she could not conclude that the respondent had discharged his burden of proof on a balance of probabilities

[23] These grounds correspond to point 4 of the letter of July 26, 2014.

[24] The appellant argues that the review member should have taken into account the fact that witness Lemaire had not seen the entire trajectory of his balloon from his take-off up to his position at the centre of the river, as evidenced in his testimony on cross-examination (review hearing transcript: page 139, lines 12 and 13). Specifically, witness Lemaire admitted that for some time, he had not observed the appellant in the air because there were a wooded area and some tall trees, and that he had begun to be more attentive when he had seen the appellant's balloon stop rising, descending in altitude and then stabilizing. At that time, the appellant had just left the north bank of the Richelieu River. Consequently, according to the appellant, since witness Lemaire had not observed his entire trajectory, he had extrapolated it on the basis of the wind speed and he could not therefore arrive at the precise trajectory when he drew it on Exhibit M‑4 at the hearing. Therefore, by granting credibility to the trajectory drawn by witness Lemaire in Exhibit M‑4 and by ignoring the one traced by the appellant on the same document, the member may have committed an error in her assessment of the evidence.

[25] The appellant further submits that the member committed an error by concluding in paragraph 72 of her determination that the trajectory of the appellant's balloon would not have been very different if the balloon had taken off from the site that witness Lemaire erroneously identified at 100 feet to the northeast of the site that she had determined to be his actual take-off site, also in error according to the appellant. Furthermore, if the member had taken into account the true site he had in fact taken off from, she could not have granted credibility to Mr. Lemaire's evidence (which had placed the appellant's balloon at a maximum distance of 200 feet from his point of observation) but would instead have granted credibility to his claim according to which he was at the centre of the river (and therefore at around 500 feet). This includes the fifth point of his letter of July 26, 2014. In other words, the appellant argues that the take-off site misidentified by witness Lemaire was thus located at 1,200 feet to the northwest of the actual take-off site and that if the member had taken this element into account, that could have compromised the evidence of Mr. Lemaire placing the appellant's balloon at a distance of less than 200 feet horizontally from his point of observation. Therefore, the appellant submits that by not seeking to understand the difference between both take-off points and between both trajectories drawn on map M‑4, the member was not in a position to validate or verify whether the 200-foot distance calculated horizontally from the observation place of witness Lemaire was plausible.

[26] The appellant also submits that the member did not note the doubts and inaccuracies of witness Lemaire contained in his main testimony, which appear especially on pages 65 and 139 of the review hearing transcript. On page 65, it can be seen that witness Lemaire corrected himself when he estimated the maximum altitude of 300 feet. At first, he indicated an altitude of 300 feet above the stretch of water, to then specify that he was referring to an altitude above the “beginning” of the stretch of water. The appellant submits that, as shown in the transcript on page 139, line 19, witness Lemaire hesitated again when he described the descent in altitude of the appellant's balloon by saying that he was flying over the water to correct himself by saying that he had just left the bank.

[27] Based on the testimony of witness Lemaire, according to which the appellant's balloon had followed an angle of 25° toward the northeast when he left the bank, the appellant submits that according to his trajectory, he could not then have been at 200 feet (horizontally) from the dock when he flew over the river. Based on the angle of 20° to 25° indicated by witness Lemaire, the appellant argues that from the actual take-off site, at an angle of 22.5°, his position would have brought him to about 845 feet from the observation site of witness Lemaire. In support of his claim, the appellant presented a document (hereafter referred to as item “R-1”) showing his different interpretations of trajectories calculated according to the observations of witness Lemaire and by taking into account the actual take-off site and the new Google Earth map which he attempted to introduce as evidence at the appeal but that was not admitted.

[28] The appellant also submitted another document (hereafter referred to as item “R‑2”) which, according to him, reconstructs the actual trajectory of the balloon from the true take-off site. According to his calculations, the balloon had followed an angle of 38° during take-off based on the observed surface winds, changing its trajectory to 8° as it rose and turned toward the northeast in the river's current, and finally continuing its trajectory on an angle of 48°, in line with the wind aloft. The actual position of the balloon opposite witness Lemaire's observation post would therefore have been at a distance of 535 feet from the bank, according to the Google Earth map. It should be noted, however, that this item R-2 contains information and elements which were not submitted into evidence by the appellant during his testimony at the review hearing. In essence, the appellant submits that if his balloon had left the bank at an angle of 20° to 25° toward the northeast as claimed by witness Lemaire (review hearing transcript: page 71, lines 1 to 4), the applicant's balloon could not then have been at a horizontal distance of 200 feet from witness Lemaire's point of observation when it flew over the river, on the basis of the various calculations and data that he attempted to introduce by submitting item R-2 with regard to the angles of the various phases of his trajectory in relation to his true take-off position and the winds that were present at that time.

[29] The appellant further argues that he was at the centre of the river due to the wind current. Although he did not testify during the review hearing concerning his position in terms of distance from the bank, he deduces that he was at around 500 feet from the bank since one of the witnesses, Ms. Véronik Blanchette had indicated that the river had an approximate width of 1,000 feet at the marina and that he himself had stated that he was at the centre of the river. The appellant argues that he was credible concerning the horizontal distance of his balloon in relation to the dock since he otherwise would have never admitted during his testimony at the review that he was at 100 feet above the river, i.e. lower than 500 feet in altitude. Besides, he adds that witness Lemaire had confirmed his descent above the river (transcript: page 65, line 8). Thus, both the appellant as well as Mr. Lemaire confirm that he descended in order to ride the wind current above the river. However, the appellant reiterated that the centre of the river does not constitute a built-up area and that he therefore was allowed to descend within 500 feet.

(3) The review member erred in taking vague facts into account with regard to the distance reported by witness Lemaire

[30] This ground includes point 6 of the letter of the appellant dated July 26, 2014.

[31] The appellant submits that the review member could not grant credibility to the testimony by Mr. Lemaire since he testified based on approximations without the benefit of a precise measuring instrument. In this respect, he refers to the moment in the cross-examination of Mr. Lemaire where he stated having measured the angle “in his mind” [translation] (transcript: page 136, lines 5 to 7).

[32] The appellant also argues that the review member erred in paragraph 67 of her determination by trying to corroborate information given by Mr. Lemaire regarding the vertical altitude and horizontal distance of the balloon by using the angle of 75° to 80° from his observation post (testimony by Mr. Lemaire) and using trigonometric calculations to support the measurements by Mr. Lemaire. According to the appellant, the review member should not have used the measurements from Mr. Lemaire, which were only approximations. The appellant presented two calculations to show some margins of error that he describes as considerable, to such an extent that the Tribunal should not have taken the statements of the witness into account. The appellant submits that with an angle of observation of 75° and a 300-foot altitude, the Tribunal arrives at a horizontal distance of 80 feet between the position of the balloon and that of witness Lemaire, while Mr. Lemaire himself had asserted in testimony that the distance was 200 feet, which amounts to an error of 250%. By taking an angle of observation of 80° and a 300‑foot altitude, the Tribunal calculated that this horizontal distance would have been 53 feet, which amounts to an error of 377%. Based on these elements, the appellant therefore argues that the review member granted undue credibility to witness Lemaire given these considerable percentages of error.

[33] Moreover, in order to challenge the review member's calculations in paragraph 67 of her determination, the appellant tried to introduce some notions of triangulation and calculations as evidence based on the various angles of his trajectory. The respondent objected to this evidence on the grounds that all these calculations linked to the trajectory phases were not pertinent for the purpose of determining the altitude and horizontal distance of the balloon at the time it was observed by witness Lemaire. The respondent acknowledged that the visual observation could not be as precise as the one calculated with instruments but that it was a credible and probable approximation, as the review member had established. The respondent pointed out that it was incumbent upon him to prove the violation of flying at low altitude, and therefore the position of the balloon in space at the time of observation, on a balance of probabilities and not beyond a reasonable doubt. In relation to this particular case, the notions of triangulation and various calculations were not relevant to the case since his burden of proof did not require complex calculations based on precise measurements obtained with instruments and using notions of triangulation.

[34] The appeal panel rejected the appellant's request to present new calculations with notions of triangulation and decided that all the angles and different trajectories which can vary based on the phases of the flight were not relevant for the purposes of the debate, especially since the winds could vary during the different phases of the flight. As it was argued by the respondent, the discussion regarding the violation must be limited to the time of observation and aims to determine if the appellant's balloon was in a built-up area at the time when witness Lemaire observed it above the river and if it was at an altitude lower than 500 feet measured vertically and at a horizontal distance of less than 500 feet at that time. If during the review the appellant had wanted to show that due to his trajectory he could not have been located within 200 feet from the dock when witness Lemaire observed him, he would have had to present necessary evidence in that regard during the review hearing. The appeal panel ruled that the new calculations by triangulation would necessarily be based on new elements which had not been submitted as evidence during the review hearing (angles of the various phases of the flight and speed and direction of the winds) and thus refused to hear the claims of the appellant based on notions of triangulation.

(4) The review member misinterpreted the altitude of the wind tunnel

[35] The appellant submits that the review member committed an error in paragraph 70 of her judgement when she wrote that the wind tunnel created above the Richelieu River is located between the altitudes of 250 and 300 feet on the basis of the evidence from Mr. Daniel Perreault and by concluding that the change in the appellant's altitude to 100 feet in order to take advantage of the wind current was therefore not realistic. The appellant claims that the wind tunnel is rather at a maximum altitude of 300 feet above the river and that Mr. Perreault rather testified that the wind tunnel area was between ground level and up to a maximum of 250 to 300 feet. As a result, his testimony based on an altitude of 100 feet above the river was realistic.

(5) The review member erred in not viewing as relevant the exercise he had carried out by taking photographs from the Ottawa control tower

[36] According to the appellant, the review member also committed an error by not taking into account his evidence showing that it could be possible to recognize a person at 250 feet yet impossible to do so at 500 feet. The appellant specifies that since Mr. Lemaire had not recognized the appellant in his balloon when he had observed him, this could support the basic premise given that he had more likely been at a horizontal distance of 500 feet and the member does not seem to take this into account.

[37] The appellant submits that, considering all of the errors and inaccuracies described above, the review member erred in concluding that the Minister had fulfilled his burden of proving on a balance of probabilities that he had committed the alleged violation. For the appellant, the review member focused on every fact presented by the Minister instead of assessing them objectively as a whole. According to him, if the member had taken a comprehensive and objective approach and had considered his equally plausible version of his trajectory, she could not have concluded that the Minister had fulfilled his burden based on a balance of probabilities. The appellant argues that the essential element of the violation is his position in space and that if the Minister is unable to demonstrate it accurately, then he did not fulfil his burden. The appellant concludes that he conducted a safe flight, that he never flew over any structures and that he demonstrated due diligence throughout the course of his flight.

IV. RESPONDENT'S ARGUMENTS

[38] Initially, with respect to grounds of appeal from the member's determination filed by the appellant on July 26, 2014, the respondent emphasizes that points 1 and 10 were dropped by the appellant, therefore the respondent's arguments focused on the other grounds of appeal submitted both on July 26, 2014 and during the review hearing. Before undertaking the analysis of the respondent's arguments concerning the appellant's grounds of appeal, the respondent examines the powers of this Tribunal on appeal as well as the standard of review applicable to a review determination.

[39] Firstly, the respondent emphasizes that the appeal panel has the power to dismiss the appeal or to allow it, and in doing so, to substitute its own decision as provided for in the Aeronautics Act for an appeal of a determination pursuant to section 8 of the Act for a contravention under section 7.7 of the Act (contravention to a designated provision).

[40] Secondly, the respondent points out that the standard of review to be applied by this appeal panel is the same one that was already studied on several occasions by this Tribunal based on the Supreme Court of Canada's decision in the Dunsmuir v. New Brunswick[2] case. Specifically, in Farm Air Ltd v. Canada (Minister of Transport)[3], the Tribunal wrote with regard to the standard of review:

[28] The first step in reviewing the Review Determination made by the Review Member is to determine the appropriate standard on which to review the Review Determination. The Supreme Court of Canada determined in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 57, that a full standard of review analysis is not necessary if the appropriate standard has already been established by jurisprudence.

[29] In Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17, Justice Harrington addressed the appropriate standard of review applicable to Tribunal decisions. Justice Harrington determined in Billings that review members are owed considerable deference with regard to findings of fact and issues of credibility that come before them. As such, so long as a decision on review is within a range of reasonable outcomes based on the evidence that was before the review member, the Appeal Panel should not interfere: see Dunsmuir at para. 72. Accordingly, this is the appropriate standard of review to use in determining whether the Review Determination to confirm the cancellation of the Appellant's AOC should be upheld.

[41] The respondent also refers this Tribunal to the Genn v. Canada (Minister of Transport)[4] case, where the appeal panel of this Tribunal reiterated that it had to give much deference to the review member's determination but that it could draw its own conclusions in relation to the questions of law, which call for no deference. This Tribunal's decision in the Genn case was also based on the Federal Court's decision in Billings (cited above). Also, based on the Supreme Court's Dunsmuir decision, this Tribunal ruled in the Genn case that so long as a decision is within a range of reasonable outcomes based on the evidence before the decision-maker, a reviewing body should not interfere.

[42] The respondent notes that this position of the Tribunal was reiterated in recent decisions, including in Sharp Wings Ltd.[5], Makarowski[6] and Mashowski[7].

[43] Lastly, the respondent argues that in the (aforementioned) Dunsmuir judgement, the Supreme Court of Canada established criteria of analysis that a Tribunal must follow when it reviews a determination according to the reasonableness standard:  

[47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[44] Considering the principle of the reasonableness standard, the respondent argues that this Tribunal must exercise great deference towards the review member's determination in this case and that it must therefore ask the question whether the member's determination is one of the “possible, acceptable outcomes which are defensible in respect of the facts and law”.

[45] In this case, the respondent submits that the grounds of appeal only raise questions of fact and that the member based her determination on findings of fact that pertain to possible, acceptable outcomes and that consequently, the appeal panel should not interfere.

[46] The respondent adds that the appellant's grounds of appeal focus mainly on the credibility of one of the Minister's witnesses, namely Mr. Lemaire. Generally, findings of fact and credibility must not be called into question at the appeal level. However, the respondent adds that such findings may be reviewed by the appeal panel only when they are unreasonable or when the member's determination at the review level is based on a total absence of proof.

[47] In this respect, the respondent refers to a determination from this Tribunal, Minister of Transport v. Arctic Wings Ltd.[8], and more particularly in the following excerpt regarding the standard of review for the assessment of witnesses' credibility:

Previous Tribunal jurisprudence has given guidance as to the standards of review. Our task is to assess whether the member's finding was unreasonable. A finding of fact should not be overturned unless there is an entire absence of evidence to support it, or notwithstanding that there is some evidence concerning the finding it is an unreasonable finding incapable of being supported by the evidence. Regarding credibility issues, it has been recognized that the hearing officer is in the best position to be able to determine which evidence he prefers and which evidence, when in conflict, he is prepared to accept. In the result, unless findings of credibility are patently unreasonable, not being supported by testimony under oath, we as an appeal panel should be loath to substitute our own findings for the member's. On questions of law the standard would still be correctness.

[48] The respondent argues that in this case, the member based her finding that the contravention occurred on several elements of proof, assessed the credibility of the witnesses and, in doing so, made no unreasonable finding of fact. As a result, the appeal panel must not interfere with these findings and must rather confirm them.

[49] In greater detail, the respondent submits what follows in reply to the appellant's grounds of appeal.

[50] The only elements of the violation which are pertinent in this case are:

a) flying above a built-up area;

b) at an altitude of less than 500 feet above the highest obstacle;

c) located at a horizontal distance of 500 feet or less from the balloon.

[51] With respect to the grounds of appeal raised by the appellant and claiming that the member had made a linguistic discrimination in attempting to define a built-up area, the respondent submits that the member analyzed the notion of built-up area correctly on the basis of the recent case law on this subject and of the dictionary definition. Indeed, in paragraphs 49 to 57 of her determination, the member provides a sound analysis of this notion of “built-up area” on the basis of the definition in the Le Petit Larousse dictionary and on case law and concludes that the area the appellant flew over consisted of a built-up area given the presence of various buildings or structures. The respondent adds that this member's conclusion is reasonable since in view of the evidence in the case record and considering the pertinent case law, it pertains to possible and rational solutions. The respondent emphasizes that the entire debate generated by the appellant results from his erroneous interpretation of the notion of “built-up area” which is deemed, according to subsection 602.12(1) of the CARs, to extend to a 500-foot radius from the built-up area and that this built-up area includes any man-made structure, which, in the case at bar, means the dock.

[52] For the purposes of the violation, the most important element is the moment when the appellant's balloon was observed by witness Lemaire, who estimated the position of the balloon at less than 300 feet in vertical altitude (between 200 and 300 feet) and at less than 200 feet measured horizontally from his position on the dock. Therefore, the respondent submits that by being at a distance of less than 500 feet measured horizontally, the appellant's balloon is deemed to be in a built-up area even if he is not flying directly over any structure. In other words, the respondent adds that it is not because a balloon is located between two structures or that it is above an “empty” space (such as a waterway) that it is not in built-up area, and if it is within a radius of 500 feet from a structure, it is deemed to be in built-up area. The appellant appears to disregard this notion completely in his arguments when he points out that by being above the river, he was not in built-up area. In this case, the evidence shows that the place where witness Lemaire was situated when he observed the appellant's balloon constitutes a structure for the purpose of determining the extent of the built-up area.

[53] The respondent also adds that the appellant is mistaken when he claims that he was allowed to be at a minimum distance of 200 feet from a person, a ship, a vehicle or a structure, since this authorization regarding balloons does not apply above a built-up area. In this respect, the respondent refers this appeal panel to Exhibit A-2, namely the Transport Canada letter of August 8, 2011 to the Corporation du Festival de Montgolfières de Saint-Jean-sur-Richelieu Inc., and more particularly to clause 15, where it makes provisions for balloons to be authorized to fly at a minimum distance of 200 feet from a person, a ship, a vehicle or a structure, except above a built-up area, an occupied building or an open-air assembly of persons.

[54] The respondent does not dispute the fact that the appellant's balloon could be at an altitude of less than 500 feet while in its take-off phase. As regards all the appellant's arguments to the effect that the member may have erred in not taking into account the departure point of his flight, the fact that he had taken off in an unbuilt-up area and the fact that witness Lemaire had not seen the trajectory of his balloon in its entirety, the respondent claims that these are not relevant for the purpose of analyzing the facts of the case such as they were presented in the review. Indeed, the respondent reiterates that the evidence of the violation must be assessed at the moment when witness Lemaire saw the appellant's balloon at an altitude of less than 500 feet and at less than 500 feet measured horizontally from his point of observation.

[55] The respondent admits that Mr. Lemaire's testimony provides an approximation of the horizontal distance and the balloon's altitude and that he did not have precise measuring instruments. However, the respondent points out that the Minister's burden of proof was to prove the elements of the violation on a balance of probabilities and not beyond a reasonable doubt. The respondent also adds that contrary to the appellant's claims, witness Lemaire did not state that the appellant's balloon was at a horizontal distance of 200 feet and that its altitude was at 300 feet but rather that the horizontal distance of the balloon in relation to his point of observation was of less than 200 feet (review hearing transcript: page 70, lines 20 and 21) and at a maximum altitude of between 200 and 300 feet (transcript: page 69, lines 24 and 25). As a result, the appellant cannot claim that the review member erred in paragraph 67 of her determination by attempting to corroborate the information given by witness Lemaire regarding the vertical altitude and horizontal distance of the balloon by using trigonometric calculations based on the angles of 75° and 80° reported by witness Lemaire. Indeed, the member arrives at respective horizontal distances of 80 and 53 feet to determine the location of the balloon in relation to the position of witness Lemaire according to the angles of 75° and 80°. These distances are within 200 feet as witness Lemaire had declared. The margins of error of 250% and 377% to which the appellant alluded by referring to Exhibit A-3 therefore do not stand. Besides, the altitude of between 200 and 300 feet indicated by witness Lemaire is plausible in relation to the wind tunnel, which was described as occurring at an altitude of up to 300 feet above the river.

[56] In summary, when the member takes into account her calculation using the angles of 75° or 80°, she does not contradict witness Lemaire, in spite of what the appellant argues, but on the contrary, confirms his testimony according to which the maximum horizontal distance was 200 feet. The respondent also emphasizes that the appellant never disputed these angles by offering evidence to the contrary during his testimony to the review hearing. Thus, the member did not err by basing her calculations on the angles of 75° to 85°, which were undisputed at the review hearing, and both heights of the balloon, namely the one suggested by witness Lemaire (300 feet maximum) and the other one by the appellant (100 feet), in paragraphs 67 and 70 of her determination.

[57] The respondent furthermore adds that by setting the height of the balloon at100 feet in line with the testimony of the appellant (transcript: page 264, lines 5 to 9), and using the mathematical expression given by the member, namely:

TAN ABC = Opposite side (height of the balloon) / Side adjacent to the angle

a horizontal distance of 26.7946 feet is obtained with an angle of 75° and a horizontal distance of 17.6326 feet if an angle of 80° is taken. Therefore, even using data provided by the appellant and the angles which he did not contradict, a horizontal distance of less than 500 feet is obtained. Moreover, on the basis of the same mathematical equation, if the horizontal distance according to the appellant is taken, namely 500 feet (that is the balloon at the centre of the river), the respondent shows that the appellant's balloon would then have had to be between 1,866 and 2,835 feet high if the undisputed angles of 75° and 80° are taken into consideration, and the appellant never indicated that his balloon could have been at such a height. On the contrary, this altitude would contradict the appellant's testimony according to which he would have taken advantage of the wind tunnel present at a maximum altitude of 300 feet. The appellant is therefore not justified in arguing that the member committed an error in her trigonometry calculations.

[58] The respondent also adds that Mr. Lemaire had gained experience assessing distances in the course of his duties and through his involvement in air shows, parachuting activities and hot-air balloon festivals since he had been in charge of issuing specialized operation certificates for these types of activities for the past 18 years, and especially with respect to measuring take-off areas as the review member did emphasize in paragraph 14 of her determination. In summary, according to the respondent, although witness Lemaire may have provided a simple approximation or assessment of the altitude and horizontal distance, his way of calculating them based on his experience was completely credible since he was used to walking distances of 100 feet when he had to confirm the measurements of balloon take-off areas. The respondent argues that the appellant decided not to attack the credibility or relevance of witness Lemaire's assessment during the review and that he must therefore assume the fact that the angles as well as the vertical (altitude) and horizontal distances given are well accepted as evidence.

[59] The respondent adds that the appellant must also accept the evidence such as he submitted it for review and, similarly, the absence of evidence regarding his trajectory and the angles of its various phases, which he now wishes to have admitted in order to demonstrate that he could not have been at less than 500 feet from the dock. The respondent therefore objects to the acceptance of items R‑1 and R‑2 as evidence. In addition, the respondent claims that the appellant contradicted his own evidence according to which he was at the centre of the river when, relying on item R-1, he tries to show that he was rather at 840 feet from the position of witness Lemaire, if an angle of trajectory of 22.5° is taken into account, which is the angle at which the appellant would have left the bank at the time when he was observed by witness Lemaire (i.e. between 20° and 25°). Moreover, by relying on item R-2 (which contains different calculations according to different angles which were not submitted during the review hearing but that the appellant nevertheless tried to have admitted as evidence in the appeal hearing), the appellant places the balloon at 535 feet from the dock, another new distance and, yet again, one that is different from his testimony. In summary, the respondent argues that if items R‑1 and R‑2 are admitted as evidence in spite of his objection, the appellant himself is unclear on what he proposes to have been the horizontal distance between his balloon and the dock by referring to several possible distances in his attempts to show that the review member erred in taking witness Lemaire's estimate into account.

[60] The respondent therefore claims that, considering the evidence on file submitted by the respondent and given the gaps in the evidence submitted by the appellant, the review member reasonably concluded that the appellant's balloon was flown above a built-up area at an altitude of less than 500 feet above the highest obstacle located at a 500-foot distance or less from the balloon measured horizontally, thus contravening subparagraph 602.14(2)(a)(ii) of the CARs as stated on the July 9, 2012 notice of assessment of a monetary penalty for a contravention. The conclusions from the member therefore fall within a range of reasonable outcomes based on the evidence that was before her.

[61] Additionally, in assessing the testimonies from Mr. Lemaire and Ms. Blanchette, the respondent Minister's witnesses, the member also had the privilege of assessing their credibility as well as all of the non-verbal aspect of their explanation concerning various maps and other documents submitted as exhibits. It is therefore very difficult for an appeal panel while reading transcripts to assess the credibility of these witnesses and the review member was in a better position to do so.

[62] The respondent adds that the review member's findings of fact are clearly backed up and justified within her determination. She clearly provides the reasons for which she retains certain elements of proof rather than others.

[63] Of particular note, when the member chooses to consider the testimony from Mr. Lemaire over that of the appellant, she clearly justifies her conclusions in paragraphs 63 to 72 of her analysis of both parties' arguments by specifying the reasons why she does not retain the appellant's arguments as well as the elements which she does not deem relevant.

[64] The respondent also specifies that the appeal panel must presume that the member took all the evidence on file into account even if she does not comment on all the elements of proof before her. On this point, the respondent refers this Tribunal to the Supreme Court's decision in the Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board)[9] case,and more particularly to paragraph 16 of the judgement:

[16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

[65] Accordingly, the respondent submits that without counter-evidence showing that the review member's finding was unreasonable, the appeal panel cannot make its own finding with regard to the credibility of the witnesses.

[66] As for the grounds of appeal raised by the appellant according to which the member committed an error in paragraph 72 of her determination by assessing the difference between the take-off point imagined by witness Lemaire and the actual take-off point at 100 feet, while it was instead at 1,800 feet (the fifth point in the appeal letter of July 26, 2014), the respondent reiterates that this error by the member is not pertinent since it concerns a flight phase that is not relevant to the moment when he was seen by witness Lemaire above the river and when he committed the violation. As such, the respondent argues that in spite of this error, the appellant nonetheless contravened subparagraph 602.14(2)(a)(ii) of the CARs.

[67] As for the seventh ground of appeal raised by the appellant, namely that the member had not taken into consideration the particular performance of a hot-air balloon, the respondent submits that the particular performance of a hot-air balloon has no bearing on a possible violation to subparagraph 602.14(2)(a)(ii) of the CARs. If, as the appellant argues, a hot-air balloon has performance particularities that differentiate it from other types of aircraft, it is then up to the hot-air balloon pilot to take all necessary precautions so as to respect the applicable regulations. Thus, with the appellant's experience flying hot-air balloons, he should have planned his trajectory and his rate of ascent in order to respect the rules in force, namely subparagraph 602.14(2)(a)(ii) of the CARs.

[68] The respondent therefore concludes that the member's determination is reasonable, that her conclusions fall within the possible outcomes based on the facts, that her analyses, both factual as well as argumentative, are well supported and that the appellant did not demonstrate any unreasonable error in her conclusions or any conclusions not founded in the evidence that should lead this appeal panel to intervene.

V. ANALYSIS

[69] According to subsection 8.1(3) of the Aeronautics Act, the appeal panel of the Tribunal can, in the case of a determination made pursuant to section 8 (contravention to a designated text according to section 7.7 of the Act), dismiss the appeal or allow it, and in doing so, substitute its own decision. In this case, the notice of assessment for the contravention was issued pursuant to section 7.7 of the Act and the review member's determination was rendered pursuant to section 8 of the Act.

[70] The appeal panel agrees with the position of the respondent according to which the standard of review applicable to the decisions of this Tribunal is the deferential standard of reasonableness, as indicated by the Federal Court in Billings Family Enterprises Ltd v. Canada (Minister of Transport)[10]. This decision of the Federal Court precisely analyzed the standard of review that should apply to a review determination from a member of this Tribunal. Justice Harrington held that considerable deference must be given to findings of fact or credibility made by review members. Consequently, so long as a review determination falls within a range of reasonable outcomes based on the evidence that was before the review member, the appeal panel should not intervene. This conclusion is also based on the Supreme Court's decision in Dunsmuir, therefore the appeal panel must determine whether the review member's determination and its justification possess the attributes of reasonableness. As Dunsmuir held, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the determination falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law[11].

[71] In the case at bar, the only points at the core of the case being disputed by the appellant are whether on August 20, 2011, the appellant's balloon was flown above a built-up area at less than 500 feet above the highest obstacle situated at a distance of 500 feet or less from the balloon, measured horizontally.

[72] With respect to the intervention of this appeal panel regarding the review of the determination, we must inquire into whether the review member's conclusions regarding the definition of “built-up area” and the fact that the appellant's balloon was located at an altitude less than 500 feet above the highest obstacle of a built-up area located at a distance of 500 feet or less from the balloon, measured horizontally, constitute possible, acceptable outcomes which are defensible in respect of the evidence presented during the review hearing and the law.

[73] With respect to applicable law and more particularly the notion of “built-up area” mentioned in subparagraph 602.14(2)(a)(ii) of the CARs, we agree with the review member's analysis as set out in paragraphs 48 to 53 of her determination and the appellant did not submit any legal precedents or any valid argument justifying that the member might have committed an error by concluding that the expression “built-up area” suggests an area where man “has erected, constructed or put up structures such as houses, schools and other buildings” (paragraph 53 of the determination), and also includes areas around these structures such as access roads and parking areas. The review member's analysis is correctly based on the definitions of the Le Petit Larousse dictionary as well as on the decisions of this Tribunal in the Minister of Transport v. Farm Air Ltd.[12] and Minister of Transport v. Vincent[13]cases. The appellant's argument that a pilot cannot be expected to refer to the applicable legal precedents to know the definition of “built-up area” is not accepted. Indeed, the Tribunal's decisions interpreting the applicable legislation (including the Act and the CARs) are part of the applicable law and, as a result, of the rules which every pilot must respect. The common meaning of the expression “built-up area” as the review member explained it in detail is clear and includes the notion of “structure”.  

[74] Besides, we cannot accept the applicant's reasoning according to which this definition of a built-up area results in everything becoming a built-up area, even a road, while during plane in‑flight training, student pilots frequently fly at less than 200 feet from a road. Indeed, let us be clear that in-flight training supervised by a qualified flight instructor constitutes an exception in low altitude flight, specifically an exception to paragraph 602.14(2)(b) of the CARs provided for by subparagraph 602.15(2)(b)(iv). The appellant is therefore mistaken when he claims that a road is not a structure for the purposes of the notion of built-up area due to the fact that he may have often flown a plane over roads at low altitude during in-flight training.

[75] We are also of the opinion that the review member did not commit an error by concluding that the appellant would have been “capable of distinguishing between a built-up area and a non-built-up area both on the ground and from the air” (paragraph 53 of the determination) even if his perspective from up in the air was not identical to that shown in the aerial maps submitted as evidence. Indeed, even if the appellant's position in the air did not give him the same perspective to see a built-up area, he necessarily had to be in a position to see from the basket of his balloon where he was during all phases of his flight and of his trajectory, and to determine the presence or absence of structures on the ground such as the marina and the dock when he flew above the river. By arguing otherwise, the appellant undermines his own credibility.  

[76] With regard to the place of observation of witness Lemaire, i.e. the dock as shown on map M-4 (trajectory identified by witness Lemaire) and the aerial photographs filed as Exhibit M-2, there is no doubt that the dock constitutes a structure for the purpose of determining the extent of the built-up area and the review member made no error by taking into account the evidence of Mr. Lemaire, who had estimated the horizontal distance of the balloon in relation to this point of observation. Furthermore, we agree with the respondent's position that from this place of observation, which corresponds approximatively to the Richelieu River bank, if a horizontal distance of 500 feet is measured, the entire area within a 500-foot radius from this point is deemed to constitute the built-up area. The appellant is therefore mistaken in his claim that above the river, namely above the centre of the river, his balloon was not in a built-up area since there is no structure below. In essence, the appellant fails to consider the irrefutable presumption of subsection 602.12(1) of the CARs providing that, for the purpose of applying section 602.14, “an aircraft shall be deemed to be operated above a built-up area [...] if the built‑up area [...] is within a horizontal distance of: (a) 500 feet or less from a helicopter or balloon” (emphasis added).

[77] We must also emphasize that the review member's conclusions must be analyzed according to the evidence on file and that in this case, the appellant seems to ignore the fact that during the review hearing, his evidence contained some gaps. He merely stated that his balloon was “at the centre” of the river so as to follow the wind current and plotted a path on map M‑4. The passengers on board the appellant's balloon did not testify. He did not present any evidence to justify or corroborate his position in relation to the built-up area, preferring to claim that in order to go to the centre of the river he was either over a non-built-up area, or in the take-off phase (thus justifying a low altitude for take-off), that once at the centre of the river he was situated in a non-built-up area and that he could therefore descend to 100 feet to catch the wind current, and that subsequently he was in the landing or approach phase to justify once again a low altitude, even if he risked approaching a built-up area (review hearing transcript: pages 263 and 264). This explanation was not very plausible considering that he himself admitted having flown at 300 feet in altitude to get to the Richelieu River to have then descended to 100 feet above the river in order to take advantage of the wind current to position himself then at an altitude of 200 feet to clear a boat (transcript: pages 265, 266 and page 267, lines 14 and 15, and page 274, lines 15 to 18). This demonstrates that he was in a level flight phase rather than still in a take-off phase.

[78] Only during the appeal hearing did the appellant attempt to present evidence regarding the angles of the various phases of his trajectory from his take-off site with the wind speeds and directions in order to try to contradict the testimony of Mr. Lemaire regarding his position above the river and to try to corroborate his. For the reasons stated hereinafter, this new evidence is rejected since it was available at the time of the review hearing. Moreover, even if it was accepted, it tends to show that the appellant contradicts himself. Indeed, at first the appellant proposes that the angle of 20° to 25° referred to by Mr. Lemaire taken into account with his actual take-off site positioned him rather at 845 feet from the dock and that with his true trajectory (new item R-2 not admitted into evidence) it was rather at 535 feet, these two distances being different from the one on which he testified beforehand (transcript: page 278, lines 10 and 11, where he states having been exactly at the centre of the river). We must also add that these two new distances brought him closer to the other bank where there is another built-up area according to photographs filed as Exhibit M-2 and therefore once again in contravention of subparagraph 602.14(2)(a)(ii) of the CARs. Considering all these elements as a whole, the appellant changes his arguments as his case evolves, which affects his credibility.

[79] It is also inconceivable that the appellant find fault in the interpretation of the evidence by the review member regarding his altitude when he brought no evidence himself to contradict Mr. Lemaire's testimony concerning the angle of observation of 75° to 80° of the balloon above the water in relation to Mr. Lemaire's position.

[80] In other words, the appellant failed to bring concrete elements to support his testimony according to which he was at the centre of the river and to contradict the evidence of the respondent. At the appeal stage, the appellant is now trying to bring new evidence in relation to his actual take-off site, the angles of trajectories followed, wind speeds, etc. by means of items R‑1 and R-2 to try to show that he could not have been at a distance of less than 200 feet measured horizontally from the dock, i.e. witness Lemaire's place of observation. And yet if the appellant had wanted to attack the credibility of witness Lemaire by introducing this evidence, he was free to do so during the review hearing and, for lack of having done so, he must make do with the evidence such as it was presented during the review hearing and submit his arguments on appeal based on this evidence. The appeal panel cannot take items R-1 and R-2 into account since they contain elements of proof which were not submitted at the review stage such as the different angles of trajectory for the various phases of flight, surface wind, upper wind, and corrected trajectories in “degrees true”. The appellant is therefore not in a position at this point to object to the fact that the review member took the evidence submitted by the Minister into account while his own evidence contains some crucial gaps.

[81] We also agree with the respondent that the appellant's violation must be assessed at the time when his balloon was observed by witness Lemaire. Whether he took off in a built-up area or not is of no relevance to the violation since even if he had taken off in a built-up area, an altitude lower than 500 feet would have been allowed during the take-off phase. Also, contrary to what the appellant may argue, it is not pertinent that witness Lemaire did not observe the balloon throughout its trajectory or that the member may have been mistaken about the location of the actual take-off site. As far as the violation is concerned, what counts is that witness Lemaire properly identified the appellant's balloon when he was above the river at a horizontal distance of less than 500 feet.

[82] It is also important to emphasize that, as acknowledged by the appellant himself at the appeal hearing, certain of his own admissions are fully consistent with witness Lemaire's version. For instance, the appellant confirmed his descent above the river to ride the wind current, even specifying that he had descended to 100 feet above the river in the wind current, therefore at less than 500 feet in altitude.

[83] We cannot subscribe either to the appellant's assertion that the member committed an error by taking the approximate distances reported by witness Lemaire into account. As the respondent argued, the violation did not have to be proven beyond a reasonable doubt, and thus the distance be measured with precise instruments, but rather only on a balance of probabilities. Witness Lemaire never assessed the altitude at exactly 300 feet and the horizontal distance of the balloon in relation to the dock at 200 feet but rather testified that these distances were maximum distances. As the review member highlighted in paragraph 14 of her determination, the witness had assessed the maximum altitude of 300 feet by transposing the appellant's balloon three or four times the height, which he estimated to be 75 feet, and, to assess the horizontal distance of a maximum of 200 feet, witness Lemaire had mentioned that he had often walked a 100‑foot distance when he had to confirm the measurement of balloons' take-off areas. He had therefore assessed the horizontal distance to be at most twice that which he was used to walking. In this way, witness Lemaire's experience in calculating distances for the purpose of measuring take-off areas made him all the more credible with regard to his evaluation of the distance, although approximate, and the review member was well-grounded to refer to it, especially since the altitude was consistent with the location of the wind corridor above the river. Moreover, the distance measured horizontally estimated by the witness Lemaire, namely 200 feet at most, is credible based on the trigonometric calculations based on the angles (which the appellant did not dispute) of 75° and 80° relative to witness Lemaire's observation post and by using a 300-foot altitude (paragraph 67 of the determination). We also add that, despite the statement under point 6 of his letter of appeal, the appellant did not bring any evidence showing that he had instruments available to establish the position of his balloon accurately.

[84] Regarding the appellant's argument to the effect that the review member erred in not taking into account his evidence aiming to show that witness Lemaire would have recognized him if he had been at 250 feet from his place of observation, we are of the opinion that the review member was careful in examining this argument in paragraph 71 of her determination and deemed that the appellant's exercise carried out at the Ottawa control tower was not pertinent since witness Lemaire had actually seen that the pilot was wearing a helmet on board. We also wish to add that witness Lemaire had correctly identified the basket number as 094 (transcript: page 67, lines 14 to 23, and page 69, lines 15 and 16) as well as the gender of the pilot. He also took care to identify other elements such as the duration of the balloon's passage (transcript: page 71, line 24), its cruising by with “short bursts of heat” [translation] (page 76, lines 15 to 21), the sound of the heat bursts (page 80, lines 4 and 5), the presence of two passengers (page 79, lines 24 and 25), the fact that everything appeared “cozy” and “enjoyable” [in English in the original] on board the basket and that people were enjoying themselves by the expressions on their faces (page 79, lines 24 and 25, page 141, line 5, and page 183, lines 23 and 24), which made him credible and showed that the appellant's balloon was close enough to witness Lemaire's point of observation so that he could make all these observations. With all these elements reported by the witness, the member had therefore every reason not to deem the appellant's exercise conducted at the Ottawa airport tower as relevant.

[85] In addition, we cannot subscribe to the appellant's submission that witness Lemaire testified hesitatingly, as allegedly shown on pages 65 and 139 of the transcript. This appeal panel rather sees the witness providing further details on what he had previously stated spontaneously. Besides, our complete analysis of the examination and cross-examination of witness Lemaire allows us to conclude that on the contrary, witness Lemaire testified in a very precise manner even though his estimates of distances could only have been approximate without a measuring instrument available.

[86] Regarding the appellant's argument according to which the member mistakenly relied on the location of the wind tunnel (between 250 and 300 feet according to the member while the tunnel was between the ground and 300 feet) to dismiss his testimony placing his altitude at 100 feet above the river, we do not view this as an error that should make the member's conclusions appear unreasonable. Indeed, the exact altitude above the river (100 feet according to the appellant compared to 200 to 300 feet according to the respondent) is not central to the case. Either way, the altitude is less than 500 feet (which constitutes one of the elements of the violation) and it is rather the horizontal distance in relation to the built-up area (the dock) which was at the heart of the debate.

VI. CONCLUSIONS

[87] As the respondent accurately pointed out, the appeal panel must act with deference concerning the questions of the witnesses' credibility since the review member was in the best position to assess the evidence that was presented to her. If the member deemed witness Lemaire to be credible, we must not interfere with her finding unless it is unreasonable.

[88] We are of the opinion that both the documentary evidence as well as that submitted by witnesses Lemaire and Blanchette support, based on a balance of probabilities, the review member's conclusion that the appellant, on or around August 20, 2011, at around 6:49 a.m., operated a balloon with registration C‑FVFV in Saint-Jean-sur-le-Richelieu above a built-up area, at an altitude lower than 500 feet above the highest obstacle and located at a horizontal distance of 500 feet or less from the balloon.

[89] We are also of the opinion that, as highlighted by the respondent, the review member carefully analyzed every piece of evidence, including the evidence submitted by the appellant, and that she clearly justified the reason for which she relied to a greater extent on the testimony of witness Lemaire and the reasons for which she deemed some the appellant's evidence not to be relevant to the case. As a result, in our opinion, the appellant did not demonstrate that the review member had based her determination on elements that had not been submitted into evidence or that her conclusions were unreasonable considering the evidence submitted. In other words, our opinion is that the review member's determination falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law in accordance with the approach defined in the Dunsmuir case.

VII. DECISION

[90] The appeal is dismissed. The Tribunal confirms the determination made by the review member on July 2, 2014 and upholds the fine imposed by the Minister.

June 3, 2015

Reasons for the Appeal Decision: Caroline Desbiens, Member

Concurred by:  Gary Drouin, Member

Franco Pietracupa, Member


[1] Makarowski v. Canada (Minister of Transport), 2012 TATCE 27, TATC File No.: W‑3806‑59 (Appeal).

[2] Dunsmuir v. New Brunswick, 2008 SCC 9.

[3] Farm Air Ltd. v. Canada (Minister of Transport), 2011 TATCE 20, TATC File No.: C-3621-09 (Appeal).

[4] Genn v. Canada (Minister of Transport), 2012 TATCE 7, TATC File No.: P-3739-02 (Appeal).

[5] Sharp Wings Ltd. v. Canada (Minister of Transport), 2012 TATCE 13, TATC File No.: P-3698-41 (Appeal).

[6] Makarowski v. Canada (Minister of Transport), 2012 TATCE 27, TATC File No.: W-3806-59 (Appeal).

[7] Makarowski v. Canada (Minister of Transport), 2012 TATCE 28, TATC File No.: W-3592-02 (Appeal).

[8] Minister of Transport v. Arctic Wings Ltd. [2006], TATC File No.: W-2902-41 (Appeal).

[9] Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.

[10] Billings Family Enterprises Ltd. v. Canada (Minister of Transport),2008 FC 17.

[11] Dunsmuir v. New Brunswick, 2008 SCC 9, paragraph 47.

[12] Minister of Transport v. Farm Air Ltd. [2004], TATC File No.: C-2810-41 (Review).

[13] Minister of Transport v. Vincent[2003], TATC File No.: Q-2531-33 (Review).