CAT File No. C-2093-33
MoT File No. RAP5504-040782
CIVIL AVIATION TRIBUNAL
Minister of Transport, Applicant
- and -
Roland Grant Jenson, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)b)
Low Flying, Endanger Life or Property, Duty of Pilot, Built-Up Area
David Lloyd Eckmire
Decision: January 11, 2001
The Minister's alleged contravention is confirmed, and the assessed monetary penalty of $250.00 is confirmed. That amount is to be made payable to the Receiver General for Canada and must be received by the Civil Aviation Tribunal within fifteen days of service of this determination.
A Review Hearing on the above application was held at the offices of Meyer Compucourt Reporting, in Saskatoon, Saskatchewan, Thursday, November 9, 2000, at 10:00 hours.
Mr. Roland Grant Jensen was advised by registered mail of a notice of assessment of monetary penalty for contravention of paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs), in that on or about July 24, 1999, at or near Glenside, Saskatchewan, he did operate an aircraft, to wit, Piper Aircraft Corporation, PA25-235, bearing Canadian registration marks C-GYOY, at a distance less than 500 feet from any structure, more specifically a SaskPower power line.
TRANSPORT CANADA CASE PRESENTATION
Mr. Doug Moyse, Civil Aviation Inspector with Transport Canada, Prairie and Northern Region, outlined Transport Canada's case. He stated that Mr. Jensen was pilot-in-command of aircraft C-GYOY, on July 24, 1999, at about 00:26 UTC, when he struck a SaskPower high voltage power line while engaged in aerial application work. The collision with the power line created a hazard for the public and was a contravention of paragraph 602.14(2)(b) of the CARs.
Mr. Moyse was asked by the Hearing Officer if any pre-hearing conference or Memorandum of Agreement had been reached between the parties. Mr. Moyse then tabled a Statement of Agreed Facts, as agreed between the Minister and Mr. Jensen. These facts include:
- Mr. Jensen was pilot-in-command of aircraft C-GYOY on July 24, 1999;
- that the incident occurred on July 24, 1999, at approximately 00:26 UTC; (note: this corresponds to 18:26 local time, July 23, 1999)
- that the incident occurred near Glenside, Saskatchewan;
- that the aircraft was a Piper PA-25-235 Pawnee;
- that the aircraft registration was C-GYOY;
- that a full disclosure package was received by Mr. Jensen;
- that Mr. Jensen agrees to Transport Canada Civil Aviation Inspector Richard J. C. Gagnon's "Can Say" testimony concerning the incident; (Gagnon was the Transport Canada Civil Aviation Inspector who investigated the incident. Although he was not sworn in as a witness, his report was included in the Agreed Statement of Facts);
- that Mr. Jensen agrees to the authenticity of the July 6, 1999 certificate of registration for aircraft C-GYOY;
- that Mr. Jensen agrees to the journey log evidence for aircraft C-GYOY;
- that Mr. Jensen agrees to the testimony of Mr. Glen Sarauer.
At this point, Mr. Glen Sarauer was sworn in as a witness.
Mr. Sarauer is a Charge District Operator with SaskPower, employed by them for the past 25 years. Mr. Sarauer testified that he attended the wire strikes which occurred near Glenside, Saskatchewan, on July 22, 1999, and again on July 23, 1999, where an aircraft struck a 14,400 V power line, and arranged for repairs to be made. The second strike occurred sometime after 18:00 hours on July 23, 1999. (Note: This corresponds to approximately 00:26 UTC on July 24, 1999). Mr. Sarauer produced his accident reports, the SaskPower damage assessment and invoice, a map of the location of the power lines and wire strike, and eight photographs.
Under direct examination by Mr. Moyse, Mr. Sarauer testified that the wire strike which occurred on July 23, 1999 resulted in the 14,400 V power line coming down approximately 600 feet from the nearby farm yard, and that the force of the collision caused the line to break and recoil up and over the adjacent 138,000 V transmission lines. The broken 14,400 V line, and the contact with the 138,000 V transmission lines created a potentially hazardous situation.
The force of the collision also caused three power poles supporting the 14,400 V line to break at ground level. The breaking of the 14,400 V line and subsequent contact with the 138,000 V transmission lines blew fuses and resulted in a loss of electrical service to six farms in the area. Under cross-examination by Mr. Jensen, Mr. Sarauer testified that the 14,400 V power line which broke was erected in 1953-54, so the poles would likely be weakened, especially at ground level. The Minister's case presentation was concluded.
DOCUMENT HOLDER'S CASE PRESENTATION
Mr. Roland Grant Jensen was sworn in to testify on his own behalf. Mr. Jensen questioned the date of the charge by the Minister as July 24, 1999, when his own records and those of Mr. Sarauer showed the date as July, 23, 1999. Mr. Moyse explained that all aviation occurrences are stated according to the UTC clock (which in this case is six hours ahead of local time). Mr. Jensen also questioned why he was not charged until almost one year after the incident. Mr. Moyse pointed out that the Minister has one year to file notice, but that Mr. Jensen had been notified by Transport Canada that it would be proceeding with action on this case in August of 1999.
In his testimony, Mr. Jensen admitted that he did strike the 14,400 V power line while operating aircraft C-GYOY, in an aerial application activity. He stated that he was primarily watching the 138,000 V transmission lines to avoid them, and did not see the 14,400 V single line running below the transmission lines.
He referred to paragraph 602.15(2)(b) of the CARs, and pointed out that aerial application is exempt from the low flying prohibition in 602.14(2)(b).
Under cross-examination by Mr. Moyse, Mr. Jensen testified that on the day of the incident he had flown for approximately six hours in two separate shifts of about three hours each, and was not tired. He testified that he had worked six days in a row up to the date of the incident. He stated that he had had one previous wire strike, and that he had been engaged in aerial application work for one year. He did not consider the contact with the 14,400 V line with the 138,000 V transmission line a hazard. He agreed he was flying within 500 feet of the power line structure.
Mr. Moyse summarized the Minister's case and asserted that the Minister had proven, on a balance of probabilities, that:
- Mr. Jensen was the pilot-in-command of aircraft C-GYOY on July 23, 1999;
- that Mr. Jensen flew within 500 feet of the SaskPower power line, and subsequently struck the 14,400 V single distribution line;
- that Mr. Jensen was engaged in aerial application work;
- that a hazard to persons or property was created by his actions.
Mr. Moyse submitted jurisprudence for the Hearing Officer's reference. Mr. Moyse alleged that there was no evidence that due diligence or necessity were mitigating factors in this incident.
Mr. Jensen, in his concluding summary pointed out that this particular part of Saskatchewan has a proliferation of overhead lines due to many irrigation systems which require power. He stated that he was well rested and had taken specialized training in aerial application. He pointed out that a hazard only exists if there is evidence of a "risk of danger." The power lines were equipped with fuses which blew and therefore provided protection. Immediately after the wire strike, he made a precautionary landing to inspect the damage and to notify the nearby farmer as well as SaskPower, thus significantly reducing the "risk of danger."
There are two issues to be resolved in this matter:
- Did the Respondent engage in low flying activity in contravention of paragraph 602.14(2)(b) of the CARs?
- Did the Respondent create a hazard in contravention of paragraph 602.15(2)(b) of the CARs?
I am satisfied that the Minister has proven, on a balance of probabilities, that Mr. Jensen was pilot-in-command of aircraft C-GYOY, on July 23, 1999, and that he did strike the SaskPower power line and therefore was in contravention of paragraph 602.14(2)(b) of the CARs.
The second question is the heart of the matter, namely was a hazard created?
There can be no question that the wire strike by Mr. Jensen's aircraft created a potentially hazardous situation for persons and property. Mr. Jensen's own testimony concerning the proliferation of overhead power lines in this area would necessitate that careful advance planning of any aerial application activity be carried out. There was no evidence brought forward to suggest that such due diligence was performed. In view of the testimony of both Mr. Jensen and Mr. Sarauer that a wire strike by Mr. Jensen had taken place just the previous day while operating in the same general area, would seem to increase the need for such advance preparation. The hazard was created and the damage done.
In the jurisprudence referred to by Mr. Moyse (Tree Tops Air Ltd.), it was clearly shown that the aerial applicator had taken reasonable precautions to ensure that a wire strike would not occur, and that any hazard or risk of damage to persons or property would be minimized. That a wire strike did occur, was due to an unforeseen mechanical problem with the aircraft, and not because of a lack of planning or preparation for the work. The operator was able to establish a defence of due diligence.
Such is not the case in this matter, however, and I must find that Mr. Jensen cannot rely upon the waiver protection contained in paragraph 602.15(2)(b) of the CARs.
I therefore confirm the alleged contravention and the monetary penalty of $250.00 as assessed.
 Minister of Transport v. Tree Tops Air Ltd., CAT File No. P-1519-37.
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