Decisions

CAT File No. O-1936-33
MoT File No. PAP 5504-034709

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Gilbert F. Blais, Respondent

LEGISLATION:
Aeronautics Act, R.S. c.33 (1st Supp.) s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 401.03(1)(a), 401.03(1)(b)

Ultra-light aircraft, Reduction of monetary penalty, Negligent or reckless operation of an aircraft, Flying without a permit, medical certificate


Review Determination
Philip D. Jardim


Decision: February 18, 2000

That Gilbert Blais did contravene paragraphs 401.03(1)(a) and (b) of the Canadian Aviation Regulations on September 17, 1999 at Espanola, Ontario. Because of the reasons given, I reduce the fines levied by the Minister to $1,250 on each count, totalling $2,500. This amount, payable to the Receiver General for Canada, must be received by the Tribunal within 30 days of service of this determination.

BACKGROUND

A Review Hearing on the above-mentioned matter was held Tuesday, February 15, 2000 at nor ont, Court Reporter's Office in Sudbury, Ontario.

On September 17, 1999, the Ontario Provincial Police (OPP) received a report of an aircraft accident at an airfield at Espanola. Senior Constable Kevin Webb proceeded to the airfield and found an ultra-light aircraft suspended, inverted in the trees adjacent to the northwest end of the airfield. The pilot was still inside the aircraft which was about 20-25 feet above ground. An extension ladder was used to extract the pilot from the aircraft. He was not hurt, and his name is Gilbert F. Blais.

Mr. Blais gave a statement to Cst. Webb immediately after the incident (Exhibit M-2), in which he admits that: "I was just going to do a hop to check it out and I ran out of runway. I was going to go up, make a circle and go back in but it stalled. I hit the trees and it flipped over."

The OPP reported the matter to Transport Canada, an investigation ensued and Mr. Blais was found to be in contravention of the Canadian Aviation Regulations (CARs) in that he had neither a pilot licence, nor a valid medical certificate, permitting him to fly ultra-light aircraft. In addition, Mr. Blais had never held any flight permits up to that time (Exhibit M-5), although the aircraft was properly registered C-IGCE (Exhibit M-6).

Transport Canada conducted an investigation, concluded that Mr. Blais had contravened the CARs as listed below, and fined him $2,500 on each of two counts, totalling $5,000.

An opening statement was made, including a description of the proceedings for Mr. Blais who was unrepresented and called no witnesses. I was careful to put him at ease as best I could as he was clearly unfamiliar and uncomfortable. The exclusion of witnesses and the reasons therefor were described. It was ascertained that there were no pre-hearing agreements.

THE LAW

Section 7.7 of the Aeronautics Act states:

7.7 (1) Where the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister shall notify the person of the allegations against the person in such form as the Governor in Council may by regulation prescribe, specifying in the notice, in addition to any other information that may be so prescribed,

(a) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with such guidelines as the Minister may make for the purpose, to be the amount that must be paid to the Minister by the person as the penalty for the contravention in the event that the person does not wish to appear before a member of the Tribunal to make representations in respect of the allegations; and

(b) the time, being not less than thirty days after the date the notice is served or sent, at or before which and the place at which the amount is required to be paid in the event referred to in paragraph (a).

(2) A notice under subsection (1) shall be served personally or by ordinary mail sent to the latest known address of the person to whom the notice relates.

Paragraphs 401.03(1)(a) and (b) of the CARs state:

401.03 (1) No person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless

(a) subject to subsection (2) and sections 401.19 to 401.27, the person is the holder of, and can produce while so acting and while exercising such privileges, the appropriate permit, licence or rating; and

(b) the person is the holder of, and can produce while so acting and while exercising such privileges, a valid and appropriate medical certificate.

EVIDENCE AND ORAL ARGUMENTS

Transport Canada called its first of two witnesses, Senior Constable Kevin Webb, who was duly sworn. He described the scene at Espanola, including the "rescue" of Mr. Blais from his ill-fated machine up in the spruce tree, with an extension ladder. He was asked by Mrs. Elliott to draw a diagram of the airfield, which was entered as Exhibit M-1. Cst. Webb also took a statement from Mr. Blais which was entered as Exhibit M-2. Cst. Webb does not recall asking Mr. Blais for his pilot licence, but mentioned some recollection that Mr. Blais had said that he did not require a pilot licence for this flight.

In his cross-examination of Cst. Webb, Mr. Blais merely alluded to the fact that there had been considerably more verbal discussion than was contained in the signed statement, with which Cst. Webb agreed. Cst. Webb also acknowledged to Mr. Blais that he had no knowledge of aeroplanes, nor of aviation in general. I do not consider this relevant since all the officer was doing was to establish what had happened and to report it to Transport Canada, who then assumed responsibility for the investigation.

The second witness was Civil Aviation Safety Inspector Ross Beck who was duly sworn. In the course of his investigation he interviewed Mr. Blais and determined that he did not and had not up to September 17, 1999 possessed a pilot licence nor medical certificate. In the course of his interview with Mr. Blais, Mr. Beck ascertained that Mr. Blais was conducting high speed taxiing down the runway at Espanola, in the course of which the aircraft had become airborne, the end of the runway loomed and Mr. Blais tried to manoeuvre the aircraft in a right turn, whereupon it stalled into a tree. Mr. Beck concluded that Mr. Blais had operated the aircraft as pilot-in-command, for which he had no licence, nor medical certificate. Mr. Blais had therefore contravened paragraphs 401.03(1)(a) and (b) of the CARs, under reference above.

In his cross-examination of Mr. Beck, Mr. Blais stated that the reason he did not have a licence was because of the expense involved in attending the nearest training facility, which was then at Holland Landing in Southern Ontario. He produced a new pilot permit, dated January 14, 2000, and a certified log book to show that he is now qualified, albeit some four months later.

Mrs. Elliott objected to the production of these documents as irrelevant, but I advised her that due weight would be given to this in my decision.

EVIDENCE BY THE RESPONDENT, MR. GILBERT BLAIS

Mr. Blais was duly sworn in. Since his retirement nine years ago, Mr. Blais has taken up ultra-light aircraft building as a hobby. In the course of this pursuit, he has built at least two, one of which was the ill-fated C-IGCE. He freely admitted to having flown these aircraft from time to time, although he had a licensed pilot do much of the flying.

On the day in question, he had modified the propeller on the advice of a friend from Holland Landing, by clipping the edges off it. This would have the effect of increasing engine RPM, thereby allowing the propeller to produce more thrust. He was conducting high speed taxi trials, and on his second run into wind, a gust of wind took the aeroplane into the air just when he was running out of runway. He attempted a right turn, but unluckily for him the aircraft stalled into a spruce tree, and became inverted. He drew his own diagram of the airfield (Exhibit D-7) which added some more detail to the previous diagram.

Mr. Blais said he was not wealthy despite having built two ultra-light aircraft. He said that he was still paying off his daughter the $1,200 she had lent him for the last fine. Money, he said, was short on his retirement income and he could not afford to pay this fine.

I questioned him as to whether he had deliberately become airborne on that day. He replied in the negative, that his purpose was to check the thrust of the powerplant. There was a gusty northwesterly wind and he was surprised when the aircraft left the ground.

DETERMINATION

It is clear that Mr. Blais has contravened the regulations—he freely admitted this under oath. He also admitted to a previous infraction and to having flown his aircraft on a number of other occasions. He does love aircraft, and as Mrs. Elliott said in her summary, if he had licensed himself, he would have spent far less, and with training would have spared himself the expense and danger of having accidents, and incurring fines. He is fortunate to be still alive and that he has not hurt nor injured himself or others on the ground.

The purpose of sanctions is to restore respect for the CARs, to deter the offender and others from breaking the regulations, thereby saving themselves and others from injury and harm. With no licence to suspend, the only avenue open to the Minister is a monetary penalty which must be substantial enough to deter offenders from operating illegally.

The maximum penalty under the Regulations is $5,000 on each count, which if imposed would amount to a total of $10,000 in this case. The Minister has imposed a fine of $5,000 on Mr. Blais.

In the light of his financial circumstances, and limited income, I feel that a fine of $1,250 on each count, totalling $2,500 will deter Mr. Blais from future infractions and will be a lesson to others. It is noteworthy that he has now obtained a licence and training to fly his aircraft.

Mr. Blais will now realise that ultra-light aircraft can kill and maim people just as surely as their larger and more sophisticated counterparts, when operated illegally, irresponsibly and without training.

At the conclusion of the Review Hearing before this Tribunal, I have determined that Gilbert Blais did contravene paragraphs 401.03(1)(a) and (b) of the CARs on September 17, 1999 at Espanola, Ontario. Because of the reasons given above I reduce the fines levied by the Minister to $1,250 on each count, totalling $2,500.

Philip P Jardim
Member
Civil Aviation Tribunal