Decisions

CAT File No. O-2386-33
MoT File No. PAP5504-044878

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Jean Pascal Joseph Armand Lemaire, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s.7.7
Canadian Aviation Regulations, SOR/96-433 ss. 602.18(1)

Landing within built-up area, Insufficient fuel on board, Built-up area, Fuel on board, Balloon(s)


Review Determination
Allister W. Ogilvie


Decision: April 15, 2002

The Minister has not proven each element of the case against Mr. Lemaire. The allegation is dismissed.

A review hearing on the above matter was held Wednesday, March 27, 2002 at 10:00 hours, at the Federal Court of Canada, in Ottawa, Ontario.

BACKGROUND

A hot air balloon was making a flight over the city of Ottawa on July 27, 2001 coming from the area of Lebreton Flats traversing the city roughly from North to South. It did not reach its planned destination but rather made a precautionary landing in a school yard within the city limits.

The balloon's flight path took it over a residential neighbourhood. As it crossed over one house on its descent, its presence badly frightened the dogs at that residence. The concerned owner made inquiries about the flight and subsequently lodged a complaint with Transport Canada.

Transport Canada conducted an investigation into the matter which resulted in the following allegation against the balloon's pilot:

Pursuant to section 7.7 of the Aeronautics Act, the Minister of Transport has decided to assess a monetary penalty on the grounds that you have contravened the following provision(s):

602.18 (1) in that you operated balloon C-GBDR over a built-up area of the City of Ottawa on July 27, 2001 without carrying on board sufficient fuel to permit the balloon to fly clear of the built-up area.

EVIDENCE

Inspector Flewelling had been assigned to investigate the incident. Through his inquiries he established that the pilot was a Mr. Lemaire. The inspector elicited a warned statement from him, making note of the responses. Mr. Lemaire subsequently sent a written statement. Upon receiving a letter of investigation he again wrote to Transport Canada to assert his disagreement with Transport Canada's assessment of his flight.

Initially he described a small leak in an O ring on one of the tanks. He had shut off that tank and taken off with the other tank. He described his landing in the Lynda Lane area (Exhibit M-4). In writing to Transport Canada the second time he stated that the landing was due to an unforseen fuel problem (Exhibit M-5). Having received a letter of investigation from Transport Canada Mr. Lemaire responded in more detail. He reiterated that there had been a small leak at an O ring during the inflation process so he had manually shut the tank valve off. A leaking valve could cause raw propane to leak around the fitting which could cause the rubber O ring to freeze up. Shutting down the valve would allow the O ring to thaw which would then enable it to be resealed. However when he attempted to reseal that valve he discovered that the O ring was no longer in place. He therefore reassessed his flight plan and decided to do a precautionary landing (Exhibit M-6).

The inspector concluded that the statements were inconsistent as they changed one from the other. The first spoke to a small fuel leak, the second an unforseen fuel issue and the last a missing O ring. As the pilot knew that he had a problem with one tank at the inflation stage, the problem was not unforseen. The very fact that it was forced to land where it did showed that it was not operated with sufficient fuel on board to fly clear of the built-up area.

He stated that he was personally familiar with the area of the city where the landing was carried out and knew it to be within the city in a residential area. A photocopy of part of a city map was entered to illustrate the landing area (Exhibit M-2). On the issue of the landing area the complainant also testified to it being within city limits in a predominantly residential area.

Mr. Lemaire had about 300 hours in flying balloons on the day of the incident. In his testimony he reiterated his statement regarding the O ring. He stated that he had experienced the problem of a leaky valve at inflation before and had solved it by shutting off the valve to allow the ring to thaw. There was no issue with this flight until he discovered that the O ring was missing whereupon he reassessed the situation and decided to land in the Lynda Lane area.

Mr. Kevin Pilgrim was accepted as an expert on balloon operations. He also had experienced an O ring freezing while the balloon was tipped over in the inflation process. In his opinion the solution was to turn the tank off, go to the alternate tank and inflate the balloon with it. He did not regard the tank as being unserviceable only temporarily out of use. There was no requirement to check all the O rings before a flight.

Inspector Flewelling is a very experienced pilot with many hours to his credit but candidly conceded during cross-examination that he had no experience with balloons or with leaky fittings; nor did he inquire into the take-off weight or volume of the balloon, the temperature, the actual or forecast winds on the day and at the time of the flight. He did not know how far it was from the landing area to the edge of the built-up area. Regarding fuel on board Mr. Lemaire had told him he had two tanks. He felt that as the pilot only had access to one tank only 50% of the fuel was available which was obviously not enough as a precautionary landing had been made.

SUBMISSIONS

The Minister asserts that it is proven that Mr. Lemaire was the pilot-in-command of balloon BDR on July 27th when it was flown over a built-up area without sufficient fuel to permit it to fly clear of the built-up area. The fact that it landed short of its destination and Mr. Lemaire's own statements show that there was insufficient fuel.

The problem with the O ring was known prior to take-off, and the pilot did not ascertain before take-off whether the second tank was going to be accessible in flight. The result was the landing in a built-up area that had negative consequences on a particular residence.

It is a privilege to participate in aviation and the participation must be within the regulations. The monetary penalty should be upheld in the circumstances.

Mr. Lemaire's representative argued that the offence charged is really about flight planning not operations. He points out that the inspector did not investigate many facets of the flight such as the fuel on board, winds or temperatures. The pilot gave the inspector information upon which the inspector made assumptions although he had no balloon experience.

In his estimation, Transport Canada had confused the fuel issue with the fuel leak, the fuel issue being the missing O ring. Expert testimony had established that a fuel leak upon inflation was common but a missing O ring was exceptional.

THE LAW

In this case the allegation is that Mr. Lemaire contravened subsection 602.18(1) of the Canadian Aviation Regulation (CARs) which states:

602.18 (1) No person shall operate a balloon over a built-up area without carrying on board sufficient fuel to permit the balloon to fly clear of the built-up area, taking into consideration the take-off weight of the balloon, the ambient temperature and the actual and forecast winds, and possible variations of those factors.

DISCUSSION

It is incumbent upon the Minister to prove on a balance of probability each element of the offence. For an offence under subsection 602.18(1) of the CARs, the Minister must establish: the identity of the person, that the person operated the balloon, on the date and place specified, over a built-up area, without carrying on board sufficient fuel to permit it to fly clear of the built-up area; taking into consideration the factors listed in that section and the variations of the factors.

Proof of the first facets is alleviated by the admissions of Mr. Lemaire.

The testimony of Inspector Flewelling and the complainant, Mr. I. MacKay, establishes that, that location is in a residential suburb within the city limits of Ottawa. Whether a particular area is a "built-up area" or not has been the subject of numerous cases. As there is no definition of "built-up area" the cases turn on their particular facts. In this instance I am satisfied that the testimony and map clearly establish that the landing site was within a "built-up" area which satisfies another element of the offence.

ISSUE

The outstanding issue is whether the balloon carried on board sufficient fuel to permit it to fly clear of the built-up area, taking into consideration the take-off weight of the balloon, the ambient temperature and the actual and forecast winds, and the possible variations of those factors.

On this point there is a paucity of evidence. The Minister's evidence, which is derived from Mr. Lemaire's statements, is that there were two tanks of fuel on board. One tank became unserviceable because of the O ring problem. The balloon did a precautionary landing before clearing the built-up area; therefore, it must not have carried sufficient fuel on board to clear the built-up area. It seems that the Minister relies on the event to speak for itself.

Cross-examination established that the inspector did not attempt to establish any of the variables that form part of subsection 602.18(1) of the CARs, nor was he aware how far away it was from the landing site to the edge of the built-up area.

The pilot's testimony indicates that he had turned off one tank that had a valve leak, anticipating that the O ring would thaw and thus could effectively be resealed again, and so continued to inflate the balloon from the other tank. Some time later, although there is no evidence of exactly when, he discovered the O ring to be missing and therefore he could not utilize the tank. He reassessed the flight and decided upon a precautionary landing.

The expert's testimony was to the effect that he had experienced leaking valve problems and too had turned off the offending tank. However he did not view that tank as being unserviceable only temporarily out of use.

It seems to me that to come to a conclusion on the issue you have to know how much fuel would have been required, given the variables listed, and compare that figure to the fuel on board. Neither of those figures is in evidence.

There is evidence of two tanks of fuel but that is nebulous. The actual quantity of fuel or the fuel capacity of a tank is not in evidence. Were both tanks full? What range could a balloonist expect from that fuel quantity, given the variables of the day? How far a balloon would travel on a given quantity of fuel could only be established if you applied the factors and variations of the factors that are part of subsection 602.18(1).

The fact that a precautionary landing was made is not of itself sufficient to establish that there was not sufficient fuel on board. As a relatively inexperienced pilot (300 hours) perhaps he landed due to an abundance of caution but with enough fuel. The fuel quantity is simply not known. It needs to be established how much fuel was on board then as compared to how much it would have taken, given the factors, to reach the edge of the built-up area. That later distance is not in evidence either.

I accept that Mr. Lemaire thought that he had two useable tanks when he commenced his flight. When he discovered the missing O ring, that tank was no longer available to him. Although he then made a precautionary landing, the act of landing does not establish that there was not enough fuel on board to clear the built-up area. That fact must be established by evidence. The Minister has not adduced evidence of the quantity required, the quantity on board at take-off nor the quantity remaining at landing. Absent that type of evidence, I am unable to conclude that Mr. Lemaire contravened subsection 602.18(1).

Evidence was adduced regarding the operation of a balloon and procedures and limitations found in the Flight Manual such as the required number of tanks and burners serviceable at take-off. But as the procedures and limitations were not part of the allegation they are not germane to the determination.

DETERMINATION

The Minister has not proven each element of the case against Mr. Lemaire. The allegation is dismissed.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal