Decisions

TATC File No. O-3240-33
MoT File No. PAP5504-57107

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

John Davidson, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433 (CARs), ss. 602.13(4)(a) and (b), 602.13(1)

Landing, Built-up area, Balloon


Review Determination
Hilery T. Hargrove


Decision: December 5, 2006

The applicant did not contravene subsection 602.13(1) of the Canadian Aviation Regulations as the evidence establishes that the circumstances of the landing fall within the exclusion contained in paragraphs 602.13(4)(a) and (b). The monetary penalty assessed by the Minister is dismissed.

[1]     A review hearing on this matter was held Thursday, October 12, 2006 at 10:00 a.m. at the Standard Life Building, South Tower, at Ottawa, Ontario.

BACKGROUND

[2]     John Davidson, the applicant, admitted at the hearing that he was the pilot of a Cameron Balloon (balloon) registered as C-FNLS when it landed in Maki Park in the City of Ottawa on June 19, 2005.

[3]     The evidence establishes that the balloon in question is owned by Sundance Balloons International Ltd. (Sundance Balloons). I am satisfied that the evidence establishes that Maki Park is located within the Ottawa Class C control zone (exhibit M-6) and as such, take-offs and landings at this location must be cleared with and authorized by the Ottawa Control Tower (Ottawa Tower). I am further satisfied from the evidence that landing in Maki Park constitutes landing within a built-up area, contrary to subsection 602.13(1) of the Canadian Aviation Regulations (CARs) and as such, the onus is upon the applicant to establish that his landing in Maki Park falls within the exclusions contained in subsection 602.13(4) of the CARs.

LAW

[4]     The relevant provisions of the CARs with which we are concerned are subsections 602.13(1) and (4) which provide as follows:

602.13 (1) Except if otherwise permitted under this section, section 603.66 or Part VII, no person shall conduct a take-off, approach or landing in an aircraft within a built-up area of a city or town, unless that take-off, approach or landing is conducted at an airport or a military aerodrome.

. . .

(4) A person may conduct a landing in a balloon within a built-up area at a place that is not located at an airport or military aerodrome, where

(a) the landing is necessary to avoid endangering the safety of the persons on board; and

(b) the pilot-in-command contacts the appropriate air traffic control unit or flight service station, either prior to landing or as soon as possible after landing, and provides

(i) the balloon's nationality mark and registration mark,

(ii) the estimated or actual, as applicable, time and location of the landing, and

(iii) the reasons why it is believed that the safety of the persons on board is or was endangered.

EVIDENCE

A. Minister of Transport

[5]     The Minister, having the onus of establishing that the applicant contravened the CARs, presented evidence first at the hearing.

(1) Roger Sorenson

[6]     The Minister's first witness was Roger Sorensen, who testified that he had been employed with Transport Canada for approximately 10 years. His account of the events is contained in his handwritten report which was entered into evidence as exhibit M-1. In essence, Mr. Sorensen's evidence is that at approximately 7:40 a.m. on June 19, 2005, he was riding his bicycle when he observed a hot air balloon, C-FNLS, descending to a very low altitude as it crossed over a built-up residential area in Ottawa. Believing the balloon might have been in difficulty, he followed it "since there were a number of people including children on board". He followed that balloon and observed it landing in Maki Park. He further states, "I believe I counted 14 people including at least 4 children".

[7]     According to Mr. Sorensen's evidence, he approached Mr. Davidson after the passengers had disembarked, identified himself as an employee of Transport Canada and inquired of Mr. Davidson why he had landed in a built-up residential area. According to Mr. Sorensen's evidence, Mr. Davidson then responded, "I had to make a precautionary landing. I was heading for a landing at lake (unable to recall)". Mr. Sorensen's evidence also indicates that he asked Mr. Davidson to submit a report of the incident to Oonagh Elliott at Transport Canada. Exhibit M-2, containing a map of the area and aerial photographs of Maki Park, was submitted into evidence as well as exhibit M-3 which contains a two-page weather report. On cross-examination by Mr. Davidson, Mr. Sorenson could not recall receiving three voice mails from Mr. Davidson.

(2) Oonagh Elliott

[8]     Ms. Elliott then testified on behalf of the Minister. She testified that she was employed as an inspector with the Aviation Enforcement Branch of Transport Canada and had been employed with Transport Canada for 17 years. Ms. Elliott's investigator's statement was introduced into evidence as exhibit M-4. According to her evidence, both oral and written, she established in the course of her investigation into the incident that balloon C-FNLS was operated by Sundance Balloons.

[9]     Ms. Elliott's evidence, which I accept, is that balloon C-FNLS landed in Maki Park on June 19, 2005 and that the pilot-in-command was the applicant, Mr. Davidson. I also accept Ms. Elliott's evidence and find as a fact that Maki Park is located within the Ottawa Class C control zone, as evidenced by exhibit M-6. I further find as a fact that Maki Park is located within a built-up area in the City of Ottawa, as evidenced by the aerial photographs in exhibit M-2 and the 360-degree photographic view of Maki Park contained in exhibit M-5.

[10]     Ms. Elliott further testified that, in the course of her investigation, she had contacted Hervé Bertho, Manager of the Ottawa Tower. She was advised by Mr. Bertho that the Ottawa Tower had not received any calls or contacts from balloon C-FNLS on June 19, 2005, and that there was no incident report on record at the Ottawa Tower. In support of her testimony, exhibit M-9 was introduced; it consists of a copy of a letter from Ms. Elliott to Mr. Bertho requesting information as well as e-mails exchanged between Ms. Elliott and Mr. Bertho between June 24 and 28, 2005, basically to the effect that no contact had been made with the Ottawa Tower by balloon C-FNLS reporting a precautionary landing or the incident in any way.

[11]     The foregoing evidence attributed to Mr. Bertho appears to be in conflict with the account detail of Frank Bellantoni, introduced as exhibit A-1, indicating that two telephone calls were made to the Ottawa Tower on Mr. Bellantoni's cell phone on June 19, 2005, the second of which was made at 8:48 a.m. on that date or approximately 68 minutes after the landing of balloon C-FNLS at Maki Park.

[12]     I find it a matter of considerable concern that there is no indication in the records of the Ottawa Tower that these calls had been made or were received. No explanation has been given for this and unfortunately, Mr. Bertho was not called as a witness by the Minister to explain this apparent discrepancy in the evidence. As part of the investigation, Ms. Elliott contacted some, but not all, of the passengers on board the flight in question.

[13]     A summary of these telephone conversations was introduced into evidence as exhibit M-13. This evidence indicates that the flight and landing were unremarkable, other than attempts to land at Andrew Hayden Park (Hayden Park) were unsuccessful and Mr. Davidson opted then to land at Maki Park.

B. Applicant

(1) Barbara Segal

[14]     The applicant's first witness at the hearing was Barbara Segal, who was a member of the ground crew for the flight piloted by Mr. Davidson. Ms. Segal testified that she was primarily responsible for dealing with the passengers and that this was her first flight with the crew. As she did not seem to have any particular expertise with respect to balloon flights, I found her testimony, while honest and forthright, of little consequence in this matter.

(2) Frank Bellantoni

[15]     The applicant's next witness was Mr. Bellantoni, who testified that he was a balloon pilot with approximately 10 years experience and was employed as chief pilot with Sundance Balloons. He gave evidence regarding the procedure which was followed in contacting the Ottawa Tower and obtaining authorization for the balloon flight in question. Mr. Bellantoni, when asked if he ever had any problems with Deschênes Lake, testified that Deschênes Lake was an extremely large body of water and that there were problems with wind from the right to left or to the northwest which created problems with pushing a balloon toward Deschênes Lake.

[16]     He further testified in relation to the telephone call numbers 17 and 19 to Ottawa Tower (613-248-3814) appearing on exhibit A-1. He testified that the first call (number 17) was made by himself on his cell phone at 6:03 a.m. (local time) in which he advised of and received permission for the balloon launches scheduled for that morning, including balloon C-FNLS. He further testified that after termination of the flight, he loaned his cell phone to the applicant so that he could report the precautionary landing to the Ottawa Tower. Mr. Bellantoni testified, however, that he did not actually hear the telephone conversation between the applicant and the Ottawa Tower. He testified that normally it takes about 30 seconds to a minute to phone the Ottawa Tower to advise of a precautionary landing.

(3) John Davidson

[17]     Mr. Davidson testified that he had approximately 3 600 hours of experience as a balloon pilot, with over 2 000 hours as a balloon pilot in the Ottawa area. The original flight plan contemplated termination of the flight by landing at the Equestrian Park. He testified that one hour into the flight, the winds were not strong and he became concerned about the fuel supply. He further testified that the upper winds were at seven to eight knots with a left to right direction. Winds at the lower altitudes were from right to left at two to three knots.

[18]     Mr. Davidson testified that as they approached Deschênes Lake, he became concerned that the trajectory and speed of the winds were going to push the balloon out and over and force him to land in the lake, thus placing his craft and passengers in danger. He testified that at this time, he made the decision to attempt landing at the Hayden Park; however, it became apparent to him as he was making his descent that he would be unable to land in Hayden Park. After two attempts, he made what he described as a precautionary landing in Maki Park to avoid possibly being forced to land in Deschênes Lake.

[19]     The applicant corroborated the testimony of Mr. Bellantoni that the applicant did borrow Mr. Bellantoni's phone and placed a call to the Ottawa Tower informing them of the precautionary landing and the reasons for same.

ANALYSIS

[20]     I am satisfied with the evidence that on June 19, 2005, at or about 7:40 a.m. (local time), C-FNLS, while being piloted by the applicant, landed at Maki Park in the City of Ottawa. Indeed, the applicant admitted at the hearing that he was the pilot of C-FNLS and did in fact land at Maki Park on the date and time in question.

[21]     The evidence presented by the Minister further establishes that Maki Park is a built-up area within the meaning of subsection 602.13(1) of the CARs. This is clearly established by exhibit M-5 which shows a 360-degree view of Maki Park and exhibit M-2 which consists of aerial photographs.

[22]     There is conflicting evidence on the number of passengers on board C-FNLS when it landed in Maki Park. The passenger manifest (exhibit M-12) indicates that there were eight persons on board C-FNLS for the flight in question. Roger Sorensen, inspector at Transport Canada, in his written statement (exhibit M-1) states, however, that he was personally present when the passengers disembarked from the balloon after landing and adds, "I believe I counted 14 people including at least 4 children". This amounts to a very serious discrepancy as to the number of passengers on board the balloon when it landed. There was no further attempt at elaborating on or otherwise reconciling this discrepancy at the hearing.

[23]     It is noted in this regard that despite having interviewed several of the passengers on the balloon, the Minister's representatives did not inquire as to the number of passengers on board the balloon. In fairness, it should be noted that the number of passengers is not directly germane to the issues under consideration, as there is no indication or allegation that the number of passengers exceeded the capacity of the balloon. I merely draw attention to this discrepancy in the evidence as I find it quite significant.

[24]     The evidence does, however, indicate that there were a number of other people around to observe the landing and the possibility of some confusion would seem highly probable. In the circumstances, I am of the opinion that greater weight should be placed on the passenger manifest as no attempt was made by the Minister to reconcile the discrepancy or to corroborate the inspector's evidence which could have easily been done by questioning other passengers on this point.

[25]     I will now examine whether the evidence adduced by the applicant is sufficient to bring him within the exclusions contained in subsection 602.13(4) of the CARs.

[26]     According to the written account of Mr. Sorensen (exhibit M-1), he witnessed one Asian male yelling at the balloon, "Why are you here? Are you having an emergency?" and that the balloon pilot (later identified as the applicant) responded, "No it's OK. It's a normal landing".

[27]     Mr. Sorenson further states in his written statement (exhibit M-1), that when questioning the applicant as to why he landed in Maki Park, the applicant indicated that it was a normal landing until Mr. Sorensen identified himself as being employed by Transport Canada. At this point, the applicant advised Mr. Sorensen as follows: "I had to make a precautionary landing. I was heading for a landing at lake (unable to recall)." This lake was later identified as Deschênes Lake.

[28]     The documentary evidence submitted on behalf of the Minister includes e-mails and correspondence between Ms. Elliott and Mr. Bertho (exhibit M-9). It indicates that Mr. Bertho was unable to find any evidence of contact between balloon C-FNLS and Ottawa Tower on June 19, 2005, nor any evidence of a reported precautionary landing. This evidence is, however, rebutted by the evidence of both the applicant and Mr. Bellantoni and the documentary evidence (exhibit A-1) to the effect that Mr. Bellantoni made a call to the Ottawa Tower at 6:03 a.m. on June 19, 2005, as well as to the effect that the applicant borrowed Mr. Bellantoni's cell phone and called the Ottawa Tower at 8:48 a.m. to report the precautionary landing and the reasons therefor.

[29]     The Mike Telus account detail of Mr. Bellantoni (exhibit A-1) provides evidence that on June 19, 2005, at 6:03 a.m., a telephone call was made to the Ottawa Tower, at number 613-248-3814, allegedly giving details of the flight of balloon C-FNLS and again at 8:48 a.m., allegedly reporting the precautionary landing of that balloon at Maki Park. This conflicts directly with the documentary evidence of the Minister which indicates that the Ottawa Tower has no evidence of an incident report on June 19, 2005 involving a precautionary landing by C-FNLS. Unfortunately, the Minister did not call Mr. Bertho as a witness to explain this apparent inconsistency. As such, I have chosen to give greater weight to the evidence of Mr. Bellantoni and the applicant on this point and find as a fact that the applicant did indeed call the Ottawa Tower to report the precautionary landing and the reasons for such landing.

[30]     The evidence of Mr. Sorensen appears to place considerable weight on the fact that the applicant described the landing as a "normal landing" and hence seems to at least imply that if it was a normal landing, it could not meet the criteria set out in subsection 602.13(4) of the CARs. On this point, I think it is important to distinguish between a "precautionary landing" which may in all respects be normal and without incident, as opposed to an "emergency landing" which will usually arise due to some incident and may be anything but normal.

[31]     The applicant initially advised that the landing he executed in Maki Park was a normal landing, and according to the evidence adduced by the Minister regarding telephone conversations with some of the passengers, it appears that it was indeed a normal landing without significant incident. This does not, in itself, exclude it from meeting the criteria in subsection 602.13(4) of the CARs.

[32]     I am of the view that subsection 602.13(4) of the CARs clearly contemplates permitting precautionary landings to avoid a potential emergency situation. Indeed, this would appear to be the purpose of the provision. As such, while a pilot is responsible for failure to take prudent precautions prior to the flight to avoid a situation which requires the execution of a precautionary landing, I believe it would be contrary to the intent of the subsection to place too strict an interpretation on the circumstances under which a precautionary landing is permitted. It would be both dangerous and inappropriate to "second guess" the decision of a balloon pilot to execute a precautionary landing in circumstances arising as a result of a change in conditions during the flight which place or may place passengers in possible hazardous situations. Indeed, I am of the view that subsection 602.13(4) of the CARs was enacted to address precisely such situations.

[33]     I am of the opinion that the oral evidence given by both Messrs. Davidson and Bellantoni at the hearing was strong, and both appeared to this Tribunal as being very credible witnesses and balloon operators of vast experience.

[34]     Subsection 602.13(4) of the CARs provides that a person may, notwithstanding the prohibition contained in subsection 602.13(1), land a balloon within a built-up area if the landing is necessary to avoid endangering the safety of the persons on board and the pilot meets the criteria outlined in paragraph (b) by contacting the appropriate air traffic control unit either prior to landing or as soon as possible after landing, and provides the following information:

  • the nationality mark and registration mark of balloon;
  • the estimated or actual time and location of the landing; and
  • the reasons why it is believed that the safety of persons on board is or was endangered.

[35]     The evidence of the applicant is that the winds changed after launching the balloon such that if he did not land at Maki Park, he was convinced the balloon would have landed in Deschênes Lake which is the largest body of water in the area. Certainly, landing any distance from shore in this lake could have endangered the safety of the passengers on board the balloon. Further, the change in the direction of the winds during the course of a balloon flight, while always a possibility, is not something that can be guarded against in advance.

[36]     Rather, it requires adjustments to be made in flight having regard to the safety of the passengers and others possibly affected. This is precisely what happened in the present case, and I find the applicant's actions consistent with his responsibilities in such circumstances and consistent with subsection 602.13(4) of the CARs.

DETERMINATION

[37]     I find that while the applicant did land the balloon in a built-up area, he did not contravene subsection 602.13(1) of the CARs, as the evidence establishes that the circumstances fall within the exclusions contained in paragraphs 602.13(4)(a) and (b) and as such, the monetary penalty assessed by the Minister is dismissed.

December 5, 2006

Hilery T. Hargrove
Member
Transportation Appeal Tribunal of Canada