Decisions

CAT File No. P-1519-37
MoT File No. EMIS 029586

CIVIL AVIATION TRIBUNAL

BETWEEN:

Minister of Transport, Applicant

- and -

Tree Tops Air Ltd., Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, s. 7.7, 8.5
Canadian Aviation Regulations, SOR/96-433, s. 602.14(2)(b), 602.15(2)(b)

Low Flying, Due Diligence, Defenses, Crop Spraying, Creating a Hazard, Specialty Air Services


Review Determination
Linda P. Thayer


Decision: March 30, 1998

I find that the Minister of Transport has established, on a balance of probabilities, that a contravention of paragraph 602.14(2)(b) of the Canadian Aviation Regulations occurred on April 2, 1997. However, I also find that the Respondent is not liable for the said contravention by virtue of section 8.5 of the Aeronautics Act, having demonstrated to the Tribunal that it exercised all due diligence to prevent the contravention.

A Review Hearing in the above-noted matter was held Friday, January 30, 1998 at 10:00 hours, at the Courthouse in Kelowna, British Columbia.

BACKGROUND

The allegation in this case arises out of the conduct of a crop spray operation on April 2, 1997 in Armstrong, British Columbia. The Respondent was assessed a monetary penalty of $1,250.00 for an alleged infraction of paragraph 602.14(2)(b) of the Canadian Aviation Regulations (CARs).

The relevant portions of the Notice of Assessment of Monetary Penalty read as follows:

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):

Canadian Aviation Regulation 602.14(2)(b) in that, at approximately 09:30 am Pacific Standard Time on April 2, 1997 at or near the east end of Keevil Road to the east of the intersection of Keevil Road and Okanagan Street, north of Armstrong, B.C., an Aero Commander S-2R aircraft bearing Registration Marks C-FYWI was flown at a distance of less than 500 feet from a person, vehicle, or structure. (Note: CAR 602.15(2)(b)(i) does not apply because where the aircraft was operated created a hazard to persons or property on the surface).

Pursuant to the Aeronautics Act, s. 8.4(1) Tree Tops Air Ltd., as the registered owner of C-FYWI, is liable for the penalty provided for the contravention.

THE EVIDENCE

Mr. Allen Walls is a pilot and the owner of Tree Tops Air Ltd. which is engaged in the business of commercial crop spraying. At the time of the events under consideration, Mr. Walls had accumulated just over 1,000 hours of flying time.

Tree Tops Air Ltd. was hired by a Mr. Johnson to fertilize his field near Armstrong, B.C., on April 2, 1997. Mr. Johnson's field is adjacent to property owned by Mrs. Harriett Potter. Mrs. Potter operates an organic farm and raises Suffock sheep. The sheep were pregnant at the time of the incident, on April 2, 1997.

Mr. Walls testified that, sometime prior to undertaking the spray operation, he took a view of the property to be sprayed noting any obstacles in the area and planning the spray operation accordingly. He has rejected crop spraying work in the past, if obstacles in the area could not be safely avoided. In this case, Mr. Walls accepted the work and asked Mr. Johnson to notify his neighbours of the date and time of the spray operation. (This was never done, according to the witnesses.)

Tree Tops Air Ltd. also hired ground personnel who were present on April 2, 1997 positioned on Mr. Johnson's field. Their job was to advise of any problems arising out of the spray operation on that day. The Tree Tops Air Ltd. aircraft was equipped with safety equipment to cut electrical wires in the event of a wire strike.

Mr. Walls testified that he commenced his spray operation by completing three passes beginning on the southern border of Mr. Johnson's property (nearest to Mrs. Potter's home). He then completed three more passes on the northern border of that property (farthest from Mrs. Potter's home). Finally, he completed three passes in the middle of that property. Mrs. Potter testified that the aircraft finished its first set of passes, travelled north away from her property and returned about one hour later to continue spraying.

During all of the initial passes, Mr. Walls safely flew over electrical wires situated along the border of the Johnson and Potter properties. Three hydro poles supported the wires. One pole was situated on the southern border of Mr. Johnson's property, one on the northern border and one in the middle.

It was while he was carrying out the passes in the middle of the property that the Respondent's aircraft struck the middle hydro pole, knocking the top off, sending it flying into the Potter field where it speared the ground. The insulators from the telephone pole sparked, a live wire fell down onto the field across the fencing and onto the Potter property igniting a small grass fire in the northwest section of the Potter field. Two men standing on Mr. Johnson's property immediately climbed over the fence and put the fire out.

Three witnesses in all testified as to their observations regarding the spray operation, the hydro pole strike and the aftermath of that strike. They were Mrs. Harriett Potter, Ms. Dara Gilliland and Mrs. Elva Coulter.

On the day and time in question, Mrs. Potter testified that she heard and observed the Tree Tops Air Ltd. aircraft, C-FYWI, flying near her home. She testified that the aircraft was "startlingly low," and she estimated that it was flying at about 50 feet above the ground. She observed that its path was below the level of the tallest pine tree in front of her home: "about 10 feet below the top of the pine tree" in front of her house.

Mrs. Potter has a flock of Suffock sheep. They were, at the time of the incident, one week away from lambing and appeared to have been startled by the noise of the low-flying aircraft. The first pass according to Mrs. Potter was directly over the top of the pen where the fourteen sheep are kept. Large clumps of fertilizer, and insulator were sprayed onto Mrs. Potter's field after the aircraft hit the wire. Mrs. Potter was concerned with her sheep's health. The broken pole landed approximately 300 feet from where she was standing beside the small hay shed on her property.

Mrs. Potter testified that she directly observed the collision of the aircraft with the wire and observed the fire. A neighbour, Mrs. Coulter, who also testified in these proceedings, called the police and fire department who arrived at the scene shortly after they were called.

Mrs. Potter testified that, after the powerline was struck, the aircraft seemed to carry on flying for "a considerable amount of time."

Ms. Gilliland testified that she observed the aircraft flying low, hit a hydro pole and powerline, lose height, appear to falter and continue spreading fertilizer. She testified that the wire that was hit fell onto the Potter property and started a ground fire. She observed insulator material flying onto the field, and the decapitated hydro pole itself (which resembled a sharp stick at the broken end) was hurled by the force of the strike straight into the ground on the Potter property. She observed about twelve men at the end of the field on Young Road, the northern boundary of the Johnson property. Mr. Walls testified that among these twelve men were the ground personnel Tree Tops Air Ltd. had employed to observe and monitor the operation from the ground.

Mrs. Elva Coulter lives on the north side of Keevil Road. She testified that at approximately 9:30 a.m., she had her washing machine and vacuum cleaner going and yet still heard an "extremely loud noise" coming from Keevil Road, out in front of her home.

When she looked out of her western window, she noted that an aircraft had just flown over her house and circled to the north. She stated that she was "totally terrified" when the aircraft went over her house. When she realized that Mrs. Potter was out in her driveway, she went to talk to Mrs. Potter and learned that the aircraft was spraying fertilizer over the Johnson fields. She stated that the aircraft again made a pass and struck a powerline on the edge of the field. She noticed a lot of debris coming out at the end of the aircraft. She observed that the front end of the aircraft went up and the back end dropped down simultaneous to the powerline strike, but the aircraft carried on. She noticed several fires starting at the time. Some men at the end of the field stomped out the fires. She felt that there was a lot of danger with the live powerline coming down. It was at that point that she decided that there was a potential for damage to people and property and she called 911. About ten minutes later, the police and fire department arrived.

Mr. Walls testified that he regularly performs his spray operation at tree top level. In all of the passes prior to the pole strike, he was able to safely pull up at the end of the field over the top of the wires and poles. On the pass when the strike occurred, Mr. Walls suffered an engine power loss and sunk into the pole. He then pulled up and flew over the location where Tree Tops Air Ltd. ground personnel were located so that they could assess the condition of the landing gear and underbelly of the aircraft to advise if it was safe to land.

Mr. Walls testified that he lost two sets of spark plugs, which caused a power loss. He remained in the air because he knew that the aircraft landing gear had been damaged by the strike. He testified that he continued spraying in order to off load the fertilizer to enable him to land without the added weight.

The Minister's representative called no evidence to dispute that power loss had occurred at the time of the strike.

As of March and April 1997, the aircraft journey log indicates that the Respondent appropriately maintained the aircraft. The Minister's representative reviewed the aircraft journey log and did not take issue with the maintenance record or airworthiness of the aircraft on the day of the incident.

Mr. Wall's entry in the aircraft journey log dated April 2, 1997 states in part:

Lost Left Mag. Loss

Power Dropped Took

Out Powerline. Damage to Right ...

Spreader. Right Mag ok

Flow Home on Right Mag.

Grounded Aircraft for

Repairs.

The aircraft journey log entry on April 11, 1997 – Maintenance – C-FYWI states inter alia:

18 SPARK PLUGS REPLACED WITH RHB32E.

AGREED FACTS

Most of the key facts in this case are not in dispute:

By Agreement of Fact, Exhibit M-1, the parties agreed to the following facts:

  1. the time was approximately 09:30 am Pacific Standard Time
  2. the date of the incident was April 2, 1997
  3. the location was at or near the east end of Keevil Road to the east of the intersection of Keevil Road and Okanagan Street, north of Armstrong, B.C.
  4. the aircraft was an Aero Commander S-2R with Registration Marks C-FYWI
  5. aircraft C-FYWI was owned by Tree Tops Air Ltd. on April 2, 1997
  6. C-FYWI was flown at a distance of less than 500 feet from a person, vehicle, or structure.

THE ISSUES

  1. Was the Respondent's aircraft operated in accordance with the exemption provided by paragraph 602.15(2)(b) of the CARs without creating a hazard to persons or property on the surface?
  2. Did the Respondent exercise all due diligence to prevent the contravention so as to provide a defence under section 8.5 of the Aeronautics Act?

THE APPLICABLE LEGISLATION

The following provisions apply to the matter before the Tribunal. Section 602.14 of the CARs establishes minimum altitudes and distances. Paragraph 602.14(2)(b) states:

(2) Except where conducting a take-off, approach or landing or where permitted under section 602.15, no person shall operate an aircraft

(...)

(b) in circumstances other than those referred to in paragraph (a), at a distance of less than 500 feet from any person, vessel, vehicle or structure.

Paragraph 602.15(2)(b) of the CARs sets out an exception to section 602.14 and states inter alia:

(2) A person may operate an aircraft, to the extent necessary for the purpose of the operation in which the aircraft is engaged, at altitudes and distances less than those set out in

(...)

(b) paragraph 602.14(2)(b), where the aircraft is operated without creating a hazard to persons or property on the surface and the aircraft is operated for the purpose of

(i) aerial application or aerial inspection,

(...)

While there is a general prohibition against a person flying an aircraft at an altitude less than 500 feet above a person, vessel, vehicle or structure, an exception to that prohibition has been created to permit flying at less than 500 feet provided certain conditions are satisfied: firstly, that the low flying is only "to the extent necessary for the purpose of the operation," secondly, that the flight is conducted without creating a hazard to persons or property on the surface, and thirdly that the aircraft is flown in specialty air services such as aerial application.

Crop spraying falls into the "specialty air services" exception, as "aerial application" allowing the operator to fly at altitudes lower than 500 feet to the extent that such is necessary to the operation and provided that the aircraft is operated without creating a hazard.

Subsection 8.4(1) and section 8.5 of the Aeronautics Act also apply and state:

8.4 (1) The registered owner of an aircraft may be proceeded against in respect of and found to have committed an offence under this Part in relation to the aircraft for which another person is subject to be proceeded against unless, at the time of the offence, the aircraft was in the possession of a person other than the owner without the owner's consent and, where found to have committed the offence, the owner is liable to the penalty provided as punishment therefor.

(...)

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

ANALYSIS AND DETERMINATION

It is not disputed that Tree Tops Air Ltd. was operating at an altitude of less than 500 feet during the aerial spray operation on the day in question. Mr. Walls testified that he regularly flies at treetop level to conduct his aerial spray operation. I am satisfied that he flew low to the extent necessary to carry out the aerial spray operation. But the key issue in this case is whether or not the aircraft was operated without creating a hazard to persons or property on the surface.

The issue of the creation of a hazard under the predecessor to this regulation, was addressed by this Tribunal in the case of Minister of Transport v. Gordon E. Boklaschuk[1] as follows:

Parliament in enacting the legislation clearly contemplated that special purpose operations would be flown at heights less than those prescribed by 534(2)(b). Conducting a special purpose operation at heights less than those prescribed in Section 534(2)(b) does not in itself constitute a hazard. Various Dictionary definitions of Hazard refer to A fortutious [sic] event, chance accident; risk; peril, exposure to danger. To determine whether a hazard was created in a particular instance, the facts surrounding that case must be examined and each case decided on its own particular facts. For a hazard to be created, the chance of an accident, the risk or peril or the exposure to danger, must be real. To determine whether or not the operation in question created a 'hazard', the Hearing Officer must determine whether the manner in which the operation was conducted conforms to the standards that a reasonably competent Crop Sprayer would adhere to in the circumstances. If the operator in question can establish on a balance of probabilities that the operation in question conforms to those standards, the onus on him has been met. This is a matter which the Hearing Officer must determine based on the evidence adduced at the Hearing.

There is no dispute on the evidence that the flight in question carried out by Tree Tops Air Ltd. struck the powerline and knocked off the top of the power pole. This in turn sent down a live wire, started a fire, and scattered sparking insulators and other debris over the Potter field. This is not the standard of operation expected of a reasonably competent crop sprayer. It is difficult to reach any other conclusion but that the flight was carried out in a manner which created a hazard to persons or property on the surface.

I find that the Respondent's aircraft was operated in a manner which did create a hazard to persons or property on the surface, such that the Respondent cannot avail itself of the exception under paragraph 602.15(2)(b) of the CARs.

However, that is not the end of the matter since section 8.5 of the Aeronautics Act provides:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

The concept of due diligence has been considered in a number of cases. In Regina v. Sault Ste. Marie[2] the Court held:

The due diligence which must be established is that of the accused alone. Where an employer is charged in respect of an act committed by an employee acting in the course of employment, the question will be whether the act took place without the accused's direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. The availability of the defence to a corporation will depend on whether such due diligence was taken by those who are the directing mind and will of the corporation, whose acts are therefore in law the acts of the corporation itself.

Following the test in R. v. Sault Ste. Marie, so long as the corporate employer, in this case the Respondent Tree Tops Air Ltd., clearly exercised all reasonable care by establishing proper and appropriate maintenance of its aircraft and took reasonable steps to ensure that it could safely complete the operation and thereby prevent any occurrence or violation of the Act or regulations, Tree Tops Air Ltd. may successfully assert that it has exercised all due diligence to prevent the commission of an offence under the CARs for which it may be held vicariously liable.

In the present case, the evidence supports as a finding that the company's aircraft had been satisfactorily maintained. This evidence was not contested. The aircraft was equipped with the necessary equipment to safely react to a wire strike. The aircraft was flown without incident prior to and after the power loss over the same poles and wires.

The powerline was struck because the aircraft suffered a mechanical problem. This problem was stabilized, and the pilot assessed the problem to enable a safe landing. The fertilizer product was emptied out to avoid a spill. Tree Tops Air Ltd. had placed ground personnel on the ground to monitor the operation. Tree Tops Air Ltd. through Mr. Walls had viewed the property in advance to determine the feasibility of the operation, thereby exercising due diligence to prevent a contravention of the Act and/or regulations.

The power loss experienced was not as a result of improper planning or handling of the aircraft by the pilot. The powerline incident arose through no fault of the pilot or of Tree Tops Air Ltd. It resulted from a mechanical failure which was not foreseeable.

I find that the Respondent is not liable for the contravention of paragraph 692.14(2)(b) of the CARs by virtue of section 8.5 of the Aeronautics Act, having demonstrated to the Tribunal that it exercised all due diligence to prevent the contravention.

Linda P. Thayer
Member
Civil Aviation Tribunal


[1] (Appeal), CAT File No. C-0141-33, at p. 7.

[2] [1978] 2 S.C.R. 1299, 3 C.R. (3d) 30.