Decisions

CAT File No. Q-2303-59
MoT File No. 5802-046643

CIVIL AVIATION TRIBUNAL

BETWEEN:

Jacques Paillard, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)


Review Determination
Pierre J. Beauchamp


Decision: May 3, 2002

TRANSLATION

I refer the matter back to the Minister for reconsideration of his decision to suspend the Applicant's instrument flight rating (IFR) and pilot proficiency check (PPC) on BE 10 aircraft.

A review hearing on the above matter was held October 11 and 12, 2001, at the offices of the Commission municipale du Québec in Québec City, Quebec.

BACKGROUND

Mr. Jacques Paillard, the Applicant, is the holder of an airline transport pilot licence.

On July 7, 2001, he underwent a pilot proficiency check (PPC) at the Quebec City airport for renewal of his proficiency on the Beechcraft King Air (BE 10) operated by his company.

The flight test was administered by Transport Canada inspector Mr. Jean Roy.

Although a series of flight test scenarios were satisfactorily completed, the test results indicated a failure, while the second approach planned for the test, a radar vectoring approach, LOC(BC) 24 DME with simulated engine failure, was deemed unsatisfactory. As a result of this assessment, Mr. Paillard's BE 10 PPC was suspended, and he has asked for a review of this decision.

THE EVIDENCE

The Minister's representative, Mr. Umberto Tamborriello, called Mr. Jean Roy to testify, and produced four documents in support of the Respondent's representations, namely, the disputed flight test report (M-1), an extract from the Canada Air Pilot in force from May 17 to July 12, 2001, namely, the approach chart for LOC(BC)/DME runway 24 or LOC(BC)/NDB B for the Quebec City airport (M-2), chapters 8, 9 and 10 of the Approved Check Pilot Manual (7th edition) (M-3), and finally, a report of pilot tests dated April 18, 1990, pertaining to the Applicant, Mr. Paillard (M-4).

Mr. Jean Roy is the Transport Canada inspector who administered the Applicant's flight test (PPC) last July 4. He related that he had briefed the crew about the upcoming test in accordance with the data in the Approved Check Pilot Manual.

Mr. Vachon was the first officer and occupied the right-hand seat of the aeroplane, and Mr. Roy, the inspector, occupied a rear seat, in the passenger cabin, while the Applicant sat in the seat on the left.

Part of the briefing was cut short at Mr. Paillard's request when reviewing the technical data, because he wanted to be in the aeroplane to answer these questions with the aid of the instruments.

The weather for the scheduled flight was good, although there were showers in the vicinity of the airport, and it was agreed to proceed with a visual flight rather than planning an instrument flight (IFR) in order to avoid possibly losing time because of the traffic conflict and IFR procedures.

The planned flight was to include the candidate's single pilot rating, the two pilots had been briefed accordingly, and as it turned out the autopilot system required for this procedure malfunctioned during the flight, and this portion of the drill was abandoned.

Referring to the flight test report (M-1), Mr. Roy explained that the failure occurred due to the candidate's unsatisfactory (U)[1] performance, as noted in three places on the form, but that the failure actually resulted from the same drill, namely, the second approach referred to earlier.

He said, in summary, that essentially the failure was related to this approach in that:

  1. The transition to the final approach was not completed normally because the DME[2] had not been selected and therefore did not display the distance.
  2. The track arrow of the horizontal situation indicator (HSI) was not pointing along the required route 063°;
  3. During the tailwind portion of the approach, while the aeroplane was vectored at 3,000 feet, some 5 miles DME from the airport, the maximum airspeed of 200 knots required by the Canadian Aviation Regulations (CARs) was exceeded by 10 knots (210 knots);
  4. The Applicant did not take the time to read the approach chart and did not complete the required briefing for the approach;
  5. Finally, and in particular, the pilot descended below the minimum level required for an approach without DME, i.e., 880 feet, in other words, he descended to the minimum of 640 feet MSL (mean sea level) for a straight-in approach with DME without having made the necessary correction to the minimum after loss of the DME.

Moreover, at about 500 feet AGL, at least, he asked his co-pilot to check the required minima and then consulted the approach chart; he actually completed the approach "by heart," without having the approach chart in hand.

The three failure entries in the flight test report therefore pertain to these deficiencies, according to him, that is, having descended below the required minima, both the minimum descent (MDA)[3] and the minimum altitude above the Champlain (BV) non-directional beacon, after loss of the DME, the excessive airspeed with tailwind, and his poor decision making.

In cross-examination, Mr. St-Pierre, counsel for the Applicant, argued along two principal lines. First, he looked at the overall circumstances surrounding the conduct of this flight test.

It appears that this was the third flight test Mr. Roy administered that day to an Aéropro pilot; that, during the briefing, Mr. Roy had told the Applicant he had to catch a flight to Sept-Îles at 18:45 hours; the test began at about 16:00 hours; the briefing was very short, shorter than the one for the flight test of another pilot earlier; and that this other flight also resulted in a failure.

Mr. Roy stated that he had known Mr. Paillard for some time, and did not think that this time limit imposed by the prospect of his departure for Sept-Îles after the flight had placed Mr. Paillard, a pilot of considerable experience, under any additional duress, although he admitted he may have told Mr. Paillard that, in the circumstances, "we'll do this quickly." Mr. Roy did not think these statements created a climate of stress for the candidate Paillard.

Regarding the previous flight test, also involving co-pilot Vachon as PNF,[4] it seems he also initially failed Mr. Vachon, but after the captain of that flight intervened, he retracted it, admitting to the Tribunal, very honestly, that it is possible "to miss things" during a test, and that in this case, in view of the explanations provided, he had been able to correct his assessment and give Mr. Vachon the "benefit of the doubt."

Finally, he admitted that, in the past, in the 1990s, these two had a rather stormy relationship, to the point of coming to blows, but that the inspector had since harboured no animosity towards the Applicant, and even felt the two had a rather good relationship.

The second line of the cross-examination concerned the flight itself. Mr. Roy reiterated, and explained, some of the deficiencies he noted.

According to him, note 6F in the report "did not respond to all checklist items," including the fact that the DME was not tuned in, that the briefing had not taken place, and that the course indicator had not been selected on the HSI.

The matter of the DME display is less clear, however. It appears from his testimony that he was seated, during part of the approach, behind the first officer, on a bench perpendicular to the cabin wall,[5] that he says he never saw the DME displayed, that if it was lost, it was during the tailwind part of the procedure, and that he would often "lose the DME" at Québec City on this type of aeroplane. However, when Mr. St-Pierre asked him a leading question about when the DME was lost, he said that in his opinion, the loss occurred "past Champlain."[6]

As for the minimum altitudes, both the crossing altitude at the FAF[7] (Champlain) and the minimum descent altitude reached, his testimony, in cross-examination, was far from clear. First of all, he did not take note of these altitudes, either in his notes taken during the flight test or in the flight test report partly completed in the aeroplane and partly after the test.

With regard to the FAF, sometimes he said it was at 1,900 feet, sometimes at 2,900 feet or somewhere between the two.[8]

As for the minimum descent altitude to which the aeroplane descended, he also did not take note of the exact altitude to which the aeroplane had descended when he said "contact"; in his view, he did not recall exactly, but in view of what he had marked (failure), he deduced that the aeroplane was not above the appropriate minimum (880') when he said "contact" and that the aeroplane continued and made the landing.

Four witnesses were heard for the Applicant: Mr. Jacques Paillard, his first officer, Mr. François Vachon, and two Transport Canada inspectors, Messrs. Pierre Doucet and Ghislain Samson.

From their testimony, it emerged that Mr. Jacques Paillard is a pilot with considerable experience. He has to his credit close to 20,000 flying hours, including close to 6,000 hours on the BE 10, which he has flown since 1993. For a year and a half, however, because of office duties (Mr. Paillard is the founder of the company Aéropro ltée), he has only been able to take part in replacement and training flights; thus, in the last year, he has flown only about 20 hours.

He mentioned that a Transport Canada inspector had been called in to administer three flight tests to company pilots, and that when Mr. Roy returned from the second flight test, the Applicant informed him that the last pilot scheduled was not available, and that, since his own proficiency endorsement was expiring, he would take his place. According to him, Mr. Roy's answer was "I have a plane at 6 o'clock, we'll be quick but I have time" [translation].

The Applicant said that this "threw him off" a little since he did not think it left a lot of time to complete the scheduled flight test. In fact, in taking off at about 4:15 p.m., such a flight would normally get them back on the ground at about 5:30 p.m., which left little time to catch the 6:00 o'clock flight.

With regard to the flight, he corroborated the fact that the weather was good except for TCU[9] near the VOR, which was causing turbulence. The take-off had been followed by a holding pattern, which is common practice for these flights at Québec City. He knew First Officer Vachon well, having flown often with him, and it is in this context that he explained, about note 4(a)[10] in the aforementioned flight test report, that he proceeded as always: for example, he requested the "before landing checklist" and he completed it. They made an NDB approach on runway 30 using the DME (of the Québec VOR) that they had already tuned in for the holding pattern procedure that had preceded the approach. He clearly recalled using the DME because the aeroplane used only had one ADF receiver, and in order to determine the point of descent from the altitude of 2,000 feet required for the procedure (Vilsu)[11], he therefore could not use the reference point to Champlain (006° brg), and had to use the DME they had selected on the Hold position of their radio. The DME was therefore always displayed, even during the approach to runway 24.

The course indication 063° had been selected when tuning in to frequency 109.5 on both VOR during the transition (to runway 24) after the pull-up, following the approach to runway 30.

After the said (simulated) radar vectoring pull-up, they were at 3,000 feet with tailwind heading for 24 when he noticed that the aeroplane's airspeed had increased to 210 knots. He noted it verbally, and reacted immediately by slowing to 180 knots. He estimated that he had been at that speed only a few (3-4) seconds.

It was during radar vectoring at 3,000 feet, to intercept the final approach about ten miles from the airport, that things started to happen: there was a simulated engine failure, and while maintaining altitude at 3,000 feet on nearing the Champlain radio beacon[12] he noticed loss of the DME display. He checked both the minimum altitude in these conditions directly over the BV (2,900') and the new LOC(BC) minima without DME (880') with co-pilot Vachon. He checked this data by himself consulting the approach chart; he was satisfied that in the circumstances he could continue the approach, since he had nearly three minutes to reduce altitude required to descend to the minimum (an approximate rate of descent of 1,000'/minute). It was an approach he had often used in actual IFR flight conditions.

In his opinion, Mr. Roy's version of the events (descent to 400' AGL, that is, 640 MDA) is not realistic, since it would have required a high rate of descent of nearly 1,400'/minute, which is not permitted in their standard procedure[13]; his concern was to descend to the minimum and wait for the contact call.

He had the runway within view and was at the minimum; they were at 900 feet MSL, which is corroborated by the fact that the aeroplane landed "long" on the runway since, from the minimum, it had to lose 600 feet for the landing.

It was only once on the ground, while taxiing to the hangar, that he was informed of the failure. He mentioned, finally, that given their turbulent past, he would never normally have agreed to be tested by Mr. Roy, but because of the shortage of personnel (annual leave at Transport Canada, loss of ACP privileges) he had no choice.

The cross-examination of the Minister's representative, Mr. Tamborriello, concerned mainly two aspects of the Applicant's testimony. First of all, his statement that, in the course of his lengthy career as a commercial pilot, he had never failed a proficiency check, and secondly, the matter of the pressure placed on the Applicant-candidate by the time restriction mentioned by Inspector Roy.

In fact, the Applicant had testified, in presenting his long experience, in answer to his counsel's questions, that between 1975 and 2001, he had never failed an IFR flight test. Following Mr. Tamborriello's questions, it emerged from the analysis of a pilot test report that he failed at least once when renewing his instrument flight rating, in April 1990, on BE-200 aircraft, when the holding pattern procedure used did not comply with the standard.[14] Obviously, he subsequently requalified.

Regarding the pressure put on the Applicant by the time factor, Mr. Paillard reiterated that there was really no particular point at which tension increased substantially (he used the term "jolt"), but that this tension had lasted throughout the test: Since the inspector had told him he was in a hurry, he believed, "as a reasonable person," that he should hurry up. As evidence of the flight and abbreviated procedure, he mentioned, for example, that it was during the holding pattern entry that the steep turns (45°) were simultaneously covered, and that the complete holding pattern procedure was not covered, only the beginning of it (the first part).

Regarding the approach procedure for runway 24, he seemed a bit confused about the use of the precise terms in English designating the approach (in range) and landing (before landing) checklists, but reiterated that he did use them and that, according to his company's standard procedures, his responses to calls did not need to be verbalized, the pilot's conduct sufficing. Since, in the circumstances, he knew the co-pilot well, the checklists had indeed been completed.

Regarding loss of the DME, he repeated his main testimony that it occurred on approaching "within 2 miles" of the FAF and that he rechecked the prescribed altitude with the co-pilot at the FAF (2,900') and at the minimum (880').

The essential points of co-pilot Vachon's version of the events corroborate the Applicant's testimony.

He explained that he had flown with him in the past, in particular when Mr. Paillard was flying regularly. He was less "managerial" than other captains and gave his co-pilots more latitude. Thus, the preparations for the runway 24 approach were carried out, the DMEs had been tuned in and placed on Hold, and the loss of the DME occurred near the interception of the final alignment of the approach, very near the BV radio beacon. Everything was happening very quickly. The initial approach had been made under radar vectoring, and the altitude was around 3,000 feet. At the radio beacon, they were above the "profile" of 2,900 feet.

He reminded the Applicant of the minima of a LOC(BC)/NDB, i.e., 880 feet, and it was then that Mr. Paillard consulted the approach chart; at that point, they had passed the BV radio beacon and were descending to 880 feet.

He does not remember descending below the minimum altitude of 880 feet. It was when they called the minima that the inspector indicated that the test was over.

Mr. St-Pierre also called two other Transport Canada inspectors who had administered flight tests to the Applicant in the past. The Tribunal was particularly impressed with the clear, steady testimony of Inspector Doucet and his answers given without "double-talk."

He acknowledged, for example, that the Approved Check Pilot Manual recommends putting the candidate at ease, not putting him under any pressure and giving him full latitude to work.

Regarding the duration of such a flight test, particularly for a candidate such as the Applicant who is "no newcomer to aviation," preparation time of one-half to three-quarters of an hour and a flight test of about one hour would be normal.

When cross-examined by Mr. Tamborriello about a comment in a flight test report (D-7) for a PPC he administered to the Applicant that stated "good flight—use checklists more often," he explained that the Applicant sometimes went through the checklists by heart; it was not, however, at that time, a usual deficiency, a repeated fault that necessitated a comment (S/B), nor did it warrant a rating of "unsatisfactory" (U).

Inspector Ghislain Samson, who was the examiner for the Applicant's PPC tests in August 1997 and 1999 (Mr. Doucet did the one in 1999), testified that according to his assessment at the time, the Applicant met the required standard and all manoeuvres had been performed satisfactorily.

ARGUMENTS

The Minister's representative, Mr. Tamborriello, argued that the Tribunal must uphold the decision of Inspector Jean Roy and confirm the Applicant's failure of his PPC flight test.

In fact, in his view, the inspector's assessment clearly meets the assessment standards specified in the Approved Check Pilot Manual for a rating of Unsatisfactory: particularly if one refers to section 10.2.5 of the Approved Check Pilot Manual, which stipulates:

10.2.5 A sequence shall also be rated Unsatisfactory if:

[...]
(c) multiple errors are made in the completion of any one exercise;
(d) it violates an ATC clearance or altitude;

According to Jean Roy's testimony, which must be accepted, multiple errors were made in the LOC(BC)/DME 24 approach that was requested:

  • incomplete transition;
  • doubt as to the type of approach to be used, that is, with or without DME;
  • failure to make extensive use of checklists;
  • non-compliance with the regulations (airspeed over 200 knots within a distance of 5 miles from the airport at 3,000 feet (subsection 602.32(2));
  • failure to observe the prescribed minima for a LOC(BC) 24 (NDB) approach after loss of the DME during the approach; and finally,
  • failure to complete a circle-to-land procedure after loss of the DME since, according to him, as the minima stipulated for this approach being of the "circling" type, this was the procedure that should have been used to land, the straight-in approach procedure not being permitted.

In his view, Mr. Paillard's testimony is refuted in several ways. For example, testimony concerning the excessive airspeed (210 knots) is uncontradicted, except it is not clear how long this deviation from the standard lasted. According to the Applicant, he went through his checklists by heart, even though this deviates from standard procedures (M-5).

Regarding loss of the DME, co-pilot Vachon said that it occurred during the tailwind, base turn portion for interception of the final course, whereas Mr. Paillard said it occurred on final. Mr. Roy told him there was no DME from the time of radio set-up for LOC 24.

Moreover, Mr. Paillard stated that he made only one holding pattern entry, whereas the co-pilot testified having circled twice. Similarly, the inconsistencies about the number of flights he made with this co-pilot and a previous failure of a flight test undermine his credibility.

THE APPLICANT

Counsel for the Applicant argued, firstly, that the Applicant had not been treated fairly. In fact, considering the stormy past between Mr. Paillard and Mr. Roy, a reasonably well-informed person might believe there existed, at the very least, an appearance of conflict of interest.

The inspector in question, having the authority to determine the Applicant's pilot privileges, performed an "administrative" duty and has, at the very least, the obligation to act fairly, and must appear to act fairly.

In fact, according to him, jurisprudence teaches, in this regard, that one of the parameters is that someone who exercises authority must not place himself in a position where he might be tempted to settle personal scores.

As the Minister must have known of the situation between the two intervenors, the said Inspector Roy should never have been appointed to administer this test. The events under review confirm that the Applicant had good reasons to fear this situation, since he indeed failed his test.

This failure is not reasonable in view of his considerable flying experience and his spotless record for breaches of the regulations or accidents. Moreover, until recently, he held the ACP authority issued by the Minister for his company, and was therefore recognized as having a certain proficiency. This proficiency is corroborated by the last three PPC tests administered by Messrs. Doucet and Samson testing him on multiple emergencies without comment.

Referring specifically to the flight test under review, he believes the criticisms made of him can be reduced to two things.

Respecting the use of checklists, it is alleged that he should not have relied on co-pilot Vachon, but it must be remembered that even in view of the SOP, when flying in "dual pilot," participation from both pilots is necessary. Mr. Paillard is a very experienced pilot and his behaviour was justifiable. Moreover, during a previous test, he had not failed for a similar oversight.

As for the excessive airspeed, we are talking here about a momentary error of 5%, therefore, short of the tolerance mentioned in the Approved Check Pilot Manual.

Finally, concerning the LOC(BC) 24 approach itself, both Paillard and Vachon were very clear: they had tuned in to the DME (on Hold) and it was displayed. The inspector said there was no DME (at any time) because he did not see it displayed, but the fact that he was seated behind the pilots, in the cabin, must be considered.

In addition, Vachon, who is not one of the protagonists in this matter, fully agreed with Paillard, that they had the DME and lost it before the BV, and they were above 2,900 feet at the time.

As for the descent to the minimum, according to him, Paillard's testimony is clear that he never descended below 900 feet before the "contact" call, and this is corroborated by Mr. Vachon.

In short, the flight test should never have been administered by Mr. Roy because of their history; moreover, he introduced an atmosphere of tension because of the time limit imposed by his expressed intention of catching a flight immediately after the test; and finally, the evidence presented does not warrant a failure of the test in question.

THE LAW

Subsection 7.1(1) of the Aeronautics Act states:

7.1 (1) Where the Minister decides
(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,
(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or
(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,
the Minister shall, by personal service or by registered mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

DISCUSSION

The matter to be determined is whether during the test for renewal of his PPC on the BE 100, the Applicant was unable to meet the standards set out in the Approved Check Pilot Manual.

It is acknowledged that during a review before the Tribunal, the burden of proof rests with the Minister, who must establish, on a preponderance of evidence, that the candidate's failure was justified under the circumstances.

According to the testimony of Inspector Roy, the test failure arose essentially from deficiencies that occurred during the second approach chosen by him, namely, an instrument approach on runway 24. There are two published approach charts for this runway in the CAP[15], one where the alignment is assured by the Champlain radio beacon, the said NDB/DME runway 24 approach or NDB A (GPS), and one where the alignment is assured by the localizer beam with rear trajectory, LOC(BC)/DME runway 24 or LOC(BC)/NDB B.

It is the latter approach[16] that the candidate Paillard was to make. For the approach to be completed at the lowest minima, that is, at the altitude of 405 feet AGL (640' MSL),[17] the approach had to be completed not only with the aid of the LOC properly tuned in to frequency 109.5, but also with the aid of the DME associated with the Quebec VOR (frequency 112.8).

If the DME is not available, the minima are increased to a minimum altitude of 636 feet AGL, which would show on the altimeter as 880 feet MSL.

These various minimum descent altitudes (MDAs) appear in the minima box of this approach chart.

Let us recall that the minimum descent altitude (MDA) is defined as:

A specified altitude referenced to sea level for a non-precision approach below which descent must not be made until the required visual reference to continue the approach to land has been established.[18]

The Minister's representative maintains that in making the errors noted as unsatisfactory in the flight test report, the Applicant violated the following sections of the CARs:

602.127 (1) Unless otherwise authorized by the appropriate air traffic control unit, the pilot-in-command of an IFR aircraft shall, when conducting an approach to an aerodrome or a runway, ensure that the approach is made in accordance with the instrument approach procedure.

[...]

602.128 (1) No pilot-in-command of an IFR aircraft shall conduct an instrument approach procedure except in accordance with the minima specified in the Canada Air Pilot or the route and approach inventory.

(2) No pilot-in-command of an IFR aircraft shall, unless the required visual reference necessary to continue the approach to land has been established,

[...]
(b) in the case of a non-precision approach, descend below the minimum descent altitude.

[...]

602.32 [...]

(2) No person shall operate an aircraft below 3,000 feet AGL within 10 nautical miles of a controlled airport at an indicated airspeed of more than 200 knots unless authorized to do so in an air traffic control clearance.

[...]

and did not comply with the required standards in the Approved Check Pilot Manual, specifically with regard to the following sections:

10.2.5 A sequence shall also be rated Unsatisfactory if:

[...]
(c) multiple errors are made in the completion of any one exercise;
(d) it violates an ATC clearance or altitude;

and

10.9.6 Some errors common to all Instrument Approaches that may affect the assessment of the exercise or sequence are:

[...]
(c) incorrect selection of radio aids or failure to properly identify facilities;
[...]
(m) not monitoring all required approach aids;
[...]
(o) crew duties, including monitoring and verbal call-outs, not in accordance with company SOPs;
[...]

It is therefore appropriate to review the errors reported by the inspector in light of all the evidence submitted.

I gather from his testimony that the failure was based on three principal violations of the standards:

  • the failure to display one of the required navigational aids (the DME) during the approach, and consequently, the failure to make the necessary adjustments to both minimum descent altitude (MDA) and minimum crossing altitude over Champlain[19];
  • the fact that, during the transition to the approach, he exceeded the maximum airspeed permitted by the regulations and failed to participate in or agree to the required checklists pursuant to the company's SOPs;[20]

and did not complete

  • an approach briefing, or display the required course (063°) on his HSI, such that on the whole, his "decision making"[21] was unsatisfactory.

What is to be made of this?

Let us say straightaway that if the Tribunal is convinced, on a preponderance of evidence, that during the planned approach in question, the Applicant allowed the aeroplane to descend below the approved minima, without visual contact with the required runway references having been confirmed, the result is a failure of the test, since there is no margin for error at this level:

Section 10.3 of the Approved Check Pilot Manual:

10.3 Tolerances

10.3.1 The tolerances for instrument flight sequences must be respected by all ACPs. Each candidate must demonstrate aircraft control to maintain:
[...]
(d) altitude

[...]
(ii) during approach and for minimum IFR altitudes associated with the intermediate and final segments (e.g., FAF, beacon crossing or step-down fixes) within + as required / 0 feet, and
(iii) accurate altitude control is required at MDA/H;

[...]

The evidence presented on this subject is far from clear. There are two crossing altitudes of interest to us here: the minimum altitude over the FAF (BV), and the minimum descent altitude (MDA).

It can be assumed that, in the case before us, it is necessary to consider the cleared minimum altitudes during an approach to runway 24 with the use of the LOC(BC) and NDB, not those using the DME to determine both the FAF passage and the minima.

In fact, all witnesses agree that at the very least, at the FAF passage, the DME was no longer displayed: Roy stated that he never saw the DME displayed from the pull-up of the previous approach (runway 30) and the transition to runway 24, to the end of the approach.

Mr. Paillard stated that loss of the DME tuned in and displayed until that time, occurred at the FAF approach on or near interception of the final track; Vachon, the first officer, stated that according to him it was on "base," that is, the heading leading to interception of the final track, near the FAF, that he noticed loss of the DME and informed Paillard of it. It was then that he reviewed with him the minimum crossing altitude at the FAF. They were radar vectored at 3,000 feet at the time of the transition (which Inspector Roy confirms), and were therefore above the said minimum crossing altitude of the FAF (without DME: 2,900').

Both Paillard and Vachon are positive. They approached the FAF, everything was happening quickly (they also had a simulated engine failure (Paillard)) and they were satisfied that they met this minimum crossing altitude.

Mr. Roy's testimony in this regard is less clear. He corroborates, as mentioned earlier, that the altitude he specified for radar vectoring during the transition was 3,000 feet. He does not remember the exact crossing altitude at the FAF; he did not make a note of it.

He seems to think, at first, that it was at an altitude of between 3,000 feet and 1,900 feet because according to him, they were making the requested approach at that time, LOC(BC)/DME 24, and must therefore have been at 1,900 feet. Still according to him, it was not until after passing the FAF on approaching (the runway) that they noticed loss of the DME and failed to adjust the descent minimum (880' vs 640') accordingly.

As he made no note of this, it must be concluded that he met at least the minimum crossing altitude at the FAF, i.e., 2,900 feet (version of Paillard/Vachon: they had just lost the DME) or 1,900 feet (version of Roy in cross-examination: they noticed loss of the DME only after inbound FAF passage).

Regarding the minimum descent altitude (MDA), the witnesses' versions are inconsistent.

The Applicant Paillard is clear and positive: they were at 900 feet MSL when the inspector called "contact" and continued the approach, and landed long, because he was above the minimum and had little distance left to reduce altitude required to land.

Vachon, the co-pilot, maintains that after loss of the DME near the FAF, Paillard consulted the approach chart after he told him the new minimum of 880 feet (MSL). He had just passed over Champlain and was between 2,900 feet and 880 feet. He does not remember whether he descended below the minimum of 880 feet. It was when the minimum (880') was called that Mr. Roy said they were done.

Inspector Roy does not recall the minimum descent altitude reached. He had not written it down either in his notes made during the flight, or in the flight test report, part of which was completed immediately after the flight.

In addition, he did mention at that time (in the aeroplane at the minimum) that the test was over and marked as failed. It was not until on the ground taxiing to the hangar that he made his decision known.

When the Applicant's counsel asked him: Is it possible that when you called "contact" the aeroplane was above the minimum (880'), he hesitated, thought, and finally stated that based on his notes (in the report) he had to say no. He therefore has no recollection of a descent below the minima. It is only by deduction that he can say that Paillard had allowed the aeroplane to descend below the prescribed minima.

It must be recalled that, according to his testimony, he took no notes of this during the flight, and that the notes appearing in the flight test [report] were completed later, while he was travelling to, or in Sept-Îles, despite the fact that, according to his testimony, he knew there "would probably be repercussions."[22]

We are therefore far from a clear and positive affirmation with certainty of a fatal breach of the standards.

Given these inconsistencies and uncertainty of the evidence in this regard, it is not a question here of granting the Applicant the "benefit of the doubt" as in a criminal matter. The Minister does, however, have the burden of satisfying the Tribunal, on a preponderance of evidence, that Paillard did indeed contravene the minima here.

The degree of probability required to discharge the burden of proof in a civil case has been defined by several leading jurists [...]

Cartwright J. in Smith v. Smith, articulated the test as follows:

... that civil cases may be proved by a preponderance of evidence or that a finding in such cases may be made upon the basis of a preponderance of probability and I do not propose to attempt a more precise statement of the rule. I wish, however, to emphasize that in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment is formed including the gravity of the consequences of the finding. [Emphasis added]

Simply put, the trier of fact must find that 'the existence of the contested fact is more probable than its nonexistence.'[23]

Considering all the evidence of the witnesses in this regard, I am not satisfied that the Minister has discharged its burden of proof.

In fact, regarding the minimum altitude above the FAF, even Inspector Roy conceded that it was somewhere between 2,900 feet and 1,900 feet. The testimony of both pilots is clear: the minimum altitude of 2,900 feet was observed.

Inspector Roy therefore erred when he said during direct questioning that he assessed the Applicant as having failed, among other reasons, because he had not respected the minimum crossing altitude at the FAF.

Regarding the minimum descent altitude, given all the testimony about the said minima and all the events which, according to all, happened around the FAF, I am not satisfied that there was in fact a breach of the said MDA of 880 feet. According to the above-mentioned criteria, the evidence of this is not convincing.

It is possible that Inspector Roy's assessment of these circumstances and of the minimum altitude reached was distorted by the said events that occurred. In fact, a critical stage of the approach had been reached when the pilots noticed loss of the DME just near the FAF. Furthermore, Roy testified that, in his experience, it is fairly common to lose the DME (even when it has been tuned in) during this approach to Quebec. Paillard corroborated this fact and stated that it may have been because of the altitude (low in relation to the distance from the transmitter) (the VOR).

Therefore, while approaching the FAF, there was interception of the final approach, engine failure (simulated), loss of the DME (actual), FAF passage, consultation between the pilots about the required changes to the approach, adjustment to the minimum (testimony of Vachon and Paillard) and continuation of the descent until the contact call, then landing directly on runway 24.

Both Inspector Roy and Mr. Tamborriello were critical of Paillard having continued the approach and landed directly, even though he respected the minimum noted for the approach without DME, because they thought he should have proceeded using an indirect or circling approach.[24]

Mr. Tamborriello used subsection 602.127(1) cited earlier as evidence.

I cannot follow them down this path. In fact, it is perfectly permissible for such an approach, once the minimum for an "indirect" approach has been reached, to land without completing a circling procedure.

The MDAs, as in the case before us, i.e., 640' for a "straight-in" approach or 760 or 880 feet for an "indirect" approach, are determined by criteria that are described in the Instrument Procedures Manual[25] as follows:

The procedure design depends on the type and siting of navigational aids, their location in relation to the runway or aerodrome, the terrain, and the categories of aircraft to be accommodated. [...] Wherever possible, the approach procedure specifies minima for straight-in and circling. Where this is not practicable, the procedure specifies circling limits only.

[...]

Straight-in minima are not published when the descent gradient between the published minimum crossing altitude at the Final Approach Fix and the runway threshold exceeds 400 ft./NM or 3.76°.

It seems this was the case for this approach to runway 24 at Quebec, which, if one does the calculation, is equivalent to a loss of altitude of 451ft/NM, which would exceed the standard.[26]

The said Instrument Procedures Manual published by the Minister of Transport also specifies as follows:

C. Circling

A circling approach is an instrument manoeuvre done visually. [...]

Notes:

[...]

2. Although the 'STRAIGHT-IN' MINIMA may not be published on an instrument approach chart, the aircraft may land straight-in if the runway is in sight in sufficient time to make a normal descent to the runway. [...]

It is clear to me that the Applicant could continue, in the circumstances (simulated approach) if at the minimum, he had the airport in sight and was in position to make a safe landing, which is in fact what he did.

But there is more. For example, Mr. Roy testified regarding the radio set-up for the approach to runway 30, that the two ADF were tuned in to the Sainte-Foy radio beacon and frequency 112.8 was used for the DME. Mr. Paillard testified that in their aeroplane, there was only one ADF receiver instead of two, which explains, among other things, according to him, why the DME frequency had already been selected during this approach and remained so during the second approach as well, the DME is required to mark the crossing for the approach to runway 30, from VILSU.

On this topic (use of the DME on runway 30), Mr. Roy cannot say that it was tuned in, but again, deducing that it was, because he had not noted otherwise in the test report.

In view, then, of all the evidence, the many gaps, inconsistencies and hesitations raised in cross-examination, and the lack of certainty in the testimony of the only witness of the Minister's representative, I do not believe that it has been sufficiently established that there was a failure to respect the designated minima.

Mr. Tamborriello has asked the Tribunal to apply the principles that the undersigned raised in the Albert matter[27]:

'... when the evidence of an important fact is contradictory ... the Court must weigh the motives of the witnesses, their relationship or friendship with the parties, their attitude and demeanour in the box, the way in which they gave evidence, the probability of the facts sworn to, and come to a conclusion regarding the version which should be taken as the true one ...'

and I arrive at this conclusion duly guided by these principles.

In this regard, Mr. St-Pierre raised the possibility that a turbulent past between Mr. Roy and the Applicant may have influenced the inspector's judgment in this matter. I cannot concur with this argument. Mr. Roy's testimony about this struck me as candid, free of bitterness and bias. He considers this to be in the past (more than ten years have gone by), their relations since have been correct, professional, and the Applicant corroborates this.

Mr. St-Pierre submitted in this regard the Supreme Court decision in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, concerning the inability to continue to retain a law firm which had been joined by a solicitor who had previously acted for the opposing party in a matter in litigation. Counsel for the Applicant concludes that a person in authority must not be placed in a situation where they might be tempted to settle their differences. According to him, the government's representative has, as did the solicitor, the obligation to act fairly, and the public's perception is a basic necessity in the evaluation of this obligation.

In the aforementioned MacDonald case, the Supreme Court had to determine the criteria for evaluating a conflict of interest, given the possibility of confidential information being conveyed. In that case, the Supreme Court decided that the law firm involved could not continue to act and, about the risk of (confidential) information being used to the client's detriment, it stated:

[...] once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. The degree of satisfaction must withstand the scrutiny of the reasonably informed member of the public. This will be a difficult burden to discharge. (our emphasis)[28]

I agree with the Applicant's counsel that the government, and therefore the inspector, had the obligation to act fairly and that his actions must be perceived as fair. But I also think that here the principle to which the Applicant resorts is more that of the inspector's obligation of impartiality.

This is what the Supreme Court ruled in 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool).[29] In that case, because of the nature of the decisions made by the Régie des permis d'alcool du Québec, the decision process determined by law attributed it a quasi-judicial function, hence the obligation of impartiality and independence:

The permit holder's rights are clearly affected by the cancellation. While the issuance of a permit may in certain respects be regarded as a privilege, its cancellation has a significant impact on the livelihood of the permit holder, who loses the right to operate his or her business. [...]

[...]

Agencies that perform quasi-judicial or administrative acts are subject to the nemo judex in propria sua causa debet esse rule in accordance, respectively, with the duty to act in accordance with natural justice and the duty to act fairly. Since the acts alleged against the Régie are either administrative or quasi-judicial, they are subject to the duty of impartiality included in the nemo judex rule. Here, the evidence has clearly shown that the Régie would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. It should therefore be found that the Régie is biased on an institutional, organizational level. By implication, the Régie has violated the nemo judex rule and thus breached its duty to act fairly.[30]

The Court Martial Appeal Court (Quebec), in Lauzon,[31] ruling on the question of the independence of a Court Martial, defined impartiality as follows:

Impartiality refers first and foremost to an absence of prejudice or bias, actual or perceived, on the part of a judge in a particular case, [...][32]

This, I believe, is the principle that must be applied to our case. As I mentioned earlier, the testimony of Inspector Roy, his demeanour while testifying at the hearing, raised no doubt in my mind as to his impartiality: It is necessary to distinguish an honest mistake from partiality, which would involve the opposite here.

In addition, as the Applicant himself said at the hearing, the world of aviation is a "small world," and to automatically exclude, from any assessment of a citizen, an inspector who may, in the past, have been in a situation of conflict with the citizen, might well unduly restrict both the inspector's professional duty, and the government's exercise of authority.

In my view, it takes more than simply raising the spectre of partiality to disqualify an inspector from future actions or, as here, his testimony; although in the latter case, it is relevant to raise it, and the Tribunal must take this into account.

In this case, as mentioned earlier, the conflict arose some ten years ago and this situation does not appear to me to have influenced either the inspector's assessment or his testimony.

Finally, let us recall that it was Mr. Paillard himself who requested and agreed to undergo the test that afternoon, once the absence of the scheduled pilot had been confirmed. Therefore, he himself saw no conflict.

There is good reason to look at, finally, the last two breaches (U) raised by Inspector Roy.

Regarding the excessive airspeed, I do not think that this deviation from the standard warranted an unsatisfactory (U) assessment.

The evidence is not refuted that this was a momentary variation of barely a few seconds and some 5%, which is fully allowed:

Section 10.3 of the Approved Check Pilot Manual stipulates:

10.3 Tolerances

10.3.1 [...]

(e) airspeed during normal flight within ± 10 knots; and
(f) airspeed during take-off and approach within +10/ -5 knots.

In my view, the aeroplane was in normal flight (e), that is, in a qualified flight phase in the flight test as a transition between take-off and approach (f) and, as section 10.3.2 states:

10.3.2 These criteria assume no unusual circumstances or conditions and may require allowances for momentary variations. (our emphasis)

It must be remembered that it was during this flight phase that the checklists and briefings (Paillard/Vachon version) and radio set-up were done. We might add that it is admitted that Mr. Paillard was aware of the inspector's intention to catch his flight to Sept-Îles once their flight was over. It is possible that in this context the Applicant kept the airspeed of the aeroplane higher (200 knots) than he usually does (180 knots).

The undisputed evidence is that the airspeed variation lasted only a few seconds and that the Applicant corrected it as soon as he noticed it. Let us not forget that it is in evidence that they were a few miles from a TAU that was causing turbulence, although a slight tailwind, according to Paillard. He did not attempt to use this factor to explain the variation noted. This certainly is not, given the evidence, a blatant deficiency warranting a rating of "unsatisfactory."

Finally, the last variation marked "unsatisfactory" concerns the Applicant's decision "7A" (decision to continue the LOC(BC)/DME approach without DME).

In this regard, Inspector Roy added that it was the overall general decision-making that was questioned, including (4a) the failure to properly answer all checklists.

As for the decision to continue the approach after loss of the DME, it is certainly not forbidden to do so. The evidence is clear that when the pilots noticed the loss of the DME during the approach, near the FAF, First Officer Vachon briefed the captain at his request on the new minima applicable to the available alternative approach, namely LOC(BC) 24/NDB B.

The pilots confirmed that their altitude allowed FAF passage at the planned minimum altitude (2,900') and they were able to continue on since, up until then, under the simulated radar vectoring of Inspector Roy, they were approaching 3,000 feet.

They therefore cannot be criticized, since they had time to adjust the minima and continue on. This situation is neither extraordinary, nor especially difficult for an experienced crew.

Of course, the pilot-in-command is always at liberty to choose at the time, depending on his position on approach, to pull up or, with the clearance of the air traffic controllers, to go into a holding pattern, do another briefing, discuss the required adjustments and begin the approach again; it all depends on the circumstances, and as for the events of concern to us, there is no satisfactory evidence showing a lack of judgment or a dangerous manoeuvre that would warrant a failure in this regard.

With regard to the checklists and alleged deficiencies, again the evidence is inconsistent.

Paillard says he called the checklists and the co-pilot ("he's not dead weight") carried them out; Vachon stated that Paillard is not one of those "structured" captains, he gave him more latitude.

In any event, I am satisfied, from the evidence, that these checklists were completed; they may not have been done by the book, but a similar deviation in the past noticed by Inspector Doucet earned only a mention in the report, with no S/B rating being given,[33] much less a rating of "unsatisfactory" (U).

DETERMINATION

For all these reasons, I would cancel the failed assessment given to the Applicant for his PPC flight test of July 4, 2001, and refer the matter back to the Minister to reconsider his decision to suspend the Applicant's instrument flight rating (IFR) and pilot proficiency check (PPC) on BE 10 aircraft.

Pierre J. Beauchamp
Member
Civil Aviation Tribunal


[1] Insatisfaisante (I) in French.

[2] DME: Distance Measuring Equipment.

[3] MDA: Minimum Descent Altitude.

[4] PNF: pilot not flying.

[5] See D-2.

[6] Q: If I told you that loss of the DME was before the "Outer Marker"?

     A: In my opinion it was Champlain [extract from the notes taken at the hearing by the undersigned].

[7] FAF: Final Approach Fix, radio beacon BV Champlain.

[8] See extract from the cross-examination of Mr. Jean Roy.

[Translation]

Q: Did you note the altitude of the aircraft when it passed over NDB Champlain?

A: Over it, no.

Q: You didn't note it?

A: No. It wasn't below the minimum because I would have noted it, but there is nothing to stop it being at a published altitude; the published altitude at the NDB is a minimum.

Q: So it was at two thousand, nine hundred feet (2,900') or more?

A: Well, it might have been at five thousand feet (5, 000'). So, if I had noted it, it would be because we were at...

No, because at that time we were getting lined up, I'm sorry, we were... As far as I know we were still getting lined up along the DME, so we were - the approach - we were probably, and even 'not probably,' for sure...

You see, with DME you are allowed nineteen hundred feet (1,900'). So, actually, here I didn't note at what altitude we passed over.

I would say that, I believe that we were at nineteen hundred feet (1, 900'), or between nineteen hundred (1,900) and the starting altitude, but I know for sure that we were at two thousand, nine hundred feet (2,900'), but I can't swear to it.

Q: You can't swear to it.

A: No.

[9] TCU: towering cumulus.

[10] See M-1: "4(a) incomplete transition. The pilot did not answer all checklist items."

[11] (See NDB runway 30 approach chart) D-3.

[12] Champlain: BV, frequency 336 kHz. See approach chart M-2.

[13] The witness used the term SOPs: Standard Operating Procedures.

[14] See M-4.

[15] D-3 Canada Air Pilot, Instrument Procedures - Quebec - in force May 17 to July 12, 2001.

[16] Corresponding to the approach chart produced as Exhibit M-1, i.e., LOC(BC)/DME runway 24 or LOC(BC)/NDB B.

[17] MSL: above mean sea level (see page 3).

[18] See D-3, p. 16.

[19] See note 4c) in Exhibit M-1.

[20] See note 4A/ in Exhibit M-1.

[21] See note 7A/ in Exhibit M-1.

[22] See page 15 of the stenographic notes.

[23] The Law of Evidence in Canada, 2d ed., p. 155.

[24] According to the terms used by Mr. Tamborriello in his oral argument.

[25] See Instrument Procedures Manual, 3d ed., 1995, TP 2076E, at pages 4-38 and 4-48.

[26] 2,900' – 235' = 2,665 ¸ 5.9 = 451'/NM.

FAF TDZE (distance between the FAF and TDZE)

(touchdown zone elevation)

[27] Christian Albert and Minister of Transport, CAT File No. Q-1878-33, June 2, 2000.

[28] MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235.

[29] See, for example, 2747–3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919.

[30] Id. pages 920 et 924.

[31] R. v. Lauzon, [1998] C.M.A.J. No. 5, File No. CMAC-415, September 18, 1998.

[32] Id page 2.

[33] See D-7.