TATC File No. Q-3120-60
MoT File No. 5802-277603
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
First Officer Jean Livernois, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)(b)
company check pilot (CCP), flight simulator, Class 1 Instrument re-qualification, Canadian aviation document (CAD)
John D. Issenman
Decision: May 15, 2006
A review hearing on these matters was held at The Federal Court, Palais de Justice du Québec, Québec, on May 9, 2005 at 9:00 hours.
A review hearing was requested by Captain Michel Brisebois and First Officer (FO) Jean Livernois following a suspension of a Canadian aviation document by the Minister of Transport who alleged that Captain Brisebois and FO Livernois unsuccessfully completed a Class 1 Instrument re-qualification ride, pursuant to paragraph 7.1(1)(b) of the Aeronautics Act. Captain Brisebois and FO Livernois were the two pilots undergoing their Class 1 Instrument re-qualification in the flight simulator during which the alleged unsuccessful ride took place. It was for that reason the files were heard together. The facts, evidence and testimony presented for both cases are identical.
This hearing officer believes that all of the witnesses who testified presented an honest and accurate account of the facts as they believed them to be at the time. Much of the evidence sworn presented different versions of the same events, however, each witness agreed upon the basic fact that resulted in the alleged failed rides. On a balance of probabilities, and given the agreed upon basic fact that altitude limits were broken, the Minister's allegation is supported.
The reasons for this determination are identical for both the Brisebois and Livernois files.
The pilots were in CAE simulator number 488 at the Toronto training facility January 27, 2005 after being briefed by company check pilot (CCP) Captain Alain Cloutier and TC Inspector McGregor, also present. This was CCP Cloutier's first Dash-8 check ride, although there appears in Mr. Cloutier and Mr. McGregor's testimony some vagueness as to who was doing the checking of the subject pilots. The ride was to be conducted in accordance with Transport Canada's approved script B2 which determined the activities to be undertaken during that ride (Exhibit M-1). All four (4) of the above noted individuals were in the simulator during the ride. Mr. McGregor signed the pilot's Flight Test Reports (Exhibits M-4 and M-5).
The alleged unsuccessful ride resulted from the crew's failure to maintain an altitude of 3,000 feet while flying an exercise that would take them to a point where they would intercept the approach prior to turning final to land at Halifax. Captain Brisebois was the pilot-not-flying (PNF) at the time and FO Livernois was the pilot flying (PF).
PNF: 'pilot not flying', which, in a multi-crew aircraft, is the pilot, part of the crew, who does not manipulate the flight controls; his/her function is to support the PF (pilot flying) in the execution of the tasks and functions required of the two-pilot crew.
During the ride, CCP Cloutier did not advise either pilot that they had broken their altitude limits until they began their final approach, despite the fact that the aircraft was flying below limits for a continuous period of time between two (2) and three (3) minutes (Exhibit D-4). Both crew acknowledged that they had flown more than 100 feet below the directed altitude of 3,000 feet. This admission alone is sufficient to substantiate the failed result (Exhibits M-4 and M-5). Several other inconsistencies in the ride were not addressed until this review.
While the ride may have been terminated earlier for cause, the evidence presented raises issues that warrant being addressed in this review determination. The pilots voiced concerns regarding information available in Transport Canada's Aeronautical Information Publication (A.I.P.). Pages RAC 9-5, section 9.3, Approach Clearance and Page 9-6 last paragraph , and Page RAC 9-12, section 9-16, last sentence, (Exhibit D-6). While these sections as stand-alone or combined references may leave the reader with the impression that aircrew may choose to begin a descent to any of the noted altitudes referred therein at the pilot's convenience, these would be superceded by an altitude given to the crew by Air Traffic Control (ATC) as was the case in this simulated flight.
In Exhibits D-1 and D-2, Mr. Cloutier and Mr. McGregor emailed CPO Tamborriello with their accounts of the events of the failed ride. A great deal is written regarding the crew's failure to follow several accepted practices and procedures but none of these was used to fail the crew on their ride. The fact that this particular ride was the first for CCP Cloutier as a Check Pilot was raised by the crew who questioned Mr. Cloutier's competence. The issues raised by
Mr. McGregor in Exhibit D-2 depict several items that appear to qualify as failures by the crew to meet the standard; however, no evidence is ever given to question the capability of the CCP to conduct the ride.
Exhibit M-6 , Page 10, first and last paragraphs denote the requirements to be met by aircrew that appear to have been missed by the crew of the subject flight, according to both Mr. Cloutier and Mr. McGregor.
In final analysis, many apparent and alleged violations of standard practices and procedures noted in both the testimony and exhibits of Mr. Cloutier and Mr. McGregor would justify a failed ride.
Notwithstanding this, or the fact regarding Mr. Cloutier's experience as a CCP, the pilots themselves gave testimony that confirmed their aircraft was more than 100 feet below the 3,000 feet given them by the CCP and noted in the script.
The burden of proof is on the Minister to substantiate the alleged unsuccessful Class 1 Instrument renewal ride, and, after considerations of fairness and natural justice, and a thorough review of the relevance, reliability and weight of the evidence and testimony, on the balance of probabilities, I confirm the CCP's decision and the resulting Minister's Notice of Suspension.
May 15, 2006
John D. Issenman
Transportation Appeal Tribunal of Canada
Faye H. Smith, Jean-Marc Fortier, Michel G. Boulianne
Decision: January 15, 2007
Citation: Livernois v. Canada (Minister of Transport), 2007 TATCE 2 (appeal)
[Official English Translation]
Held: The appeal is dismissed. For the reasons set out below, we uphold the determination of the review member confirming the Minister's decision to give First Officer Jean Livernois an unsatisfactory rating for renewal of the class 1 instrument rating on January 27, 2005.
I. PRELIMINARY REMARKS
 It should be noted that the Transportation Appeal Tribunal of Canada heard the request for review of First Officer Jean Livernois jointly with that of Captain Michel Brisebois (file no. Q-3123-60) on May 9, 2005, as the facts, evidence and testimony in both files were the same. Although Messrs. Livernois and Brisebois jointly filed a request to appeal the review determination, Mr. Brisebois withdrew his appeal request on June 28, 2006.
 On January 27, 2005, pilots Brisebois and Livernois were in simulator CAE no. 488 at the Toronto training centre to take a flight test for renewal of the class 1 instrument rating.
 The flight test was administered by company check pilot (CCP) Alain Cloutier, under the supervision of Rick McGregor, a Transport Canada inspector. The four individuals were in the simulator during the flight test.
 Mr. Cloutier, CCP, issued the flight instructions to pilots Brisebois and Livernois. The review member concluded that the flight should have been carried out in accordance with scenario B2, as approved by Transport Canada, which sets out the manoeuvres to be executed (exhibit M‑1). The flight test was terminated by Mr. Cloutier, CCP.
 On January 27, 2005, Mr. McGregor signed the flight test report – pilot proficiency test in respect of Mr. Livernois (exhibit M‑4). This document confirmed the failed assessment of the flight test was a failure and provided the reasons.
 The alleged failed flight was due to the fact that the crew did not maintain an altitude of 3 000 feet when performing a drill to bring them to a point at which they were to intercept the approach before turning on final to land at Halifax. Mr. Brisebois was acting as the pilot not flying (PNF), while Mr. Livernois was acting as the pilot flying (PF).
 Following the review hearing, the member confirmed the decision of the Minister of Transport to give an unsatisfactory rating to First Officer Livernois for renewal of the class 1 instrument rating on January 27, 2005.
III. GROUNDS FOR APPEAL
 The appellant filed a request with the Tribunal, appealing the review member's determination on the following grounds, as set out in his letter:
1. Mr. Issenman made his determination based on the testimonies of the applicants and the respondents. Because they were inconsistent with respect to the specific point at which the aeroplane dropped below 2 900 feet, the applicants could be given the benefit of the doubt.
2. Moreover, section 9.3 of Transport Canada Aeronautical Information Manual (TC AIM) (TP 14371), Rules of the Air and Air Traffic Services 9‑5 could not be clearer. With clearance: "maintain 3 000 feet and the 210-degree course (course when the simulator has been unfrozen) and on interception, cleared for direct ILS 24 approach," once the aeroplane established on the localizer, the pilots can descend to an altitude of 2 200 feet. There was never any question in the scenario that 3 000 feet would be maintained until interception of the glide slope.
When the test was resumed, all vector manoeuvres for intercepting final were executed at 2 200 feet.
 Regarding the first ground of appeal, the appellant contended that the testimonies of the parties were inconsistent regarding the precise point at which the aeroplane dropped below 2 900 feet and that the Tribunal should therefore have ruled in the appellant's favour.
 To the contrary, the respondent argued that the member's determination was not unreasonable. To support his assertions, the respondent first referred to the rule that the appeal panel can review findings of fact only when they are unreasonable or there is an entire absence of evidence. This rule has been recently confirmed in a number of Tribunal decisions. It should be noted that in all these decisions, the appeal panel referred to Moore v. Canada (Minister of Transport), , appeal decision, CAT file no. C-0138-33,  C.A.T.D. no. 5 at 6 (QL):
I am satisfied that a finding of fact by the Hearing Officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law, (R. v. Corbett, 25 C.R.N.S. 296). The second is, notwithstanding that there is some evidence concerning the finding, it is non-the-less unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an Appeal Tribunal, hearing an appeal on the record should not interfere with the fact findings of the hearings officer.
This distinction may be subtle, but it is vital both to the preservation of the integrity of the Appeal process and the safeguarding of the fundamental rights of the individual.
 The Minister's representative submitted that the member relied on the evidence heard at the hearing when making his determination. Moreover, the appellant himself confirmed this in the first sentence of his grounds for appeal. Next, it also could not be clearer that the evidence made by four witnesses contained relevant details that constitute evidence. Furthermore, in his determination, the member referred to exhibits that had been adduced in evidence. It follows that there is therefore not an entire absence of evidence.
 To continue this line of thought, it is necessary now to consider whether the member's determination was unreasonable by virtue of the fact that it was not supported by the evidence. Mr. McGregor's testimony was significant in this regard. Here are several extracts from the transcript of the review hearing of May 9, 2005, which provide some clarification:
The exact clearance was that Air Canada Jazz, a company clearance . . . that the flight maintain an altitude of 3 000 feet until interception of the localizer for ILS CAT II on runway 24.
[transcript at 92, lines 7-10]
The aeroplane began a slight descent going to 2 850, which I saw from my position on the captain's altimeter. Then, the aeroplane stayed at 2 850 feet for a period of two to three minutes before interception – before the needle of the localizer moved. And then, during that time, the crew had some – their attention was directed to the FMS.
[transcript at 95, lines 1-8]
The effect of all this was that the crew was not aware of the difference in altitude at any time, even when Mr. Cloutier had stopped the simulator.
[transcript at 97, lines 1-4]
The altimeter that I had in full view, at that point, was Mr. Brisebois' altimeter, the altimeter was at 2 992 and then the altimeter indicated, for a period of two to three minutes, 2 850 feet.
[transcript at 127, lines 5-9, on cross-examination]
Those two to three minutes actually started after Mr. Livernois selected – made the wrong selection on the FGC, on the ALT SELECT and then, at that point, the aeroplane began its descent and then my attention, obviously, was riveted on management of the cockpit and also of the aircraft, as far as the loss of altitude was concerned.
[transcript at 133, lines 8-14, on cross-examination]
 In short, Mr. McGregor confirmed the altitude the pilots were to maintain before intercepting the localizer. It was 3 000 feet, less the 100-foot tolerance. He also stated that this altitude had not been respected and specified how long the aeroplane was in that situation. He also made a note of this non-compliance on the part of the pilots. Finally, he described the circumstances in which he had observed everything.
 The testimony of Mr. Cloutier, CCP, is also significant since he basically confirmed Mr. McGregor's comments. The Minister's written submissions at pages 10 and 11 contain several extracts from the hearing transcript, as follows:
A. Okay. The pilots are expected on course to begin the approach, then maintain 3 000 feet until time to begin the approach.
. . .
A. Beginning the approach means intercepting the inbound track and then once they reach the glide slope, well, they will start to descend to the – the altitude, the decision height.
. . .
Q. You say they descend, they descended how far?
A. On the first officer's altimeter, I saw 2 840 feet.
Q. How is it you remember so exactly and precisely that it was 2 840 feet?
A. I made a note of it in my notes – in my simulator notes.
Q. When did you write that down?
A. At the time of the test.
Q. At the very time you saw 2 840?
Q. How long had the plane been flying on course 2-1-0?
A. I'd say about two to three minutes on course 2-1-0.
Q. And what did the pilots do to correct the loss of altitude?
A. The pilots made no correction for the loss of altitude.
Q. Did any exchange take place, that is, for example, "I'm leaving this altitude for another altitude"?
Q. At that time, who was flying the plane?
A. The first officer.
Q. And what was the captain doing at that point?
A. At that point, the captain was doing what's known as the "avionic cross-check" to make sure all the aircraft instruments were properly tuned in.
Q. Had the plane descended to 2,840 feet before intercepting final?
Q. How did you react to that?
A. At that point, I saw the plane descend, I saw it descend from the beginning, I pointed out the loss of altitude to Mr. McGregor and we discussed it for a moment and that's when it was decided to discontinue the test.
[transcript at 33, lines 14-22; at 34, lines 9-2; at 35, lines 1-24]
 Mr. Cloutier confirmed the altitude that was to be maintained. He also explained that it had not been respected and stated how long the aircraft had been in that situation.
 Mr. Brisebois stated on cross-examination that he was to maintain an altitude of 3 000 feet until interception of the localizer. This information is found in the Minister's arguments and in the transcript at page 166, lines 6-23, as follows:
Q. Okay. Am I to understand that there is an altitude restriction until interception . . . .
A. Of the localizer.
Q. . . . of the localizer. Do we understand each other on that?
. . .
A. I would like to add that Mr. McGregor, in his report that we sent you, confirms this: "And then cleared for an ILS runway 24 approach". The clearance also included an instruction to maintain 3 000 feet until interception of the localizer.
 Mr. Brisebois also admitted in his testimony that an error had been made in programming the flight guidance controller, as mentioned in the transcript at page 144, lines 21-24:
Okay. Based on what Alain then Mr. McGregor have explained, I agree that an error was made in programming the flight guidance controller. That's a fact, I acknowledge it.
 Mr. Livernois continued in this same vein and said he had made a programming error, as shown in the transcript at page 184, line 14:
So I made the programming error …
 Mr. Livernois then went on to testify that he had made another error, as shown in the transcript at page 185, lines 10-12:
That was a mistake, I should have taken my time and waited; I rushed him into the avionic cross‑check.
 It should be noted that it is a well-known principle that the review member is the person in the best position to determine the credibility of the evidence. To support his claims, the respondent referred to Canada (Minister of Transport) v. Phillips, , appeal determination, CAT File no. C-0014-33,  C.A.T.D. no. 14 at 6 (QL). It clearly and precisely states the role of an appeal panel when called on to review the determination of credibility made by a member at first instance:
The hearings officer is in the best position to be able to determine which evidence on the record he prefers; which evidence when in conflict with or inconsistent with other evidence he is prepared to accept. Unless the findings of the hearings officer are patently unreasonable and cannot be supported by the testimony – under oath – the Appeal Tribunal should be reluctant to substitute its findings. That is, the determination of the credibility of witnesses is best left with the trier of fact at first instance. . . .
 The pilots confirmed that Mr. Livernois made a programming error. They thus corroborated the testimonies of Messrs. Cloutier and McGregor. They also admitted that the aircraft was below the altitude of 2 900 feet. In addition, Mr. Livernois said that he had rushed Mr. Brisebois into the avionic cross-check, thus confirming that their attention was not directed to observing the altitude. However, their respective testimonies were not as clear as those of Messrs. Cloutier and McGregor. Moreover, they were unable to determine what altitude the aircraft was at when they intercepted the localizer because the test was discontinued only a few minutes later.
 The question that must be asked is whether the member's assessment of the testimonies was manifestly unreasonable. The respondent submitted that there was nothing manifestly unreasonable in attributing a lot of weight to precise testimonies such as those of Messrs. Cloutier and McGregor. Moreover, these testimonies were corroborated, in part, by the appellant himself and by the pilot, Mr. Brisebois.
 Regarding the second ground for appeal, the pilots expressed concerns about the information appearing in Transport Canada's Aeronautical Information Publication, specifically, in the English version, 9.3 "Approach Clearance", at paragraph (e) on page RAC 9‑6, as well as 9.16 in the last sentence on page RAC 9-12 (in the French version, it is 9.3 "Autorisation d'approche", at paragraph (e) at page RAC 9-7, as well as 9.16 in the last sentence of the second paragraph at page RAC 9-13). While these sections taken on their own or together may give the impression that the crew can elect to begin a descent at any altitude referred to in these sections, as the pilot sees fit, these data are to be replaced by the altitude given to the crew by air traffic control, as was the case in the context of the simulated flight.
 The review member concluded that the aircraft had not maintained altitude at 3 000 feet until interception of the approach or until interception of the localizer. The respondent argued that it was irrelevant to dwell on what happened next, in other words, that there was no need to concern oneself with the altitude at the time of interception of the glide slope, because the failure had been noted by then.
 The review member found that during the flight, Mr. Cloutier did not warn either of the two pilots that they had violated the altitude limits until they began their final approach, even though the aircraft had flown below the limits for a continuous period of two to three minutes (exhibit D‑4). The two crew members admitted that they had flown more than 100 feet below the fixed altitude of 3 000 feet. This single admission is sufficient to warrant a failure (exhibits M-4 and M-5).
 Finally, the review member maintained that numerous apparent and alleged violations of standards of practice and procedure testified to and documented in the evidence as part of the testimonies of Messrs. Cloutier and McGregor warrant the failure. We agree with this finding and, in our view, the member's determination is supported by the testimonies heard at the review hearing. In addition, we find that the assessment of the credibility of the testimonies of Messrs. Cloutier and McGregor was not manifestly unreasonable since they were more precise than the testimonies of the pilots, as the above-mentioned passages from these testimonies show.
 However, in light of the circumstances of the test in question, which unfolded very quickly and differently from those of a normal flight, which includes flight preparation, taxiing on the ground to the assigned runway and departure, the appeal panel suggests that the pilots' check procedure be as close to reality as possible and allow more time to prepare for the test before it is conducted.
 The appeal is dismissed. For these reasons, we uphold the determination of the review member confirming the Minister's decision to give an unsatisfactory evaluation to First Officer Jean Livernois for renewal of the class 1 instrument rating on January 27, 2005.
January 15, 2007
Reasons for appeal decision:
Faye Smith, Chairperson
Michel G. Boulianne, Member
Jean-Marc Fortier, Member
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