Decisions

TATC File No. Q-3123-60
MoT File No. 5802-130091

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Captain Michel Brisebois, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
John D. Issenman


Decision: May 15, 2006

I confirm the Minister's decision to issue Captain Michel Brisebois an unsatisfactory assessment of his Class 1 Instrument re-qualification dated January 27, 2005.

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.

BACKGROUND

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.

FACTS

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.

ARGUMENT

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.

DETERMINATION

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
Member
Transportation Appeal Tribunal of Canada