TATC File No. Q-3271-27
MoT File No. 5802-274423
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Lawrence Clifford Turner, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.71(1)(b)
Decision: November 29, 2006
The Tribunal sets aside the Minister's decision to refuse to issue a Canadian aviation document to Lawrence Clifford Turner on the ground that he failed his pilot proficiency check, and refers the case back to the Minister for reconsideration.
 A review hearing on the above matter was held Wednesday, August 9, 2006 at 9:40 a.m. at the Federal Court of Canada in Montréal, Québec.
BACKGROUND OF THE EVENTS
 On June 14, 2006, the Minister of Transport informed Lawrence Clifford Turner (the applicant) that the Minister refused to issue a Canadian aviation document because the applicant failed a pilot proficiency check (aeroplane) (PPC), the whole pursuant to section 6.71 of the Aeronautics Act. According to the Minister of Transport, the applicant failed to meet the required standards pursuant to subsection 723.88(1) of the Commercial Air Service Standards.
 The applicant had to pass a flight test pursuant to subsection 723.88(1) of the Commercial Air Service Standards in order for the Minister to issue him a Canadian aviation document.
 The applicant filed a request with the Tribunal pursuant to section 6.72 of the Aeronautics Act for a review of the Minister's decision to refuse to issue a Canadian aviation document.
 On August 9, 2006, the Transportation Appeal Tribunal of Canada held a review hearing in Montréal. Following the hearing, the Tribunal asked the parties to file their written arguments.
 Mr. Turner has been a pilot since 1981. On April 13, 2006, he was hired by Starlink Aviation Inc. (Starlink) and began his training to become a pilot-in-command of a King Air C-90/BE-90 type aircraft.
 Mr. Turner received his training on Starlink's King Air C-90 from Guillaume Duchesneau, flight instructor with Starlink.
 Once Mr. Turner had completed his training, Mr. Duchesneau issued a recommendation on May 15, 2006 for Mr. Turner's flight test to obtain his PPC on the King Air C-90 aircraft (exhibit M-1).
 The test did not take place until June 5, 2006, three weeks after Mr. Duchesneau issued his letter of recommendation, as the aircraft was not available and weather was poor.
 During the flight check conducted in the presence of Mr. Duchesneau, flight instructor, and Laurent Delbarre, freelance approved check pilot (FACP) and operations manager, both employed by Starlink, Mr. Turner did not obtain a satisfactory mark for the single-engine landing and rejected take-off (RTO) exercises.
 According to the flight test report (exhibit M-10) dated June 5, 2006, and signed by the FACP, Mr. Turner was unable to satisfactorily execute the RTO procedure in that he [translation] "fail[ed] to complete all the emergency checks and jeopardize[d] the safety of passengers and crew by failing to handle the emergency properly".
 Regarding Mr. Turner's landing exercise which was assessed a (1) (denoting failure), the flight test report states as follows: [translation] "applies max reverse with both engines during a single-engine landing".
 Following his failure of the flight test, the Minister of Transport refused to issue Mr. Turner a Canadian aviation document and Mr. Turner also lost his job at Starlink.
EVIDENCE ADDUCED BY THE MINISTER OF TRANSPORT
Testimony of Guillaume Duchesneau
 Mr. Duchesneau is employed by Starlink as pilot-in-command and flight instructor. He previously trained five pilots on the King Air C-90 aircraft.
 Mr. Duchesneau provided Mr. Turner with almost 9.7 hours of flight training on the King Air C-90 and recommended him for a PPC as pilot-in-command on this type of aircraft.
 Mr. Turner underwent his PPC on June 5, 2006, accompanied by Mr. Duchesneau, flight instructor, and Mr. Delbarre, FACP.
 Before conducting the flight test, Mr. Delbarre briefed Mr. Turner, in Mr. Duchesneau's presence, on the rules on which the test would be based, and on the way in which emergencies would be handled. According to Mr. Duchesneau, this pre-flight briefing was normal for the type of test that would follow.
 During the flight check, Mr. Turner acted as pilot-in-command and therefore occupied the front left seat, while Mr. Duchesneau occupied the front right seat and therefore remained the one responsible for the overall flight.
 According to Mr. Duchesneau, the flight test went well until Mr. Turner conducted a single-engine landing at the Pierre Elliott Trudeau International Airport.
 According to Mr. Duchesneau, immediately after the aircraft flown by Mr. Turner crossed the threshold of runway 24G and landed on that runway, Mr. Turner reversed both throttles and abruptly applied the brakes. The effect was immediate and the aircraft came to a stop within a short distance.
 According to Mr. Duchesneau, this short landing surprised him, since the normal landing procedure practiced at Starlink was to allow the aircraft to taxi along the runway, unless instructions were given to do otherwise. According to Mr. Duchesneau, he practiced short landing techniques with Mr. Turner a number of times.
 During the flight test, Mr. Turner did not receive any briefing on whether to conduct a short or a long landing when asked to conduct a single or two-engine landing manoeuvre.
 Mr. Turner's PPC then continued with a series of questions from Mr. Delbarre about RTOs. According to Mr. Duchesneau, Mr. Delbarre was not satisfied with Mr. Turner's answers regarding the items to be executed in the event of an RTO.
 Mr. Duchesneau said he was surprised at Mr. Turner's hesitancy about the RTO procedure to be followed since he was quite familiar with it, having practiced it in training with Mr. Duchesneau.
 According to Mr. Duchesneau, Mr. Turner had the skills needed to pass his PPC and could not understand the latter's performance during the test, which was inconsistent with what he had observed when training him.
Testimony of Laurent Delbarre
 The second witness for the Minister of Transport was Mr. Delbarre. He is an FACP (exhibit M-9) and is also operations manager for the Starlink company, and therefore ensures Starlink's operational safety in accordance with the Commercial Air Service Standards as they apply to that company.
 As FACP, Mr. Delbarre is authorized to conduct PPCs on different company aeroplane types, without having to maintain currency on those types (see section 1.2.2 of the Approved Check Pilot Manual (ACP Manual)). This therefore allows Mr. Delbarre to conduct the PPC on the King Air C-90 aircraft even though he is not currently qualified on this type of aircraft.
 Mr. Delbarre testified that during the pre-flight briefing, he explained to Mr. Turner the procedure he would follow to conduct the PPC consistent with the terms of appendix Q of the ACP Manual (exhibit M-11).
 Since Mr. Delbarre was not qualified to pilot a King Air C-90, Mr. Duchesneau's presence was essential and was also required by Starlink's insurers.
 Mr. Turner's flight test consisted of a take-off from Pierre Elliott Trudeau International Airport, certain flight manoeuvres, a landing at Mirabel Airport, and a return and landing at Pierre Elliott Trudeau International Airport.
 Throughout the flight test, Mr. Delbarre was unable to communicate directly with the pilot, Mr. Turner, because he did not have earphones enabling him to give pilot Turner direct instructions or to hear the conversations between pilots Turner and Duchesneau, and between them and air traffic control (ATC).
 Whenever Mr. Delbarre wanted to give pilot Turner instructions, he first had to state them aloud to Mr. Duchesneau, who would then convey them to Mr. Turner using the earphones.
 During a circling manoeuvre conducted at Mirabel Airport, Mr. Turner was responsible for communications with Mirabel ATC while Mr. Duchesneau flew the aircraft.
 Mr. Delbarre had Mr. Duchesneau ask Mr. Turner to take over the controls of the aircraft, whereas for this type of manoeuvre, Starlink's standard operating procedures (SOPs) require the pilot positioned nearest the runway to keep the runway within view and communicate with the ATC (in this case, Mr. Turner), the other pilot being responsible for flying the aircraft (Mr. Duchesneau).
 The next manoeuvre the FACP requested was a single-engine landing on runway 24G at Pierre Elliott Trudeau International Airport. According to the witness, Mr. Delbarre, it was during the final stage of that landing, once the aircraft had touched down on runway 24G, that Mr. Turner, having received no specific instruction, brought the aircraft to a full stop by reversing both engines and abruptly applying the brakes.
 According to Mr. Delbarre, this procedure was not at all warranted and was even contrary to Starlink's SOPs.
 The aircraft then headed down the runway for the Starlink hangar, where Mr. Turner proceeded to shut off the engines. The test continued with a series of questions from Mr. Delbarre about the procedure to be followed in the event of an RTO.
 According to Mr. Delbarre, in more than one instance the answers given by Mr. Turner were not consistent with the procedure set out in Starlink's SOPs and warranted an assessment of "failed" for that element of the test.
Testimony of Lawrence Turner
 Mr. Turner gave his version of events which, in several instances, contradicted Mr. Delbarre's testimony.
 Mr. Turner said he felt confident taking the test on June 5, 2006, even though he had not flown in the three weeks before the test. He even took an extra training flight from Mr. Duchesneau the morning of June 5th so that he would feel at ease for his PPC.
 Mr. Turner testified that he met Mr. Delbarre together with Mr. Duchesneau during the pre-flight briefing and Mr. Delbarre explained to him the guide of procedures and simulations he was to use during his flight check. Mr. Delbarre gave this briefing orally and did not give Mr. Turner any specific written scenario.
 According to Mr. Turner, the fact that Mr. Delbarre did not have earphones during the flight check meant he did not hear the conversations either between Messrs. Turner and Duchesneau or between Messrs. Turner and Duchesneau and the ATC.
 In Mr. Turner's opinion, the situation became complicated when Mr. Delbarre asked him, through Mr. Duchesneau, to fly in a circling pattern over Mirabel Airport.
 Not having heard the instructions from the ATC requiring Mr. Turner to make his circuit to the south of the airport rather than to the north, Mr. Delbarre had Mr. Duchesneau ask Mr. Turner to take over the controls of the aircraft, whereas Mr. Turner's duties were those of a pilot not flying. Mr. Turner had to take over the controls of the aircraft from the pilot, Mr. Duchesneau, even though that manoeuvre was, according to Mr. Turner, contrary to Starlink's SOPs.
 Mr. Turner then executed the manoeuvres as instructed by Mr. Delbarre, despite the confusion between the pilots.
 During the return flight to Pierre Elliott Trudeau International Airport, Mr. Delbarre asked Mr. Turner, through Mr. Duchesneau, to execute a single-engine landing manoeuvre, with no further instructions.
 Mr. Turner therefore undertook the necessary procedure to make a single-engine landing on runway 24G at Pierre Elliott Trudeau International Airport and, according to him, all went well until the aircraft touched down on the selected runway.
 As the aircraft touched down on runway 24G, Mr. Turner, thinking the exercise was over, proceeded to reverse both engines and fully apply the brakes to stop the aircraft.
 According to Mr. Turner, this procedure had previously been used in other training sessions he had with Mr. Duchesneau and did not seem contrary to Starlink's policies.
 Then, once the aircraft's engines had been shut off, the test continued with a series of questions from Mr. Delbarre about the procedure to be followed during an RTO.
 Mr. Turner acknowledged that he incorrectly answered Mr. Delbarre's questions by reversing the order of two items, i.e., propeller levers and fuel firewall valves, in running through the procedure to be followed in the event of an RTO manoeuvre.
 Mr. Turner openly admitted that he did not correct his answer despite knowing it was wrong because he was afraid of making a mistake that would be detected by Mr. Delbarre.
 Next, Messrs. Duchesneau, Turner and Delbarre went into the Starlink offices for the debriefing, during which Mr. Delbarre discussed the short landing and the RTO procedure with Mr. Turner.
 Mr. Turner testified that during this conference, Mr. Delbarre never told him he had failed.
 Mr. Turner then left the Starlink offices. Two days later, he called Mr. Santerre, Starlink's chief pilot, who informed him he had failed his PPC.
ANALYSIS AND WEIGHING OF EVIDENCE
 The Tribunal has had an opportunity to assess the testimony of Messrs. Duchesneau, Delbarre and Turner and the facts presented at the hearing.
 The witness, Mr. Duchesneau, seemed to the Tribunal to be serious-minded and professional. He indicated numerous times that his objective was to train Mr. Turner in order to recommend him for a PPC once Mr. Turner had demonstrated his competence to fly the King Air C-90 satisfactorily.
 The very morning of the flight check, June 5, 2006, Mr. Duchesneau made an extra flight on the King Air C-90 with Mr. Turner to [translation] "break the ice", as he put it. After that flight, Mr. Duchesneau expressed the view that Mr. Turner was ready to take his flight check. According to Mr. Duchesneau, Mr. Turner is certainly better than what he demonstrated during the test.
 Mr. Delbarre's testimony seemed extremely subjective to the Tribunal, and at times even negative regarding Mr. Turner's overall proficiency as a pilot.
 While the Tribunal recognizes Mr. Delbarre's qualifications as an FACP, throughout his testimony he displayed an aggressiveness towards Mr. Turner which the Tribunal considers unwarranted, even though as FACP he ought to show a positive and constructive attitude towards pilots he is evaluating.
 The Tribunal also noticed several times that Mr. Delbarre found it quite difficult to acknowledge that he may have committed certain errors during Mr. Turner's pilot proficiency check, resulting in an atmosphere rather unfavourable to the proper conduct of the PPC.
 The witness, Mr. Turner, seemed to the Tribunal to be a decent man who, on June 5, 2006, took a difficult test in terms of checking his proficiency (as acknowledged by the witness, Mr. Duchesneau), the whole carried out in a tense and confused atmosphere.
 Mr. Turner did not hesitate to admit he had given some incorrect answers to Mr. Delbarre's questions about the RTO procedure, but this was owing to his feelings of apprehension about the consequences of those errors following Mr. Delbarre's questioning.
 Mr. Turner also acknowledged that during the landing at Pierre Elliott Trudeau International Airport, when he made a single-engine landing, he honestly thought that the test was over and so opted for the short landing procedure by reversing both engines and applying the brakes once the aircraft had made contact with the runway.
CONTEXT OF THE FLIGHT CHECK
 The Minister of Transport filed the ACP Manual (8th edition, February 2006) as exhibit M-11 and referred to it a number of times to underscore the importance of following the procedures and policies contained therein.
 The Tribunal has reviewed the ACP Manual filed by the Minister of Transport, noting and identifying certain guiding principles for the conduct of flight checks and recommendations for the methods to be used by the ACP to ensure that flight proficiency checks are conducted objectively and in a constructive environment.
 In that regard, the Tribunal refers to section 9.1.4 of the Manual, which states that when flight checks are being conducted, there may be some tension and feelings of apprehension in even the most experienced pilots. In such a case, according to the Manual, the ACP is responsible for attempting to reduce these feelings of apprehension and create an environment in which a true demonstration of ability can be established.
 The Tribunal noted, based on Mr. Turner's testimony, that FACP Delbarre did not help to reduce the feelings of apprehension that may have existed on board the aircraft during the flight test conducted on June 5, 2006, contrary to what could be expected of an experienced FACP such as Mr. Delbarre.
 The Tribunal further noted that an acknowledged atmosphere of confusion set in during the flight check of the pilot, Mr. Turner, which was first observed during the pre-flight briefing and continued throughout the flight check and the debriefing.
 The Tribunal noted that three significant factors arose during Mr. Turner's PPC and it is important to refer to them here for this determination.
 Mr. Delbarre's decision not to use earphones during the flight check phase certainly contributed to making communication more difficult between himself, Mr. Duchesneau, who was responsible for the safety of the flight, and the pilot, Mr. Turner.
 Section 8.4.5 of the ACP Manual states that all aircraft used for a flight check shall be equipped with fully functioning dual controls, including brakes, and provide for a satisfactory means of audio and verbal communication.
 The Tribunal finds that Mr. Delbarre's decision not to use earphones to enable him to communicate in an effective and satisfactory manner with the two pilots was the cause of a general state of confusion during the exercise and did not comply with the provisions of the ACP Manual.
 The fact that the FACP did not use earphones also created confusion surrounding the instructions given to Mr. Turner in the context of the circling procedure conducted at Mirabel Airport.
 Mr. Delbarre's instruction, given to Mr. Duchesneau and then conveyed to Mr. Turner, that Mr. Turner was to take over the controls during a circling manoeuvre at Mirabel Airport (while following the instructions of Mirabel ATC) added to the tension and confusion between the two pilots responsible for the aircraft. Furthermore, this manoeuvre was, according to Mr. Turner, contrary to Starlink's SOPs.
 The second factor of confusion that resulted in an assessment of "failed" for the pilot, Mr. Turner, arose from the lack of instructions during the pre-flight briefing and the flight as to how landings were to be conducted. The evidence showed that the pilot, Mr. Turner, was never given any indication or instruction in this regard.
 Mr. Turner admitted having thought the single-engine landing exercise was over once the aircraft had touched down on runway 24G at Pierre Elliott Trudeau International Airport, hence his decision to conduct a short landing.
 The Tribunal notes, moreover, that the assessment of "failed" for the landing at Pierre Elliott Trudeau International Airport is attributable to the fact that Mr. Turner applied [translation] "max reverse with both engines during a single-engine landing", according to Mr. Delbarre's written comments in Mr. Turner's flight test report (exhibit M-10).
 Therefore, the evidence showed that Mr. Turner did not use the single-engine reverse procedure, but rather a normal two-engine reverse procedure after the aircraft had touched the runway, since he believed the single-engine landing test was over.
 He therefore cannot be faulted for conducting a single-engine landing without the precautions stipulated in section 1.31.2 "Single Engine Landing" of Starlink's SOPs, when he opted for the procedure of reverse with two engines simultaneously.
 The written remarks of FACP Delbarre at item 18 of the flight test report show the confusion that existed about the single-engine landing requested by him and Mr. Turner's understanding of the situation after the aircraft had made contact with the runway at Pierre Elliott Trudeau International Airport.
 The final factor of confusion concerns the questions Mr. Delbarre put to Mr. Turner about the procedure to be followed in the event of an RTO. This element of the exercise occurred after the aircraft was stabilized on the ground and the engines shut off.
 According to Mr. Turner, this part of the test seemed to him to be a series of questions that was not part of the usual competency check scenario. In this regard, Mr. Turner did not hesitate to say he incorrectly answered Mr. Delbarre's questions but did not change his answers for fear of being given an assessment of "failed".
 Moreover, to add to this last factor of confusion, it clearly emerged at the hearing that exhibit M-4, which reproduces Starlink's SOPs applicable to the King Air C-90 aircraft, incorporated the SOPs applicable to the King Air A-100 aircraft, notably regarding emergency procedures, including those used in the event of an RTO.
 The Tribunal thus noted that exhibit M-4, as filed by the Minister at the hearing, contained references to the emergency procedures for the King Air A-100 aircraft, notably from page 2.3 to page 2.61.
 In fact, all the emergency procedures applicable to the King Air A-100 can be found in the Manual under the heading "Emergency Pattern". Even the table of contents at page 2.3 of the Manual is titled "Emergency Procedures King Air A100" and the emergency procedures for the RTO illustrated at page 2.8 are those that apply to the King Air A-100.
 The Tribunal considers this situation unusual, to say the least, and Starlink's operations managers would have every reason to correct their SOPs Manual immediately so that it provides the emergency procedures applicable to the King Air C-90 aircraft.
 In addition, the Tribunal is not satisfied that this is a printing error, as the Minister of Transport claims in its written submission of September 8, 2006.
FLIGHT DEBRIEFING PROCEDURE
 Section 9.8.1 of the ACP Manual states that it is mandatory to carry out a debriefing following every flight check and that the debriefing should highlight the candidate's strengths and weaknesses and be carried out in a positive, non-confrontational manner. It further states that the ACP's debriefing should promote learning and increase the knowledge and confidence of the candidate.
 Unfortunately, the debriefing that was held in the Starlink offices, according to Mr. Turner's testimony, which was not disputed by Mr. Delbarre, was not carried out in a positive, non-confrontational manner. According to Mr. Turner, the two items that resulted in his failing the PPC were discussed, but Mr. Delbarre never told him he had failed.
 Following this debriefing, Mr. Turner was asked to go home. He stated that it was only on contacting Mr. Santerre, Starlink's chief pilot, two days after the PPC was conducted, that he finally learned he had failed and lacked the skills to become a pilot with Starlink.
 Based on the testimony and the facts presented at the hearing, the Tribunal finds that none of the participants in this PPC exercise conducted on June 5, 2006 performed to the best of their abilities, nor was the exercise carried out in accordance with the requirements and usual recommendations of the ACP Manual.
 In this regard, the Tribunal recalls a number of conclusions in Hatfield v. Canada (Minister of Transport), , review determination, TATC file no. O-3084-60,  C.T.A.T.D. no. 19 (QL). The member, Pierre Beauchamp, states as follows: "As experienced pilots will know, there is nothing worse for a crew than trying to second guess what the instructor (or check pilot) wants".
 The testimonies of Messrs. Duchesneau and Turner showed in several instances that the flight check exercise was carried out with no clear communication from the FACP, which may have led Mr. Turner to try and guess or anticipate the wishes or instructions of the FACP.
 As for the need to create a positive and constructive environment during a PPC, the member, Mr. Beauchamp, went on to state, in Hatfield, cited above in ¶ :
The ACP Manual provides the standards and procedures that must be abided by all check pilots, and promotes and requires the establishment of a working environment during check rides that will help the candidates to demonstrate their competence to the best of their abilities. The check pilot is charged with setting up such a professional atmosphere and that starts right at the outset, at briefing time. Mr. Kaufman was obliged to set a competent and professional, and should I say, "neutral" atmosphere which would enable the candidates to perform to the best of their abilities.
 In this regard, the Tribunal is of the view that FACP Delbarre did not follow the Manual's recommendations by failing to create a professional and at least "neutral" environment, which would have given the candidate, Mr. Turner, the opportunity to perform to the best of his abilities. This was confirmed more than once by the testimony of Mr. Duchesneau, who stated that Mr. Turner had piloting skills superior to those he demonstrated on June 5, 2006.
 The member Hebb Russell, in his review determination in Grant v. Canada (Minister of Transport), , TATC file no. O-3132-60,  C.T.A.T.D. no. 4 (QL), reached a similar conclusion: "The ACP Manual states that the Minister is supposed to put the PPC candidate at ease during the check ride". Mr. Russell goes on to say: "The Minister has the obligation to ensure that the ACP's assessment is fair and in accordance with standard company SOPs".
 The Tribunal finds that Mr. Turner's PPC, conducted on June 5, 2006, was not carried out in an objective and fair manner and in accordance with the provisions of the ACP Manual.
 For these reasons, the Tribunal sets aside the Minister's decision to refuse to issue a Canadian aviation document to Lawrence Clifford Turner on the ground that he failed his pilot proficiency check, and refers the case back to the Minister for reconsideration.
November 29, 2006
Transportation Appeal Tribunal of Canada
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