Decisions

TATC File No. P-3325-27

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Travis Dass, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, ss. 3; 6.6; 6.7 and 7.21
Canadian Aviation Regulations, SOR/96-433, ss. 401.06(1) and 401.06(1)(c)

Jurisdiction to review, Helicopter, Canadian aviation document (CAD), Flight test report, Definition of privilege, Flight test, Commercial pilot licence


Interlocutory Decision
Faye H. Smith


Decision: July 9, 2007

Citation: Travis Dass v. Canada (Minister of Transport), 2007 TATCE 17

Decided on the basis of written submissions

Held: I find that the Tribunal does not have jurisdiction to review the failed flight test, one of the conditions precedent to the issuance of a commercial pilot licence – helicopter.

I. BACKGROUND

[1]     By e-mails dated December 28, 2006 and January 1, 2007, Brian Jenner as agent for Jason Camille and Travis Dass requested a review by the Tribunal of the failure assessment made by the Minister of Transport of Messrs. Camille and Dass' commercial pilot licence - helicopter (CPL-H) flight test of November 30, 2006 and/or the Minister's refusal to issue Messrs. Camille and Dass a CPL-H based on the results of this November 30th flight test. Mr. Jenner attached a copy of the November 30th failed flight test report together with the partial flight test report from the following day, which lead to the issuance of a CPL-H to each of the applicants.

II. MINISTER'S SUBMISSIONS

[2]     It is the Minister's position that on the facts of these matters no decision was ever made by the Minister to refuse to issue a CPL-H licence to either candidate. He states that there is no evidence that, prior to the successful re-test done shortly after the failed flight test, either applicant submitted an application to the Minister with appropriate documentation as set out in section 401.06(1) of the Canadian Aviation Regulations, SOR/96-433 (CARs), in order to be issued a CPL-H.

[3]     The Minister further states that should either candidate have completed the application process such a refusal may have been the final result given the failed flight test. However, no such finalized applications were made until the candidates passed the flight tests. After the tests were redone and both candidates had passed then the licences were granted based upon the fact that all the prerequisites for the application specified in the CARs had been met.

[4]     It is also the Minister's position that the decisions made by the flight examiner with regard to the actual flight tests themselves do not trigger the jurisdiction of the Tribunal. This is because the flight tests cannot be properly characterized as Canadian aviation documents (CADs). Therefore, their review is outside the jurisdictional mandate of the Tribunal.

[5]     The Minister states that the application process relevant to the issuance of a CPL-H is set out in section 401.06(1) of the CARs which reads as follows:

401.06 (1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner specified in the personnel licensing standards, issue a flight crew permit or licence to the applicant or endorse the applicant's flight crew permit or licence with a rating if the applicant provides documentation to the Minister that establishes

(a) the applicant's citizenship;

(b) that the applicant meets the applicable requirements set out in the personnel licensing standards in respect of

(i) minimum age,

(ii) medical fitness,

(iii) knowledge,

(iv) experience, and

(v) skill; and

(c) that the applicant has successfully completed, within the applicable period specified in the personnel licensing standards preceding the date of application for the permit, licence or rating, a flight test in accordance with the personnel licensing standards.

[6]     The Minister submits that upon reading the above section it is clearly evident that it is not the failure of the flight test per se that engages the Minister's decision-making authority with respect to the issuance of a CPL-H. Rather, it is only by way of a submission to the Minister of a formal application establishing that the applicant has satisfied all the required elements set out in section 401.06(1) of the CARs that the ministerial decision-making mechanism can be invoked.

[7]     The Minister states that any such application would have been pointless given that it could not have been accompanied by evidence of a "successfully completed" flight test which is required by section 401.06(1)(c) of the CARs. This situation quickly changed, however, after both applicants succeeded in passing the partial re-test performed shortly after the original failure. The candidates were now able to submit applications accompanied by documentation confirming that they met the prerequisites established by section 401.06(1), which they did.

[8]     It follows therefore that the Minister's submission is that the sole issue before the Tribunal is whether it has jurisdiction to review the decision of the flight test examiner to fail both candidates on their initial flight tests.

[9]     On this latter point the Minister states that there is no jurisdiction for the Tribunal to review the failure of the flight tests as the flight test in question is not a Canadian aviation document (CAD) within the definition of CAD as found in section 3 of the Aeronautics Act, R.S.C. 1985, c. A-2, as am. by R.S., c. A-3 (Act), and expanded per section 6.6 of the said Act as set out below:

3. (1) In this Act,

"Canadian aviation document"

« document d'aviation canadien »

"Canadian aviation document" means, subject to subsection (3), any licence, permit, accreditation, certificate or other document issued by the Minister under Part I to or with respect to any person or in respect of any aeronautical product, aerodrome, facility or service;

6.6 In sections 6.7 to 7.21, "Canadian aviation document" includes any privilege accorded by a Canadian aviation document.

[10]     It is the Minister's position that the flight test in question cannot be considered a CAD because it does not, in and of itself, grant any privileges to an applicant and it is thus fundamentally different from the statutory definition of a CAD, and further submitted that the term "other documents" could not be interpreted so as to include such a flight test.

[11]     The flight test is merely one of the conditions precedent to an application made as set out in section 401.06(1) of the CARs for a flight crew permit or licence. It is only within the context of a completed and submitted application that the flight test has any real significance.

[12]     Finally, the Minister compares the relationship between flight tests in general and pilot proficiency checks (PPC) and concludes that the PPC confers a privilege and that the flight test per se is devoid of any privilege-granting significance and thus it cannot be considered to be a CAD and therefore does not trigger the jurisdiction of the Tribunal for review.

III. APPLICANTS' SUBMISSIONS

[13]     Regarding the Tribunal's jurisdiction over flight test failures, Mr. Jenner on behalf of the applicants stated as follows:

1) The flight test report is manifestly a document. They are issued by the Minister under the provisions of Part I of the Aeronautics Act.  In the case of a "pass" the decision rendered by way of the flight test report effectively permits the applicant for the flight test to complete an application for a pilot license. The flight test is therefore like a "licence, permit, accreditation, certificate or other document" (PPC, DFTE, ACP, CCP etc). It is therefore a CAD by definition of article 3 of the Aeronautics Act.

2) In the case of a flight test "fail" the Minister's decision effectively deprives the applicants of the privilege of applying for a pilot license and/or the privilege of being able to comply with the standards for receiving pilot license and/or of receiving a pilot license. The net effect of the Minister's decision to fail the test is the loss of all the above privileges. The flight test is therefore a CAD by definition of article 6.6 of the Aeronautics Act.

3) The flight test is so similar to a PPC that the flight test report is almost identical to the PPC report.  Failure on a flight test and failure of a PPC produce similar consequences: the failure of the Minister to assess a pass on a PPC indirectly cancels the privileges of a commercial pilot license, without actually canceling the pilot license or any of the privileges it provides; failure of the flight test prevents the applicant for the flight test to do something which is indirectly related to the flight test itself. Since the PPC has been declared to be a CAD it follows that a flight test is a CAD because it is tantamount to a PPC both in nature and consequence.

4) Moreover, the position taken by the Minister in regard to "flight tests" is contrary to the legislative intent established by Federal Court decisions in regard to CADs. In giving a very broad interpretation to the definition of CAD the Federal Court has effectively confirmed the legislator's intention to move as much judicial review as possible from the Federal Court to the Tribunal. Since the Minister has provided no arguments supporting the necessity of reviewing "flight test" results by the Federal Court, jurisdiction over such decisions falls to the Tribunal by default.

5) Alternatively the Minister's assessment of a failure on a flight test is in effect a refusal to issue a pilot license. Decisions of the Minister in regard to the refusal to issue a CAD (pilot licence) being subject to review under article 6.72 of the Act, the Tribunal may hear the cases in question without ruling on the nature of the flight test, as viewed in very narrow terms.

IV. MINISTER'S REPLY

[14]     Respecting number 2 of the applicant's submissions, the Minister states that the very definition of privilege given in section 6.6 of the Act presupposes the existence of a CAD. It would seem circular to argue that decisions taken as part of the process of issuing a CAD could be characterized as affecting privileges in advance of the CAD actually being issued.

[15]     The Minister underlines the distinction between the flight test and the PPC as being that the flight test is only one of several conditions required by the application process herein, and the PPC check ride is the only condition and hence a decision not to issue is reviewable.

[16]     Regarding number 5, while the applicants' representative argues alternatively that the assessment of a failure on a flight test is in effect a refusal to issue a pilot licence, it is the Minister's response that this concern is premature and speculative.

[17]     Finally, it is the Minister's position that should the Tribunal be faced with an application contesting the refusal to issue a CAD, pursuant to section 6.72 of the Act, the scope of its review should be restricted to ensuring that the Minister's decision was made in accordance with the submitted criteria. In other words, the purpose of the review is to ensure that all the required conditions have been reviewed by the Minister in reaching a decision on the application. The Tribunal's review should not encompass a reconsideration of the merits of any of the decisions made by the Minister with respect to the individual grounds of the application. There are many conditions to be satisfied by an applicant which, if reviewable by the Tribunal, would appear to be outside the Tribunal's jurisdiction and likely to lead to instances of administrative absurdity never envisioned by the legislature.

V. DISCUSSION

[18]     There is no dispute as to the facts of the failure of the flight test by both of the applicants on November 30, 2006, or that this flight test was one of the required elements needed to qualify for a CPL-H. Equally, as is stated by the Minister's representative, there is no evidence that, prior to the successful re-test done shortly after the failed flight test, that either applicant submitted an application to the Minister with the appropriate documentation as set out in section 401.06(1) of the CARs, in order to be issued a CPL-H.

[19]     I accept the submissions of the Minister that on the facts of the matter no decision was ever made by the Minister to refuse to issue a licence to either candidate. Given the failed flight test, had either or both of the candidates completed the application process, such refusal may well have been the result since the candidates had both failed the flight test which was a required element for issuance of a licence. When the candidates passed their flight test, the applications were made and their licences were granted on the basis that all prerequisites for the application specified in the CARs had been met.

[20]     I also accept the Minister's position that the decisions made by the flight examiner with regard to the actual flight tests themselves do not trigger the jurisdiction of the Tribunal. It is evident in section 401.06(1) of the CARs that the flight test is one of the conditions of issue of the CPL-H. It is not in itself a CAD but a condition precedent to the issuance of a CAD and at this stage of the procedure, being a condition precedent to the issuance of a licence, does not itself grant any privileges to the applicant.

[21]     However, if the holder of a CPL-H subsequently fails a flight test, this is reviewable by the Tribunal since the pilot now loses a privilege attaching to a CAD in much the same way as would a pilot who had a failed PPC check ride. The case of Canada (Minister of Transport) v. Beingessner, [1996] 3 F.C., [1996] F.C.J. no. 787 (QL) is authority for the Tribunal's jurisdiction to review a failed PPC check ride which is the loss of a privilege as defined in section 6.6 of the Act as this is a privilege which attaches to the licence held by the pilot at the time of his PPC check ride.

[22]     On the basis of the foregoing, there is one matter, however, that I would take issue with found at the second last paragraph at page 5 of the Minister's response to the applicant's submissions. It is the Minister's position that should the Tribunal be faced with an application contesting the refusal to issue a CAD, pursuant to section 6.72 of the Act, the scope of its review should be restricted to ensuring that the Minister's decision was made in accordance with the submitted criteria. In other words, the purpose of the review is to ensure that all the required conditions have been reviewed by the Minister in reaching a decision on the application. The Tribunal's review should not encompass a reconsideration of the merits of any of the decisions made by the Minister with respect to the individual grounds of the application.

[23]     Tribunal jurisprudence has revealed at least two instances where the Tribunal has considered a refusal to issue a commercial pilot licence - aeroplane in the matter of Trinacty v. Canada (Minister of Transport), [2006], appeal decision, TATC file no. O-3094-27, [2006] C.T.A.T.D. no. 68 (QL) and a refusal to issue a private pilot licence in the matter of Lanning v. Canada (Minister of Transport), [2005], review determination, TATC file no. P-3044-27, C.T.A.T.D. no. 2 (QL).

[24]     In Trinacty, the Minister's reasons for refusal were that Mr. Trinacty did not meet the pilot-in-command and instrument experience requirements as required by section 401.06(b)(iv) of the CARs. Upon interpreting section 28 of the Act to the facts of the case, the appeal panel referred the matter back to the Minister for reconsideration holding that Mr. Trinacty had not been given credit as pilot-in-command for a number of flights which, if credited to him, would have met the experience requirements for his commercial pilot licence at the time of his first application.

[25]     In Lanning, the Minister refused to issue the applicant a private pilot licence on the basis that she did not meet the solo long cross-country requirement as outlined in section 421.26(4)(b)(ii) of the Personnel Licensing and Training Standards respecting Flight Crew Permits, Licences and Ratings. The Minister's decision was upheld by the member at review who confirmed that the applicant had not done two full-stop landings on one cross-country flight.

[26]     I include these references as both relate to a refusal to issue a pilot licence by the Minister and clearly both candidates had made application for their respective licences on the basis that they had met all licence requirements. The subsequent decision by the Minister to refuse to issue the licences in both cases was a matter of interpretation of the facts relating to the experience qualification in issue.

[27]     My point of departure with the Minister's submission is the scope of the review which the Tribunal may undertake. I am of the view that the two cases cited above make it clear that the interpretation of a pilot's flight experience or the meaning of take-offs and landings or solo flights may be open to review by the Tribunal notwithstanding their status of conditions precedent to the issue of a CAD where the interpretation of the experience criteria is the reason for the Minister's decision to refuse to issue the CAD.

[28]     It is clear from the foregoing discussion that an application must be submitted to the Minister prior to any consideration of the Minister's decision to refuse to issue a CAD, pursuant to section 6.71 of the Act. It is equally well founded that a failed flight test as one of the conditions precedent to the issuance of a CAD is not itself a CAD nor at that stage of the process herein could it be considered a privilege attaching to a CAD which did not yet exist.

[29]     Consequently, I find that the Tribunal does not have jurisdiction to review the failed flight tests herein and the applications for review are rejected.

July 9, 2007

Faye Smith
Chairperson