TATC File No. O-3282-60
MoT File No. 5802-132132
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Barry A. Perlin, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)
Suspension of a Canadian aviation document (CAD), Pilot Proficiency Check (PPC), Flight test, Instrument flight rules (IFR)
John D. Issenman
Decision: October 16, 2007
Citation: Perlin v. Canada (Minister of Transport) 2007 TATCE 25 (review)
Heard at Ottawa, Ontario, on January 30, 2007
Held: The decision to suspend a Canadian aviation document on the grounds that the applicant has unsuccessfully completed a flight test conducted on June 26, 2006 is referred back to the Minister for reconsideration.
 A review hearing was requested by Barry A. Perlin following a suspension of a Canadian aviation document by the Minister of Transport who alleged that Inspector Perlin unsuccessfully completed a flight test pursuant to section 7.1(1) of the Aeronautics Act, R.S.C. 1985, c. A-2, as amended by R.S., c. A‑3. Inspector Perlin was undergoing his pilot proficiency check (PPC) and instrument flight rules (IFR) flight test.
 Section 7.1(1) of the Aeronautics Act reads as follows:
7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that
(a) the holder of the document is incompetent,
(b) the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfill the conditions subject to which the document was issued, or
(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the holder of the document or of any principal of the holder, as defined in regulations made under paragraph 6.71(3)(a), warrant it,
the Minister shall, by personal service or by registered or certified mail sent to the holder or the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address, notify that person of the Minister's decision.
 Each of the witnesses presented an honest and accurate account of the facts as they believed them to be at the time. Evidence sworn by witnesses included different views of the flight. In some cases, no recollection of large portions of the flight could be made. There were conflicting interpretations or failures to recognize or identify alleged in-flight violations of limits or standards.
 Two noteworthy events occurred during the review hearing. Each resulted in a request by Inspector Perlin to have the hearing adjourned. Both of these events were precipitated by the Minister's representative introducing documentary evidence that was only made known to Inspector Perlin the preceding day. He indicated that the last minute production of documents by the Minister was unfair and would result in his not being able to follow his plan.
 Although the last minute introduction of the documents may, in fact, have been grounds for an adjournment, my review of the documents confirmed that they would not significantly affect the outcome of the hearing. I reminded the parties that I would determine the relevance, admissibility and weight of any evidence submitted. I assured Inspector Perlin that the subject document was not significant enough to affect in any large way the review hearing determination. Inspector Perlin withdrew his request for adjournment.
 Later on, the Minister's representative introduced another document that the Minister failed to provide Inspector Perlin before the hearing. After consideration, I allowed the document to be introduced in evidence. Inspector Perlin was very familiar with this document as a day‑to‑day working tool and used it in his position with Transport Canada.
 Original notes taken by Craig Flewelling during the test flight include additional comments and observations written down after the post‑flight debriefing (exhibit M‑5). This could imply that facts allegedly supporting the conclusion that Inspector Perlin failed his ride might have been remembered by Inspector Flewelling after the flight.
 On June 26, 2006, Inspector Perlin, while attempting to renew his PPC and IFR rating by taking a flight test conducted by Inspector Flewelling, allegedly failed to meet the anticipated levels of accuracy and proficiency (exhibits M‑6, M‑7 and M‑8) according to the flight test report (exhibit M-1). During the test, Inspector Flewelling noted that on several occasions Inspector Perlin acted or failed to act in response to situations in a manner consistent with his expectations. Inspector Perlin was the pilot flying (PF) during the flight test and Dave Bodner was the pilot not flying (PNF).
 Inspector Bodner did not recall the flight details in the same manner as Inspector Flewelling. In many instances, he did not recall specifics at all. Despite the fact that Inspector Bodner was not undergoing a ride to renew either his PPC or IFR rating, he was the PNF and therefore an integral part of the crew on the subject flight test.
 According to sections 9.3.2 and 9.3.3 of the Transport Canada's Approved Check Pilot Manual, 8th ed., February 2006 (TP 6533E), the PNF may have his PPC and/or IFR flight test suspended if the PNF commits an error that would be rated as a "1".
 Further, if the error committed by the PF is rated as a "1", as was the case in this flight, although not directly due to an inappropriate action of the PNF (which could be argued given the flight crew concept set out in the Approved Check Pilot Manual), the fact that the PNF failed to ensure that the PF acted in accordance with instructions given to him by the air traffic control, Inspector Flewelling could have failed the PNF as well, even though he was not taking the flight test. However, he did not. The PNF only recalled a small portion of the flight, and the PF had a different interpretation of the margin of error he allegedly committed relative to the "1" given to him by Inspector Flewelling for section 16 of the flight test report.
 Without getting too far into the exact reasons for the alleged failure, it is impossible to confirm that any two individuals share the same or similar perspective on events during or after the flights. Clearly, their testimony does not support a consistent view of the flight.
IV. ARGUMENTS AND ANALYSIS
 The applicant admits that certain small errors were committed, however, none to the extent that the aircraft was ever in an unsafe situation, or beyond the limits established for each of the prescribed phases of flight undertaken as part of the test.
 There is a distinct lack of corroborating testimony. The fact that the PNF was never admonished, let alone had his licence in jeopardy, discrepancies in the in-flight notes taken by Inspector Flewelling and the notes added afterwards, inconsistencies in the manner in which the pre‑flight briefing was undertaken and recounted, and the effect on the PF of having his headset not fully functional, individually and collectively take away from the allegation that limits may have been slightly exceeded.
 The burden of proof is always on the Minister to substantiate the alleged failed flight test for the applicant's PPC and IFR rating.
 The decision to suspend a Canadian aviation document on the grounds that the applicant has unsuccessfully completed a flight test conducted on June 26, 2006 is referred back to the Minister for reconsideration.
October 16, 2007
John D. Issenman
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