Decisions

TATC File No. C-3377-62
MoT File No. 5802-243891

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

James Caine, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
E. David Dover


Decision: January 21, 2008

Citation: Caine v. Canada (Minister of Transport), 2008 TATCE 5 (review)

Heard at Winnipeg, Manitoba, on September 12, 2007

Held: The decision of the Minister of Transport to suspend James Caine's approved check pilot delegation of authority is referred back to the Minister for reconsideration.

I. PRELIMINARY MOTION

[1] The Minister's representative submitted a motion to amend the notice of suspension which was filed with the Tribunal on September 5, 2007. The Minister requested an editorial change from "Company Check Pilot (CCP) delegation of authority document issued on July 13, 2001" to "Approved Check Pilot (ACP) delegation of authority issued on January 4, 2006". The motion had been forwarded by the Minister to counsel for the applicant. There was no indication that the change would materially affect the applicant's position. The motion was granted.

II. BACKGROUND

[2] On June 6, 2007, Transport Canada issued a notice of suspension of James Caine's ACP delegation of authority. The notice was served on Calm Air International Ltd. It states that the suspension comes into effect immediately and remains in effect until the conditions of reinstatement are met and the ACP delegation of authority is reinstated by the Minister.

[3] The grounds contained in the notice of suspension read as follows:

In accordance with section 2.6.2(j) of the Approved Check Pilot Manual and pursuant to section 7.1.(1)(b) of the Aeronautics Act, the Minister has decided to suspend on the ground that on 02 June 2007, James Caine (Licence #AA243891), being the holder of the document, namely, Company Check Pilot (CCP) delegation of authority document issued on 13 July 2001 did fail to conduct a Pilot Proficiency Check on Troy Michael Kerr Sciberras (Licence # 433955) in accordance with sections 9.9.2, 9.9.3, 9.9.4, 9.10.1(d) and 10.18.6 of the Approved Check Pilot Manual, more specifically Mr. Caine's assessment of Mr. Sciberras's Hold Exercise as a (1), his continuation of the flight check after the failure and his lack of post-flight administrative suspension procedures are unacceptable and were not in accordance with the Approved Check Pilot Manual.

[4] In his opening statement, the Minister's representative stated that on June 2, 2007, Mr. Caine conducted a PPC ride for Troy Michael Kerr Sciberras in a HS 748, registered as C‑FAMO, to qualify him as a captain of this type of aircraft. According to the documentation received by Transport Canada, Mr. Sciberras failed one procedure of the PPC check ride. However, the issue was that Mr. Caine did not follow the directives contained in the Approved Check Pilot Manual, 8th ed., February 2006 (TP 6533) (ACP Manual), as listed below. Mr. Caine's delegation of authority to conduct PPC check rides was suspended.

III. LAW

[5] Section 7.1(1)(b) of the Aeronautics Act, R.S.C. 1985, c. A-2, provides as follows:

7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that

. . .

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

. . .

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 their latest known address, notify that person of the Minister's decision.

IV. APPROVED CHECK PILOT MANUAL

[6] Following are excerpts from the ACP Manual:

2.6.2 The Issuing authority - may, pursuant to 7.1(1) of the Act, suspend or refuse to renew an examiner's authority to conduct flight tests on the basis of any of the following:

. . .

(j) failure to conduct flight tests in accordance with the instructions, techniques and procedures set forth in the Approved Check Pilot Manual (TP 6533);

. . .

9.9.2 During a PPC, a "(1)" assessment of an Instrument Rating related sequence constitutes a failure of the Instrument Rating and the PPC. The ACP shall assess the PPC as "failed" at the bottom of the Flight Test Report Pilot Proficiency Check (form 26-0249/26-0279). Appropriate administrative action must be carried out in the suspension of any currently existing PPC and Instrument Rating in accordance with section 9.10.

Where the PF is assessed a "(1)" on an Instrument Rating related sequence, the above failure and associated suspension activity may be relevant to the PNF as well.

9.9.3 During a PPC/IFR, failure of a PPC related flight sequence that is not related what‑so‑ever to an instrument flight sequence constitutes failure of the PPC only. In this case, administrative action is taken in the suspension of the currently existing PPC only. The currently existing Instrument Rating is not affected, hence remains valid.

In order to be re-instated on the line, at any flight crewmember position and regardless of the type of PPC (including upgrade), another PPC must be successfully completed.

9.9.4 When an ACP decides that a pilot has failed during the course of a PPC, the flight check shall be immediately terminated.

9.10.1 An ACP shall carry out the following administrative procedures after failure of a PPC by:

. . .

(d)  if the Instrument Rating was failed and is still valid on the pilot's license, drawing a line through the English and French endorsements on the license and inscribing the notation: "Instrument Rating Suspended" or "suspension de la qualification de vol aux instruments" as appropriate, and signing and dating the license.

. . .

10.18.6 Each pilot shall conduct a holding procedure consisting of entry, the hold and exit as appropriate to the aircraft type. For FMS equipped aircraft, each pilot must demonstrate the ability to program a hold and to clear it, but at the discretion of the ACP, only one hold is required to be flown. Flying the hold for the second crewmember is not required.

V. EVIDENCE

A. Minister of Transport

[7] Inspector W. Doug Moyse testified that he has been employed by Transport Canada for eight and a half years as a civil aviation inspector. He is presently the regional ACP representative for the eastern half of the prairie and northern region, more specifically, Winnipeg, Manitoba.

[8] Exhibit M‑1 — Inspector Moyse stated that when a failure on a check ride occurs, the check pilot is required to fax him a copy of the flight test report (form 26‑0249). Mr. Caine complied with this request. The flight test report outlines the various procedures, with the failed assessment appearing at line 13. The failure of the PPC is noted in the bottom left hand portion of the document. Mr. Caine also indicated the failure of Mr. Sciberras's check ride in the section "Comments – General Assessment".

[9] Exhibit M‑2 — Inspector Moyse stated that this document is a revised ACP delegation of authority for Mr. Caine dated January 4, 2006.

[10] Exhibit M‑3 — Inspector Moyse testified that this exhibit contains correspondence within Transport Canada concerning the suspension of Mr. Caine and the reinstatement of his delegation of authority on June 26, 2007, following an ACP monitor.

[11] Exhibit M‑4 — This exhibit contains excerpts from the ACP Manual outlined in detail above.

[12] Exhibit M‑5 — This exhibit is the revised flight test report submitted by the applicant as a condition of his reinstatement.

[13] Exhibit M‑6 — This is a letter dated June 28, 2007, addressed to Robert G. Backhouse, Operations Manager for Calm Air International Ltd., indicating that Mr. Caine has met all conditions of reinstatement.

[14] On cross-examination, Inspector Moyse testified that any assessment of a sequence as a "(1)" should cause the check ride to be terminated immediately. He stated that the flying performance resulting in a failure could not be given to a candidate at a time later in the test sequence and the check ride must be terminated.

[15] According to Inspector Moyse, there are no directives in the ACP Manual concerning an incomplete check ride. Further, if the candidate's performance is assessed a "(1)", other endorsements such as his instrument rating and type certificate are not affected. Inspector Moyse admitted that under section 9.10.1(d) of the ACP Manual, Mr. Caine did not have to draw a line through the candidate's licences, as the endorsements were not affected.

[16] Inspector Moyse explained that it was incorrect to assess the holding procedure at line 13 as a "(1)". The mistake by the candidate was not his flying, but rather the fact that the holding clearance was an instrument flight rules (IFR) clearance and contained a departure time from the hold which was beyond the legal fuel capabilities of the aircraft to reach its alternate destination (exhibit M‑1).

[17] Counsel for the applicant noted that the reference material from the ACP Manual (exhibit M‑4) contains italicized notations following the directives. An example is found at section 9.9.2 whereas the italicized notations are not found in the same section of the general ACP Manual (exhibit A‑4). Section 9.9.2 of exhibit A-4 contains the exact same information, but not italicized. I do not find that this causes any confusion to the benefit of either party.

[18] Inspector Moyse mentioned that lines 15 to 20 of the flight test report would normally be completed after the holding procedure at line 13.

B. Applicant

[19] Mr. Caine testified that he holds a commercial pilot licence and an instrument rating that he obtained in 1983 and 1984 respectively. He also indicated that he is certified to fly the HS 748 and has 10 years experience and approximately 17 000 hours as a pilot in multi‑engine commercial aircraft. In his position as an accredited check pilot with Calm Air International Ltd., he conducted approximately 40 to 50 check rides per year.

[20] Mr. Caine mentioned that on June 2, 2007, he conducted a multi-crew upgrade for Mr. Sciberras. He completed the flight test report to evaluate Mr. Sciberras's performance (exhibit M‑1).

[21] Mr. Caine stated that the check ride sequences are listed numerically as 1 to 27. He also indicated that during a PPC, it is not necessary to conduct the ride in numerical order as outlined on the flight test report. In fact, lines 14 and 17 were completed successfully before the holding procedure at line 13.

[22] According to Mr. Caine, the short-field landing was done directly out of the hold, at which time the aircraft was taxied to the north apron and shut down. Mr. Caine stated that Mr. Sciberras's flying was acceptable in all of the procedures, specifically lines 7 to 18.

[23] Normally, when a procedure is assessed a "(1)", the candidate is to be advised and the check ride is terminated. In this case, Mr. Sciberras was flying the aircraft on an approach for landing out of the hold. Mr. Caine considered it a violation of safety procedures and advised him on final approach that he had failed the PPC.

[24] Mr. Caine also mentioned that there is no place on the flight test report to record a rejection by the candidate of an improper or non acceptable clearance. To obtain helpful advice, Mr. Caine discussed the situation with his colleagues, Raymond Brown and David Parkes.

[25] Mr. Caine closed his evidence by stating that the captain is always responsible for the adequate fuel loads on any aircraft.

VI. ARGUMENTS

[26] The Minister's representative stated that a holding clearance is an IFR procedure. Mr. Caine should not have failed Mr. Sciberras, as a failed holding procedure, such as the flying procedure exhibited in the holding procedure, was acceptable.

[27] Counsel for the applicant mentioned that Mr. Caine struggled with the decision to assess the holding procedure a "(1)". He then discussed it with two of his colleagues, Messrs. Brown and Parkes.

[28] Messrs. Brown and Parkes did not testify. However, Mr. Caine testified that he discussed the procedure with them, and thus the delay in forwarding the paper work to Transport Canada.

VII. ANALYSIS

[29] The determination must focus on the actions of Mr. Caine as the ACP and not on the flying procedures of the candidate, Mr. Sciberras.

[30] The Minister's representative and Inspector Moyse refer to a holding clearance as an IFR procedure.

[31] Section 9.9.2 of the ACP Manual provides the following:

9.9.2 During a PPC, a "(1)" assessment of an Instrument Rating related sequence constitutes a failure of the Instrument Rating and the PPC. The ACP shall assess the PPC as "failed" at the bottom of the Flight Test Report Pilot Proficiency Check (form 26-0249/26-0279). Appropriate administrative action must be carried out in the suspension of any currently existing PPC and Instrument Rating in accordance with section 9.10.

Where the PF is assessed a "(1)" on an Instrument Rating related sequence, the above failure and associated suspension activity may be relevant to the PNF as well.

[32] I find that the flight failure was recorded on the improper form and Transport Canada suspended the wrong individual for failing to recognize the unacceptable IFR clearance.

VIII. DETERMINATION

[33] I find that the Minister's representative and Mr. Caine as the check pilot used non standard and unpublished procedures in handling Mr. Sciberras's PPC. Therefore, I refer the matter back to the Minister for reconsideration.

January 21, 2008

E. David Dover

Member