Decisions

TATC File No. P-3324-27
MoT File No. 5802-325276

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Greg Sanders, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, 6.71


Review Determination
Arnold Price Vaughan


Decision: March 14, 2008

Citation: Sanders v. Canada (Minister of Transport) 2008 TATCE 16 (review)

Heard at Prince George, British Columbia, on January 22, 2008

 Held: I confirm the Minister's decision to refuse to issue a class 1 flight instructor rating (helicopter) to Greg Sanders.

I. BACKGROUND

[1] On November 28, 2006, the Minister of Transport issued a refusal to issue a class 1 flight instructor rating (helicopter) to Greg Sanders, the applicant, pursuant to section 6.71(1) of the Aeronautics Act, R.S.C. 1985, c. A-2 (Act). Mr. Sanders failed to meet the assessment standards of Transport Canada set out in the Flight Test Guide – Flight Instructor Rating – Aeroplane, Helicopter, Aerobatic (3rd edition, 2002, TP 5537E; exhibit M-4). Specifically, none of the components of the flight test report met the standards for a class 1 flight instructor rating.

II. LAW

[2] Section 6.71(1) of the Act reads as follows:

6.71 (1) The Minister may refuse to issue or amend a Canadian aviation document on the grounds that

(a) the applicant is incompetent;

(b) the applicant or any aircraft, aerodrome, airport or other facility in respect of which the application is made does not meet the qualifications or fulfil the conditions necessary for the issuance or amendment of the document; or

(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the applicant or of any principal of the applicant, as defined in regulations made under paragraph (3)(a), warrant the refusal.

III. EVIDENCE

A. Minister of Transport

(1) John Milligan

[3] John Milligan was qualified by the Tribunal as an expert witness. He is the superintendent for the safety oversight operations at the Vancouver regional office, Transport Canada.  Mr. Milligan is the holder of a Canadian air transport pilot licence and a class 1 flight instructor rating. He has an extensive background in flight testing, having conducted over 1 000 flight tests.

[4] The significant contribution of his testimony was to provide an understanding of the laws of learning and the methodology of developmental teaching, as found in the Transport Canada publication, Flight Instructor Guide – Helicopter – 1995 (August 2006, TP 4818E; exhibit M-3).

[5] Mr. Milligan explained the grade and comments in the flight test report. He stated that Mr. Sanders had not grasped nor did he have a command of the learning factors needed to instruct inexperienced class 4 flight instructors. A class 2 instructor is expected to be very proficient in teaching students, but a class 1 instructor must demonstrate a much higher level of understanding.

[6] In cross-examination, Mr. Milligan explained why the applicant's performance in the written exam had not proven his level of knowledge.

(2) Oliver Betz

[7] Oliver Betz has extensive experience in general aviation flight testing. He is a civil aviation safety inspector with Transport Canada. In November 2006, he was called to Prince George to conduct the instructor upgrade on Mr. Sanders. His testimony was corroborated with four pieces of evidence: the flight test report (exhibit M-1), the notes that he took at the time of the flight test (exhibit M-2), the Flight Instructor Guide (exhibit M-3), which he used to select teaching subjects for evaluation, and the Flight Test Guide (exhibit M-4), which he used to evaluate teaching proficiency and performance.

[8] In cross-examination, some of the quantitative assertions were challenged, namely the altitude control that was evaluated as poor. In the remarks section, it is stated that deviations were in the magnitude of 150 feet. Above ground level deviations would have been impossible to determine due to the variations in terrain height. The applicant disputed that a sink rate of 700 feet per minute was conducive to a vortex ring state. The other major area of dispute was the assertion that the pre-flight briefing did not mirror the flight parameters. Mr. Betz could not remember certain specific details of the test parameters, since the test had taken place well over a year ago.

B. Applicant

(1) Greg Sanders

[9] Mr. Sanders' testimony focused on the difficulties in getting adequate and appropriate service from Transport Canada and the high failure rate that his students had experienced in the past 12 years. In spite of these early failures, his students went on to successful careers and were esteemed by their employers.

IV. ARGUMENTS

[10] The Minister's representative submits that Mr. Sanders did not meet the requirements of a class 1 flight instructor (helicopter) at the time of the flight test. He stated that Mr. Sanders has been given a holistic evaluation with regard to his skills as an instructor. The standards against which he was assessed are clearly set out in the Flight Instructor Guide. Mr. Sanders was assessed to be wanting in many aspects.

[11] The Flight Instructor Guide refers to seven learning factors that must be present in the lesson plans and the flight demonstration. Deficiencies in these factors mean that the candidate does not have the knowledge and skills to train flight instructors.

[12] The Minister's representative explains that for the issuance of a class 1 flight instructor rating (helicopter), Transport Canada inspectors look for a high standard performance during all phases of the pre-flight, in-flight and post-flight components of the test. In this case, it would not be acceptable to say or imply that they were looking for a reason to fail the candidate.

[13] The Minister's representative points out that Mr. Sander's testimony referred to "winging it" in some scenarios. Mr. Sanders also admitted that he was distracted on that day by the needs of his students.

[14] The Minister's representative states that there may have been mitigating factors due to the obvious conflict between Mr. Sanders and Transport Canada employees in the Pacific Region.

[15] The applicant argues that he still does not believe that he failed the test. His success as an instructor is proven by the fact that 31 of his graduates are working in the industry. Rather, the problem was with one or two employees at Transport Canada. He could have proven this if he had been allowed to present as evidence numerous emails related to scheduling problems, as well as statistics showing a failure history when certain employees of Transport Canada were involved in testing.

V. DISCUSSION

[16] The Minister endorses the following licences with a class 1, 2, 3 or 4 flight instructor rating – aeroplane, helicopter, aerobatic, if the applicant meets the requirements referred to in section 401.06(1)(b) of the Canadian Aviation Regulations, SOR/96‑433, 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

. . .

(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

[17] For issuance of a licence in this case, the Flight Instructor Guide outlines the standards of knowledge and skills, and the Flight Test Guide provides the assessment standards for flight testing. I have considered the grade given and the remarks along with the notes written at the time of the test. I have looked for evidence to support the applicant's argument that the failure may be attributed to personality problems.

[18] There were seven graded evaluations related to the pre-flight, in-flight and post-flight components of the test. Anyone of them not meeting the standards of a class 1 instructor would have been sufficient to deny the upgrade. In fact, none of them exceeded a level 2 grade. This seems unusual, considering Mr. Sanders' level of experience. One would expect that he meet at least a single class 1 standard. Therefore, during Mr. Betz's testimony, I asked some clarifying questions in order to gage the severity of his marking. He explained without equivocation the standards that Mr. Sanders should have met, and he referred to the Flight Instructor Guide and the Flight Test Guide to support his remarks on the test.

[19] Of the seven components, two stood out. The first was his evaluation of the instruction Mr. Sanders gave for confined areas. This is a difficult, complex and can be a hazardous scenario. However, it would be an appropriate assignment for a class 1 test. Given that helicopters often operate in austere environments, safety and prudence would demand thorough teaching of this subject. I could see why Mr. Betz was concerned that the standard had not been met.

[20] At the other end of the spectrum is the lack of training aids and ineffective questioning of the "student instructor" for the classroom instruction. This seemed like an easier class 1 standard to achieve. Yet it was not.

[21] In some aspects, I thought that Mr. Betz could have been called generous with the grading of the test. This is especially true when the lack of a hover check should have been a hard fail.

[22] Quantitative issues of whether 150 feet of altitude was lost during the reconnaissance of the landing area, what the sink rate and airspeed was on short final, or what the temperature and wind speed was at the airport during hovering exercises can readily descend into what one person's recollection was versus another's. This is especially true a year after the fact. The same is true for qualitative issues, such as was the appropriate site chosen for the confined area demonstration or were the meteorological conditions ideal for autorotations and hovering in the R-22 helicopter. Little weight was given to this line of argument.

[23] Of greater concern is that instructors must preach and practice a high standard of flight discipline, proficiency and knowledge. That is not to say that they are perfect, but rather that they meet the standards and often strive to exceed them. That certainly must be the case to aspire to the highest level of flight instructor. A class 1 instructor is expected to pass his personal standards on to the entry level class 4 instructor who, in turn, will transfer them to his students. The Minister has every right to expect the highest standard of teaching from a class 1 flight instructor, as do the students who pay for the instruction.

VI. DETERMINATION

[24] I confirm the Minister's decision to refuse to issue a class 1 flight instructor rating (helicopter) to Mr. Sanders.

March 14, 2008

Arnold P. Vaughan

Member