TATC File No. Q-3495-62
MoT File No. N5802-13942
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Michel Bradette, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1
Decision: January 7, 2009
Citation: Bradette v. Canada (Minister of Transport), 2009 TATCE 1 (review)
Before: Franco Pietracupa, Member
Heard at Québec, Quebec, on November 4, 2008
Held: I confirm the decision of the Minister of Transport to suspend the applicant's approved check pilot delegation of authority.
 On May 7, 2008, the Minister of Transport issued a notice of suspension to the applicant, Michel Bradette, who was informed that his approved check pilot delegation of authority dated January 30, 2008 (exhibit M-1) was suspended, pursuant to section 7.1(1)(b) of the Aeronautics Act (Act). It is alleged that during a Transport Canada civil aviation monitoring check, Mr. Bradette, as an approved check pilot (ACP), while conducting a pilot proficiency check (PPC) did not recognize the failure of the candidate.
 To understand the nature of this case, it is necessary to comment briefly on the Minister's presentation. It is alleged that, as per the Approved Check Pilot Manual (TP 6533, 9th edition, ACP Manual), and as noted on the Approved Check Pilot (ACP) Monitor Report (exhibit M‑7), that during a PPC conducted on May 1, 2008, Mr. Bradette, as an ACP, did not recognize a failure by the candidate, as detailed in the Flight Test Guide − Instrument Rating (TP 9939, 7th edition, Flight Test Guide, exhibit M-3). Furthermore, he did not take appropriate action as set out in the ACP Manual. In particular, the Minister alleges that Mr. Bradette did not take appropriate action to recognize a failure of the candidate during the PPC.
 As such, the determination that will be rendered by the Tribunal is two fold:
1. Did the crew fail to apply the performance criterion of section 8i) of the Flight Test Guide?
2. If so, did the ACP, Mr. Bradette, recognize the failure and, as such, take the appropriate action?
 Section 7.1(1)(b) of the Act 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.
 Section 8i) of the the Flight Test Guide provides the following performance criterion:
Assessment will be based on the candidate's ability to
. . .
i. on the intermediate and final segments of the final approach course:
. . .
ii. fly the approach in a stabilized manner without descending below the applicable minimum altitudes depicted on the approach chart (+as required/ –0 feet);
iii. descend to and accurately maintain the Minimum Descent Altitude (MDA) and track to the Missed Approach Point (MAP) or to the recommended minimum visibility that would permit safe completion of the visual portion of the approach with a normal rate of descent and minimal manoeuvring.
 The ACP Manual provides the following:
. . .
The Issuing Authority - may, pursuant to 7.1(1) of the Act, suspend, refuse to renew or refuse to issue an examiner's authority to conduct flight tests on the basis of any of the following:
. . .
h. failure to conduct flight tests in accordance with the instructions, techniques and procedures set forth in the Approved Check Pilot Manual (TP 6533E), Flight Test Guide or PPC schedule.
A. Minister of Transport
(1) Normand Audet
 Normand Audet is an experienced Transport Canada civil aviation inspector. He was on board the CL 22 aircraft, monitoring Mr. Bradette who was conducting a PPC. As part of the requirements under the ACP program, Mr. Bradette was being evaluated by Inspector Audet.
 Inspector Audet testified that, in general, flight tests are conducted as per the Flight Test Guide until the time of the approach phase. In this case, he noticed that the crew of the aircraft began to conduct a non-precision approach to circle. As per the CAP approach chart (NDB RYW 30) in the Nav Canada's publication entitled Canada Air Pilot (CAP 5 at 303, (French version CAP 6 at 372, exhibit M‑2)), the crew was to descend from the final approach fix (FAF) to a minimum descent altitude (MDA) of 760 feet to begin its circling manoeuvre to land on runway 24.
 As per the Flight Test Guide (exhibit M-3) and the Transport Canada Aeronautical Information Manual (TP 1471, AIM, exhibit M-4), this MDA is a "hard altitude" and tolerance of this 760 feet above see level (ASL) is +100 above and 0 below.
 Inspector Audet declared that from his position behind Mr. Bradette, he observed that the crew began a descent from the FAF at 1500 feet to the MDA of 760 feet. The rate of descent varied from 1500 to 2000 feet per minute. Without any observed situational awareness calls (as per the company's standard operating procedures (SOPs)) in the cockpit, the pilot flying (PF) was unable to level the aircraft at the MDA. As such, the aircraft was seen levelled at 600 feet.
 Inspector Audet's testimony concluded that the ACP examiner, Mr. Bradette, should have been able to observe this deviation from the acceptable criterion provided in section 8i) of the Flight Test Guide and to indicate on the Flight Test Report (exhibit M-5) a score of 1 (below standard), which is a failure.
 In cross-examination, Inspector Audet declared that the aircraft had climbed back to an altitude of 630 feet. As the aircraft began its circle approach, Inspector Audet returned to his seat and did not observe the landing phase of the circle approach.
(1) Michel Bradette
 Mr. Bradette testified that during the final phase of the approach, the aircraft levelled at approximately 700 feet. Mr. Bradette's elements of defence rested on the submission of the following excerpt from section 4.6 of the ACP Manual (exhibit R-2):
. . . It is important for an ACP to apply a tolerance for unusual circumstances outside the control of the candidate such as wind, traffic or weather conditions. An ACP may also tolerate an excursion from specified limits in the performance criteria if the candidate recovers in a timely manner. However, an excursion from prescribed limits, with or without a timely recovery, which jeopardizes the safety of the aircraft is unacceptable.
 Mr. Bradette also testified that circumstances beyond the control of the PF, in particular traffic advisory calls from the air traffic control (ATC) tower during the descent to the MDA, created an overwork scenario for the pilot not flying (PNF), and as such, he could not assist the PF with situational awareness prompts related to the SOPs.
 Mr. Bradette submitted a written declaration (exhibit R-1), in which he explained that his decision not to give the PF a score of 1 but rather a 2 on the alleged circle approach was based on circumstances listed in the ACP Manual.
 The Minister's case is based on the specific fact that Mr. Bradette had not, as an ACP, identified in the flight test, the failure of the pilot to maintain the MDA altitude, as per the performance criterion listed in the Flight Test Guide (exhibit M-3).
 The critical factor during a non-precision approach to circle is the need for the pilot to be able to descend and to demonstrate the skill in maintaining the MDA. The circle approach is a challenging flight procedure in the best of circumstances.
 From the documentary and oral evidence submitted, it is clear from the FAF inbound that the PF was behind the aircraft configuration envelope in as the speed and descent profile.
 From the FAF inbound, the crew was required to descend from 1500 to 760 feet ASL. As the CL 22 aircraft is a category B, the required visual distance to circle is 1.5 nautical miles (NM). The FAF is co-located 3.8 NM from the runway threshold. If we subtract the required 1.5 NM circle envelope, this leaves the crew approximately 2.3 NM to descend the required 740 feet ASL to the MDA.
 Inspector Audet's testimony was not contradicted by Mr. Bradette and highlighted the fact that the crew had started at a descent rate of 1500 to 2000 feet per minute. This would be a challenging rate of descent to initiate to the MDA. Keeping the aircraft at 760 feet would be difficult, as both, Inspector Audet and Mr. Bradette submitted that this aircraft is unstable. Add to this the non-calls coming from the PNF as to altitudes and speed, the possibility of descending below the 760 MDA seems probable. Further evidence from all parties also confirmed that the aircraft was flying between 600 and 700 feet during the final approach phase, and as such, never did capture or maintain the required 760 feet MDA.
 As weather conditions were not a factor, the unusual circumstances factored in this approach would be the traffic advisories issued by the ATC tower. Oral evidence indicates that the calls regarding traffic occurred as the aircraft began its base turn in the circle approach.
 The performance criterion set out in section 8i) of the Flight Test Guide clearly states that the pilot must be able to demonstrate the capability to descend and maintain MDA.
 Sections 9.24 and 9.19.3 of the AIM stipulate the specific requirements to maintain the MDA until such time as a visual reference to the runway to land is identified and a normal descent to land profile can be accomplished. Mr. Bradette, as an ACP, should have been able to identify this below standard event and clearly evaluate it as a failure.
 I confirm the decision of the Minister of Transport to suspend the applicant's approved check pilot delegation of authority.
January 7, 2009
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