TATC File No. C-3530-59
MoT File No. N5802-793967
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Jeffrey Jay O’Neill, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1
Decision: March 9, 2009
Citation: O'Neill v. Canada (Minister of Transport), 2009 TATCE 4 (review)
Heard at Winnipeg, Manitoba, on January 21, 2009
Held: I refer the matter back to the Minister of Transport for reconsideration of the suspension of the applicant's group 1 instrument rating.
 On September 30, 2008, the Minister of Transport issued a notice of suspension to the applicant, Jeffrey Jay O'Neill, who was informed that his group 1 instrument rating was suspended, pursuant to section 7.1(1)(b) of the Aeronautics Act (Act). It is alleged that during a recurrent IFR/PPC check ride on September 28, 2008, conducted by James David Caine, an approved check pilot (ACP), Mr. O'Neill, a licensed qualified commercial pilot, descended 300 feet below the altitude assigned by the air traffic controller (ATC) during a vectored ILS/DME approach to runway 05 in Thompson, Manitoba.
 It is alleged that, as per the Approved Check Pilot Manual (TP 6533E, 9th edition, November 2007), the ACP on board, Mr. Caine, attributed a score of 1 (below standard) to item 16 of the applicant's Flight Test Report. This score was given due to the loss of 300 feet of the aircraft from an assigned altitude by the ATC (exhibit M-4).
 As such, the determination that will be rendered by the Tribunal is based on the following question:
Did Mr. O'Neill fail to apply the performance criterion (3D) of section 15-16 of the Pilot Proficiency Check and Aircraft Type Rating − Flight Test Guide (Aeroplanes) (TP 14727E, Flight Test Guide, 1st edition, November 2007, exhibit M‑7)?
 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 fulfil the conditions subject to which the document was issued.
 Section 15-16 of the Flight Test Guide, "Precision Instrument Approach (3D)" provides the following performance criteria:
Base the assessment on the candidate's ability to:
a. select and comply with the ILS instrument approach procedure to be performed;
b. establish two-way communications with ATC using the proper communications phraseology and techniques, either personally, or, if appropriate, directs co-pilot/safety pilot to do so, as required for the phase of flight or approach segment;
. . .
e. establish the appropriate aircraft configuration and airspeed/V-speed considering turbulence, wind shear, microburst conditions, or other meteorological and operating conditions;
. . .
h. pior to final approach course, maintain declared or assigned altitudes ±100 feet without descending below applicable minimum altitudes and maintain headings within ±10 degrees.
. . .
A. Minister of Transport
(1) Paul McCulloch
 Paul McCulloch is a Transport Canada civil aviation inspector. His main testimony was to interpolate the Nav Canada's WinRad printouts and data (exhibit M‑9), which included audio and radar imagery in true depiction of the events of September 28 , 2008. It was established that Inspector McCulloch had testified in over 100 cases, using WinRad printouts to clarify and explain flight phases.
 Concentrating in the actual phase of the flight in which the failure occurred, Inspector McCulloch, using audio and the WinRad printouts, identified the aircraft as the Calm Air Trainer 8. He gave evidence that the aircraft was shown at an initial altitude of 4200 feet (image 1 of 8) with a ground speed of 180 knots. Subsequent images and audio submitted as evidence displayed the aircraft at 4000 feet (image 3 of 8) with the ATC request to reduce the speed of the aircraft and descend to 3600 feet. Image 7 of 8 indicated that the aircraft had descended to 3300 feet before climbing back to the assigned altitude of 3600 feet. The final image, as testified by Mr. McCulloch, had the aircraft resuming a climb to 3600 feet and a ground speed of 140 knots.
(2) James David Caine
 Mr. Caine is an experienced ACP with Calm Air International Ltd. (Calm Air). On September 28, 2008, he was conducting the check ride for the applicant. According to Mr. Caine, the pre-flight briefing was conducted as normal with clarification to the pilot flying (PF) and the pilot not flying (PNF), concerning their duties and responsibilities. Further evidence by Mr. Caine, as indicated in the Flight Test Report, showed that a score of 2 (basic standard) had been given on several items of the flight test. Mr. Caine testified that the safety pilot had made numerous callouts and operational prompts to the PF regarding speed, configuration and altitude deviation.
 Mr. Caine further testified that after the first non-precision approach to a go-around, the scenario on the check ride had the crew manage an engine fire. He indicated that once this emergency was completed, the crew was advised to prepare for a vectored ILS/DME approach. As the aircraft was being vectored on a downwind leg to this approach, Mr. Caine instructed Mr. O'Neill that the safety pilot was going to simulate an incapacitation of laryngitis. He explained to Mr. O'Neill that the pilot was still able to perform, but was unable to communicate. Mr. O'Neill began to operate the aircraft as a single crew, was over-tasked, and a subsequent ATC request to descend to 3600 feet resulted in the aircraft descending the 3300 feet before returning to 3600 feet. At this point, a score of 1 (below standard) was given, resulting in a failure.
 In cross-examination, Mr. Caine testified that the aircraft was at 3300 for a few seconds, before returning to 3600 feet. When asked if the scenario of an incapacitated safety pilot with laryngitis was well understood by Mr. O'Neill, Mr. Caine responded that the scenario had been well explained.
(3) Conrad Schnellert
 Conrad Schnellert is an experienced pilot with Calm Air. On September 28, 2008, he was acting as the safety pilot during Mr. O'Neill's check ride. Evidence submitted by Mr. Schnellert revolved around his general observation of the check ride. He indicated that several callouts, as per the company standard operating procedures (SOPs), were required in order to address any deviation by Mr. O'Neill in altitude and configuration profiles. Areas that were highlighted by Mr. Schnellert, which required callouts to deviations, were during the steep turns and the VOR approach. Mr. Schnellert also testified that the aircraft had descended from 300 to 400 feet below the assigned altitude for several seconds, before returning to its assigned altitude of 3600 feet.
(1) Jeffrey Jay O'Neill
 Mr. O'Neill's testimony centred on the two following factors:
· the scenario presented to him by Mr. Caine lacked clarity and understanding. The safety pilot's partial incapacitation due to laryngitis was not clear, and as such, his understanding was that of a totally incapacitated crew member;
· the loss of altitude which occurred on the base leg portion of the approach was noted as 300 feet from the assigned altitude. In cross-examination, Messrs. Caine and Schnellert recognized and agreed that this deviation was corrected within "a few seconds". Mr. Schnellert would estimate that it was approximately 10 seconds.
 The Minister's case is based on the specific fact that Mr. O'Neill had not been able to comply with an ATC request to descend and maintain an altitude of 3600 feet. It was presented and accepted by all parties that the aircraft had descended to 3300 feet before correcting and returning to the assigned altitude clearance. Further discussion revolving around the overall test performance was addressed and presented by the Minister and the witnesses. I will address these separately.
A. Section 4.1 and 4.1 (d) of the ACP Manual (exhibit M-11):
4.1 FLIGHT CHECK PHILOSOPHY
. . .
Flight test principles intent is to focus on Threat and Error Management strategies and performance where it is recognized that from time to time, errors or deviations from standard practices will occur. While undesirable, it is a fact that flight crew or others associated with flight operations will make errors and that these errors if not recognized and managed properly could have serious consequences.
. . .
Evaluators must focus on how the crew:
. . .
4.1 (d) recognize errors when they occur (using good communication, monitoring and feedback, and situational awareness).
 All testimony presented in this case indicated that the applicant had deviated from an assigned altitude request from the ATC, but that deviation of 300 feet was recognized and corrected. Although it is recognized that any deviation from an assigned altitude jeopardizes flight safety, the minimum sector altitude (MSA) as per the Nav Canada's publication entitled Canada Air Pilot (CAP 3 at 319, exhibit M-8,) for the ILS /DME approach to runway 05 was 2400 feet (25 nautical miles (NM) centered off the YTH − Thompson Fix). The altitude noted by Messrs. Caine and Schnellert before correcting was 3300 feet. As per the WinRad printouts, the aircraft was within approximately 10 to 12 NM from this fix.
B. Section entitled "4-Point Marking Scale"of the Flight Test Guide
(exhibit M-7) and the WinRad printouts (exhibit M-9)
Major deviations from the qualification standards occur, which may include momentary excursions beyond prescribed limits but these are recognized and corrected in a timely manner.
Unacceptable deviations from the qualification standards occur, which may include excursions beyond prescribed limits that are not recognized or corrected in a timely manner.
The WinRad printouts display the aircraft as follows:
at 20:16:09Z – Altitude of 4000 feet climbing – 180 knots (base leg);
at 20:16:43Z – Altitude of 3300 feet descending – 140 knots (turn to intercept);
at 20:16:53Z – Altitude of 3500 feet climbing – 140 knots (on intercept course).
 Messrs. Caine and Schnellert testified that the aircraft had deviated from the assigned altitude for several seconds before correction. All evidence points to a correction time of approximately 10 seconds. Further testimony from Mr. Caine confirms the aircraft at speed and on configuration. This event would, as per the Flight Test Guide, qualify to be a score of 2 (basic standard).
 Item h. of section 15-16 of the Flight Test Guide, "Precision Instrument Approach (3D)" provides the following performance criterion:
h. prior to final approach course, maintain declared or assigned altitudes within ±100 feet without descending below applicable minimum altitudes and maintain headings within ± 10 degrees.
Oral evidence and the documentary evidence provided in the Nav Canada's publication entitled Canada Air Pilot suggest that the final approach course intercept would have an initial altitude of 2300 feet, and this performance criterion would normally be observed during the final phase of the approach, and not at the initial vectored turn inbound.
C. Standard 725 Schedule II − Pilot Proficiency Check (PPC) − Aeroplane of the Canadian Aviation Regulations, SOR 96/-433 (exhibit M-6)
(g) Normal Procedures
The crew shall demonstrate use of as many of the air operator's approved Standard Operating Procedures, and normal procedures as are necessary to confirm that the crew has the knowledge and ability to properly use installed equipment.
(h) Abnormal and Emergency Procedures
(i) The crew shall demonstrate use of as many of the air operator's approved Standard Operating Procedures and abnormal and emergency procedures for as many of the emergency situations as is necessary to confirm that the crew has an adequate knowledge and ability to perform these procedures;
(ii) System malfunctions shall consist of a selection adequate to determine that the crew has satisfactory knowledge and ability to safely handle malfunctions;
(iii) at least two simulated engine failures any time during the check.
 The use of emergency and abnormal events in a check ride is important to assess the knowledge and the ability of the candidate to perform the procedures. Mr. Caine gave evidence that, up to the event in question, the applicant had benefited from numerous SOP callouts from the safety pilots. This concern from the ACP was never noted in the Flight Test Report. These calls, such as altitude, speed and configuration deviations are in fact part of the company SOPs.
 Further testimony from Mr. Caine alluded to the fact that a second abnormal event was added to the original "engine fire" emergency, which was handled to specifically assess the applicant's ability to continue the approach with prompts or callouts from the safety pilot. As such, the "partial, incapacitated pilot" was introduced. The clarity of what functions the safety pilot can and cannot do seems to have been misunderstood by the applicant. According to the applicant's testimony, this laryngitis meant that the safety pilot was unavailable for the approach. There is enough testimony to indicate that, although clear in the minds of Messrs. Cain and Schnellert, the applicant's actions indicated a complete pilot incapacitation. Flying a manual single engine during an ILS/DME approach, and adding this additional abnormal event in which the flight is now conducted as a single pilot, would seem to be excessive and counter productive.
 I refer the matter back to the Minister of Transport for reconsideration of the suspension of the applicant's group 1 instrument rating.
March 9, 2009
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