TATC File No. H-3539-60
MoT File No. 5802-368589
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Mehrab Zubin Dastoor, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)(b)
Decision: May 27, 2009
Citation: Dastoor v. Canada (Minister of Transport), 2009 TATCE 10 (review)
Held: I confirm the decision of the Minister of Transport to suspend the applicant's privilege for flying a CL-65 aircraft.
 On October 27, 2008, the Minister of Transport issued a notice of suspension to the applicant, Mehrab Zubin Dastoor, who was informed that his privilege to fly a CL‑65 aircraft was suspended, pursuant to paragraph 7.1(1)(b) of the Aeronautics Act (Act). It is alleged that during a Transport Canada civil aviation recurrent pilot proficiency check (PPC), conducted on October 25, 2008 by Darryl William Didow, an approved check pilot (ACP), Mr. Dastoor, a licensed qualified pilot, miscalculated the aircraft's landing weight. As a result, the crew flew the approach at a speed too low for the actual weight of the aircraft.
 As per the Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide (Airplane) (TP 14727, November 2007) and the existing company policy, the ACP attributed a score of 1 (below standard) to item 18 of the applicant's Flight Test Report (exhibit M-2).
 As such, the issues that must be considered and the determination that will be rendered by the Tribunal are based on the following two questions:
1. Did the crew miscalculate the landing weight of the aircraft by using advisory information only?
2. Did the ACP contribute to this failure by suggesting to the crew that all the systems on the aircraft had been reprogrammed and were operating normally prior to the event?
 Paragraph 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.
A. Minister of Transport
(1) Darryl William Didow
 Mr. Didow testified that, as per the scripted training and checking recurrent first officer PPC PAW2 of the aircraft operating manual (AOM, appendix 2, exhibit M‑5), the crew was preparing for take-off from runway 08R in Atlanta (USA). It was the fifth take-off of the day and it was being conducted by the first officer, Mr. Dastoor. The crew had been repositioned on the runway via the simulator REPO annunciator button in an attempt to complete the ride in the allocated four‑hour time block.
 Mr. Didow also testified that he had completed all required checks for the crew with specific instructions that the aircraft would be taking off at 47 000 lbs, with approximately 8100 lbs of fuel. The crew was asked to set take-off speeds for this weight and brief the departure. All other items required for the take-off were completed by Mr. Didow to expedite the take-off.
 Mr. Didow programmed an engine failure on this specific take-off, and the crew carried out the required emergency checks and preparation for the return to land scenario. It was during this approach preparation, approximately 20 to 30 minutes after take-off, that the error occurred. In the hold during the preparation for the approach, the crew had in the TSAFE brief, alluded to approximately 7600 lbs of fuel on board (exhibit M-8). However, the crew, using the fuel indication on the flight management system (FMS) which had not been updated prior to departure, displayed 1300 lbs and extrapolated a landing weight of 40 000 lbs. Speed was thus set for this weight (exhibit M-9).
 During cross-examination, Mr. Didow mentioned that although he had assumed responsibility for repositioning and completing the required checks for the take-off, the fuel page of the FMS was not reset to indicate the proper fuel on board. In fact, this function had not been performed by Mr. Didow during the totality of the check ride.
(1) Andrew Kyle Galloway
 At the time of the occurrence on October 25, 2008, Andrew Kyle Galloway was the pilot flying and was also tested by Mr. Didow. His testimony centered on the fact that the ACP had reset the aircraft in preparation for the fifth take-off, and that it had been assumed that the fuel, that had been reset in the aircraft, was updated in the FMS by Mr. Didow. In cross–examination, Mr. Galloway indicated that he did not recall the amount of fuel on board at the time of the TSAFE brief.
(2) Mehab Zubin Dastoor
 Mr. Dastoor testified that when the ACP took the responsibility to reset the aircraft prior to the fifth take-off, including all programming of the FMS, the fuel indication of 1300 lbs was accepted and the landing weight was determined with this indication. Further in his testimony, Mr. Dastoor questioned the actual speed being used. He also argued that, even at 40 000 lbs, the speed flown would have been within 5 knots (kts) of the actual aircraft weight speed.
 In cross-examination, Mr. Dastoor admitted that, short of a massive fuel leak, the aircraft could not have burned 5000 lbs in less than 30 minutes of flight. There was also a further discussion as to the actual aircraft speed in relation to the added 5 kts buffer.
 The review in this case is based on three key issues relating to aircraft system, knowledge and situational awareness. Did the crew use a fuel indicating system, in this case the FMS, for advisory only (exhibit M-7), and assumed it to be accurate based on the ACP's brief prior to take-off? Was the crew able to explain the abnormal fuel consumption in the short time flown, and lastly the actual fuel burn on board?
(a) Fuel Indication – Using the FMS (exhibit M-7)
 Evidence presented in appendix 5 of the AOM (volume 2, section 4.1.17 − Navigation − FMS Limitations; exhibit M-7) states that the use of the fuel management page of the FMS Rockwell Collins 4200 is for advisory use only. From oral evidence, the crew had used other methods of calculating fuel burn throughout the check ride, including the use of the engine indication and crew alerting system (EICAS) page and the multi-function display (MFD). Since oral evidence shows that the ACP has clearly indicated to the crew that approximately 8000 lbs of fuel had been reset for the take-off, the crew was able to determine a take-off weight card. During the TSAFE brief in the hold, the crew had as well referred to fuel on board at the time as 7600 lbs. Within 20 minutes of the actual approach, using the fuel page in the FMS and seeing 1300 lbs should have raised, at the very least, some questions and further queries. Using a method other than this FMS page would have confirmed the actual amount of fuel on board and the landing weight.
(b) Speed Card –Take-off and Landing Speed Card (TOL, exhibit M-9)
 As per the procedures provided in the AOM, the pilot not flying (Captain Galloway) would set the applicable reference speeds for the approach. With a 40 000 lbs card, the reference landing approach speed, all engines operating (VREF) to be bugged at flaps 45 kts was 130 kts (exhibit M-6). Air Canada Jazz adds a 5 kts buffer which would give a speed bug of 135 kts. At the proper aircraft weight the actual VREF would have been 138 kts, plus the applicable 5 kts for a speed bug of 143 kts. As such, the discrepancy between the speeds is 8 kts, as noted by the ACP.
(c) Situational Awareness
 As raised in the evidence presented at the hearing, the crew's lack of situational awareness in regards to this sudden fuel discrepancy is important to address. Although there may be some confusion in the directives given by the ACP during the fifth take‑off, the aircraft's weight on departure was clearly understood. At 47 000 lbs and a subsequent time lapse of approximately 20 to 30 minutes prior to the start of the approach, it would have been very unlikely that over 5000 lbs of fuel could have been burned. Unless indication to the contrary, a master caution message such as fuel imbalance, scavenger or main ejector fail should have raised, at the very least, some discussion in the cockpit. Using the EICAS page, as per the procedures provided in appendix 4 of the AOM (exhibit M-6) and subtracting the fuel burn from the take‑off weight would have accurately determined the landing weight and appropriate TOL card to use.
 I confirm the decision of the Minister of Transport to suspend the applicant's privilege for flying a CL-65 aircraft.
May 27, 2009
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