Decisions

TATC File No. H-3538-60
MoT File No. 5802-354149

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Nigel Peter Edwards, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
paragraph 7.1(1)(b) of the Aeronautics Act


Review Determination
Franco Pietracupa


Decision: June 12, 2009

Citation: Edwards v. Canada (Minister of Transport), 2009 TATCE 12 (review)

Heard at Toronto, Ontario, on March 24, 2009

Held: I confirm the decision of the Minister of Transport to suspend the applicant's privilege for flying a B757 aircraft.

I. BACKGROUND

[1] On October 10, 2008, the Minister of Transport issued a notice of suspension to the applicant, Nigel Peter Edwards, who was informed that his privilege to fly a B757 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 10, 2008 by John Hudson, an approved check pilot (ACP), Mr. Edwards, a licensed qualified airline transport pilot, was unable to demonstrate a stabilized approach as per both the company stabilized approach policy and the performance criteria guide, as indicated in the Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide (Aeroplane) (Flight Test Guide, TP 14727, November 2007, exhibit M-6).

[2] As per the Flight Test Guide and the existing company policy, the ACP, Inspector Hudson, attributed a score of 1 (below standard) to item 21 of the applicant's Flight Test Report (exhibit M‑3) because he was unable, during his duties as a pilot monitoring (PM), to fly the approach in a stabilized manner.

[3] Although several issues were discussed pertaining to the clarity and communications processes in the company policy, the mandate of the Tribunal is limited to the following:

  1. Was the crew violating the guidelines as to the definitions of a stabilized approach, as per the company and Transport Canada performance criteria?  
  2. If so, were the definitions and guidelines associated to a stabilized approach clear as per the company training material?
  3. Did the ACP set forth the required conditions during the check ride that he conducted?

II. LAW

[4] 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.

[5] The section entitled "Non Precision Instrument Approach (2D)" of the Flight Test Guide provides the following performance criterion (at 30, exhibit M-6):

. . .

Base the assessment on the candidate's ability to:

. . .

j. on the intermediate and final segments of the final approach course:

. . .

2. fly the approach in a stabilized manner without descending below the applicable minimum altitudes depicted on the approach chart (+as required/−0 feet);

. . .

[6] Section 4.3 entitled "The Flight Check" in the Approved Check Pilot Manual (TP 6533, 9th edition, November 2007) provides the following: " . . .The ACP must create an environment conducive to a true demonstration of the pilot's ability. . . ."

III. EVIDENCE

  1. A. Minister of Transport

(1) John Hudson

[7] Inspector Hudson testified that during the second half of the check ride, the crew was given air traffic control (ATC) guidance for a LOC 06L approach. During this approach, Mr. Edwards was the PM.

[8] Inspector Hudson's testimony indicated that, as the aircraft descended below 1000 feet airport field elevation (AFE), and by 700 feet AFE, the aircraft was behind profile configuration in regard to speed, flaps and check list sequence. As such and based on the company guidelines and the flight test criteria, the crew was unstabilized and a missed approach should have been executed. At the debriefing after the simulator check ride, Inspector Hudson asked Mr. Edwards if he was aware of the company stabilized approach policy, in which the response given by Mr. Edwards was initially 500 feet. This response was inaccurate. When Mr. Edwards was asked again the question in relation to instrument meteorological conditions (IMC) that prevailed at the time, his response was 1000 feet, which was correct. Inspector Hudson further testified that policy governing stabilized approaches can be found in the company flight control operating manual (FCOM) and flight crew training manual (FCTM).

[9] In cross-examination, Inspector Hudson acknowledged that a discussion had taken place during the briefing prior to the check ride. Inspector Léger, who was conducting a monitoring evaluation on Inspector Hudson (exhibit M-9), was attempting to catch a flight immediately after the event. Inspector Hudson also indicated that information in regard to stabilized approaches are extracts from the Boeing FCTM and that the word should is used in this document.

(2) Henri Léger

[10] Inspector Léger testified that, as per his observation during the check ride, the applicant had failed to demonstrate a stabilized approach profile. He confirmed that when Inspector Hudson asked Mr. Edwards to name the criteria for the stabilized approach, the response from Mr. Edwards was incorrect.

[11] In cross-examination, Inspector Léger recalled mentioning that his flight back to Montréal was at 10:00 p.m. and that the simulator session was scheduled from 6:00 p.m. to 10:00 p.m. Inspector Léger testified that no written notes were taken during the check ride.

B. Applicant

(1) Nigel Peter Edwards

[12] Mr. Edwards' testimony centred on two issues. The first concerned the environment prior to the check ride and the second was the lack of clear policy guidance on a stabilized approach performance.

[13] Mr. Edwards stated that prior to the check ride, Inspector Léger mentioned that he had booked a flight at 10:00 p.m. As the time mentioned coincided with the end of the simulator session, Mr. Edward felt that Inspector Léger's comment was inappropriate and set a non‑conductive atmosphere for the check ride.

[14] The second issue raised by Mr. Edwards was the fact that no clear policy exists within the company to dictate proper profile and guidance in regard to a stabilized approach. Mr. Edwards was previously trained on a different manufacturer's aircraft, and he felt that confusion was prevalent at the time of the check ride as to what altitude the aircraft and crew were to be stabilized. This was further evident in the absence of appropriate manuals and the lack of training.

[15] The definitions of the term should as opposed to must in the manuals was also raised, which could have the pilot misinterpret the actual company requirements to a stabilized approach.

IV. DISCUSSION

[16] The review in this case is based on several key definitions. Both the Minister and the applicant agree on the safety aspect of a stabilized approach profile. The discussion therefore is based on the actual guidance and policy in place at the time of the check ride and when the aircraft is stabilized during the approach, along with the guidance and policy of the PM duties during the critical phase of the approach.

(a) Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide (exhibit M-6_)

[17] The Flight Test Guide provides some guidance to the ACP in regard to the performance criteria but does not list any numerical values to certain flight envelopes. It indicates that a candidate must be assessed on the following ability: "fly the approach in a stabilized manner without descending below the applicable minimum altitudes. . . .'' As to actual guidance to define stabilized, one must look at Boeing and Skyservice for actual flight parameters, for example speed, altitude and configuration.

(b) Flight Crew Training Manual (exhibit M-5)

[18] The FCTM, along with the company FCOM, offers guidance as to the performance criteria needed to define stabilized. It defines seven distinct criteria which should be in place to properly continue on a stabilized approach. These criteria were developed by the Flight Safety Foundation and include the following elements:

  • the airplane speed is not more than the reference landing approach speed, all engines operating (VREF) + 20 knots;
  • the airplane is in a correct landing configuration (landing flaps, gear down);
  • checklists have been completed (landing checklists);
  • thrust setting is appropriate for the airplane configuration.

[19] There is acceptance in testimony from both the applicant and the Minister that the aircraft between 1000 feet and 700 feet was behind in flaps settings (30 degrees). Speed was at VREF + 30 knots, and the landing checklists had not yet been completed. It is critical to conclude here that with the additional need to deploy flaps at 30 degrees and reduce the speed to at least VREF + 20 knots, the thrust setting adjustment would have been required and not have been configured and set for the approach as per the guidelines.

[20] Thus if the aircraft at 700 feet still had four of the seven criteria to complete, it would be difficult to see how it would have been stabilized, even at 500 feet AFE. Although testimony from Mr. Edwards shows a progression towards stabilized, the aircraft at 700 feet was not.

[21] The key factor would be the need for the applicant to have known these criteria prior to the check ride. Oral and written evidence indicates some possible confusion as to where the guidance is located but it has been demonstrated that this guidance was available. During Mr. Edwards previous recurrent training session, the briefing for a stabilized approach was reviewed and practiced. Page 3 of the company instructor briefing guide (exhibit M-7) reiterates the need for the aircraft to be stabilized by 1000 feet AFE in IMC. This aircraft was behind on profile and not stabilized by 1000 feet AFE.

(c) Definitions of Should and Must

[22] I would like to take a moment to define these two words:

  • as per the Merriam-Webster's Dictionary, the word should means obliged to, ought to and can, in an auxiliary function, be used to express an obligation;
  • the word must means requested to, urged to, be commanded.

[23] What the word should may signify to an original equipment manufacturer (OEM, Boeing), an operator (Skyservice) and a pilot may at times differ but the intent in terms of the stabilized approach seems clear. It is a guidance to conduct and fly the safest stabilized approach. Should may allow some deviations from these defined criteria but it would be deviations that would be more restrictive than less restrictive. As such, these criteria do apply. The use of must in operational guidance would leave little or no room to confuse the intent but, as well, the use of should must carry obligation from the crew to adhere to policy and guidance.

(d) Time Management

[24] The responsibility of time management during a check ride resides with the ACP. This was discussed, as per the ACP requirement, during the briefing prior to the check ride. Although the comments by Mr. Léger were unfortunate and not necessary, an experienced pilot, who has had numerous check rides should be able to control and manage the session.

V. DETERMINATION

[25] I confirm the decision of the Minister of Transport to suspend the applicant's privilege for flying a B757 aircraft.

June 12, 2009

Franco Pietracupa

Member


Appeal decision
Richard F. Willems, Elizabeth MacNab, James M. Wallace


Decision: August 16, 2010

Citation: Nigel Peter Edwards v. Minister of Transport, 2010 TATCE 20 (appeal)

Date: 20100816

Heard at Toronto, Ontario, on January 25, 2010

Held: The Appeal is allowed. The Appeal Panel overturns the Member's Review Determination confirming the Minister's decision to suspend the Appellant's privilege for flying a B757 aircraft. The matter is referred back to the Minister for reconsideration.

I. BACKGROUND

[1] On October 10, 2008, the Minister of Transport issued a Notice of Suspension to the Appellant, Captain Nigel Peter Edwards, advising him that he no longer met the required standard for the B757 pilot proficiency check ("PPC"). The first portion of this check ride, where Captain Edwards was the pilot flying ("PF"), was completed and passed. For the second part, the reason why we are here today, Captain Edwards was the pilot not flying ("PNF") but, as Captain, he allowed the approach to be flown unstabilized by the first officer at an altitude below 1000 feet above field elevation ("AFE") The check ride was terminated at 700 AFE by Captain John Hudson, the Skyservice Approved Check Pilot ("ACP"), and was monitored by Inspector Henri Léger of Transport Canada.

II. REVIEW DETERMINATION

[2] Franco Pietracupa, the Review Member, agreed with the Minister's decision to suspend Captain Edwards' privilege to fly the B757 aircraft. He looked at the guidance and policy in place at the time of the check ride with regards to the definition of a stabilized approach, and the duties of the crew in the final portions of the approach.

[3] The Flight Test Guide (Exhibit M‑6) indicates that the (ACP must assess the crew on the ability to fly the approach in a stabilized manner, but it does not assign any limitations, or numerical values.

[4] The Flight Crew Training Manual ("FCTM") and the Flight Control Operating Manual ("FCOM") give a more detailed definition to a stabilized approach. They assign seven criteria which should be completed in order for the approach to be considered stabilized.

[5] The Member concluded that at 700 feet, the crew still had four of the seven criteria to complete. The aircraft was behind on profile and if it was not stabilized by 1000 feet AFE, it would be difficult to see how it would have been stabilized even at 500 feet AFE.

[6] He pointed out that the Company Instructor Briefing Guide reiterates the need for the aircraft to be stabilized by 1000 feet AFE in instrument meteorological conditions ("IMC") (Exhibit M‑7).

III. GROUNDS FOR APPEAL

[7] On July 8, 2009, the Appellant filed a Notice of Appeal as follows:

1. The Member erred in interpreting the Flight Crew Training Manual (FCTM) by concluding that the aircraft had to be stabilized by 1000' or a go around is required. The FCTM only requires a go around if the aircraft is not stabilized by 500'. If the aircraft is in the process of being stabilized below 1000' but above 500' the Pilot may continue the landing if the Pilot believes the landing is safe and the aircraft will be stabilized by 500'. Mr. Edwards had such belief.

2. The Member erred in concluding that it was difficult to see how the aircraft would be stabilized by 500' when the only remaining requirement was a deceleration in speed. More importantly, no evidence was presented to demonstrate the aircraft was not stabilized by 500' and thus there was no basis to make a finding contrary to the uncontradicted evidence of Mr. Edwards.

3. The Member erred in assessing whether or not the aircraft was stabilized by applying criteria contained in the Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide when it was accepted that Mr. Edwards, who is not an Approved Check Pilot, would not have been provided with, or have access to, this document. Mr. Edwards' assessment ought to have been made solely against criteria of which he was aware and could reference in the Boeing FCTM.

4. The Member erred and denied Mr. Edwards natural justice/procedural fairness in relying upon and permitting the Minister to rely upon evidence regarding Mr. Edwards' alleged training that had not been produced to Mr. Edwards in accordance with the Rules prior to the hearing and without allowing Mr. Edwards the opportunity cross-examine the person making the statement. Specifically the Minister produced at the hearing, and relied upon, an email from Mr. Edwards' trainer stating that Mr. Edwards had received training that contradicted Mr. Edwards' written submissions.

5. The Member erred by failing to assess Mr. Edwards' case on the standard of a balance of probabilities. The FTCM clearly can be interpreted to only require a go around if the aircraft is not stabilized by 500' and thus the Member ought to have concluded that on a balance of probabilities Mr. Edwards' believed the landing was conducted in accordance with the established standards and requirements of which he was aware.

6. In light of the foregoing there was considerable doubt as to the standards to be met and thus the Member erred in upholding the Minister's decision to suspend Mr. Edwards' privilege for flying a B757 aircraft when he should have required the Minister to review its decision in light of the doubt.

IV. ARGUMENTS

A. Appellant

[8] Captain Edwards states that the approach was stable at 500 feet AFE. All the criteria for the stabilized approach had been completed.

[9] He reminds us that after this issue, the company amended the FCOM to indicate that an aircraft must be stabilized by 500 feet AFE in visual meteorological conditions ("VMC") and 1000 feet AFE in IMC.

[10] When the FCTM addresses the Stabilized Approach, its opening statement refers to the Recommended Elements of a Stabilized Approach. It lists the seven recommendations, and they are consistent with criteria developed by the Flight Safety Foundation. However, because these are only recommendations, the FCTM cannot be relied upon for the hard Altitude of 1000 feet AFE.

[11] Captain Edwards reminds us that the word should as it is used in the aviation industry, does not convey the meaning of "mandatory".

[12] He also takes issue with the fact that the email from the training pilot was referred to. He points out that this email was not in evidence.

B. Minister of Transport

[13] The Minister argues that they have proven that Captain Edwards was unable to establish a stabilized approach at 1000 feet AFE in IMC in accordance with the policy of the company and the FCTM and that the Minister was justified in suspending his privilege to fly a B757 aircraft.

[14] The Minister points out that Captain Edwards has been employed by Skyservice Airlines as a training captain for two years, and that he should have known the company policy which states, in the Instructor Briefing Guide, that in IMC, all approaches should be stabilized by 1000 feet AFE.

[15] The Minister states that the words used in Exhibits M‑5 and M‑7 are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the document, its object and intention. The Minister submits that at least three if not four criteria for the stabilized approach were not met at 700 feet AFE, and that there was no evidence that these criteria would be met at 500 feet AFE. The Minister also submits that the restriction to be met is 1000 feet AFE not 500 feet AFE.

[16] Lastly, the Minister submits that the email referred to in Ground 4 was not used against Captain Edwards, and as a result, there was no prejudice to him.

V. ANALYSIS AND DISCUSSION

[17] Prior to proceeding with the grounds of the Appeal, we will address the issue of the evidence which consisted of a binder with seven tabbed documents. Jesse M. Nyman, Counsel for Captain Edwards, asked that the information contained in Tab 2 and Tab 3 to be taken into account at the Appeal Hearing as new evidence. The Appeal Panel is, pursuant to section 14 of the Transportation Appeal Tribunal of Canada Act, permitted to hear new evidence if it feels it appropriate.

[18] Dealing first with the information in Tab 2 which contains page NP 20.28 taken from the Skyservice B757 Operations Manual. During Captain Hudson's cross‑examination, this document is referred to at page 74 in the Review Hearing transcript. The Minister's representative had objected to the use of this document. The decision was then made that this document could be put into evidence through the testimony of Captain Edwards when he was under oath. Reference to this document is made at page 121, line 15 of the transcript. However, the document was never admitted as evidence at the Review Hearing. We consider that to have been an oversight and the document should have been entered as an Exhibit in the Review Hearing. We therefore allow that information to be taken into account in this proceeding.

[19] We have decided not to allow Tab 3 of Captain Edwards's package of submissions to be taken into account at the Appeal Hearing. This Tab contains the October 31, 2004 version of pages 5.4 and 5.5 of the Boeing 757/767 FCTM. At the Review Hearing, those pages, with a revision date of October 31, 2007 were entered as Exhibit M-5. The Appeal Panel feels that Tab 3 adds nothing of relevance or importance to this proceeding. The changes between these two versions are minor. For example, the acronym AFE is now used instead of the words "above airport elevation". "Heading and pitch" are replaced by "heading/pitch", and the word "thrust" replaces the word "power". Accordingly, the Appeal Panel will not allow Tab 3 to be taken into account at the Appeal.

A. Grounds 1, 5 and 6

1. The Member erred in interpreting the Flight Crew Training Manual (FCTM) by concluding that the aircraft had to be stabilized by 1000' or a go around is required. The FCTM only requires a go around if the aircraft is not stabilized by 500'. If the aircraft is in the process of being stabilized below 1000' but above 500' the Pilot may continue the landing if the Pilot believes the landing is safe and the aircraft will be stabilized by 500'. Mr. Edwards had such belief.

5. The Member erred by failing to assess Mr. Edwards' case on the standard of a balance of probabilities. The FTCM clearly can be interpreted to only require a go around if the aircraft is not stabilized by 500' and thus the Member ought to have concluded that on a balance of probabilities Mr. Edwards' believed the landing was conducted in accordance with the established standards and requirements of which he was aware.

6. In light of the foregoing there was considerable doubt as to the standards to be met and thus the Member erred in upholding the Minister's decision to suspend Mr. Edwards' privilege for flying a B757 aircraft when he should have required the Minister to review its decision in light of the doubt.

[20] Grounds 1, 5 and 6 will be addressed together. At numerous times during this Appeal, we heard comments that one must read the whole chapter to get the full meaning of it. This must also be done when reading the Recommended Elements of a Stabilized Approach in the FCTM (Exhibit M‑5).

[21] It has been established that the conditions were IMC for the portion of the check ride under review; therefore, we will not make reference to VMC.

[22] The opening statement indicates that all approaches should be stabilized by 1000 feet AFE in IMC. Then it recommends the criteria for a stabilized approach followed by a note indicating that "an approach that becomes unstabilized below 1000 feet AFE in IMC or below 500 feet AFE requires an immediate go-around". This note implies that the approach was stabilized prior to descending through 1000 feet AFE, and that something such as wind shear or ground turbulence has caused it to become unstabilized.

[23] The next statement "[t]hese conditions should be maintained throughout the rest of the approach for it to be considered a stabilized approach. If the above criteria cannot be established and maintained at and below 500 feet AFE, initiate a go-around". That last statement, in our view, is the final safety limit. If the crew, for any reason, has not stabilized the aircraft at that point, "initiate a go‑around". Boeing, with this statement, departs from the use of should, leading us to believe that this is now the final safety limit.

[24] Transport Canada on their web site (in the Multicrew Aircraft Standard Operating Procedures, at Chapter 1, Definitions 1.6) defines should as "indicates an obligation. Compliance is expected but not mandatory". Permissive words and phrases such as may, should, and it is (strongly) recommended denote a suggestion as opposed to a legal obligation. While it may be highly desirable that a person do something, he/she is not obligated under the law to do it. There are generally no legal consequences if the person opts not to do it. We note that the Minister did not refer to its own document in his arguments, but relied on dictionary definitions.

[25] Further on this point, the International Civil Aviation Organization ("ICAO"), in the Annex 4 to the Convention on International Civil Aviation, gives guidance on the use of should when using their documents. They define a recommended practice as something that is recognized as desirable in the interest of safety. Recommended practices employ the operative verb should.

[26] The FCTM was the controlling document in effect at the time of this check ride. In our view, it leaves the procedure open allowing the pilot to work with the problem of stabilizing the approach until 500 feet AFE.

B. Ground 2

The Member erred in concluding that it was difficult to see how the aircraft would be stabilized by 500' when the only remaining requirement was a deceleration in speed. More importantly, no evidence was presented to demonstrate the aircraft was not stabilized by 500' and thus there was no basis to make a finding contrary to the uncontradicted evidence of Mr. Edwards.

[27] The Appeal Panel agrees with the Member that at 700 feet, the aircraft was not stabilized. From the testimony of Captain Hudson and Inspector Léger, the aircraft was fast (Inspector Léger, transcript at page 102, line 25), going at a speed of 170 to 180 knots (Captain Hudson, transcript at page 46, line 5); the flaps were in transit, and the landing checklists were not complete. The aircraft was in a constant decelerating approach.

[28] While it was established that there were issues on this approach, we find that there is not enough evidence to show that it could not have been stabilized by 500 feet AFE. As previously mentioned, Captain Hudson, at page 46 of the transcript, states that at the final approach fix, the speed was 170 to 180 knots. Captain Edwards in his opening statement (page 14 of the transcript) states that: "as per the agreed upon facts, through 700 feet above field elevation, the aircraft was 30 knots fast, reference landing approach speed, all engines operating (VREF) plus 30, as we term it, but steadily decelerating to a briefed approach speed of ref plus 10". VREF plus 20, as per the FCTM, is considered stabilized.

[29] We agree that no evidence was presented to demonstrate that the aircraft was not stabilized t 500 feet AFE, due to the fact that the ride was terminated at 700 feet AFE by Captain Hudson.

C. Ground 3

The Member erred in assessing whether or not the aircraft was stabilized by applying criteria contained in the Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide when it was accepted that Mr. Edwards, who is not an Approved Check Pilot, would not have been provided with, or have access to, this document. Mr. Edwards' assessment ought to have been made solely against criteria of which he was aware and could reference in the Boeing FCTM.

[30] Counsel for the Appellant asked that Ground 3 be withdrawn. Ground 3 will therefore not be discussed.

D. Ground 4

The Member erred and denied Mr. Edwards natural justice/procedural fairness in relying upon and permitting the Minister to rely upon evidence regarding Mr. Edwards' alleged training that had not been produced to Mr. Edwards in accordance with the Rules prior to the hearing and without allowing Mr. Edwards the opportunity cross-examine the person making the statement. Specifically the Minister produced at the hearing, and relied upon, an email from Mr. Edwards' trainer stating that Mr. Edwards had received training that contradicted Mr. Edwards' written submissions.

[31] We accept Captain Edwards' testimony regarding the depth of the briefing he received prior to his simulator training. Mr. Pratt had mentioned that the Training Captain wrote an email stating that Captain Edwards was briefed on stabilized approach criteria during his training session. This email is not in evidence. Captain Hudson declined to comment on the training that took place on the day prior to this check ride. Only Captain Edwards' version of what could have been said is in evidence. All we have to work with is Captain Edwards' statement that possibly he was asked if he understood the company stabilized approach policy, and that if he said yes, that would satisfy the instructor, because they knew each other and had worked for the same company as training captains. He told us that he was aware of the policy but had a different interpretation of it.

VI. DECISION

[32] The Appeal is allowed. The Appeal Panel overturns the Member's Review Determination confirming the Minister's decision to suspend the Appellant's privilege for flying a B757 aircraft. The matter is referred back to the Minister for reconsideration.

August 16, 2010

Reasons for Appeal Decision: Mr. Richard F. Willems, Member

Concurred by: Ms. Elizabeth A. MacNab, Member

Dr. James M. Wallace, Member