Decisions

TATC File No. C-3583-59
MoT File No. 5802-432796

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Tyler Clare Backman, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, paragraph 7.1(1)(b)


Review Determination
Franco Pietracupa


Decision: October 8, 2009

Citation: Backman v. Canada (Minister of Transport), 2009 TATCE 27 (review)

Heard at Winnipeg, Manitoba, on August 19, 2009

Held: I confirm the decision of the Minister of Transport to suspend the applicant's instrument rating.

I. BACKGROUND

[1] On March 25, 2009, the Minister of Transport issued a notice of suspension to the applicant, Tyler Clare Backman, who was informed that his instrument rating 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) ride on March 23, 2009, conducted by Calvin F. Winter, a civil aviation safety inspector, Mr. Backman, acting as pilot‑in‑command, failed to adhere to a clearance issued by air traffic control (ATC) and deviated from a published VOR/DME approach without advising ATC of his intentions.

[2] It is also alleged that during the approach phase of the check ride, Mr. Backman contravened instrument flight rule procedures by conducting a turn at a non-published fix on the approach chart.

[3] It is noted by the Tribunal that issues were addressed by the applicant and his counsel in regards to possible pre-existing prejudice, due to a previous employment relationship between the applicant and the employer; however, the mandate of the Tribunal is limited to the following:

(1) Was the ATC clearance that was directed to and received by the crew understood (read‑back)?

(2) If it was, were the actions by the crew in the approach in contravention of IFR procedures and regulations?

(3) Did Mr. Backman's action constitute a deviation of accepted performance criteria, and as such merit a score of 1?

(4) Did Inspector Winter, as examiner, make a concerted effort to create an environment conducive to a true demonstration of the pilot's ability?

(5)  Did the crew receive additional training, as required in the Transport Canada publication entitled Pilot Proficiency Check and Aircraft Type Rating − Flight Test Guide (Aeroplanes) (TP 14727E, Flight Test Guide, 1st edition, November 2007, exhibit M-13)?

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] Section 9.3 entitled "Approach Clearance" of the Transport Canada Aeronautical Information Manual (TC AIM, TP 14371) provides as follows:

The pilot should not deviate from the stated instrument approach procedure or route without the concurrence of ATC because such an act could cause dangerous conflict with another aircraft or a vehicle on a runway.

[6] Subsection 602.31(1) of the Canadian Aviation Regulations (CARs) states as follows:

602.31 (1) Subject to subsection (3), the pilot-in command of an aircraft shall

(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; and

(b) comply with all of the air traffic control clearances received and accepted by the pilot-in-command and

(i) subject to subsection (2), in the case of an IFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, and

(ii) in the case of a VFR flight, read back to the appropriate air traffic control unit the text of any air traffic control clearance received, when so requested by the air traffic control unit.

[7] Section 15-16, "Approach (APR)", of the Flight Test Guide, provides the following (exhibit M-13):

Aim

Determine the ability of the candidate to fly a successful stabilized precision and non-precision instrument approach in accordance with the published instrument approach procedure.

. . .

Non Precision Instrument Approach (2D)

Performance Criteria

Base the assessment on the candidate's ability to:

a. select and comply with the VOR/ LOC/ LOC BC or NDB 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;

c. comply in a timely manner, with all clearances, instructions, and procedures issued by ATC and advise accordingly if unable to comply;

. . .

III. EVIDENCE

A. Minister of Transport

(1) Calvin F. Winter

[8] Inspector Winter is an experienced Transport Canada civil aviation inspector. He testified that two candidates, operating as a crew, were scheduled for a PPC on March 23, 2009. Inspector Winter mentioned that he was asked to conduct the second ride, after the first candidate failed his applicable PPC.

[9] Inspector Winter testified that, prior to the second ride, the applicant was asked several times if he wished to continue the check ride or reschedule. Mr. Backman agreed, at the time, to continue the check ride. During the second half, the crew were given ATC guidance for a full procedure VOR/DME RWY 36 approach in La Ronge, Saskatchewan (Canada Air Pilot (CAP 3) chart, effective 12 March 2009 to 7 May 2009, exhibit M-7). Inspector Winter testified that the crew discussed conducting a straight-in approach as opposed to a full procedure for the VOR/DME. A request was subsequently made to the ATC for the straight-in VOR/DME approach. Inspector Winter, acting as ATC, thus approved and re-cleared the crew for this approach.

[10] Further in his testimony, Inspector Winter made reference to the lack of crew resource management and situational awareness by the crew, as they approached La Ronge. As the crew tracked the in-bound radial of the approach to the VOR, a descent to 3400 feet was initiated by the crew. Inspector Winter stated that Mr. Backman, at approximately 4 DME from the YVC VOR, and without discussion with the co-pilot, steered the aircraft on a right turn on an approximate 180 degree reversal heading. This turn is not displayed on the applicable CAP 3 chart but was estimated by Inspector Winter to be approximately abeam ETLEN or at 4 DME from the station. At this point, the crew made no attempt to contact ATC, and Inspector Winter terminated the check ride. Mr. Backman was assessed a grade of 1, and the check ride deemed a fail.

[11] In cross-examination, Inspector Winter stated that the flight management system (FMS) in the simulator was inoperable during the check ride. The crew was relying on conventional instruments. After the first check ride, Inspector Winter was asked if remedial training was conducted prior to the second ride, and the answer was affirmative. Lastly, Inspector Winter was asked about the minimum sector altitude (MSA) on the chart, which was determined to be 3000 feet. The aircraft was determined to be at 3400 feet at the turn.

B. Applicant

(1) Tyler Clare Backman

[12] Mr. Backman testified that after the first failed check ride, he was asked by Inspector Winter if he felt apt to take the second ride. He responded affirmatively but did so under pressure and duress. This was not communicated to the inspector. During his testimony, Mr. Backman indicated that the crew had discussed the straight-in approach but no request was made to ATC. The intention was to conduct a full procedure approach. At no time had Mr. Backman requested or received approval for a straight-in approach.

[13] Mr. Backman further testified that his altitude of 3400 feet inbound to the approach was safe as per the MSA. He stated that the right turn was conducted early and at approximately ETLEN to save time because of a pre-existing emergency that was given by Inspector Winter. As an emergency aircraft, this should have been permitted.

[14] Mr. Backman's testimony focused on past employment issues between himself and his employer, which created a tense atmosphere during the conduct of the check ride, and a non‑conducive environment to be able to perform and succeed. He also stated that being berated after the first check ride does not constitute training.

[15] In cross-examination, Mr. Backman was asked if Inspector Winter, as a Transport Canada inspector, was made aware of pre-existing tension, which he believed would bias his ability to pass the check ride. Mr. Backman admitted that he did not advise Inspector Winter prior to the event to all pre-existing issues between the employer and himself.

[16] Mr. Backman alluded to possible confusion between himself and ATC, as to why Inspector Winter was lead to believe he would conduct a straight-in approach rather than the decided full procedure.

(2) Darcy Rousell

[17] Darcy Rousell, who was the co-pilot, stated that he recalled being cleared for a full procedure approach. A straight-approach was discussed but not requested to ATC.

[18] In cross-examination, Mr. Rousell stated that he was unaware that Mr. Backman would conduct a right turn at approximately 4 DME to the fix. Mr. Rousell did not ask Mr. Backman why he was steering the aircraft to the right. Further during his testimony, Mr. Rousell alluded to issues that were raised but not directly involving this check ride.

IV. DISCUSSION

[19] A review of the case must focus on the mandate of the Tribunal. Several concerns were raised by counsel for the applicant during this hearing on the pre-existing relationship between the applicant and his employer. The mandate and decision rendered must however be based on evidence and statements introduced at the hearing in regards to the failed event, and if these pre‑existing conditions affected the outcome of the check ride. Instrument flight procedures are at the epicentre of this case and must retain the respective weight in the probability that this failure was justified. IFR procedures must be adhered to in order to ensure first and foremost safety and predictability in what aircraft will do when in instrument conditions.

A. Instrument Procedure (Exhibit M-9)

[20] The rules and guidance regulating IFR procedures are outlined clearly and must be adhered to in order to ensure safety and compliance. In Transport Canada's publication entitled Instrument procedures (TP 2076E, November 1997, exhibit M-9), section 4.5.6, "Approach Clearance procedures", the expectation from ATC is clear. When an approach clearance is issued and accepted, it must be carried out. Pilots may not deviate from this published approach without contacting the ATC and receiving permission to alter the approach. Conflicting testimonies indicate a possible misunderstanding between ATC and the crew, as to which approach would be carried out. What is clear from testimony however is that:

  • The co-pilot was not expecting a turn at ETLEN; and
  • The aircraft was high on the approach and a straight-in approach would result in an excessive rate of descent to return to stabilized descent profile. The full procedure or missed approach, which was not carried out, would have been the only possible outcome. If so, the full procedure commences at the YVC VOR and not at ETLEN, and constitutes a violation.

B. Subsection 602.104(1) of the CARs − Reporting Procedures for IFR Aircraft When Approaching or Landing at an Uncontrolled Aerodrome (Exhibit M-11)

[21] All aircraft operating at an uncontrolled aerodrome while in IFR conditions and flight must adhere to specific procedures. Testimonies from the applicant and the co-pilot indicated that no communication attempt was made to declare intentions during the approach procedure. The key safety issue would be the need to inform all traffic of the intended position of the aircraft. Subsection 602.104(1) of the CARs is clear on what is required. The pilot shall report his intentions regarding the operation of the aircraft five minutes prior to commencing the approach procedure.

[22] Although the aircraft was at minimum sector altitude (MSA), the right turn at ETLEN was unexpected and constituted a safety violation to other possible aircraft traffic in the area. The applicant testified that to his understanding, an emergency was in progress, and he should be allowed to do what is required to get the aircraft on the ground.

[23] The Tribunal agrees with this assumption, yet absolutely no radio or communication contact was initiated by the crew to inform the aerodrome or ATC of this fact or an emergency declared by the crew to applicable authority (MF, ATC, FSS, etc.).

C. Performance Criteria – (Exhibit M-13)

[24] Section 15-16 of the Flight Test Guide provides as follows:

Determine the ability of the candidate to fly a successful stabilized precision and non-precision instrument approach in accordance with the published instrument approach procedure. . . . The candidate will demonstrate at least two instrument approaches performed in accordance with procedures and limitations in the Canada Air Pilot . . .

[25] A right turn at ETLEN, without any attempt to contact or inform ATC or aerodrome traffic, either in a full procedure or straight-in approach constitutes a deviation from the performance criteria.

[26] The section entitled "4-Point Marking Scale" in the Flight Test Guide provides guidance for the attribution of a score:

2

Basic Standard

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.

1

Below Standard

Unacceptable deviations from the qualification standards occur, which may include excursions beyond prescribed limits that are not recognized or corrected in a timely manner.

[27] The right turn in itself may have been intentional by the applicant, but it was not recognized as a deviation from the published approach plate nor was it recognized as a need to inform all required traffic and ATC and thus not corrected. A score of 1 would be applicable in this situation.

D. Examiner's Effort to Create an Environment Conducive to a True Demonstration of the Pilot's Ability

[28] Testimony from both the applicant and the Minister corroborated the fact that the crew was asked, at least on two occasions, if they wished to continue the check ride. Although external circumstances surrounding this ride were present, it is the belief that the crew were given a fair opportunity to perform to their abilities.

E. Additional Training

[29] All three witnesses testified that, after the failed first attempt, additional training was provided to the applicant. As to what constitutes training may vary from expert to expert, the crew did receive additional training and guidance, albeit viewed by the applicant as more of a short corrective session than actual training.

V. ISSUE OF COSTS

[30] A request for costs was raised by the Minister, pursuant to paragraph 19(1)(a) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, which provides as follows:

19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if

(a) it is seized of the matter for reasons that are frivolous or vexatious;

. . .

[31] In Butterfield v. Canada (Minister of Transport), 2004, TATC file no. P‑2933‑02 (appeal), the appeal panel came to the following conclusion:

. . . [W]e are presently of the view that it is only the Minister's conduct that could trigger an award under paragraph (a). This type of clause may be found in various rules of civil procedure in courts where most often suits are brought between two civil parties. However, here it is always the Minister who institutes the matters by way of Notice under one of the sections of the Aeronautics Act. A document holder then has a statutory right to request a hearing in response. . .

[32] Accordingly, there will be no order made for costs.

VI. DETERMINATION

[33] I confirm the decision of the Minister of Transport to suspend the applicant's instrument rating.

October 8, 2009

Franco Pietracupa

Member


Appeal decision
Richard F. Willems, J. Richard W. Hall, Stephen Rogers


Decision: February 24, 2011

Citation: Backman v. Canada (Minister of Transport), 2011 TATCE 4 (Appeal)

Heard at Winnipeg, Manitoba, on May 26, 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 instrument rating. The matter is referred back to the Minister for reconsideration.

I. BACKGROUND

 

[1] On March 25, 2009, the Minister of Transport issued a Notice of Suspension ("Notice") to the Appellant, Tyler Clare Backman, suspending his instrument rating, pursuant to paragraph 7.1(1)(b) of the Aeronautics Act ("Act").

[2] 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, or

. . .

[3] The Review Hearing was held in Winnipeg, Manitoba, on August 19, 2009.

II. REVIEW DETERMINATION

[4] In his Determination dated October 8, 2009, the Review Member, Franco Pietracupa, found that the Minister did prove, on a balance of probabilities, that Mr. Backman had been given a fair opportunity concerning the check ride. Consequently, the suspension of Mr. Backman's instrument rating, assessed by the Minister against the Appellant, was confirmed by the Review Member.

III. GROUNDS FOR APPEAL

[5] On November 4, 2009, Counsel for the Appellant filed a Notice of Appeal stating that "[t]he Applicant is of the opinion that the member excluded evidence that should have been included and that the law was not properly applied."

[6] From the Appellant's perspective, the Review Member erred in not finding that the check ride was carried out in a manner that was in contravention of the mandatory provisions laid out in the Transport Canada's publication entitled, Approved Check Pilot Manual ("ACPM", 9th Edition, TP 6533).

[7] In his written submission, the Appellant states that the ACPM is for the use of Civil Aviation Safety Inspectors ("CASIs") and Approved Check Pilots ("ACPs"). He further indicates that policies and procedures specified in the ACPM must be followed to ensure a fair and neutral environment, in which to conduct check rides.

[8] The Appellant references section 1.8.2 of the ACPM and submits that procedures within that section were not followed.

1.8.2 Prompt Forwarding of Flight Test Reports

Original PPC Flight Test Reports (26-0249 – Aeroplane or 26-0279 – Helicopter) whether pass or fail must be promptly forwarded to CSAOA, when appropriate, or the Transport Canada Regional Office or TCC no later than 5 working days after the Flight Check. A duplicate copy is to be retained in a file maintained by the ACP for a period of 24 months after the Flight Check date. This file is subject to review by Transport Canada – CASI and will be made available upon reasonable notice.

In the event of a failed Flight Check, the ACP will give the candidate a copy of the completed PPC Flight Test Report.

[9] The Appellant states that sections 5.1 and 5.2 of the ACPM were not complied with. These sections provide as follows:

5.1 FOLLOW-UP AND ADMINISTRATION

After the conduct of a Flight Check the ACP must complete follow-up and administrative duties.

These include the following:

a. submit the Flight Test Report Pilot Proficiency Check (form 26-0249/26-0279) no later than 5 working days after the Flight Check;

b. provide feedback to the recommending Instructor or Chief Pilot of the Air Operator if they were not present during the post flight debriefing;

c. confirm and clarify with the Air Operator any recommended retraining requirements; and

d. discuss any identified problems which may require the provision of extra training with either the Air Operator or the Principle Operating Inspector.

Upon completion of the Flight Test Report, the ACP may provide a copy to a successful candidate or upon request to other parties as per 5.3 para 3. If the Flight Check was assessed ‘fail', the candidate must be offered a copy of the Flight Test Report. The ACP will keep a file copy. Copies of all Flight Test Reports must be kept for a period of at least two years.

In the case of permits or licences, "Applications for Flight Crew Permits/Licences" (26-0194) are completed by Authorized Persons in accordance with the Personnel Licensing Procedures Manual.

In the case of ratings, the ACP will confer additional privileges on the reverse side of the applicant's licence or issue a "Certification of Additional Privileges" card (26-0267), following the completion of all documentation to be submitted for application for a rating.

Issuance of a Type Rating or an Instrument Rating will only be undertaken when the following are submitted together:

a. the completed "Application for Endorsement of a Rating" (form 26-0083),

b. the fee for each rating; and

c. the "PPC Flight Test Report".

5.2 PPC AND/OR INSTRUMENT RATING ADMINISTRATIVE SUSPENSION PROCEDURES

An ACP will carry out the following administrative procedures after failure of a PPC and/or instrument rating by:

a.  notifying the Chief Pilot and/or Operations Manager of failed items and recommendations as to corrective action;

b.  a PPC report will be completed for each Flight Check, including any terminated during pre-flight preparation, or before all air exercises are completed, and the candidate is to be offered a copy of the report;

c.  immediately notifying the issuing authority that the pilot has not met the standards for a PPC (including the Instrument Rating where applicable). If unable to reach any of these TC officials via telephone, a voice message, a facsimile or an email is considered to be an acceptable means of notification; A copy of the Flight Test Report Pilot Proficiency Check (form 26-0249/26-0279) will be faxed to Transport Canada for reference purposes; and

d.  if the Instrument Rating was failed and is still valid on the pilot's license, drawing a line through the English and French endorsements on the license and inscribing the notation: "Instrument Rating Suspended" or "suspension de la qualification de vol aux instruments" as appropriate, and signing and dating the license.

A CASI will carry out the following administrative procedures after failure of a PPC:

a.  notifying the Chief Pilot and/or Operations Manager of failed items and recommendations as to corrective action;

b.  ensuring that ratings and evaluation of the failed Flight Check are recorded in the individual's training and Flight Check records. A PPC report will be completed for each Flight Check, including any terminated during pre-flight preparation, or before all air exercises are completed, and the candidate is to be offered a copy of the report as required by the CARs;

c.  if the PPC failure involves both the PPC and Instrument Rating, then complete the following procedures:

i. if the Instrument Rating is still valid on the pilot's license, drawing a line through the English and French endorsements on the license and inscribing the notation "Instrument Rating Suspended" or "suspension de la qualification de vol aux instruments" as appropriate, and signing and dating the license;

ii. issue a Notice of Suspension (form 26-0363) pursuant to subsection 7.1(1) of the Aeronautics Act in consideration of the flight test as such:

  • name of candidate with address (same as on the license);
  • candidates 5802 file number;
  • check the flight test box;
  • date of flight test when it occurred;
  • specify that he/she no longer meets the required standards for a PPC, including an Instrument Rating where applicable and the reasons why;
  • indicate that his/her previous PPC and where applicable, Instrument Rating (including the expiry dates of each as necessary) is hereby suspended;
  • specify conditions of re-instatement (i.e. conduct a satisfactory PPC);
  • where the form requests an address to which the suspended document is to be returned to, indicate "not applicable";
  • specify the date (30 calendar days from the date of the issuance of the suspension) when the candidate's request for a review by the Tribunal must be received. the candidate should be verbally briefed on his/her right for a hearing at the Tribunal, and·
  • sign and date it.

If the PPC failure involves only the PPC or PPC/VFR for a Part VII pilot, then the procedures in (c)(ii) are to be followed with the exception that no reference is made to the Instrument Rating.

[10] By referencing the Review Hearing Transcript of August 19, 2009, p. 89, line 7, p. 106, lines 7 to 19 and lines 24 and 25, and p. 140, lines 11 to 21, Counsel for the Appellant confirmed that Mr. Backman never received a copy of the initial completed flight test for his first check ride and further, that Mr. Backman only received the second check ride report when the Minister disclosed all documents prior to the Review Hearing.

[11] Turning to section 4.2 of the ACPM, Counsel for the Appellant states that no written recommendation was ever provided for either of the two check rides, as required by the ACPM (transcript of August 19, 2009, p. 93, lines 1 to 3):

4.2 ADMISSION TO THE PPC – INITIAL/RENEWAL

The candidate will require:

. . .

e. A written recommendation in the training file for all PPCs dated within 30 days prior to the Flight Check. In the case of a re-check, the person who conducted the additional training will sign the letter of recommendation, and;

. . .

[12] According to the Appellant, the ACP should provide for an environment that is conducive to a true and verifiable demonstration and evaluation of a pilot's aviation skills. That environment should be free of distraction and stress during a given pilot proficiency check (PPC).

[13] In this vein, Counsel for the Appellant invited the Appeal Panel to consider section 4.3 of the ACPM:

4.3 THE FLIGHT CHECK

There are two types of flight checks, the Line Check and the Pilot Proficiency Check. A Line Check is a Flight Check conducted during normal flight operations or during a revenue flight. The PPC is "snapshot" of an individual's performance and a validation of the operator's training program. Details on the individual checks follow in this section and certain conditions apply universally to all checks. The candidate will have appropriate current maps, enroute, terminal and approach charts (as appropriate) for the area where the flight check is to occur and a current Canada Flight Supplement.

ACPs will refrain from teaching or briefing the candidate on the correct completion of a flight check item or from taking any action that will prompt the candidate towards a specific action. Flight Checks may induce tension and feelings of apprehension in even the most experienced pilots. The ACP must create an environment conducive to a true demonstration of the pilot's ability. In order to minimize sources of stress and distraction during a PPC or an ACP monitor, admittance should be restricted to the following individuals, as required:

a.  designated pilot flying (PF) ;

b.  designated pilot not flying (PNF);

c.  designated second officer or flight engineer, or Cruise Relief Pilot (CRP) if required by the aircraft type/SOPs;

d.  designated CASI or ACP conducting the PPC ;

e.  designated CASI monitoring the flight check;

f.  ACP under training, approved at the discretion of the CASI or ACP; and

g.  where the check is being conducted in a simulator, the simulator operator

[14] Further, the Appellant cites section 4.7:

4.7 GENERAL PRINCIPLES OF FLIGHT CHECKING

An ACP's principle function during a PPC or line check is that of an examiner assigned by the Minister to assess an individual's performance. ACPs should make a concerted effort to be relaxed and non-threatening. ACPs will refrain from making personal remarks and inappropriate motions such as shaking their heads, stiffening to rigidity or gasping at inappropriate times, laughing at performance or commenting subsequent to a poorly conducted manoeuvre.

Apply the standards in the applicable Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide regardless of the training and experience of the candidate.

Assess the candidate against what would be an "ideal performance under existing conditions". For example, if it is windy and turbulent, the candidate will not be able to maintain altitude, heading and airspeed as well as on a calm day. Ideal does not mean perfect.

Give credit where credit is due, and do not be influenced by poor performance on a previous PPC item when assessing a subsequent PPC item.

Rate each exercise as soon as possible after it has been completed. A 2 or 1 rating requires written remarks to justify the rating.

[15] The Appellant summarizes his position by stating that Inspector Calvin F. Winter never took any measures to reduce the stress in the check ride environment. In his submission, the Appellant states that the Inspector increased the stress in the check ride environment by explicitly referencing to the Appellant's earlier duty time regulatory complaint and mentioning that he was siding with Westwind Aviation ("Westwind") concerning the duty time issue complaint.

[16] In addition, Counsel for the Appellant submits that Inspector Winter did not take any steps to mitigate Westwind's Chief Pilot's inappropriate actions and behaviour that he attributed to as qualifying as "training" (transcript, August 19, 2009, p. 108, lines 12 to 25, p. 109, lines 1 to 3, p. 118 and 119, p. 122 and 123, p. 144, line 7 to p. 146, line 5).

[17] The Appellant considers section 4.3.3 of the ACPM:

4.3.3 Flight Checks under the Flight Crew Concept

ACPs will conduct PPC/IFT or PPC/VFR on a multi-crew aircraft under the flight crew concept. Only under extenuating circumstances such as conducting a PPC at a contracted flight training organization using a qualified person as the PNF, will ACPs conduct a PPC on an individual pilot instead of an entire flight crew. Keep in mind that a PPC Flight Check is always a jeopardy ride for the individuals involved. Where the PNF "fills in" for a PPC and commits an error that rates a "1," the ACP will take action as appropriate including having the PNF's PPC and/or IFR suspended. A "1" assessed to the PF due to inappropriate PNF action may also result in a "1" for the PNF. In such a case, assess the PPCs of both candidates as failures.

A candidate, who fails a PPC Fight Check under the crew concept will require retraining before attempting a re-check and may not act as a crewmember for another candidate until recommended for a re-check.

A candidate who attempts an "upgrade to Captain PPC" and fails for whatever reason, has demonstrated to the Minister he or she does not meet a required standard and as such must not be allowed to continue to fly the aircraft for which the PPC was attempted regardless of position until retraining and completing a successful a PPC.

[18] At the time that Darcy Clinton Rousell failed the first check ride, he was then disqualified to be a crew member during a second check ride.

[19] The Appellant then submits that contrary to section 4.5.1 of the ACPM, there was no pre‑flight briefing (transcript of August 19, 2009, p. 108, lines 10 and 11, p. 109, lines 9 to 25 and p. 147, lines 1 to 15).

4.5.1 PPC

The ACP's attitude during the pre-flight briefing can greatly affect the outcome of the flight test. It is important to always be respectful of the candidate and to remember that most candidates are apprehensive on a Flight Check. ACPs should conduct themselves in a professional manner and avoid adding to the stress of the test. A detailed PPC pre-flight briefing will prevent misunderstandings and is mandatory.

The pre-flight briefing for a PPC conducted in an aircraft/simulator will include where applicable:

a.  the mandatory items to be demonstrated during the PPC including clearances;

b.  weather briefing (simulator or actual);

i. For PPC purposes, the weather will be simulated at or below the weather minima for the approaches that will be conducted. The individual or crew must determine if the departure weather is suitable. For PPC's conducted in a simulator the individual or crew will be required to land if the runway environment is seen at the DH or the MAP (MDA for stabilized approaches), otherwise a missed approach should be carried out. The ACP will control the visual system to the weather minimums as appropriate to the PPC sequence conducted;

c.  the probable duration of the ride;

d.  the aircraft/simulator is to be operated in accordance with flight manual requirements and within acceptable tolerances within the Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide;

e.  any restrictions or limits imposed on manoeuvres conducted in the aircraft to enhance flight safety, including minimum altitudes and airspeeds for simulated engine failures;

f.  the role of the ACP in regard to crew duties if he/she occupies a flight crew position;

g.  the identification and role of the Pilot in Command and Second-in-Command, if applicable;

h.  the company SOP method of transferring control from one pilot to the other using the statements, For example: "You have control" and "I have control";

i.  radio procedures and any flight planning considerations;

j.  the manner in which simulated emergencies will be introduced by the ACP;

i. In the aircraft, all such events are to be preceded by the word "simulated",

ii. For PPCs conducted in a simulator, the crew should treat all malfunctions as real and that should a simulator fault occur, the ACP will advise the crew immediately,

iii. The ACP will not give multiple unrelated emergencies, but the candidate is expected to take corrective action on related failures such as a loss of hydraulics or electrical supply due to a failed engine,

k.  the candidate is liable to demonstrate any normal or emergency procedure applicable to the aircraft. The candidate's technical performance will be assessed in accordance with the aircraft flight manual, aircraft operating manual or pilot operating handbook, CAR Part VI and VII, Operator's operations manual; and Operator's SOPs;

l.  normal crew coordination is expected in accordance with the aircraft AOM/AFM/HFM or company SOPs, and that an emergency situation caused by an incorrect or inappropriate action or response on the part of the candidate will not be corrected by the ACP in a simulator but will be corrected in an aircraft if safety is jeopardized;

m.  in the event of a real emergency or malfunction the PPC is stopped and the emergency is dealt with as per AOM, SOPs, etc. Should the PIC assume control of the aircraft, the candidate will acknowledge and respond to directives from the PIC;

n.  if the ACP does not report "Field in Sight", the candidate will execute a missed approach at the appropriate minimums;

o.  should the crew requires more time to complete checklists or briefings, they should ask for a hold or delaying vectors and the ACP will make every effort to accommodate the request;

p.  simulator safety features; and

q.  where known to the ACP, any differences between the simulator and the aircraft that may affect the performance of the flight crew. Training on differences between the simulator and the aircraft is required in the training program.

i. Some examples of this would be cockpit configuration and layout, instrumentation, power plant simulations, warning and alert display systems, FMS data bases, electronic monitoring systems, etc.

[20] Lastly, the Appellant requests that the Appeal Panel consider section 4.9 of the ACPM, which indicates that a post-flight debriefing is mandatory. He notes that there was no post‑flight debriefing, as provided in the ACPM (transcript August 19, 2009, p. 108, lines 10 and 11, and p. 146, lines 20 to 22).

4.9 POST FLIGHT DEBRIEFING PROCEDURES

A debriefing is mandatory following every Flight Check. Conduct the debriefing in a positive, non-confrontational manner and highlight the strengths and weaknesses of the candidate(s). The debriefing should promote learning and increase the knowledge and confidence of the candidate(s) and conduct the debriefing accordingly. Debriefings should be comprehensive and of reasonable length corresponding to the performance. Use the appropriate Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide to explain the assessment of major deviations or unacceptable performance.

As soon as the ACP knows the outcome of the Flight Check, he or she should advise the candidate(s). Some empathy and discretion may be required for unsatisfactory assessments.

The following items are mandatory to debrief after every Flight Check:

a.  any items assessed as either "(1)" or "(2)";

b.  anything written on the Flight Test Report or Line Check Report; and

c.  anything the ACP considers to be a safety issue.

ACP's should highlight strengths and reward good performance during their debriefings. While it is sometimes easier to concentrate on the negative, the debriefing will have more impact if good performance is recognised and crews complimented. This will often set a positive tone for the debriefing and open crew's minds to suggestions where their performance can improve.

During the debrief for a passed PPC, the ACP's role is to facilitate discussion and bring out those CRM issues that lead to errors or poor performance. Normally, technical errors have a root cause in CRM issues such as workload management, situational awareness, communication, decision‑making, monitoring and feedback, conflict resolution and crew performance. Therefore, the identification of and discussion of the root causes will help the crew avoid these errors in the future.

Inform the candidate(s) when the debrief is complete and ask if there are questions concerning the conduct of the flight check or other related topics.

The debrief for a failed PPC will not use the self debrief method. When a failure occurs, debrief the candidate on the reason for the failure and where applicable, on the administrative suspension procedures that will follow including the candidate's rights to appeal the assessment to the TATC. In the event of an unsatisfactory performance, the ACP must advise the pilot(s) of the following:

a.  for PPCs, they have the right to appeal the assessment to the Transportation Appeal Tribunal of Canada (TATC) within 30 days;

b.  the re-test will be very similar to the original test and may be conducted by either a Transport Canada Inspector or another ACP;

c.  the ACP must offer to provide a copy of the Flight Test Report Pilot Proficiency Check (form 26-0249/26-0279) to the candidate(s); and

d.  where applicable and if known, any company-specific procedures to be followed.

e.  Remember, the wording of remarks to support a "2" must not describe performance that would warrant a failure. A mark of 1 (below standard) describes the appropriate item or items that resulted in an assessment of fail.

[21] Accordingly, the Appellant argues that non-conformances to the ACPM's procedures were substantive enough to warrant that the Appeal Panel declare the check rides to be void, their mention should be removed from his Transport Canada's record and the matter should be referred back to the Minister.

IV. MINISTER OF TRANSPORT'S SUBMISSIONS

[22] It is the Minister's position that the check rides were carried out in accordance with the ACPM.

[23] The Minister's representative cites the decision of Turner v. Canada (Minister of Transportation), [2010] FC 613, to illustrate that the atmosphere or environment in which the check rides were conducted had little to do with the ultimate conclusion to quash that decision.

[24] The Minister's representative is of the view that, even if the Appeal Panel finds that procedures required by the ACPM were not properly followed, this is not sufficient to warrant the overturning of the Review Member's Determination.

[25] The Minister's representative concedes that if problems existed in the check ride environment, that still does not mean that Mr. Backman was competent to fly after the check ride assessment was completed.

[26] The Minister's representative submits that the Review Member interpreted the law correctly, and cites paragraph 19 of the Review Determination:

[19] A review of the case must focus on the mandate of the Tribunal. Several concerns were raised by counsel for the applicant during this hearing on the pre-existing relationship between the applicant and his employer. The mandate and decision rendered must however be based on evidence and statements introduced at the hearing in regards to the failed event, and if these pre‑existing conditions affected the outcome of the check ride. Instrument flight procedures are at the epicentre of this case and must retain the respective weight in the probability that this failure was justified. IFR procedures must be adhered to in order to ensure first and foremost safety and predictability in what aircraft will do when in instrument conditions.

[27] Further, the Minister's representative argues that because Counsel for the Appellant did not address the Instrument Flight Procedure of the ACPM, other than a reference to the full procedure turn made during the PPC, a failed assessment rating could be justified. The Minister is of the opinion that this argument alone is sufficient to uphold the Review Member's Determination.

[28] However, the Minister then submits additional rationale, addressing each aspect of the grounds of appeal as further reasons for the Appeal Panel to hold in favour of the Minister.

[29] With respect to the submission by the Appellant, that a copy of the completed test flight report ("flight report") was not received, the Minister states that Inspector Winter could not provide a copy immediately after the check ride (transcript of August 19, 2009, p. 21, lines 6 to 21). The Minister submits that there is no specification as to when and how the copy of the flight report is to be made available. In this case, the flight report was submitted to the Air Operator. The recommended practice is that the flight report be filled in and sent to the Air Operator to put into the pilot's file. If the pilot does not have access to his file, then the Minister states that the pilot can contact Transport Canada. Apparently, Mr. Backman did not do so.

[30] Addressing the lack of any written recommendation for either of the check rides, the Minister cited the transcript of August 19, 2009, page 47, lines 18 to 25, and page 48, lines 3 to 25. The Minister states that the Air Operator does not have a procedure in place for written recommendations.

[31] The Minister then references section 4.2 of the ACPM, entitled, "Admission to the PPC – Initial/Renewal", which provides for the lack of written recommendations if the Air Operator has procedures established and accepted by Transport Canada.

[32] The Minister's representative argues that because the Chief Pilot performed the remedial training in accordance with the flight test guide and the ACPM, witnessed by Inspector Winter, the recommendation "transpired".

[33] In relation to the issue about Inspector Winter siding with Westwind in the duty time regulatory complaint filed, the Minister submits that there is no reference to this in the transcript of August 19, 2009. Further, according to the Minister, Inspector Winter investigated the matter and reached a conclusion that the documentation provided was not relevant to the check ride. For further support, the Minister references the testimony of Mr. Rousell who was also of the opinion that the matter was irrelevant (transcript of August 19, 2009, page 154, lines 18 to 25, and p. 155, lines 1 to 8).

[34] Turning to the environment of the check ride, the Minister's representative refers to section 4.5.1of the ACPM which states that when a flight check is being conducted candidates are often apprehensive. The ACPM recommends attempting to reduce apprehension by creating an environment where the pilot's true abilities can be established. In Hatfield v. (Canada) Minister of Transport, [2006], TATC file no. O-3084-60 (review), the Review Member stated that the environment during a check ride should be neutral in order to enable candidates to perform to the best of their abilities.

[35] The Minister submits that while there may have been some labour relations issues between the Appellant and his employer, the fact that the flight check was conducted by a Transport Canada inspector created a neutral environment. The Minister submits that Mr. Winter did make an effort to create a comfortable environment by asking both Mr. Backman and Mr. Roussell whether they wished to continue with the second check ride. Both said yes. Furthermore, the Appellant never mentioned any concerns or issues with regard to proceeding with his PPC that day. Based on these facts, the Minister submits that the PPC exercise conducted on March 23, 2009 was in accordance with the ACPM.

[36] The Minister is of the view that vague allegations concerning a "good atmosphere" for the check ride environment are not substantive enough; there has to be strong evidence that the Check Pilot did something that clearly jeopardized the check ride environment and inhibited the ability to obtain a fair assessment.

[37] That said, the ACPM provides, under section 4.3, that "Flight Checks may induce tension and feelings of apprehension in even the most experienced pilots".

[38] Indeed, for commanding aircraft, the flying public would want to have pilots that are able to react to emergencies, in the most stressful situations in as professional a manner as possible.

[39] The Minister draws attention to the fact that Mr. Backman did not talk to Inspector Winter about any elevated stress that he had not expected during a check ride (transcript of August 19, 2009, p. 124, lines 6 to 19, and p.127, lines 9 to 15).

[40] Lastly, on this point, the Minister submits that there was no indication that the Check Pilot made any personal remarks or inappropriate gestures or motions.

[41] With reference to the ground of appeal dealing with the failure of Mr. Rousell in the first check ride, thus making the Appellant ineligible for the second check ride, the Minister argues there is no requirement for a crew member participating in a check ride to have an instrument rating.

[42] Further, the Minister submits that training was provided (transcript of August 19, 2009, at p. 25, lines 24 and 25, p. 26, lines 7 to 9, p. 59, lines 10 to 20 and p. 93, lines 3 and 4, supported by Inspector Winter's notes (Exhibit M-5) and addressed in paragraph [29] of the Review Determination.

[43] In relation to section 7.1 of the Act, the Minister submits that Mr. Rousell's instrument rating was not suspended before March 25, 2009, and consequently, he was eligible to be a crew member during a check ride, despite having just failed.

[44] Concerning the allegation that there was no pre-flight briefing, the Minister invites the Appeal Panel to consider the transcript of August 19, 2009, p. 23, lines 24 and 25, p. 24, lines 1 to 8, p. 25, lines 4 to 16 and p. 26, lines 6 to 9.

[45] Lastly, addressing the apparent lack of a post-flight debriefing, the Minister's representative refers to the transcript of August 19, 2009, p. 26, line 1, p. 31, lines 19 to 25, p. 32, lines 23 to 25, p.  33, lines 1 to 5 and 23 to 25, and p. 34, lines 1 to 4 and 10 and 11, in conjunction with Inspector Winter's notes (Exhibit M-5).

[46] In summary, the Minister submits that there are no grounds to reverse the Review Determination.

V. ANALYSIS

[47] The Appeal Panel was advised that Messrs. Backman and Rousell were employed by Westwind. During their employment with Westwind, they were involved in a union organizing campaign and they were terminated by Westwind.

[48] Their termination by Westwind was then appealed to the Canadian Industrial Relations Board ("CIRB"). Ultimately, both Messrs. Backman and Rousell were successful in their appeal. Westwind was ordered by the CIRB to reinstate both pilots.

[49] However, their PPCs had expired in the six months that had passed, before they received the CIRB's reinstatement decision. Consequently, in order to re-qualify on the ATR 42, they went to Flight Safety in Houston, Texas, where a simulator is located.

[50] Prior to their PPC, Messrs. Backman and Rousell received approximately two hours of recurrent training (transcript of August 19, 2009, p. 107, line 10).

[51] The first check ride was conducted with Mr. Rousell in the left seat and Mr. Backman in the right seat. During this first check ride, Mr. Rousell was the Pilot Flying ("PF") and Mr. Backman was the Pilot Not Flying ("PNF"). The check ride was assessed as a failure and both the PF and PNF were deemed to have failed, as the check ride was conducted as a crew.

[52] From the publication entitled Pilot Proficiency Check and Aircraft Type Rating − Flight Test Guide (Aeroplanes) (First Edition, TP 14727E, Exhibit M-13 at p. 9), the Appeal Panel notes that: ". . . following the failure of a PPC, the candidate will receive additional training as required and meet the requirements set out in "Admission to a PPC - Initial/Renewal".

[53] Following a failure, in fairness to the pilots involved, no further flight tests should be conducted that day. The exception is that the remaining simulator time may be used for training if the ACP is also a company instructor.

[54] Furthermore, a minimum of one simulator session should be conducted prior to resubmitting the candidate for retest of a PPC.

[55] The Appeal Panel confirms that "training" is a key element of this important component in assessing a pilot's proficiency. The term "training" according to the Canadian Oxford Dictionary (2nd edition) means "the act or process of teaching or learning a skill, discipline, etc."

[56] After a careful review of the evidence presented at the Review Hearing, the Appeal Panel does not consider that the training done or offered in this particular check ride meets the requirement of the definition of training in the true sense of the word as envisioned for assessment purposes in the aviation world. From the Appeal Panel's perspective, the Review Member erred in not recognizing that the training in this particular PPC was flawed to such a degree as to require intervention by the Appeal Panel.

[57] First, the Appeal Panel wishes to comment at this juncture, that because of the acrimonious relationship that clearly existed between Mr. Backman and Westwind, given his termination and then reinstatement, it is not unexpected that the scenario unfolded like it did. In the Appeal Panel's view, the Review Member did not give due consideration to the contextual background surrounding the PPC.

[58] Both pilots were given only a brief word about the LOC switch, and then, they were considered to be trained. From the Appeal Panel's perspective, that is not what one would expect in terms of the necessary preparation that should be made available to pilots prior to a check ride. One is forced to contemplate, as to whether these pilots were set up to fail or exposed to such a stressful environment, that the only plausible outcome was to have a failed PPC assessment.

[59] Both Messrs. Rousell and Backman were offered the chance to delay further testing and refused the offer. From the Appeal Panel's perspective, the fact that they both acquiesced to an additional test, should not be fatal to the appeal by the Appellant. It is not inconceivable that given the significant stress prevalent in the check ride environment, coupled with the earlier CIRB hearing, that the Appellant did not, in hindsight, exercise his right to request an adjournment to another day.

[60] Mr. Backman re-entered the check ride process, expecting that following the switch briefing, Mr. Rousell would be retested as PF. However, it did not happen. Mr. Backman was to be the PF and fly from the left seat.

[61] The second ride, which is the subject of this Appeal, was conducted with Inspector Winter, acting as Simulator Instructor, air traffic control ("ATC"), and all other contacts.

[62] Both Messrs. Rousell and Backman testified that, while they discussed modifying their approach clearance, they never requested a modification from ATC. They were cleared for a full procedure VOR/DME approach, and they were at a safe altitude when Mr. Backman, as PF, turned the aircraft at ETLEN instead of the VOR. This was done without contact with ATC and without their consent. The aircraft was on the "protected side" and above the minimum safe altitude. At this point, the check ride was stopped.

[63] The Appeal Panel is of the opinion that the Review Member should have determined the following:

1. A satisfactory with briefing assessment would have been sufficient in a post‑flight debriefing for this infraction, rather than a failure.

2. Mr. Rousell, having failed his ride as PF earlier in the day, was distracted and not diligent in monitoring the flight as PNF.

3. Both pilots had training prior to their check ride and would have to have a high standard of demonstrated Crew Resource Management ("CRM") to have been recommended for the check ride. The Appeal Panel simply cannot accept that the CRM demonstrated during the two check rides represents even a minimum standard, nor can the Appeal Panel accept that this skill, the CRM that they both possessed, was lost overnight.

4. In a normal "crew failure" situation, both pilots receive additional training and are retested with typically a different appropriate crew member.

5. While Mr. Rousell failed his ride acting as PF, following his switch briefing, he was never offered a chance to demonstrate that he had effectively mastered the shortcomings identified, and re‑qualified.

6. Mr. Backman's failure was for a reason unrelated to the training given after Mr. Rousell's ride. Mr. Backman was not offered any additional training on the area of his difficulty, which is both disturbing and unacceptable.

[64] Section 5.1 of the ACPM provides as follows: "If the Flight Check was assessed ‘fail', the candidate must be offered a copy of the Flight Test Report". Section 1.8.2 states the following: "In the event of a failed Flight Check, the ACP will give the candidate a copy of the completed PPC Flight Test Report".

[65] In the Appeal Panel's opinion, it is unreasonable to expect that a failed candidate would have to pay a visit to his/her former employer to obtain a copy of the flight report, especially in the circumstances of this case.

[66] In paragraph 14 of the written arguments following the Appeal Hearing of May 26, 2010, the Minister notes: ". . . The recommended practice is that the report must be filled in and sent to the operator to be put on the pilot's file. . . "

[67] However, the Appeal Panel notes that the ACPM is quite clear and that the recommended practice is contrary to sections 1.8.2 and 5.1 of the ACPM.

[68] In this instance, two experienced pilots with many years of flight experience and many successful PPCs suddenly drop to a low standard and are dismissed. This factual scenario is rather puzzling and begs the question of what happened so suddenly.

[69] In attempting to explain this situation, the Minister stated:

…the operator doesn't have a procedure for a written recommendation in place. The ACP Manual at section 4.2 allows companies that have procedures established and accepted by TC not to have a written recommendation:

Except where company procedures have been established and accepted by Transport Canada, a Flight Check will not be conducted if licensing and/or training documents are not presented, are not valid, or if the company has failed to provide all relevant training for the candidate, as specified in the Operator's approved training program. [emphasis added]

[70] The Review Member did not give due consideration to the requirements stated in the ACPM and should have considered the overall situation when assessing whether the PPC was conducted properly. In light of the foregoing, the Appeal Panel has determined that the Appellant has proven that the Review Member misinterpreted and/or failed to consider evidence to such a degree that justice requires that the Review Determination be overturned.

VI. DECISION

[71] The Appeal is allowed. The Appeal Panel overturns the Member's Review Determination confirming the Minister's decision to suspend the Appellant's instrument rating. The matter is referred back to the Minister for reconsideration.

February 24, 2011

Reasons for Appeal Decision by: J. Richard W. Hall, Chairperson

Stephen Rogers, Member

Concurred by: Richard F. Willems, Member