TATC File No. H-3644-60
MoT File No. 5802-730412
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Ioan Codrin Olaru, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, S.C., c. A-2, s. 7.1(1)(b)
Decision: August 13, 2010
Citation: Olaru v. Canada (Minister of Transport), 2010 TATCE 19 (review)
Heard at Montréal, Quebec, on May 11, 2010
Held: The Minister of Transport has not proven, on the balance of probabilities, that the Applicant, Ioan Codrin Olaru, did not meet the standards required to maintain his pilot proficiency privileges on the CL-65 aircraft. Consequently, the Transportation Appeal Tribunal of Canada refers the matter back to the Minister of Transport for reconsideration.
 On November 23, 2009, the Minister of Transport issued a Notice of Suspension ("Notice"), informing the Applicant, Ioan Codrin Olaru, that his pilot proficiency check ("PPC") 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 PPC conducted by Rodney Dahl, an approved Company Check Pilot ("CCP"), Mr. Olaru, a qualified Licensed Pilot, had not requested crash fire rescue ("CFR") services during a rejected take-off test scenario, in which he was acting as the Pilot Not Flying ("PNF"). As a result, it is alleged that Mr. Olaru did not complete some of the required items to the standard required by the Company's CRJ aircraft operating manual (AOM, volume 2). Consequently, he no longer meets the requirements to hold a PPC on the CL‑65 aircraft (Exhibit M-2).
 Based on this omission by Mr. Olaru, and as indicated on the Applicant's PPC Flight Test Report, Mr. Dahl assessed a score of 1 (below standard) to the Applicant on the following items (Exhibit M-1):
Item 7 Rejected take-off
Item 21 PNF Duties, and
Item 26 Evacuation
 The issues that must be considered and the determination that will be rendered by the Transportation Appeal Tribunal of Canada ("Tribunal") are as follows:
1. Did Mr. Olaru fail to request CFR services during the rejected take-off scenario?
2. Did Mr. Olaru omit to use the proper push-to-talk transmission mode? As such, the request for CFR services was not heard by air traffic control ("ATC"), and subsequently no rescue services were sent to the aircraft.
3. Did the rejected take-off scenario consist of a single task or three separate items that would require separate assessments from the CCP?
4. Was the marking scale properly applied to items 7, 21 and 26 of the Applicant's PPC Flight Test Report, which resulted in the suspension of Mr. Olaru's PPC?
II. STATUTES, REGULATIONS AND POLICIES
 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 fulfill the conditions subject to which the document was issued, or
. . .
the Minister shall, by personal service or by registered or certified mail sent to the holder or the owner or operator of the aircraft, airport or facility, as the case may be, at their latest known address, notify that person of the Minister's decision.
A. Minister of Transport
(1) Rodney Dahl
 Mr. Dahl is the CCP who was responsible for the conduct of the check ride that took place on November 19, 2009. He testified that he had been following an approved pilot proficiency check script on the day of the check ride (Exhibit M-3).
 The check ride was being conducted in two parts. The alleged failure occurred during the last simulated event to be performed during the first part of the ride. Mr. Dahl programmed a cargo smoke malfunction during the take-off role. The first part of the script consisted of a flight in the simulator by Captain Eric Sallo as Pilot Flying ("PF"), with Mr. Olaru as the First Officer ("PNF").
 Mr. Dahl's testimony revealed that until then, the crew had performed to standard or above on all required test items. On this particular event, the Captain rejected his take-off and brought the aircraft to a complete stop. The Captain and First Officer identified the malfunction and carried out the required memory items in accordance with the Company's procedures. Mr. Olaru's first task after the reject was to transmit the rejected take-off to the ATC. Mr. Dahl indicated that, according to section 3.1.7 of the Company's AOM (Exhibit M-4), Mr. Olaru properly reported the rejected take-off over air traffic frequency but failed to request CFR services.
 Mr. Dahl testified that, in accordance with the procedures, the crew properly identified the cargo smoke/fire master warning. Then, the Captain began to carry out his applicable memory items, while the First Officer, Mr. Olaru, began to evacuate the aircraft. As stipulated in section 3.1.9 of the Company's AOM, an evacuation must only be carried out on the command of the Captain (Exhibit M-5). Mr. Dahl testified that he did not hear the Captain order an evacuation.
 During the evacuation drill conducted by Mr. Olaru, a second call was made to ATC with information in regard to the evacuation. To initiate this second call, Mr. Olaru did not use the proper push‑to‑talk transmission switch, and as such, ATC did not hear the radio transmission over the required frequency. Mr. Dahl noted that during a normal ATC radio communication a return response acknowledging the radio transmission would have been made. No response was sent to the aircraft by ATC. The role of ATC was being played by Mr. Dahl.
 Mr. Dahl finally did radio the aircraft prior to the crew evacuating the aircraft and asked if any assistance would be required. Once again, Mr. Olaru radioed that the crew was evacuating the aircraft but again, Mr. Dahl observed that the push-to-talk transmission switch had not been depressed, and as such no radio communication was received over ATC frequency.
 Mr. Dahl testified that, based on the series of events, no choice was offered to him but to assess Mr. Olaru a score of 1 (below standard) on the rejected take‑off, PNF duties and evacuation items.
(1) Ioan Codrin Olaru
 Mr. Olaru testified that the Captain had, in fact, voiced the command to evacuate once the rejected take‑off had been completed.
 Mr. Olaru further testified that a radio transmission had been made through the radio unit, using the push-to-talk transmission switch to request CFR services. However, contrary to what is stipulated in the Company's AOM, Mr. Olaru admitted to having carried out the passenger evacuation memory items out of sequence with the Captain's memory items.
 Mr. Olaru's testimony centered on the issue of having been assessed a score of 1 (below standard) on three separate items during a single event (rejected take-off).
 In cross-examination, Mr. Olaru was asked if the events related to the rejected take-off were considered as three separate items in the Quick Reference Handbook for the CL-65 aircraft. He replied in the affirmative.
 Mr. Olaru was also asked if he had heard the Captain command an evacuation at any time during the events. Mr. Olaru replied that he heard the Captain command an evacuation but he does not recall exactly when.
IV. EVIDENCE, LEGISLATION AND POLICY ANALYSIS
 The case heard by the Tribunal centers on two key elements.
 The first element revolves on contradictory evidence ("he said, she said" evidence) from both witnesses. This plays an important factor in the second element, the score of 1 (below standard) on three items based on the testimony of Mr. Dahl, in which he determined that the Applicant omitted to request CFR services. Both witnesses were credible, and the Review Member believes their respective version of the events. Based on oral and written evidence and the balance of probabilities, the following four issues must be addressed:
A. Omission to Request Crash Fire Rescue (CFR) Services
 Both Messrs. Dahl and Olaru are in agreement that the first radio transmission after the rejected take-off was conducted properly and through the standard push‑to‑talk methodology. As such, ATC was aware that Air Canada Jazz flight 741 had rejected its take-off. However, the contradiction in testimony centers on whether or not the request for CFR services was communicated to ATC.
 Based on both testimonies from the witnesses, the Review Member believes that a critical call from an aircraft requesting CFR services would not be missed by an experienced CCP such as Mr. Dahl. The balance of probabilities would lead the Review Member to agree that the call for CFR services was not made at that time.
B. Subsequent Second and Third Radio Transmissions during the Rejected Take-Off
 The issue of two subsequent radio transmissions, made by Mr. Olaru, must be addressed. The second radio call was conducted on the command of the Captain to evacuate the aircraft, while the third call was in response to ATC requesting if Air Canada Jazz flight 741 required any further assistance.
 Both witnesses seem to provide accurate and reasonable observations about these events and, although the testimonies are contradicting, the Review Member has no reason to question the accuracy of the testimonies under oath. By reason of this dilemma, additional documentary evidence was used to determine this particular issue.
 During his testimony, Mr. Dahl stated that, in accordance with section 3.1.7 of the Company's AOM (Exhibit M-4), Mr. Olaru was the PNF during the first part of the check ride. Based on Mr. Dahl's testimony, Mr. Olaru had been performing to standard or above on all required items, up to this last required exercise. The approved script used during the first part of the check ride would require the crew to transmit, at the very minimum, 10 radio calls to ATC prior to this event. As PNF, Mr. Olaru would be involved in radio transmissions during most of the first scenario. Since no mention of improper push-to-talk methodology is mentioned on the Applicant's PPC Flight Test Report, it is on the balance of probabilities that radio airmanship was within acceptable standards during most of the first part of the flight test, including the first radio transmission after the rejected take‑off. It would thus seem highly improbable that the push-to-talk transmission switch would not be used for the last two transmissions.
 It is the Review Member's opinion that, on the balance of probabilities, the last two radio transmissions were properly conducted.
C. Single or Multiple Events
 According to the Applicant's PPC Flight Test Report, Mr. Olaru's privileges were ultimately suspended, as a result of being assessed a score of 1 (below standard) by Mr. Dahl on three separate items, based on the fact that CFR services were not requested.
 Although it was raised by the Applicant that the last element on the script (rejected take‑off) should be assessed as a single event, the fact remains that within this task, several related actions require separate assessments. It is important that the Review Member examine the marking scale applied to each tested item.
D. Items Assessed Below Standard ─ 7, 21, and 26
(a) Item 7 ─ Rejected Take-Off
 The Applicant's PPC Flight Test Report indicates that a score of 1 (below standard) was attributed to item 7 (Rejected take-off), based on the omission of the First Officer to request CFR services during the ATC radio transmission (Exhibit M‑1).
 Assessing item 7 (Rejected take-off), can be divided in several segments. The first, as the task implies, would be to evaluate the ability of the crew to properly and safely identify the malfunction during the take‑off roll, to carry out the rejected take-off prior to V1 and to accomplish this safely and expeditiously. In accordance with section 3.1.7, "Rejected Takeoff Procedure", of the Company's AOM (Exhibit M-4), once the aircraft has come to a complete stop, the First Officer must advise ATC on the rejected take-off. There is no dispute that this was completed, and it is important.
 Based on the weather set during this event, ATC would have no visual contact with Air Canada Jazz flight 741 and may continue operations on the active runway. Although contradictory testimony was heard as to the request for CFR services, the main objective of this exercise was met. It can be argued as well that paragraph 1) of section 3.1.7, "Rejected Takeoff General", of the Company's AOM (Exhibit M‑4) does allow for some latitude for the crew to decide as to when this service can be requested. Paragraph 1) of section 3.1.7 states as follows: "The First Officer will advise ATC as soon as practical of the reject and request CFR if applicable". If operating under paragraph 3) of section 3.1.7 "Completing the Rejected Takeoff", of the Company's AOM (Exhibit M-4), "[t]he First Officer will advise ATC of the reject in progress and request assistance if necessary."
 A score of 1 (below standard), attributed on the ground that a request for CFR service was omitted, would be unwarranted based on oral and documentary evidence.
(b) Item 21 ─ PNF Duties
 The need for effective crew management in the cockpit is critical in all phases of flight, but even more so in an abnormal and/or emergency situation. The company's operating procedures require close coordination by both crew members in order to safely complete required action items. The assessment and monitoring of a PNF duties are done throughout the duration of the check ride. Based on the scenario script used during the first part of the check ride, Mr. Olaru's performance as PNF during multiple phases of flight, including malfunctions, emergencies, approaches and cockpit management, had been assessed as standard. The initial tasks of the First Officer ("PNF") during the rejected take-off were conducted within standard. ATC was aware of the aircraft having rejected its take-off roll.
 The second call transmitted to ATC, informing them of the number of passengers and fuel on board, would indicate that an evacuation was being conducted or that, at least, a request from ATC had been received for additional information. According to Mr. Dahl's testimony, no return response was sent to Air Canada Jazz flight 741 based on the transmission methodology uncertainty. A score of 1 (below standard) to assess the PNF duties would be inconsistent and unwarranted based on the observation of Mr. Dahl for most of the first part of the check ride. It would also be questionable, if the assessment was based on the last event of the first part.
(c) Item 26 ─ Evacuation
 Section 3.1.9, "Passenger Evacuation Procedure" from the AOM discusses the passenger evacuation procedure to be carried out, following the command of the Captain (Exhibit M-5). In the present case, there is contradicting evidence as to when the command to evacuate was given or acknowledged. What is not disputable, however, is that the actual evacuation carried out by the First Officer was completed out of sequence and prior to the Captain's command prompt, as outlined in section 3.1.9 of the Company's AOM (Exhibit M‑5). These memory items are designed to be carried out simultaneously by each crew member, including the synchronization of the First Officer turning on the emergency lights to the Captain's call "evacuate evacuate evacuate" over the PA system. Based on testimony, this was not completed according to standard. A score of 1 (below standard) on this item is warranted.
 Based on these observations, it is of the opinion of the Review Member that only one task warranted a score of 1 (below standard).
 After reviewing the specific issues and determining that only item 26 (Evacuation) should have been assessed a score of 1 (below standard), Mr. Olaru should have been given the opportunity to continue the line check and repeat the item that he had failed.
 The Minister of Transport has not proven, on the balance of probabilities, that the Applicant, Ioan Codrin Olaru, did not meet the standards required to maintain his pilot proficiency privileges on the CL-65 aircraft. Consequently, the Transportation Appeal Tribunal of Canada refers the matter back to the Minister of Transport for reconsideration.
August 13, 2010
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