Decisions

TATC File No. O-3748-60
MoT File No. 5802-398409

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Anthony Guzzo, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Richard F. Willems


Decision: October 20, 2011

Citation: Guzzo v. Canada (Minister of Transport), 2011 TATCE 28 (Review)

Heard at Toronto, Ontario, on March 9, 2011

Held: The Tribunal confirms the Minister of Transport's decision to suspend the Applicant's Pilot Proficiency Check.

I. BACKGROUND

[1] On December 17, 2010, the Minister of Transport issued a Notice of Suspension to the Applicant, Anthony Guzzo, which states as follows:

Pursuant to subsection 7.1(1) (suspend, cancel or refuse to renew) of the Aeronautics Act, and in consideration of [t]he flight test occurring on December 15, 2010, you have demonstrated that you no longer meet the required standard, for the issuance of a Pilot Proficiency Check on the DASH 8 Q400 aircraft, in that you obtained five marks rated as 2s, which constitutes a failed Flight Test, pursuant to page 8, Failure of a PPC in TP 14727 Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide (Aeroplane).

Your Pilot Proficiency Check on the D8 aircraft is hereby suspended. This suspension comes into effect immediately and remains in effect until you demonstrate that you meet the required standard by passing a Pilot Proficiency Check, conducted by an Approved Company Check Pilot (ACP), or a Transport Canada Inspector.

II. STATUTES, REGULATIONS AND POLICIES

[2] The basis for the suspension is established under subsection 7.1(1) of the Aeronautics Act:

7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that

(a) the holder of the document is incompetent,

(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

(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the holder of the document or of any principal of the holder, as defined in regulations made under paragraph 6.71(3)(a), warrant it,

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.

[3] The policies, procedures, and guidelines for Approved Check Pilots (ACPs) to follow when performing Pilot Proficiency Checks ("PPC") are found in the Approved Check Pilot Manual, NinthEdition, TP 6533E, 11/2007 (the "Manual").

[4] The objectives of PPCs are identified in Chapter 3.1 of the Manual:

3.1 AIM OF THE FLIGHT CHECK

Flight Checks conducted under and Part VII of the Canadian Aviation Regulations consist of Pilot Proficiency Checks (PPCs) and Line Checks.

The aim of a PPC is to:

(a) determine that the candidate/crew meets the skill requirements to fulfill their assigned responsibilities in a safe and competent manner for the PPC, Line Check or rating sought;

(b) improve the standards of instruction and training through feedback of information to the air operator or training organization of those tasks, manoeuvres, policies and procedures that are weak or commonly unsuccessful;

(c) to ensure acceptable levels of safety are maintained and, where possible, improved throughout the aviation industry, by requiring the application of sound airmanship and flight discipline.

The role of an ACP is to evaluate the knowledge and skills of candidates to determine whether they meet the required standard for a PPC, Line Check or Rating. ACPs are professional, experienced pilots and have demonstrated they possess the knowledge of the PPC checking criteria.

[5] The evaluation process for PPCs is located at Chapter 3.2 of the Manual:

3.2 EVALUATION PROCESS

Evaluation is the process of defining, observing and measuring a candidate's performance during a Flight Check. When the ACP conducts a Flight Check, it is for the purpose of determining whether the applicant meets all the criteria as outlined in the applicable Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide. Analysis of this evaluation, as recorded on the PPC Flight Test Report, provides information that is used to identify:

(a) candidate deficiencies;

(b) specific degrees of skill;

(c) areas of weak instruction; and

(d) areas of the training syllabus requiring improvement.

This information along with input from other sources such as accident reports and flight

safety newsletters, is then integrated into the training program in the form of revisions to

training manuals, examinations and flight check standards. This improves the quality of

training and enhances aviation safety.

[6] Performance assessment, specifically the four-point marking scale for PPCs is discussed in Chapter 4.6 of the Manual:

4.6 ASSESSMENT OF PERFORMANCE

The ACP will assess all Flight Checks using the 4-point marking found in the applicable

Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide. The standards specified in the guides are not exhaustive and they do not define all common errors. ACPs must apply their knowledge and experience in conjunction with the rating definitions to arrive at an assessment. The candidate will operation the aircraft in accordance with the manufacturer's specifications, recommended speeds and configurations in the Pilot's Operating Handbook/Aircraft Flight Manual (POH/AFM/HFM) or other approved data under normal circumstances. It is important for an ACP to apply a tolerance for unusual circumstances outside the control of the candidate such as wind, traffic or weather conditions. An ACP may also tolerate an excursion from specified limits in the performance criteria if the candidate recovers in a timely manner. However, an excursion from prescribed limits, with or without a timely recovery, which jeopardizes the safety of the aircraft is unacceptable.

It is neither feasible to develop the definitive book of examples of (1) to (4) for every PPC exercise nor would it be practical. Therefore, the ACP will evaluate each sequence of the Flight Check and assess any errors or mistakes, against established performance criteria in the PPC and Aircraft Type Rating FTG.

There are adjectives used to describe common errors and rating assessments. Terms such as unacceptable, unsatisfactory, timely, safe, minor, slight, brief, lack, inadequate and excessive describe the candidate's performance. It is difficult to objectively define these adjectives; however, the dictionary definitions provide amplification of meaning. Terms such as incomplete, incorrect, exceed and failure are more finite and objectively described in the appropriate regulation, AFM/HFM or company procedure.

It is difficult to write clear and concise remarks during Flight Checks. ACPs should make notes during the Flight Check and use them to complete the final copy of the Flight Test Report. ACP may take time to refer to the appropriate Flight Check criteria for writing the final comments.

The demonstration of a procedure or sequence that would normally rate a "2 – basic standard" may be repeated later during the flight check, at the discretion of the ACP if the procedure or sequence does not clearly come under the definition of "1 – below standard".

[7] Post‑flight debriefing procedures are addressed in Chapter 4.9 of the Manual:

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 [sic]. 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.

III. EVIDENCE

A. Minister

(1) Giuseppe Pino Ruggiero

[8] Captain Giuseppe Ruggiero is an experienced pilot currently employed as a line pilot, training captain, and ACP at Porter Airlines ("Porter"). He conducted a check ride on First Officer ("F/O") Guzzo for an upgrade to captain on the Dash 8 Q400 on December 15, 2010, the results of which are contested by the Applicant.

[9] While under direct examination, Captain Ruggiero discussed the check ride, explaining how and why he graded F/O Guzzo five marks of ‘2', ‘Basic Standard', on his Flight Test Report (Exhibit M‑9), constituting a ‘Fail' according to the Flight Test Guide on page 8 (Exhibit M‑3). Captain Ruggiero's decision to grade a Basic Standard score for exercises 2, 18, 22, 23, and 24 is elaborated below.

(a) 2. Flight Planning

(i) Land and Hold Short Operations (LAHSO)

[10] During the pre‑flight briefing, Captain Ruggiero asked F/O Guzzo if he was able to accept a LAHSO clearance with 4 200 feet of available distance, and he replied that he was able to. The Flight Operations Bulletin (Exhibit M‑11) shows, however, that the minimum available landing distance for the Dash 8 Q400 at airports below 999 feet above sea level ("ASL") is 4 500 feet.

(ii) CATII ILS Approach and Cross/Tailwind Issue

[11] One of the exercises completed by the crew during the check ride was a CATII Instrument Landing System ("ILS") approach to Runway 05 at Toronto Pearson International Airport. The wind programmed into the simulator and given to the crew was 170 degrees at 12 knots. F/O Guzzo did not want to accept this approach due to the tailwind component, and when another runway was not offered, he tried to contact the Porter System Operation Control Centre ("SOCC") for advice but was informed by Captain Ruggiero, (representing SOCC during the check ride) that he had to make the decision with whatever information he had on board at the time.

[12] F/O Guzzo did not make any reference to the Dash 8 Q400's limitations with respect to crosswind or tailwind limits, nor did he refer to the Porter Dash 8 Quick Reference Handbook ("QRH") Crosswind Chart (Exhibit M‑13). Had he done so, he would have found that the winds were acceptable to land. He did eventually conduct the approach.

[13] After taking these two points into consideration, Captain Ruggiero decided to assign a Basic Standard score to the ‘Flight Planning' portion of the check ride.

(b) 18. Landing

[14] The CATII ILS approach was flown to limits, with a 100‑foot ceiling and 1 200 runway visual range ("RVR"). Once the runway was in sight, F/O Guzzo disconnected the autopilot and continued the approach to a landing. The crosswind correction was not maintained, the aircraft drifted off the centerline of the runway, and, at one point, it was close to lining up with the edge of the runway. Below 50 feet above ground level ("AGL"), F/O Guzzo banked the aircraft to approximately 20 degrees to regain the runway for a landing, which was firm and off the centerline. In his notes on the check ride (Exhibit M‑10), Captain Ruggiero used the term ‘Dangerous!' to describe the landing.

(c) 22. Engine Failure

[15] In this exercise, the crew performed a 600 RVR take-off with an engine failure at take‑off decision speed (V1). F/O Guzzo had difficulty with the directional control of the aircraft prior to becoming airborne and, once airborne, allowed the aircraft to bank to about 30 degrees with a resultant loss of more than 10 degrees of heading.

(d) 23. Low Oil Pressure Warning

[16] During this take-off sequence, the crew received a low oil pressure warning, the take‑off was aborted, and the aircraft was stopped on the runway. Air Traffic Control ("ATC") and the cabin crew were then advised. However, F/O Guzzo did not initiate the memory items required for the engine shutdown until the Pilot Not Flying ("PNF") twice reminded him to do so.

(e) 24. Engine Failed to Start

[17] One of the two memory items required, however, in this situation was not completed by F/O Guzzo in a timely manner. He did select the condition lever to ‘Fuel Off', yet he failed to change the start select switch to ‘Off' until much later.

[18] F/O Guzzo also seemed not to have recognized this failure. In fact, he told the Porter Maintenance Operation Control Centre ("MOCC"), again represented by Captain Ruggiero, that it was a hung start with excessive Inlet Turbine Temperature ("ITT"). Captain Ruggiero's notes indicate the ITT as less than 50 degrees, and, under cross-examination, he stated that F/O Guzzo's description of the fault was not in agreement with what he had programmed into the simulator.

(f) Cross-examination

[19] Under cross‑examination, Captain Ruggiero testified that he was around 10 minutes late because he had been assigned to conduct the check ride about an hour and a half before it was to take place, as the initial ACP was unable to make it. He could not remember commenting on the consequences of a failure prior to entering the simulator.

[20] Captain Ruggiero was asked why he did not allow F/O Guzzo to repeat the exercise involving the V1 engine failure (# 22), given that it had been marked a Basic Standard (‘2') and not a Below Standard grade (‘1'). He referred to the Flight Test Guide (Exhibit M‑3) on page 8. Under the heading, "Partial and Retest", it states that "…the ACP may allow a candidate to repeat a failed item if no other sequence in the PPC is rated a ‘(2)' or ‘(1)' (emphasis in original)". His decision was not to repeat the exercise due to the other Basic Standard marks that F/O Guzzo had already received.

[21] Captain Ruggiero and the Applicant's representative had a lengthy discussion concerning the time when F/O Guzzo called SOCC for information on the wind limitations for the CATII ILS approach, and Captain Ruggiero responded that F/O Guzzo had to decide on his own with whatever criteria he had on board. He explained that, even though Porter has shared dispatch authority, once airborne, the Pilot-in-Command ("PIC") must make all final decisions. He again stated that F/O Guzzo never referred to the Crosswind Chart in the Porter Dash 8 Q400 QRH (Exhibit M‑13). He recalled that F/O Michael Stevens advised, two or three times, that they could accept the approach despite the winds.

[22] When asked if, at any time during the check ride, he told F/O Stevens that he was not to assist F/O Guzzo, or not to make as many suggestions to him, Captain Ruggiero replied that he could not recall.

[23] Returning to the CATII ILS approach, Captain Ruggiero indicated that the first missed approach occurred because the crew had not seen the required CATII ILS annunciation on the Primary Flight Display ("PFD") at 1 200 feet. He stated that that failure had not been programmed into the simulator. Once the missed approach procedure had been completed, he repositioned them to again fly the CATII ILS approach to the scripted missed approach. They were then repositioned once more for the final CATII ILS approach in the scripted landing portion of the check ride.

[24] Captain Ruggiero did not recall the simulator having technical malfunctions nor technicians needing to reset it.

[25] After the CATII ILS landing, Captain Ruggiero told the crew that everyone would be taking a short break. F/Os Guzzo and Stevens went to the coffee room while he phoned the Chief Pilot to inform him that he had assessed F/O Guzzo's check ride as a failure.

[26] The crew was then brought to the debriefing room. It appeared to Captain Ruggiero that F/O Guzzo realized the check ride had not gone well, and he described him as "shaken up". Captain Ruggiero testified that he believes F/O Guzzo was the first to be informed that he had failed his check ride, but also stated that he had told F/O Stevens that he was stopping the check ride, and that he felt "somewhat bad" because the second portion of the testing, F/O Stevens' check ride, would not take place.

[27] Captain Ruggiero disagreed that F/O Guzzo knew the check ride had been failed prior to the debriefing, stating "[h]e didn't find out from the other pilot. He found out from me".

[28] The debriefing was conducted with guidance from the notes Captain Ruggiero had taken during the check ride (Exhibit M‑10), not the Flight Test Report (Exhibit M‑9), which was completed later that evening. The crew was advised that the Flight Test Report would be available in the Chief Pilot's office the following morning.

[29] In Captain Ruggiero's own words, "[i]t was a difficult debriefing". He believes that F/O Guzzo had already decided he was in full disagreement with the failing points of the check ride, and that he was not open to the debriefing, several times even stating "[j]ust write it up". He was upset about the length of the check ride and expressed that it was impossible to perform well on a three‑hour check ride.

[30] When told by Captain Ruggiero that one of the issues was not completing required memory items, F/O Guzzo's reply was "[s]o what?"

[31] Captain Ruggiero agreed that there is a lot of pressure on all check rides, including an upgrade to captain. He is aware that Porter has internal policies as to how it handles upgrade failures with regard to company seniority lists, but believes that that is at the discretion of the Chief Pilot. He emphasized the fact that, in his position as an ACP, he is not an employee of a company. His primary obligation as an ACP is to the Minister to ensure the safety of the flying public.

[32] Captain Ruggiero believes that the crew in this check ride was held to the same Transport Canada standards as any other crew at Porter.

[33] He did not recall rushing the crew; however, he believes that the crew plays a large part in determining the length of check rides.

B. Applicant

(1) F/O Anthony Michael Guzzo

[34] F/O Guzzo has been flying for fifteen years for a total of 5 700 hours, and has flown for Porter since November 2007.

[35] Under direct examination, F/O Guzzo testified that he turned down the first offer from Porter to upgrade to captain due to family issues. When the offer was made again by Porter, he agreed but was apprehensive from the moment of signing because of the seniority/failure issue. During the telephone conversation, F/O Guzzo was requested to confirm in writing that he was aware that, were he to fail the upgrade check ride, he would have to wait a year to attempt it again, and he would lose his seniority.

[36] F/O Guzzo further testified that Captain Ruggiero had conducted an F/O check ride on him in November, and that it had "[gone] well".

[37] Captain Ruggiero was late for the check ride because the ACP scheduled to conduct the check ride could not make it, and he had been called in at the last minute. Prior to the start of the check ride, F/O Guzzo stated that Captain Ruggiero mentioned to them that some people at Porter do not approve of his methods, implying that he is too "tough and unfair".

[38] F/O Guzzo felt that Captain Ruggiero's words added stress to the check ride environment.

[39] When asked to describe his response to the LAHSO question, F/O Guzzo testified that he "blurted out 4 500 feet" then "quickly said, ‘yes, we can do it'". He claims to have known that 4 500 feet was the number in the LAHSO "program" (Flight Operations Bulletin, Exhibit M‑11), but wishes he would have "thought about it".

[40] Due to Captain Ruggiero's comments prior to the check ride, he was, "a little bit on edge and little bit stressed". Regarding Captain Ruggiero asking him if he was sure he could accept the LAHSO clearance, F/O Guzzo testified that, "[w]hat ended up happening was that I stuck with my original answer, and then I said to him - I pulled out the actual FOB bulletin [Flight Operations Bulletin] and realized that 4 500 was the minimum." He indicated this to the others in the room, though they already knew that it was not permitted.

[41] When asked to describe the engine start failure scenario, F/O Guzzo testified that, after introducing fuel to the engine, he noticed some ITT and that the NH (high pressure compressor) was around 20 percent. He then selected the condition lever to fuel off and the start select to a neutral/off position. He then called for the Aborted Engine Start checklist (found in Exhibit M‑13), and "verified that everything was in the proper spot". He emphasized that, "[a]t no point did we touch anything".

[42] He then recalled F/O Stevens completing the Aborted Engine Start checklist, stating that he "actually saw" him looking at the condition lever and start select switch positions. His next action was to call SOCC and MOCC to advise them that the aircraft had a hung start, with the NH at 20 percent and some ITT. When asked by the Applicant's representative if he now realized that it was not a hung start, he replied, "[n]o, but the first indication that I saw a problem and went back, I knew it had to do with the aborted start. As soon as I saw the 20, that is something that is not normal, and I just wanted to put the condition fuel in the off position."

[43] He further testified that the ITT "was not high", and could not recall seeing any fuel flow.

[44] The next sequence discussed involved the two rejected take-offs ("RTOs"). He recalled the first RTO as having been successfully completed, but admitted that F/O Stevens had reminded him to shut down the engine.

[45] The second RTO occurred because F/O Guzzo believed he had a flat tire. The ACP confirmed that that fault had not been programmed, and reset the simulator for the next take-off.

[46] Concerning the 600 RVR take-off, this time with an engine failure at V1, he did not recall much other than thinking he had made the proper corrections. He also stated that "at no point did I ever hear" F/O Stevens calling for heading corrections.

[47] F/O Guzzo also explained his perception of the CATII ILS approach to Runway 05, for which he received a Basic Standard grade. Once he had realized there was a tailwind component, he tried to use all his resources. First, he asked for a runway change, then he attempted to contact SOCC; finally, he asked F/O Stevens for information on the crosswind component. He also asked ATC for delaying vectors while he tried to organize himself. F/O Stevens was flying the aircraft on the Pilot-Monitored Approach ("PMA") and, according to F/O Guzzo, "at that point wasn't saying too much". He did eventually state that the crosswind component was "okay", but only after F/O Guzzo had used his Electronic Flight Calculator to examine it and found that they could attempt the approach.

[48] F/O Guzzo did not use the Porter Dash 8 QRH (Exhibit M‑13) to solve the crosswind problem.

[49] He was frustrated that there seemed to be a lack of cooperation from F/O Stevens, even prior to the CATII ILS approach. F/O Stevens seemed to be paying a lot of attention to Captain Ruggiero in the back of the simulator.

[50] As the approach continued, F/O Stevens announced that they had not received the required Dual Flight Detector message at 1200 feet AGL, so F/O Guzzo elected to go around. There seems to have been some confusion as to whether this message was correctly identified. At any rate, the simulator was reset and another CATII ILS approach was flown.

[51] The final CATII ILS approach was flown from where the landing in question was performed. When asked by the Applicant's representative if he was "happy" with the landing, F/O Guzzo testified that he was under a lot of stress and fatigue due to the way the whole CATII ILS issue had been handled. He recalled the total time for the check ride as having been 3.15 hours.

[52] Once the landing from the CATII ILS approach had been completed, Captain Ruggiero told the pilots not to look at his notes and left the simulator. On the way back to the debriefing room, Captain Ruggiero informed F/O Guzzo that the check ride had been failed. F/O Stevens was waiting in the debriefing room and, by his body language, it seemed apparent to F/O Guzzo that he already knew about the failure.

[53] Captain Ruggiero debriefed F/O Guzzo using the notes he had prepared during the check ride. F/O Guzzo testified that it was not clear to him why he had failed, although he did assume several "things" would have been at issue, such as his actions during the 600 RVR take‑off with an engine failure at V1. After examining the Flight Test Report (Exhibit M‑9), completed after the debriefing, he realized that "things" had been discussed during the debriefing for which he had not received a Basic Standard grade.

[54] After the debriefing, F/O Guzzo asked F/O Stevens why he had not been that helpful during certain portions of the check ride. F/O Stevens informed him that, at some point Captain Ruggiero had passed him a note asking him, as paraphrased by F/O Guzzo, "not to say much and just to stay low".

[55] When asked by the Applicant's representative whether he felt he was, "under unusual pressure and stress for the conduct of this ride, more than any other one you had been on", F/O Guzzo replied, "[d]efinitely, because this stemmed from other issues".

[56] F/O Guzzo further stated that he was unaware he had the right to appeal to the regional office of Transport Canada and, although he was aware of his right to appeal to the Transportation Appeal Tribunal of Canada ("Tribunal"), he was not cognisant of the 30‑day time limit.

(2) F/O Michael David Stevens

[57] F/O Stevens has been flying for 12 years and has been with Porter since August 18, 2008. He agreed that an upgrade to captain is a major event due to the potential pay increase, as well as the negative consequences of a failure. He stated that he was not upset by the last minute ACP change because he "felt confident [he] was ready for the ride…" When asked if Captain Ruggiero had a particular reputation at Porter as an ACP, he replied that he believes he is not different from the company's other ACPs.

[58] His description of the check ride was rather general. With regard to the LAHSO question, he did recall 4 500 feet being "blurted out", but could not remember when.

[59] He agreed that F/O Guzzo identified the engine start malfunction as a hung start and, to his "best recollection", F/O Guzzo had moved the start select switch to ‘Off'. He did not think there was an abnormal delay in completing the Aborted Engine Start checklist, which he, as PNF, completed. He also recalled F/O Guzzo speaking to SOCC to inform them about the malfunction.

[60] Regarding the 600 RVR take-off which resulted in an RTO due to low oil pressure, F/O Stevens stated that he "may have prompted [F/O] Guzzo to shut the engine down". He also recalled the second RTO as occurring because F/O Guzzo felt that "something didn't feel correct".

[61] Concerning the 600 RVR take-off with an engine failure at V1, he did remember having a "little" bank angle and that he "mentioned" heading. He could not recall the specific bank angle, but testified that it was stabilized by flap retraction; the rest of the procedure went "fine".

[62] As for the CATII ILS approach to Runway 05, he recalled F/O Guzzo looking at the chart and, supposing that he might have encountered difficulties in interpreting it, suggested that F/O Guzzo call SOCC. They were informed by Captain Ruggiero that SOCC was not an available resource. He testified that F/O Guzzo might have solved the problem on his calculator.

[63] About halfway through the check ride, F/O Stevens was handed a note by Captain Ruggiero requesting that he "tone down", as paraphrased by F/O Stevens. He assumed that it could have meant he was being "too verbal" or that he wanted F/O Guzzo to "take more leadership".

[64] After the CATII ILS approaches had commenced, F/O Stevens recalled not having the Dual Flight Detector message, and the missed approach that followed. In the confusion that followed, it seemed to F/O Stevens that the scenario had not been programmed into the simulator, and the pilots were repositioned for another approach, which was completed according to the script.

[65] The final scripted CATII ILS approach, from which a landing was performed, did include a bank angle warning; however, that is about all he could recall.

[66] He does not feel that they were being rushed with regard to the repositioning during this portion of the check ride. He felt Captain Ruggiero was just trying to be efficient in conducting the exercise. He did, however, find the three hours it took for this portion of the ride to be long and frustrating.

[67] After the break that followed the check ride, Captain Ruggiero called F/O Stevens into the debriefing room and informed him that the check ride was stopped, and that they would be debriefing. At that point he realized that F/O Guzzo had failed his check ride. The crew was debriefed from Captain Ruggiero's notes, which mentioned the points on which F/O Guzzo had been deficient. He did not recall if the Basic Standard grades were mentioned or identified.

IV. DISCUSSION

[68] Although I agree that an ACP must create an environment that allows the crew to work to their best ability, I have not heard anything out of context in this check ride.

[69] The fact that Captain Ruggiero was late for the check ride was not his fault and, that in itself, should not have caused a problem. F/O Stevens did not express any issues concerning the change of ACP, or with anything Captain Ruggiero said prior to the check ride. F/O Guzzo did, however, take issue with some of what he said.

[70] I have not heard anything in evidence regarding what was said or done prior to the check ride that would have caused abnormal stress.

[71] I now address each of the failing points for which F/O Guzzo received a Basic Standard grade.

A. 2. Flight Planning

(1) LAHSO

[72] Captain Ruggiero testified that F/O Guzzo responded that he was indeed able to accept the LAHSO clearance with 4 200 feet of available runway and, furthermore, that F/O Guzzo, at no time, referred to the Flight Operations Bulletin (Exhibit M‑11).

[73] F/O Stevens remembered the LAHSO question being asked and the number 4 500 being given, but is not sure at what point in the discussion. He also cannot recall if the Flight Operations Bulletin was referenced during the discussion.

[74] F/O Guzzo's testimony was a bit confusing when speaking to this event (‘A' refers to F/O Guzzo and ‘Q' to the Minister's representative):

A. I said at the time -- I blurted out 4,500 feet -- and I quickly said, "Yes, we can do it."

Q. 4,500 meaning --

A. I knew that was the number in the land and hold short program, but I should have thought about it. Because of his previous comments, I was a little bit on edge and little bit stressed.

Q. So you kind of got the 4,500 part --

A. I got the 4,500 part, and it was my mistake, seeing the other portion of it.

Q. Did you then look at the FOB?

A. What ended up happening after that, he queried me and said, "Are you sure?" At that point I wasn't 100 per cent sure what he meant by that statement. What ended up happening was that I stuck with my original answer, and then I said to him -- I pulled out the actual FOB bulletin and realized that 4,500 was the minimum.

[75] Due to F/O Guzzo's incorrect response to the LAHSO question, I have decided that this exercise was correctly graded as contributing to a Basic Standard mark under ‘Flight Planning'.

(2) CATII ILS Approach and Cross/Tailwind Issue

[76] Captain Ruggiero testified that F/O Guzzo seemed to be having difficulty accepting the CATII ILS approach based on the ‘out of wind' situation. A considerable amount of time elapsed. Having requested a runway change, and asked to speak to SOCC, F/O Guzzo was advised that he had to make his decision with the information available on board.

[77] Captain Ruggiero also testified that F/O Stevens twice or possibly thrice told F/O Guzzo that the approach was acceptable despite the wind, and furthermore, that F/O Guzzo never made reference to any other chart concerning the cross/tailwind situation.

[78] Concerning the requests for a runway change and to speak with SOCC, F/O Guzzo's testimony agreed with Captain Ruggiero's. F/O Guzzo recalled that, at this point in the check ride, F/O Stevens was generally being quiet; however, he did at some point state that the winds were acceptable, but that was only after F/O Guzzo had already used his Electronic Flight Calculator and found that the numbers worked for the approach.

[79] F/O Stevens testified that F/O Guzzo was concerned about the approach's tailwind and was having trouble interrupting the chart, and he suggested that F/O Guzzo might have solved the problem on his calculator.

[80] F/O Stevens also related that, about halfway through the ride, he was asked not to be so verbal and allow F/O Guzzo to take more leadership.

[81] This problem is fairly straight‑forward and, for a captain, asking for a runway change would be the first course of action. However, once a captain realizes he has no other options, he should be aware of the information in the QRH and how to use it without delay. This is one of the reasons the check ride took so long.

[82] I agree with Captain Ruggiero's logic that this event contributed to a Basic Standard grade under ‘Flight Planning'.

[83] At various times during the Hearing, I heard testimony that, essentially, F/O Stevens was asked by Captain Ruggiero not to be so verbal and allow F/O Guzzo to make more decisions. Although I fully support the Crew Resource Management ("CRM") concept, I also believe that a captain must possess the knowledge and ability to demonstrate decision-making capacity, and be in command of the aircraft and every situation it enters.

[84] An ACP cannot make an informed enough decision on the candidate's knowledge if he is receiving too much direction from the PNF. The candidate needs to show competency, not only in flying skills, but also in leadership, airmanship and knowledge.

[85] From what I have heard taking place on this check ride, I do not think CRM was interfered with. Captain Ruggiero was only asking for co-operation to better assess F/O Guzzo's performance as captain.

B. 18. Landing

[86] Captain Ruggiero described this landing off of the CATII ILS approach as "Dangerous!" He observed F/O Guzzo disconnect the autopilot and allow the aircraft to drift off the centerline to the point that a bank, which triggered the oral bank angle warning, was required to regain the runway. This was done very low to the runway.

[87] F/O Guzzo testified that he found the landing acceptable.

[88] F/O Stevens remembered hearing the bank angle warning during the landing.

[89] I agree with the Basic Standard grade given for this landing. From the facts presented by Captain Ruggiero and F/O Stevens, the aircraft drifted in the crosswind and the bank used was aggressive enough to trigger the aircraft's bank angle warning. This is not a safe manoeuvre at an altitude below 100 feet AGL in this reduced visibility.

C. 22. Engine Failure

[90] Captain Ruggiero testified that F/O Guzzo had difficulty with the directional control of the aircraft, both on the runway and once airborne. This resulted in a bank, triggering a bank angle warning, followed by more than 10 degrees of heading loss.

[91] F/O Guzzo thought that he had applied enough correction for the V1 cut, but did admit to hearing the bank angle warning.

[92] F/O Stevens remembered there being some bank, as well as possibly mentioning heading to F/O Guzzo. This manoeuvre was stabilized by flap retraction.

[93] I agree with a Basic Standard grade for this exercise.

D. 23. Low Oil Pressure Warning

[94] Captain Ruggiero testified that the RTO portion of this take-off sequence was completed acceptably; however, he stated that F/O Guzzo had to be reminded twice by F/O Stevens to shut the engine down. Both crew members, F/O Guzzo and F/O Stevens, gave similar testimony.

[95] As such, this exercise was properly graded a Basic Standard.

E. 24. Engine Failed to Start

[96] Captain Ruggiero testified that the second memory item was not initiated in an acceptable time frame. It was eventually completed once the Aborted Engine Start checklist was called for and finished. He estimated that the delay in selecting the start select switch to ‘Off' was around 30 to 60 seconds. From F/O Guzzo's description of the problem to MOCC, Captain Ruggiero believed that he had failed to recognize the problem.

[97] F/O Stevens does not believe there was a delay in completing the checklist, and he is not sure if the start select switch was selected to ‘Off' as a memory item. F/O Guzzo testified, however, that he completed both memory items before calling for the Aborted Engine Start checklist. Nevertheless, his description of what took place during this scenario is somewhat fragmented, and has placed doubt in my mind as to his version of this event.

[98] I have found that Captain Ruggiero's assessment of this event as warranting a Basic Standard grade is correct.

F. Further Discussion

[99] Although the check ride was long, I do not believe the ACP intended it to be. The events that unfolded appear to have been situations that normally take place while performing check rides in the simulator.

[100] F/O Guzzo testified that, although he was informed of his right to appeal to the Tribunal following the check ride, he was not told of the 30 day appeal limit. He did, in fact, start the process well within the time frame. I do not see an issue here.

[101] F/O Guzzo testified that he was unaware of the fact that he could request a retest at the Transport Canada regional office level. He also told those present that he contacted the ACP Program Manager for Ontario, and that this ACP told him he would be in contact with the Chief Pilot at Porter.

[102] The issue of Porter's policy regarding how a failed check ride affects a pilot's position on the Seniority List is outside the Tribunal's jurisdiction and cannot be addressed in this forum. The stress caused by this policy would affect all candidates for upgrade. F/O Guzzo was not singled out by this policy.

V. DETERMINATION

[103] In view of the above reasons, I confirm the Minister's decision to suspend the Applicant's Pilot Proficiency Check.

October 20, 2011

Richard F. Willems

Member


Appeal decision
J. Richard W. Hall, Dr. Roy Montgomery, Arnold Marvin Olson


Decision: March 28, 2013

Citation: Guzzo v. Canada (Minister of Transport), 2013 TATCE 6 (Appeal)

Heard in Toronto, Ontario, on October 16, 2012

APPEAL DECISION AND REASONS

Held: The Appeal is allowed, and the matter is referred back to the Minister of Transport for reconsideration.

I. BACKGROUND

[1] On December 17, 2010, the Minister of Transport (Minister) issued a Notice of Suspension (Notice) to the Appellant, Anthony Guzzo, pursuant to subsection 7.1(1) of the Aeronautics Act (Act), R.S.C., 1985, c. A‑2, for failing a Pilot Proficiency Check (PPC), after receiving five ratings of “2”. The PPC was conducted by Captain Giuseppe Ruggiero, Approved Check Pilot (ACP) for Porter Airlines.

[2] The Appellant applied to the Transportation Appeal Tribunal of Canada (Tribunal) for a review of the Minister's decision. The Review Member confirmed the Minister's decision to suspend the Appellant's PPC. The Appellant requested an appeal of this Determination.

[3] Prior to the Appeal Hearing, the Appellant submitted a Notice of Motion to the Tribunal seeking further disclosure. Specifically, the Appellant requested production of all correspondence within Transport Canada and between Transport Canada and Porter Airlines with regard to: a) the suitability of Captain Ruggiero as ACP; b) whether he should continue to act as ACP; and c) his cessation as ACP for Porter Airlines.

[4] In response to the Appellant's motion, the Minister argued that the Minister had fulfilled his obligations of disclosure, and that all documents relevant to the proceedings to which no special privilege apply had been disclosed to the Appellant.

[5] The Appellant replied to the Minister's submissions, arguing that he had not been provided with full disclosure and that full disclosure was necessary in order for him to provide full answer and defence.

[6] After considering the submissions of the parties, the Tribunal issued a Ruling on June 19, 2012, dismissing the Motion in part, but requiring the Minister to provide the Appellant with a list of documents in his possession pertaining to Mr. Ruggiero's cessation as an ACP at Porter Airlines, as well as an explanation as to why each document is privileged.

[7] As a result of this Ruling, the Minister provided correspondence dated July 4, 2012, identifying three documents in the Minister's possession and stating that each contained personal information as defined in section 3 of the Privacy Act, R.S.C., 1985, c. P-21 and as such could not be disclosed pursuant to section 8 of the Privacy Act.

II. REVIEW DETERMINATION

[8] The Review Determination, dated October 20, 2011, examined each of the five “2” ratings that the Appellant received on his PPC. The Review Member concluded that each “2” rating was reasonably given.

A. Flight Planning

[9] With regard to flight planning, the Review Member examined the ACP's reasons for assigning a “2” rating, those being an incorrect response to a question about Land and Hold Short Operations (LAHSO) clearance, as well as a problem with regard to a CAT II Instrument Landing System (ILS) approach in which the Appellant took a considerable amount of time in accepting the approach based on a cross/tailwind.

[10] With regard to the CAT II ILS approach, the Review Member considered the evidence provided by Captain Ruggiero that First Officer (F/O) Michael Stevens told the Appellant on two or three occasions that the approach was acceptable despite the wind. The Review Member found that asking for a runway change would be the first course of action in this instance, but after realizing he has no other options, a pilot should be aware of the information in the Porter Dash 8 Quick Reference Handbook and know how to use it without delay.

[11] The Review Member agreed with Captain Ruggiero's logic that the CAT II ILS approach contributed to a Basic Standard grade of “2” under Flight Planning.

[12] The Review Member then considered the Appellant's complaint regarding the ACP asking F/O Stevens to not be as verbal and to allow F/O Guzzo to make more decisions. The Review Member noted that although he supports the Crew Resource Management (CRM) concept, he believes nonetheless that a Captain must possess the knowledge and ability for decision-making and being in command of the aircraft at all times. He noted further that an ACP cannot make an informed decision on the candidate's knowledge if the candidate is receiving too much direction from the Pilot Not Flying (PNF). According to the Review Member, “the candidate needs to show competency, not only in flying skills, but also in leadership, airmanship and knowledge.” The Review Member determined that the CRM was not interfered with in this case.

B. Landing

[13] The Review Member noted that Captain Ruggiero described the landing of the CAT II ILS approach as “Dangerous!”, and considered his testimony that F/O Guzzo disconnected the autopilot and allowed the aircraft to drift off the centerline to a point that a bank was required to regain the runway, which triggered the oral bank warning. This occurred low on the runway. The Review Member agreed with the Basic Standard grade given for this landing. According to the Review Member, “this is not a safe manoeuvre at an altitude below 100 feet AGL in this reduced visibility”.

C. Engine Failure

[14] In examining this “2” rating, the Review Member considered Captain Ruggiero's testimony that F/O Guzzo had difficulty with directional control of the aircraft when on the runway and while in the air. This resulted in a bank and a bank angle warning. The Review Member agreed with the “2” rating for this exercise.

D. Low Oil Pressure Warning

[15] While Captain Ruggiero testified that a portion of this take-off sequence was completed acceptably, he notes that F/O Guzzo had to be reminded on two occasions by F/O Stevens to shut the engine down. This testimony was consistent with that given by F/O Guzzo and F/O Stevens. As such, the Review Member found that this exercise had been properly graded a Basic Standard grade of “2”.

E. Engine Failed to Start

[16] Captain Ruggiero also testified that there was an unacceptable delay of between 30-60 seconds in switching the start select switch to ‘Off'. Moreover, Captain Ruggiero testified that based on F/O Guzzo's description of the problem to the Maintenance Operation Control Centre (MOCC), it seemed that he had failed to recognize the problem. This testimony was contrasted, however, with that of F/O Stevens who did not recall a delay in completing the checklist, as well as that of F/O Guzzo who testified that he completed both memory items prior to calling for the Aborted Engine Start checklist. Nevertheless, the Review Member found Captain Ruggiero's testimony to be more credible than that of F/O Guzzo, finding that F/O Guzzo's description of what occurred was “somewhat fragmented, and has placed doubt in my mind as to his version of this event”. Consequently, the Review Member determined that this event warranted the Basic Standard grade of “2” assigned by the ACP.

F. Tribunal Jurisdiction

[17] The Review Member acknowledged the Appellant's concern with Porter's policy regarding the effect of a failed check ride on a pilot's position on the Seniority List, but noted that this issue is outside of the Tribunal's jurisdiction. Moreover, the Review Member found that “the stress caused by this policy would affect all candidates for upgrade. F/O Guzzo was not singled out by this policy.”

G. Conclusion

[18] For these reasons, the Review Member confirmed the Minister's decision to suspend the Appellant's PPC.

III. GROUNDS FOR APPEAL

[19] The Appellant filed a Request for Appeal on several grounds, including that:

  1. The ACP created and aggravated a hostile flight test environment;
  2. The ACP improperly interfered with the flight test;
  3. The ACP misapplied an alleged error to the incorrect flight test exercise;
  4. The ACP used his own standards rather than those in the Flight Test Guide;
  5. The ACP failed to exercise his discretion reasonably; and
  6. The flight test was never completed.

IV. ISSUES

[20] In considering the grounds for appeal submitted by the Appellant, the Appeal Panel has determined that the issues to be considered on Appeal are as follows:

  1. What is the appropriate standard of review?
  2. Was there a reasonable apprehension of bias or an unfair test environment? If so, did the Review Member address this point satisfactorily?
  3. Did the ACP improperly interfere with the flight test?
  4. Did the ACP err in considering the CAT II ILS approach as part of the flight planning exercise? If so, was the Review Member's determination on this point reasonable?

V.  ARGUMENTS

A.  Appellant

(1) Fairness

[21] The Appellant submits that fairness is of the utmost importance in this case because of the serious ramifications a PPC suspension will have on the Appellant's career. Furthermore, the Appellant contends that strict adherence to the Approved Check Pilot Manual (ACP Manual) is required during a PPC to mitigate any potential conflicts of interest.

(2) Avoid creating stress and apprehension

[22] Section 4.5.1. of the ACP Manual notes that “ACPs should conduct themselves in a professional manner and avoid adding to the stress of the test.” The ACP Manual also notes that the attitude of the ACP can greatly affect the outcome of the test, and states that if the ACP creates a negative and stressful environment for the PPC, then the flight test will not be fair.

[23] The Appellant contends that the ACP made highly inappropriate remarks to F/O Guzzo in the month prior to the PPC, involving a link between speaking one's mind about the company and one's chance of success on an upgrade. These comments suggest that if F/O Guzzo chooses to speak his mind, the result of his upgrade PPC could be affected. The Appellant submits that this sort of inappropriate statement would, to a reasonably informed pilot, create the impression that the ACP was prepared to allow the Appellant's behaviour with the company to influence the outcome of a PPC. Moreover, the ACP compounded the stress of the situation by stating that some people think he is “tough and unfair” as an ACP, just prior to the PPC taking place.

[24] Furthermore, the Appellant submits that the ACP failed to properly evaluate the PPC and committed severity errors in his evaluation by testing the Appellant against his own set of standards rather than the published set of standards.

[25] The Appellant submits that the Review Member failed to appreciate the evidence before him with regard to the unfairness of the flight test environment and asks that the Review Determination be overturned on Appeal.

(3) Flight Crew Concept

[26] The Appellant submits that the ACP Manual makes it clear that the objective of a PPC is to assess joint performance. Indeed, the evaluation process does not focus on an individual pilot, but rather on how the crew works together. This is compatible with the principle that a PPC should be conducted in a manner which simulates actual line operating conditions as much as possible. In line operations, the crew members rely on each other.

[27] The Appellant submits that scripted PPCs must provide a positive and realistic experience. Any flight test which is not conducted in accordance with the flight crew concept and proper CRM principles will be less realistic, have added stress, and be in violation of the ACP Manual.

(4) The ACP improperly interfered with the Flight Test

[28] The Appellant contends that the ACP's interference with the PPC violated the requirements to maintain a realistic flight environment and to conduct the PPC under the flight crew concept. The Appellant notes that the Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide (Flight Test Guide) provides that one of the criteria for evaluation is “whether some items are only addressed when challenged or prompted by other crewmembers”. If this is observed, the ACP is entitled to grade this exercise a “2”. As a result, the Appellant submits that there is no need for any extraordinary evaluative procedure such as that undertaken by the ACP in this case. Furthermore, the Appellant contends that an ACP is not allowed to deviate from the ACP Manual simply because he feels that another procedure provides a better means of evaluation.

[29] With regard to the ACP passing F/O Stevens a note during the PPC, the Appellant stated: “it is not knowable [sic] whether this secret note affected only the exercise in progress, or subsequent exercises as well. It is therefore not safe to conclude that the secret instruction did not taint the remainder of the PPC.”

(5) Each flight check item must be evaluated discretely

[30] The Appellant cites the Flight Test Guide as stating that a candidate cannot be failed on the basis of an overall impression of weakness. Rather, a flight test is failed by receiving one mark of “1” (below standard) or five marks of “2” (basic standard). The Appellant contends that it would be unfair if an error occurring in one exercise was considered when grading another exercise.

[31] The ACP provided evidence that he graded the Appellant's flight planning exercise a rating of “2” based on a combination of: a) an error in calculating the appropriate LAHSO distance; and b) a lack of understanding of the crosswind and tailwind limits for a CAT II ILS approach. The Appellant argues that it took both errors to establish the “2” rating, and that one error alone would not have been sufficient to earn the rating.

[32] While the first error occurred in the planning stage, the second alleged problem occurred when the aircraft was in flight, during the CAT II ILS approach exercise. The Appellant notes that each exercise must be evaluated discretely, and that it is erroneous to consider events occurring during one exercise when assessing another. The Appellant argues that there is to be no carry-over from one exercise to another, and that the ACP Manual states this is especially true if the two flight check items being assessed are similar or related.

[33] In this case, the ACP erred by carrying a perceived shortcoming in the current exercise back into his evaluation of an exercise that was already finished. The Appellant alleges that this resulted in F/O Guzzo being assessed two separate “2” ratings for the CAT II ILS approach exercise, when only one grade is permissible for each exercise.

[34] Consequently, the Appellant submits that the ACP stopped the flight test and assigned a failing grade when F/O Guzzo had only accumulated four “2” ratings rather than the five required to merit stopping the PPC.

(6) Conclusion

[35] The Appellant submits that the Review Member erred in finding that the ACP properly assessed the flight test as a failure and consequently suspended the Appellant's PPC. The Appellant suggests that the flight test was terminated without proper grounds for assessing a failure, and that the flight test could only have been assessed as incomplete. As such, the Appellant requests that the Tribunal refer the PPC suspension back to the Minister for reconsideration.

B.  Minister

(1) Hostile test environment

[36] The Minister submits that the Review Member's finding with regard to the flight test environment was reasonable based on the evidence before him. The Review Member considered F/O Stevens' testimony with regard to not having an issue with Captain Ruggiero as ACP. Also, the Minister notes that the Review Member found little or no credibility in F/O Guzzo's evidence that Captain Ruggiero created a hostile flight test environment.

[37] While the Appellant contends that the ACP committed severity errors when rating his exercises, the Minister submits that there is no evidence of a pattern of severity errors. Rather, the Minister submits that Captain Ruggiero gave the benefit of the doubt to the Appellant on at least two occasions during the flight test by assessing his performance at a “2” rating instead of a “1”.

[38] The Minister submits that the Appellant's incorrect response to the LAHSO question was enough to assess a “2” rating, and that taking the CAT II crosswind and tailwind limits into account did not result in two exercises being graded a “2”. According to the Minister, “if anything, had the calculation of the CAT II crosswind and tailwind limits been successful, this could have resulted in a higher mark for flight planning which would have been beneficial to the Appellant.”

(2) ACP used his own standards

[39] The Appellant contends that the ACP used his own standards rather than those in the Flight Test Guide. However, the Minister submits that the Appellant failed to demonstrate that he had satisfactory knowledge and ability to safely handle malfunctions or perform the necessary procedures. Specifically, the Appellant failed to initiate the second memory item in an acceptable time frame and did not promptly identify the malfunction.

[40] Moreover, even though the Flight Test Guide does not refer to the Communication with the MOCC as being a performance criterion, it can nonetheless be used to assess knowledge.

[41] The Review Member found that the Appellant was properly assessed a “2” rating because the second memory item was not initiated within a reasonable time frame. The Review Member considered the Appellant's lack of knowledge in his description of the problem to the MOCC as supporting a “2” rating.

[42] The Minister submits that the Review Member's findings of fact were reasonable and should not be overturned.

(3) Failure to exercise his discretion reasonably

[43] The Flight Test Guide states that the ACP can only allow a candidate to repeat a failed item (marked as a “1”) if no other item is marked as a “2” or “1”. As such, the Minister contends that the ACP could not have allowed the Appellant to repeat an item marked as a “2”. While the ACP Manual provides for a repeat of a “2” later during the flight check at the discretion of the ACP, the ACP exercised his discretion to not repeat these exercises reasonably and in good faith.

(4) Flight test was never completed

[44] The Minister submits that the Appellant has erred in stating that the flight test was never completed. Rather, the ACP properly terminated the flight check pursuant to the Flight Test Guide because the Appellant had five items graded as a “2”.

(5) Determination supported by evidence

[45] The Minister submits that the Review Member's findings are supported by the evidence before him, and that his Determination is within a range of reasonable outcomes which are defensible in respect to the facts and law. As such, the Minister contends that the Appeal should be dismissed.

VI.  ANALYSIS

A.  Issue 1 What is the Appropriate Standard of Review?

[46] Before reviewing a determination of a Review Member, the Appeal Panel must first determine the standard of review upon which to examine the determination. The Supreme Court held in Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 57, that a standard of review analysis need not be repeated if the issue has been previously determined.

[47] In Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17¸ the Federal Court considered the appropriate standard of review for Tribunal decisions. The Federal Court determined that when reviewing questions of fact and credibility, the Appeal Panel owes considerable deference to the Tribunal Member. However, where issues of law are concerned, no deference is due to the Review Member and the Appeal Panel may make its own findings.

[48] With regard to determining whether there was a reasonable apprehension of bias or a prejudicial test environment in this case, the Appeal Panel must examine the Review Member's findings on this issue within the context of the facts before him. It is on this basis that the Appeal Panel must determine whether the Review Member's findings on this issue were reasonable. A similar approach is necessary in determining whether the ACP improperly interfered with the flight test.

[49] The final issue requiring examination by the Appeal Panel is the ACP's decision to consider the CAT II ILS approach as a part of the flight planning exercise. The Appeal Panel finds this to be a two-pronged issue that requires both an assessment of whether the ACP erred in considering the CAT II ILS approach under flight planning, and an examination of the reasonability of the approach taken by the Review Member on this issue.

B.  Issue 2 Was there a reasonable apprehension of bias and/or an unfair test environment?

[50] With regard to the test environment, the Review Member found that “although I agree that an ACP must create an environment that allows the crew to work to their best ability, I have not heard anything out of context in this check ride”. The Review Member also found that “I have not heard anything in evidence regarding what was said or done prior to the check ride that would have caused abnormal stress”.

[51] While the Appellant argues that the test environment was tainted in this instance, the Appeal Panel finds the Review Member's findings on this issue to be reasonable. While the Appellant testified that he experienced some stress during the check ride, this is not abnormal. Indeed, the Appeal Panel concurs with the Review Member that some stress or anxiety with regard to the PPC process is completely normal. There was nothing in the way that this check ride was conducted that made the situation so stressful as to be unfair to the Appellant.

[52] Moreover, the Appellant has not demonstrated a reasonable apprehension of bias, or that a reasonably informed person would believe there to be a likelihood of bias under these circumstances. While the Appellant claims that the comment made by the ACP at a time and place prior to the check ride constituted a threat, the Appeal Panel is not convinced that a reasonably informed person would have felt similarly. Indeed, simply because the Appellant interpreted these comments as a threat does not mean that an objective observer would reach the same conclusion.

[53] Furthermore, the Appeal Panel notes that the ACP was quite fair in grading the Appellant's check ride, which is demonstrated by the Appellant's check ride scores. For example, the Appeal Panel notes that exercises 18 and 24 could have reasonably been marked as a “1” rating based on the Appellant's performance. However, the ACP appears to have given the Appellant the benefit of the doubt and marked these exercises as a “2” instead.

[54] Based on the evidence before the Appeal Panel, the Appellant was held to the same standard as any other pilot at Porter Airlines. The Review Member was reasonable in his assessment of the fairness of the Appellant's check ride, and the Appeal Panel will not interfere with his findings on this point.

C.  Issue 3 – Did the ACP improperly interfere with the flight test?

[55] With regard to the ACP passing F/O Stevens a note during the PPC, the Review Member noted that “an ACP cannot make an informed enough decision on the candidate's knowledge if he is receiving too much direction from the PNF. The candidate needs to show competency, not only in flying skills, but also in leadership, airmanship and knowledge.” Based on the facts of the case before him, the Review Member held that CRM had not been interfered with, and that the actions of the ACP were not inappropriate in order to properly assess F/O Guzzo as a captain.

[56] The Appeal Panel concurs with the Review Member's findings that the note passed from the ACP to F/O Stevens was not inappropriate. Rather, the ACP passed the required information to F/O Stevens quietly and respectfully, but more importantly, out of necessity.

[57] Indeed, it is the ACP's responsibility to determine the candidate's ability in order to assess whether the pilot has the necessary skill requirements to maintain a type rating. In this case, the ACP passed the note to F/O Stevens in order to better assess F/O Guzzo's skills and abilities, as the ACP was not able to make a proper assessment due to the amount of direction being given to the Appellant by F/O Stevens.

[58] The Review Member considered the evidence before him on this issue and determined that the note passed from the ACP to F/O Stevens was not inappropriate. The Appeal Panel is of the opinion that the Review Member's findings on this issue were reasonable, and has determined that there is no need to interfere with these findings.

D.  Issue 4 – Did the ACP err in considering the CAT II ILS approach as part of the Flight Planning exercise? If so, was the Review Member's determination on this point reasonable?

[59] The Review Member did not find that the ACP erred in considering the CAT II ILS approach as a part of the flight planning exercise. Indeed, with regard to considering the CAT II ILS approach under the Flight Planning portion of the PPC, the Review Member noted that “I agree with Captain Ruggiero's logic that this event contributed to a Basic Standard grade under Flight Planning”.

[60] However, the Appeal Panel disagrees and cannot uphold this finding. According to page 15 of the Flight Test Guide (Exhibit M-3), the Flight Planning portion of the PPC has as its aim to:

Determine the candidate's ability to plan a flight utilizing performance charts, weight and balance calculations, conforming to the VFR or IFR flight rules as applicable and retrieving and interpreting aviation weather information necessary for the safe conduct of the flight.

[61] Notably, the performance criteria laid out in the Flight Test Guide for the Flight Planning exercise includes repeated references to the “proposed flight” and the “planned flight”. None of the criteria specified in the Flight Test Guide contemplates using incidents occurring in-flight to assist in rating the Flight Planning portion of the check ride.

[62] Two items were considered by the ACP in assessing the “2” rating to the Flight Planning portion of the check ride: the LAHSO and the CAT II ILS Approach. Clear evidence was provided that the decision to award a “2” was not made until the CAT II ILS approach. The ACP used both of these elements to make a decision. Eliminating one, the Appeal Panel cannot evaluate the other remaining element to determine if it alone was adequate. This rating was given, in part, based on the improper practice of considering the CAT II ILS approach as a part of the Flight Planning portion of the check ride. Consequently, the “2” rating associated with this exercise cannot stand.

[63] The Appeal Panel has determined that the ACP erred in considering the CAT II ILS approach under the Flight Planning portion of the check ride. As the Review Member agreed with the ACP's faulty approach, the Appeal Panel cannot uphold the Review Member's findings as being reasonable.

E.  Concluding Comments

[64] In this instance, the ACP stopped the check ride after having assessed five ratings of “2”, albeit incorrectly. As such, even if the remainder of the check ride findings is well within the range of reasonable outcomes, the Appeal Panel cannot uphold the check ride results, since one of the “2” ratings was based in error.

[65] In addition to making its Decision on the merits of this Appeal, the Appeal Panel also wishes to emphasize the importance of proper training for ACPs. In PPC situations where an individual's livelihood is at stake, it is important for ACPs to be well versed in the application of the Flight Test Guide as well as the ACP Manual. Of specific importance is the requirement to correctly allocate grades to the appropriate flight test exercise. In this case, the ACP made an error through the misallocation of a grade that resulted in the Appeal Panel not being able to sustain what may have otherwise been a reasonable Determination.

[66] The Appeal Panel acknowledges that the ACP's role is a difficult one. As the ACP Manual describes, “All ACPs are held to be in a ‘perceived conflict of interest' if they are simultaneously employees…of the company and delegates of the Minister when performing their checking duties”. Assessing a failure of a fellow employee and recognizing the lasting career implications of such a failure, is a difficult and courageous decision. ACPs, like Captain Ruggiero, are on the front line in ensuring the airworthiness of pilots whose skills are being assessed and, in performing this important function, are maintaining and protecting air safety. In this very important role, the ACPs also protect the travelling public from unsuitable pilot candidates.

[67] Just as the Appeal Panel's Decision should not be read as a criticism of Captain Ruggiero's ACP performance, allowing F/O Guzzo's Appeal, it should not be read as an endorsement of F/O Guzzo's air competency. The Appeal Panel notes that F/O Guzzo received five “2” ratings during the PPC assessment, four of which were upheld by the Appeal Panel. One more valid “2” rating would have resulted in F/O Guzzo failing the PPC. But for an error in assessment procedure, the PPC results would have stood. However, F/O Guzzo's air competency can only thoroughly be assessed during the PPC process.

[68] Furthermore, the Appeal Panel notes that this Decision reveals an inconsistency in the Flight Test Guide as it relates to the requirement to immediately terminate a check ride in the event of the accumulation of five “2” ratings. As obiter, the Appeal Panel respectfully suggests a thorough review of this requirement by Transport Canada. The Flight Test Guide specifies that “… [a] PPC that has five or more sequences or items assessed as “(2)” will also receive a General Assessment of “Failed”. A difficulty arises when the Flight Test Guide also states, “once an ACP decides that a pilot has failed during the course of a PPC, he will terminate the flight check”. Thus, there can never be more than five “2” ratings since the check ride must be terminated at five. It is possible that an examination of this policy could result in the ACP having discretion to continue the check ride and accumulate more than five “2” ratings, any five of which could result in an ACP's decision that a pilot had failed.

VII. DECISION

[69] The Appeal is allowed. The matter is referred back to the Minister of Transport for reconsideration.

March 28, 2013

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

Arnold Olson, Member

Concurred by: Dr. W. Roy Montgomery, Member