Decisions

TATC File No. W-3806-59
MoT File No. 5802-365962

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Marshall Makarowski, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Franco Pietracupa


Decision: December 2, 2011

Citation: Makarowski v. Canada (Minister of Transport), 2011 TATCE 31 (Review)

Heard in Edmonton, Alberta, on September 8, 2011

Held: The Minister of Transport has proven, on a balance of probabilities, that the Applicant, Marshall Makarowski, did not demonstrate the required standards for a Pilot Proficiency Check and Group 1 Instrument Rating, pursuant to subsection 7.1(1) of the Aeronautics Act.

I. BACKGROUND

[1] On July 8, 2011, the Minister of Transport ("Minister") issued a Notice of Suspension ("Notice") to the Applicant, Marshall Makarowski, informing him that he no longer demonstrated the required standards for a Pilot Proficiency Check ("PPC") and Group 1 Instrument Rating on a Beechcraft Super King Air 200 ("BE20") aircraft, pursuant to subsection 7.1(1) of the Aeronautics Act ("Act"). The Minister alleges that, during the check ride, the Applicant, flying as Pilot-in-Command (PIC), lost situational awareness during an entry to an assigned holding clearance. Consequently, he was unable to properly enter and establish the aircraft in a holding pattern.

[2] The Determination to be rendered by the Member must consider three issues:

  1. Whether the Applicant accepted, understood and complied with the holding clearance received by the crew and read back to air traffic control (ATC);
  2. Whether the Approved Check Pilot (ACP), William Thomas Colin Welsh, acting as ATC, provided accurate holding instructions, within accepted ATC phraseology and guidelines, to ensure that the crew was able to understand the holding clearance in full and that the ACP was able to identify and correct any possible errors or misunderstandings in the readback by the crew. As such, the Member must determine whether a Below Standard (‘1') mark was appropriate for check detail 13 of the Applicant's Flight Test Report, according to the four-point marking scale in the Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide (Aeroplane),TP 14727 ("Flight Test Guide"): Below Standard (‘1'), Basic Standard (‘2'), Standard (‘3'), and Above Standard (‘4');
  3. Whether the ACP followed the proper administrative procedures when he provided Mr. Makarowski with a copy of the failed Flight Test Report.

II. STATUTE, REGULATION AND POLICIES

[3] Subsection 7.1(1) of the Act reads as follows:

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.

[4] Subsection 602.31(1) of the Canadian Aviation Regulations (CARs), concerning compliance with ATC instructions and clearances, reads 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.

[5] The criteria for assessing a Below Standard (‘1') mark, according to the four-point marking scale found in the Flight Test Guide, read as follows:

When applying the 4-point scale, award the mark that best describes the weakest element(s) applicable to the candidate's performance. Remarks to support mark awards of 1 or 2 must link to a safety issue, a qualification standard (performance criteria), or an approved technique or procedure.

[…]

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.

  • Performance includes deviations that adversely affect the overall performance, are repeated, have excessive amplitude, or for which recognition and correction are excessively slow or nonexistent, or the aim of the task was not achieved.
  • Aircraft handling is rough or includes uncorrected or excessive deviations from specified limits.
  • Technical skills and knowledge reveal unacceptable levels of technical proficiency and/or depth of knowledge.
  • Behavior indicates lapses in situational awareness that are not identified or corrected by the pilot/crew.
  • Flight management skills are ineffective, unless continuously challenged or prompted by other crewmembers.
  • Safety of flight is compromised. Risk is unacceptably mitigated.

[6] Concerning ‘holding', the Flight Test Guide reads as follows:

13. HOLDING

Aim

Determine the candidate's ability to establish the aircraft in a holding pattern using an actual or simulated ATC clearance.

Description

In actual or simulated instrument conditions, the candidate must demonstrate adequate knowledge of a holding procedure for a standard or non-standard, published or non-published holding pattern….

Performance Criteria

Base the assessment on the candidate's ability to:

b. recognize arrival at the clearance limit or holding fix and initiate entry into the holding pattern;

c. follow appropriate entry procedures for a standard, nonstandard, published, or non-published holding pattern;

g. comply with the holding pattern leg length when a DME distance is specified;

III. EVIDENCE

A. Minister

(1) William Thomas Colin Welsh

[7] Mr. Welsh is the Kenn Borek Air ACP who conducted the check ride on Mr. Makarowski as PIC, and Natalie Ballinger as First Officer (F/O). Mr. Welsh has been employed with the company for 11 years and has accumulated almost 6 300 hours of flying time; he became an ACP in January, 2011. Mr. Welsh confirmed that a pre‑flight briefing was conducted prior to the check ride. During the check ride, Mr. Welsh informed the crew that he would be acting as ATC. He noted that the BE20 Captain PPC Script (Exhibit M‑2) that he used during the check ride is approved by Transport Canada.

[8] Mr. Welsh stated that the check ride had been uneventful and proceeding well up to and including an Instrument Landing System (ILS) approach and missed approach procedure. The crew was then advised to expect a holding clearance at the very high frequency omnidirectional range ("VOR") beacon at the Inuvik Mike Zubko Airport ("Airport"). The aircraft was approximately 32 miles from the VOR beacon when the crew received the holding instructions and clearance.

[9] Mr. Welsh stated that the holding clearance was received by the Pilot Not Flying (PNF), Ms. Ballinger, and that the required readback to him was accurate. After the readback, Mr. Makarowski transferred the controls of the aircraft to Ms. Ballinger and proceeded to brief her on the holding pattern to be used. The decision, based on the aircraft's position inbound to the VOR beacon, was to conduct a parallel entry and fly a holding pattern with 5‑nautical mile (nm) legs. Mr. Welsh testified that Ms. Ballinger seemed "unsure", but agreed.

[10] The crew requested that Mr. Welsh confirm the approach expected after the holding pattern. Mr. Welsh advised the crew to expect the VOR approach to Runway 24. Again, the readback to Mr. Welsh for the holding clearance was correct and the crew continued inbound. Around 10 nm from the VOR beacon, Mr. Welsh asked Mr. Makarowski what initial heading he would be taking once abeam the VOR beacon and Mr. Makarowski responded that he would be flying in at 243 degrees. This heading actually had the crew holding west of the VOR and not east as had been requested and accepted by the crew.

[11] The crew seemed unsure of the holding entry required to establish the aircraft in the assigned holding clearance. Once abeam the VOR, Mr. Makarowski proceeded to intercept the 063 radial outbound. The crew flew the radial outbound for approximately 5 nm. At that point, the check ride was terminated as this was not the holding clearance that had been assigned to and acknowledged by the crew and also due to the loss of situational awareness by Mr. Makarowski.

[12] Mr. Welsh testified that, during the debriefing, Mr. Makarowski mentioned that he had not heard the word ‘radial' during the initial holding clearance. Mr. Welsh informed the crew that they had both failed their respective check rides because they had lost situational awareness and were complacent in properly identifying and flying the instructed holding clearance. Mr. Welsh stated that the crew erred in that they did not fly the holding clearance as requested and accepted. He stated that he believes the crew may have flown the hold as a non‑directional beacon (NDB) track and not as a VOR radial. He believes that the crew did not properly brief on the holding entry procedure and that crew resource management (CRM) was lacking.

[13] Under cross‑examination, Mr. Welsh was asked if the flight was on a visual flight rules (VFR) plan and he responded affirmatively. Mr. Welsh was asked if the readback from Ms. Ballinger was correct and Mr. Welsh responded that she properly read back the holding clearance. Mr. Welsh also disclosed that he does not have an ATC licence, but agreed that he does his best to act as a proper ATC.

[14] Mr. Makarowski raised the issue of whether he had been due for training prior to taking the check ride. In response, Mr. Welsh confirmed that he was within the 90‑day window to conduct the check ride before Mr. Makarowski's previous PPC/IFR rating would expire.

[15] Under cross‑examination, the issue of the readback was also raised. Mr. Welsh testified that the holding clearance was transmitted to Ms. Ballinger on at least two occasions and read back to him correctly.

(2) Natalie Ballinger

[16] Ms. Ballinger testified that she was the F/O on the check ride and that she was the PNF during the check ride and on the radio at the time that the holding clearance was issued. She testified that her understanding and readback of the holding instructions were clear. She testified that, based on the present position to the VOR, she was briefed by Mr. Makarowski that an offset entry would be required in order to properly enter and hold on the cleared radial; she disagreed with the briefing but did not express her doubts.

[17] Ms. Ballinger testified that the crew asked ATC to repeat the holding instructions and that she understood the clearance was to hold east on radial 063. As well, a 5‑nm leg was requested and approved. During the briefing by the Applicant, Ms. Ballinger stated that there was confusion as to the entry and holding radial. The Applicant briefed that a parallel entry would be required in order to establish the aircraft in the assigned holding pattern. Ms. Ballinger believed that this would put the aircraft on the wrong side of the VOR, but voiced no objection.

[18] Furthermore, Ms. Ballinger agreed that the crew might have interpreted the clearance to hold on a radial for a clearance they might have received to hold on an NDB track. She has no issue with the decision to terminate the check ride.

[19] Under cross-examination, Ms. Ballinger was requested to read back the holding clearance she had received from the notes she had made regarding it (Exhibit A‑1). She read from her notes as follows: "We were cleared the present position to the Inuvik VOR to hold east inbound on the 0633 radial, left hand turn, maintain 2500 feet. Expect further clearance at 0015".

(3) Kevin Webber

[20] Kevin Webber was qualified to act as an expert witness in light of his 28 years of experience in instrument procedures and regulatory standards as both a pilot with the Canadian Forces, including Chief Training Pilot on a Hercules and as an Inspector with Transport Canada, his present occupation.

[21] Mr. Webber agreed that it is critical a crew follow clearances as required by the CARs. Mr. Webber testified that ATC instructions and clearances must be complied with by the PIC as received and accepted.

[22] Mr. Webber was asked to review the check ride terminology used by Mr. Welsh. He concluded that the phraseology and terminology used was correct. In his view, when the crew acknowledged and read back the holding clearance, it was understood by ATC that the crew would comply with all of the ATC instructions directed to and received by the PIC.

B. Applicant

(1) Marshall Makarowski

[23] Mr. Makarowski testified that the check ride was conducted without any training. Earlier testimony from Mr. Welsh indicated that the check ride was conducted within the allocated time period. Mr. Makarowski had requested training in the three‑month period prior to the check ride. He stated that on three separate occasions, from May through July 2011, training had been scheduled but was either delayed or cancelled.

[24] Mr. Makarowski further testified that Ms. Ballinger was the one who received the holding clearance. He stated that he had heard instructions to hold east inbound on ‘track' 063. Mr. Makarowski stated that he may have missed part of the communication and requested that ATC (Mr. Welsh) repeat the holding instructions. This was done, yet confusion persisted as to where to hold. Mr. Makarowski also stated that he attempted to communicate with ATC twice in order to clarify the holding clearance but no response was given to him; Mr. Welsh did, however, repeat the holding clearance to Ms. Ballinger. Mr. Makarowski believes this was inappropriate and cannot explain why Mr. Welsh, acting as ATC, did not respond to the request. He further testified that, ultimately, since he was not on the radio with ATC when the holding clearance was issued, he should not have been held responsible for the error:

From the point in the ride of clearance readback to the VOR, there was a wrong clearance originally given to me by the copilot, or the way I understood it. 063, or the inbound of 063 track is 243 degree radial.

Mr. Welsh had more than enough time to go ahead, address the situation, and clarify it. I asked clarification on this point numbers of times. There was nothing. There was no response by ATC, which is supposed to be the air traffic control.

[25] After landing at the Airport, Mr. Makarowski requested a screen‑shot of the actual flight. Mr. Makarowski stated that no suitable area to conduct a private debriefing was available at the Airport and that the area chosen was inappropriate. He submitted that post‑flight debriefing procedures were not administered correctly, in a positive and non-confrontational manner according to the ACP Manual (Exhibit A‑10).

[26] Mr. Makarowski testified that Ms. Ballinger was apologetic for the outcome of the ride. Mr. Makarowski did request a copy of his Flight Test Report (see Exhibit M-8) from Mr. Welsh during the de-briefing. Mr. Welsh responded that he had not yet completed the Report and that he would scan and send it to him as soon as it was completed. The Report was received by the Applicant the next day when he checked his email. He submitted that a copy of his Report was not provided to him in a timely fashion and, as such, Mr. Welsh did not follow the administrative procedures set forth in the ACP Manual, referring through jurisprudence to the case of Thurlin v. Canada (Minister of Transport), 2008 TATCE 12 (Review), TATC File No. W‑3343‑27 (Exhibit A‑9).

[27] Under cross-examination, the Applicant was asked if it is possible to hold on a track when proceeding to a VOR. He replied that there was confusion as to whether he would be holding on a track or a radial.

[28] Mr. Makarowski noted that, after the check ride, Mr. Welsh commented that perhaps the Applicant should increase the volume on his headset the next time. The Minister's Representative asked whether this implied that communication had been lacking between himself and Ms. Ballinger. Mr. Makarowski understood this to be a reference to the communication between himself and Mr. Welsh (as a reminder, the Applicant stated that he had requested, on at least two occasions, information as to the holding clearance and had received no response from Mr. Welsh).

IV. ARGUMENTS

A. Minister

[29] The Minister's Representative argued that the ACP used proper phraseology and terminology in instructing the crew to hold at the VOR. The crew properly read back this instruction and, as such, was compelled to comply with the holding clearance. The Applicant failed in his entry to the hold, flew over the 5‑nm leg that was requested and approved by ATC, and thus the decision to fail both pilots was warranted.

[30] He also pointed to the fact that Mr. Makarowski flew this mission as a crew and PIC; therefore, Mr. Makarowski's claim that he cannot be held accountable because he did not receive the actual ATC radio holding clearance is not valid.

[31] The Minister's Representative further argued that the Mr. Welsh was competent and conducted the check ride in accordance with the ACP Manual and Flight Test Guide.

B. Applicant

[32] Mr. Makarowski submitted that Mr. Welsh, in not responding to his request for additional information and clarification, added to the confusion of determining the holding entry required. He suggested that he made several attempts to ask for clarification and is unable to explain why Mr. Welsh did not acknowledge any of the requests. The Applicant asserts that the holding clearance given to him was not correct and that Mr. Welsh should have corrected the readback.

V. DISCUSSION

[33] The Minister's Representative gave detailed evidence concerning the Applicant's non‑compliance of subsection 602.31(1) of the CARs for failing to comply with the ATC holding clearance. The issue to be determined is whether the Applicant understood, acknowledged and complied with the ATC instructions directed to the crew in regards to the holding clearance.

[34] The Member finds that the Applicant properly received and accepted the holding instructions as transmitted by Mr. Welsh. Testimony from Ms. Ballinger clearly indicates that the holding instructions were received, understood and read back on at least two occasions. Ms. Ballinger's handwritten notes for the holding clearance (Exhibit A‑1) display her copy of the written holding instructions from Mr. Welsh she had copied down during the check ride. They indicate that the crew was to hold east on the VOR beacon on radial 063, with left hand turns. Further testimony from this credible witness leaves little doubt that the holding instructions were clear and understood by the crew.

[35] Mr. Webber's testimony as an expert witness leaves little doubt that the phraseology and wording used to transmit the holding instructions were within standard guidelines. The clearance, as issued and received, was understood by Ms. Ballinger and read back correctly. As such, the reception of an ATC holding clearance is an acknowledgment by the crew, including the PIC, that it will comply with said instructions. In testimony from both pilots, doubt existed concerning the holding clearance itself and the type of entry to perform, with each crew member having a different interpretation of the holding entry. Ultimately, the Applicant chose to enter the hold by tracking outbound on radial 063. He continued along this radial past the approved 5‑nm DME holding clearance that was requested and approved. At approximately 5‑nm DME, the check ride was terminated.

[36] The Applicant raised the issue of confusion over whether the holding clearance was on a track or radial. The holding instructions were understood by Ms. Ballinger as referring to the VOR beacon. The crew was asked to proceed from their present position to the VOR and hold there. It would have been highly improbable, if not impossible, for the instructions from ATC to have been for the crew to hold on a track.

[37] The Flight Test Guide's holding criteria used by Mr. Welsh (Exhibit M‑4) and the Guide's four‑point marking scale (Exhibit M‑7) leave little doubt that a Below Standard (‘1') mark was applied correctly.

[38] The Applicant submitted that it was not he who did not comply with subsection 602.31(1) of the CARs as it was Ms. Ballinger, the F/O, who communicated with Mr. Welsh as ATC. The Member rejects this submission because the Act and the CARs both recognize that final accountability rests with the PIC. The PIC cannot decide the circumstances under which he will assume responsibility on a check ride or a regular flight, nor can he decide what that level of responsibility will be. This includes compliance with all ATC instructions and clearances. The Applicant's argument does not exonerate him from his duty, responsibility and ultimate accountability as PIC of the aircraft under the Act and CARs.

[39] It is important for the Member to address the issue raised by the Applicant in regard to his inability to communicate with Mr. Welsh in order to clarify the holding instructions. Mr. Makarowski testified that several attempts were made to communicate with Mr. Welsh in order to clarify the holding instructions. The Applicant acknowledged that, even though there may have been confusion over Ms. Ballinger's briefing of the holding instruction to the crew, he attempted to communicate with Mr. Welsh to receive clarification. Since no response was received, Mr. Makarowski was left with no other alternative but to rely on what was heard over the radio and transmitted to him by Ms. Ballinger.

[40] There was no evidence presented to explain why and if Mr. Welsh did not respond to Mr. Makarowski's requests to repeat the clearance. The initial and subsequent transmissions were properly received and understood by Ms. Ballinger and no communication issues were identified prior to the holding sequence. The Member has concluded that, in all probability, Mr. Welsh properly transmitted the instructions to the crew. Mr. Welsh was on board the aircraft and seated in a position that, if required and if necessary, would have allowed Mr. Makarowski to communicate directly with him.

[41] During his testimony, Mr. Makarowski indicated that he did not receive a timely copy of his Flight Test Report as required and outlined in the ACP Manual. In Thurlin, the Member determined that the ACP had not followed administrative procedures as a Flight Test Report was not offered to the Applicant. A critical distinction exists, however, between that Determination and this Determination. Mr. Welsh testified that he offered to forward the Applicant's Flight Test Report to him, but only when completed. The role of an ACP is to properly monitor and assess a candidate's performance during a check ride and, as such, his attention should be on the actual events taking place on the aircraft or simulator. An ACP may elect to take notes and observations during a check ride and fill out the required flight test report afterwards. Both pilots were debriefed and an offer to forward the Flight Test Reports was made to both pilots once they were completed. Mr. Welsh indicated that this was done by email later that day.

[42] Consequently, the Member's position is that there was never an intention to not offer the Applicant his Flight Test Report and, furthermore, that it was submitted within an acceptable timeframe, and as soon as was practical, after the check ride.

VI. DETERMINATION

[43] The Minister of Transport has proven, on a balance of probabilities, that the Applicant, Marshall Makarowski, did not demonstrate the required standards for a Pilot Proficiency Check and Group 1 Instrument Rating, pursuant to subsection 7.1(1) of the Aeronautics Act.

December 2, 2011

Franco Pietracupa

Member


Appeal decision
Herbert Lee, J. Richard W. Hall, Stephen Rogers


Decision: September 20, 2012

Citation: Makarowski v. Canada (Minister of Transport), 2012 TATCE 27 (Appeal)

Heard in Edmonton, Alberta on June 20, 2012

Held: The Appeal is dismissed. The Appeal Panel finds that the Review Member made no reviewable errors in this instance and confirms the Minister's decision to suspend the Appellant's Pilot Proficiency Check and Group 1 Instrument Rating.

I. BACKGROUND

[1] After taking part in a check ride as Pilot-In-Command ("PIC") on July 7, 2011, Marshall Makarowski was issued a Notice of Suspension ("Notice") by the Minister of Transport ("Minister") on July 8, 2011. The Notice held that the Appellant no longer demonstrated the required standards for a Pilot Proficiency Check ("PPC") and Group 1 Instrument Rating pursuant to subsection 7.1(1) of the Aeronautics Act, R.S.C. 1985, c. A‑2 ("Act"). The suspension resulted from the Appellant losing situational awareness during an entry to an assigned hold during the check ride.

[2] The Appellant applied for a review of this decision and a Review Hearing occurred on September 8, 2011. In a determination dated December 2, 2011, the Review Member, Franco Pietracupa, confirmed the Minister's decision to suspend the Appellant's PPC and Group 1 Instrument Rating.

[3] The Appellant filed a Notice of Appeal for this Determination on January 3, 2012, and the Appeal Hearing took place in Edmonton, Alberta, on June 20, 2012.

II. REVIEW DETERMINATION

[4] The Review Member found that the Minister had proven the Appellant's failure to demonstrate the required standards for a PPC and Group 1 Instrument Rating pursuant to subsection 7.1(1) of the Act.

[5] The Review Member determined that the Appellant properly received and accepted the holding instructions as transmitted by the Approved Check Pilot ("ACP"), William Thomas Colin Welsh, and considered expert evidence to determine that the phraseology and wording used to transmit the holding instructions were within standard guidelines.

[6] The Review Member did not accept the Appellant's argument that it was not he who had failed to comply with subsection 602.31(1) of the Canadian Aviation Regulations, SOR/96‑433 ("CARs"), but rather the First Officer ("F/O"), Ms. Ballinger. The Review Member determined that final accountability rests with the PIC and cannot be shifted to the F/O.

[7] The Review Member noted that the Appellant failed to bring any evidence explaining whether and why Mr. Welsh failed to respond to the Appellant's requests to repeat the holding clearance. Indeed, the Review Member held that "the initial and subsequent transmissions were properly received and understood by Ms. Ballinger and no communication issues were identified prior to the holding sequence".

[8] As such, the Review Member determined that the Below Standard mark was applied correctly in this case.

III. GROUNDS FOR APPEAL

[9] The Appellant filed a Notice of Appeal on January 3, 2012, on the following grounds:

1) The Review Member did not apply the "balance of probabilities" test correctly;

2) The ACP conducting the flight test was not a professional Air Traffic Controller ("ATC") and made mistakes regarding the holding clearance instructions;

3) The F/O erred when relaying the holding clearance instructions to the Appellant;

4) A discrepancy exists between the F/O's testimony and her notes; and

5) The check ride notes are inaccurate and false on many points.

IV. PRELIMINARY ISSUES

A. First Preliminary Issue

[10] There were several preliminary issues in this case. First of all, the Appellant attempted to submit a newer version of the Air Traffic Control Manual ("ATC Manual"), rather than the manual submitted at the Review Hearing. The Respondent noted that although technically this ATC Manual was the same as the manual submitted into evidence during the Review Hearing, he would nonetheless object to the ATC Manual being brought in as new evidence on principle.

[11] The Appellant argued that this was the ATC Manual that was in use at the time of the Review Hearing and that the manual submitted at the Review Hearing was the old manual.

[12] The Appeal Panel decided to allow the ATC Manual into evidence (Exhibit A‑1, Appeal). While this ATC Manual was most likely available at the time of the Review Hearing, the Appeal Panel determined that it was relevant and that the Appeal Panel was willing to exercise its discretion to allow the evidence, in part because the Appellant is a self-represented litigant who had attempted to conduct self-directed research. Furthermore, the Appeal Panel noted that the Minister's Representative did not object strongly to the inclusion of this evidence, but merely opposed its admission on principle.

B. Second Preliminary Issue

[13] The Appellant also attempted to enter an excerpt from the Kenn Borek Air Ltd. Company Manual. The Appellant acknowledged that this would have been available to submit as evidence at the time of the Review Hearing.

[14] The Minister's Representative strongly objected to the admission of this evidence on the grounds that it was available at the time of the Review Hearing and that the Kenn Borek Air Company Manual is irrelevant to the case at hand. In particular, the Minister's Representative noted that the 24‑hour notice policy for a check ride complained of by the Appellant is a Kenn Borek Air company policy and is not at issue in this case.

[15] The Appeal Panel denied the Appellant's request to submit an excerpt from the Kenn Borek Air Company Manual on the grounds that the document could have been produced at the time of the Review Hearing, and also because the Appellant had not proven that it was relevant to these Appeal proceedings.

C. Third Preliminary Issue

[16] The Appeal Panel also decided to address one of the Appellant's grounds for appeal as a preliminary issue. A playback of a portion of Ms. Ballinger's testimony was conducted and compared against her notes in order to address the Appellant's concern of inconsistency in the transcript. After having had the opportunity to listen to the recording, the Appellant was satisfied that the there was no inconsistency. As such, this ground for appeal need not be considered further.

V. ISSUES

[17] The issues to be determined in this Appeal are as follows:

  1. What is the appropriate standard of review;
  2. Did the Member err in his understanding of the term "balance of probabilities";
  3. Was the ACP qualified to perform the check ride;
  4. Was the Review Member's Determination reasonable?

VI. ARGUMENTS

A. Appellant

(1) The Review Member did not properly apply the "balance of probabilities" test

[18] The Appellant contends that the Review Member did not properly apply the balance of probabilities test. The Appellant states that the balance of probabilities is a statistical concept, which is based on the number of successful outcomes to the total number of possible outcomes. The Appellant states that in this case the statistical outcome is insignificant, not definitive, and highly subjective. The Appellant also alleges that the Review Member erred in using such language as "seems" and "believes" in the Determination, which is based on opinion rather than facts.

(2) The ACP was not a certified ATC

[19] The Appellant questions the professional nature of the check ride since the ACP who administered the test in question was not a certified ATC.

[20] The Appellant alleges that he twice asked for clarification regarding the holding clearance instructions, but no clarification was provided by the ACP. Furthermore, he submits that it is the duty of the ATC to identify and correct any error made during the transmission of a holding clearance, and that the ACP failed to correct the Appellant's misunderstanding of the holding clearance instructions.

[21] The Appellant submits that the Review Member failed to fully consider the miscommunication between the participants during the check ride, as well as the ACP's failure to provide clarification when requested.

(3) The F/O was uncertain about holding clearance instructions

[22] The Appellant alleges that the F/O was uncertain about the holding clearance instructions and that there was confusion as to whether the instructions given by the ACP to the F/O were properly relayed to the PIC. The Appellant alleges that the F/O "openly admitted that she conducted fault of her own along with providing misinformation to the pilot and therefore admitted fault on the test in question".

(4)  Discrepancy between the F/O's testimony and notes

[23] The Appellant expressed concern over an alleged discrepancy between the oral testimony provided by the F/O in the Review Hearing and her notes made during the check ride. However, this concern was addressed at the outset of the Appeal Hearing with all parties agreeing that no discrepancy existed.

(5) Inaccurate ACP check ride notes

[24] Finally, the Appellant alleges that the ACP's check ride notes are false and inaccurate on many points. For instance, the Appellant suggests that the check ride notes are inaccurate because, contrary to line 18 of the ride notes, Inuvik Radio Flight Service Station ("Inuvik Radio FSS") was never contacted regarding any holding instructions. The Appellant also questions the accuracy of the ACP's testimony.

B. Minister

(1) Balance of probabilities test

[25] The Minister's Representative submits that the Appellant has mischaracterized or misunderstood the concept of a balance of probabilities. The task of the Review Member is to evaluate and weigh the evidence before him to determine if the evidence proves that an incident, a fact, or an event has occurred. Essentially, the Review Member must balance the evidence before him to make a determination. As discussed by the Supreme Court in F.H. v. McDougall, 2008 SCC 53, it is the party with the onus of proof that has the obligation to prove that the existence or non-existence of a fact or issue is more likely than not.

[26] In this case, the Review Member examined the evidence before him and concluded that the Minister's decision to suspend the Appellant's PPC and Group 1 Instrument Rating was supported by the evidence.

[27] The Appellant argued that the Review Member used subjective language in making his Determination. The Minister's Representative submits that this is not the case and cites several passages of the Review Determination where the Review Member uses definitive language, including that: the Appellant "properly received and accepted" the holding instructions; the clearance was understood by Ms. Ballinger and "read back correctly"; it would have been "highly improbable, if not impossible" for the instructions from ATC to have been for the crew to hold on a track; and, the holding criteria leave "little doubt" that the Below Standard mark was applied correctly.

(2) The ACP was not a certified ATC

[28] The Minister's Representative submits that an ACP need not be an official and certified ATC in order to conduct a flight test. Indeed, the testimony of the expert witness in this case confirmed that the phraseology and wording used by the ACP to transmit the holding instructions were within the standard guidelines.

[29] Furthermore, the evidence before the Review Member showed that the holding clearance was read back to the Appellant at least four times by either the ACP and/or the F/O. The Minister also notes the Review Member's finding that "the initial and subsequent transmissions were properly received and understood by Ms. Ballinger and no communication issues were identified prior to the holding sequence".

(3) Alleged F/O error

[30] The Minister's Representative submits that the Appellant has misconstrued Ms. Ballinger's testimony and is attempting to shift the blame for the PPC failure onto her.

[31] The Minister's Representative cites paragraph [38] of the Review Member's Determination which states:

…the Act and the CARs both recognize that final accountability rests with the PIC. The PIC cannot decide the circumstances under which he will assume responsibility on a check ride or a regular flight, nor can he decide what that level of responsibility will be. This includes compliance with all ATC instructions and clearances. The Applicant's argument does not exonerate him from his duty, responsibility and ultimate accountability as PIC of the aircraft under the Act and CARs.

[32] The Minister's Representative submits that the Appellant's third ground of appeal is not supported by the evidence that was before the Review Member and, as such, should be dismissed by the Appeal Panel.

(4) Inaccurate ACP check ride notes

[33] The Minister's Representative submits that the Review Member based his Determination on the evidence before him when determining that the Minister had proven the suspension of the Appellant's PPC and Group 1 Instrument Rating on a balance of probabilities.

[34] The Minister's Representative notes that the flight test was done on an aircraft during a real flight under Visual Flight Rules ("VFR"), which required the crew to periodically report their position and intentions to Inuvik Radio FSS. However, because the holding clearance was given for a simulated Instrument Flight Rules ("IFR") entry, there was no need to call Inuvik Radio FSS other than to update the aircraft's position and crew's intentions.

[35] Furthermore, the Minister's Representative submits that the check ride notes are not mentioned in the Review Member's analysis and as such were clearly not determinative in this case.

(5) Conclusion

[36] The Minister's Representative submits that the Appeal Panel should consider all the evidence on the record in this case and uphold the Minister's decision to suspend the Appellant's PPC and Group 1 Instrument Rating. Furthermore, the Minister's Representative submits that the Review Member's Determination should not be overturned by the Appeal Panel, as the Review Member made no errors in law and his findings of fact were reasonable.

VII. ANALYSIS

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

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

[38] In Billings Family Enterprises Ltd. v. Canada (Minister of Transport), 2008 FC 17, the Federal Court determined that when reviewing questions of fact and credibility, the Appeal Panel owes considerable deference to the Review Member. However, in matters of law, the Federal Court found that the Appeal Panel owes no deference to the Review Member.

[39] The second issue in this case, that is, whether the Review Member erred in his understanding of the term "balance of probabilities" is a question of law. As such, it will be reviewed on a standard of correctness.

[40] The findings in the third and fourth issues in this instance are findings of fact. As such, a standard of review of reasonableness is appropriate. Consequently, the Appeal Panel's task is to consider if the Review Member's findings on these issues were within the range of reasonable outcomes based on the evidence that was before him.

B. Issue 2 Did the Member err in his understanding of the term "balance of probabilities"?

[41] The Appellant alleges that the Review Member did not apply the "balance of probabilities" test correctly in this instance. However, the Respondent contends that the Appellant mischaracterized the concept of the "balance of probabilities" test. In this instance, the Appeal Panel agrees with the Minister's Representative regarding both his description of the term as well as his commentary on how it was applied in this instance.

[42] The term "balance of probabilities" speaks to the Review Member's task of weighing the evidence before him to determine if the evidence demonstrates that it is more likely than not that an alleged event occurred.

[43] The Appeal Panel is satisfied that the Review Member examined and weighed the evidence before him and concluded that the Minister's decision to suspend the Appellant's PPC and Group 1 Instrument Rating was proven on a balance of probabilities. This was the correct process for the Review Member to have undertaken and the Appeal Panel finds no fault with the Review Member's actions. Similarly, the Appeal Panel finds no fault with the language used by the Review Member in his Determination as alleged by the Appellant.

C. Issue 3 Was the ACP qualified to perform the check ride?

[44] The Appellant alleges that the ACP was not a certified ATC and that his lack of professional status makes the nature of the PPC questionable. The Minister's Representative contends, however, that an ACP need not be a certified ATC in order to conduct a flight test. Furthermore, expert witness testimony confirmed that the wording used by the ACP was within the standard guidelines, and the fact that Mr. Welsh is not a certified ATC is not relevant.

[45] The Appeal Panel agrees with the Minister's Representative on this point. Transport Canada believes that Mr. Welsh is qualified to conduct PPCs and has authorized him to do so (see Exhibit M‑1, Review). It is not the Tribunal's place to determine what qualifications are necessary to act as an ACP. Moreover, expert evidence in this case supports the finding that the phraseology and wording used by the ACP were appropriate, and no concerns were raised in this regard.

[46] Clearly, the Appellant's concern on this point is his allegation that the ACP did not read back the holding clearance when asked to do so by the Appellant. However, the evidence before the Review Member demonstrated that the holding clearance was read to the Appellant multiple times by either the ACP or the F/O. Furthermore, it has not been proven that an ATC would have handled this situation any differently than Mr. Welsh. More importantly, the Review Member did not find any fault or problems with the conduct of Mr. Welsh during the PPC.

[47] Similarly, from the Appeal Panel's perspective, after thoroughly reviewing the transcript and the exhibits, we conclude that the PPC was conducted in an exemplary fashion.

[48] In the aviation world, a scripted PPC environment is very much the norm and this case was no exception. The PPC script is approved by Transport Canada and typically the same test is conducted on all pilots in a given aviation company.

[49] In analyzing what transpired with the Appellant, the Appeal Panel is of the view that the PIC not only flew beyond the assigned holding point where they were to start a holding pattern, but also failed to understand that when the F/O advised him that she had spoken to ATC, she had, in fact, talked with the ACP acting as ATC.

[50] From a professional pilot's perspective, when the air work had been completed, the ATC would have told the cockpit crew that they had a clearance and then asked them if they were ready to copy. That was clearly done in the matter before us. The holding clearance given was to descend to 2000 feet and proceed directly to the very high frequency omnidirectional range ("VOR") and hold on the 063 radial nonstandard turns. The pilots then determine the type of entry that they will use based on the holding pattern entry guide as found in the AIP; they were to expect a further clearance in 15 minutes. In this case, the pilots failed to turn and enter a hold at the VOR. In flying past the assigned holding point the pilots violated the ATC clearance, and at that point the ride was terminated.

[51] As there were many errors during the PPC, the ACP's decision to terminate it is not surprising. It is the Appeal Panel's opinion that the ACP conducted the PPC at a high standard. There is no fault to be found either with the ACP or the PPC itself in this instance.

D. Issue 4 - Was the Review Member's Determination reasonable?

[52] The Appellant alleges that it was not he who failed to comply with the CARs, but rather his F/O who communicated with Mr. Welsh as ATC. The Minister's Representative submits that the Appellant misinterpreted the evidence of the F/O in attempting to shift the blame for the violation onto her. Furthermore, the Minister's Representative submits that the F/O never misinformed the Appellant and notes that her testimony was clear regarding what she relayed to him in terms of the holding clearance instructions.

[53] The Review Member disagreed with the Appellant's allegation on this point, finding that:

…the Act and the CARs both recognize that final accountability rests with the PIC. The PIC cannot decide the circumstances under which he will assume responsibility on a check ride or a regular flight, nor can he decide what that level of responsibility will be. This includes compliance with all ATC instructions and clearances. The Applicant's argument does not exonerate him from his duty, responsibility and ultimate accountability as PIC of the aircraft under the Act and CARs

[54] There is no evidence before the Appeal Panel to show that the Review Member's findings were unreasonable. The Appeal Panel agrees that the Appellant mischaracterized the F/O's testimony in stating that she "openly admitted that she conducted fault of her own along with providing misinformation to the pilot and therefore admitted fault on the test in question". The evidence does not support this interpretation of the testimony. Rather, the evidence before the Appeal Panel demonstrates that the Review Member's decision on responsibility for the PPC was reasonable and should not be overturned.

[55] The Appellant's final ground for appeal concerns the check ride notes made by the ACP during the PPC. The Appellant alleges that the check ride notes are inaccurate on many points. However, the Appeal Panel accepts the Minister's submission that the check ride notes were not determinative in this case. Since there is no mention of the check ride notes in the Review Member's Determination, they were clearly not a deciding factor in this case. Consequently, the Appeal Panel finds that the check ride notes do not need to be dissected and examined in this case.

[56] While the Appellant is clearly unhappy with the PPC process and result in this instance, he has failed to show that the Review Member made any reviewable error in his Determination.

[57] The Appeal Panel will not ordinarily substitute its own views or opinions of the facts for those of the Review Member. Rather, it is the Appeal Panel's role to ensure that the Review Member reached a reasonable decision based on the evidence before him. In this instance, we are satisfied that the conclusions reached by the Review Member were supportable on the evidence before him.

VIII. DECISION

[58] The Appeal is dismissed. The Appeal Panel finds that the Review Member made no reviewable errors in this instance and confirms the Minister's decision to suspend the Appellant's PPC and Group 1 Instrument Rating.

September 20, 2012

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

Stephen Rogers, Member

Concurred by: Herbert Lee, Member