TATC File No. H-3740-59
MoT File No. 5802-200450
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Grant William Warner, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A 2, ss 7.1(1)
Decision: December 5, 2011
Citation: Warner v. Canada (Minister of Transport), 2011 TATCE 36 (Review)
Heard in Halifax, Nova Scotia, on April 19, 2011
Held: The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, Grant William Warner, 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. Consequently, the Member refers the decision back to the Minister of Transport for reconsideration.
TATC File No.: H-3738-59 (Robert James Kropla)
TATC File No.: H-3740-59 (Grant William Warner)
 On October 13, 2010, the Minister of Transport ("Minister") issued Notices of Suspension to the Applicants, Grant William Warner and Robert James Kropla, informing both pilots that they no longer demonstrated the required standards for their Pilot Proficiency Checks (PPC) and Group 1 Instrument Ratings during a simulated check ride the Applicants undertook together as a crew on a DH8 aircraft, pursuant to subsection 7.1(1) of the Aeronautics Act ("Act").
 The Notices of Suspension issued to both Applicants are identical and state as follows:
Pursuant to subsection 7.1(1) (suspend, cancel or refuse to renew) of the Aeronautics Act and in consideration of the flight test occurring on October 13, 2010, you have demonstrated that you no longer meet the required standard for DH‑8 PPC and Group 1 Instrument Rating, in that you failed to complete a flight test procedure within established criteria. Your DH‑8 PPC and Group 1 Instrument rating is hereby suspended. This suspension comes into effect immediately, and remains in effect until you demonstrate that you meet the required standard by successfully completing a DH‑8 IFR/PPC and the document referred to above is reinstated by the Minister.
 In particular, it was alleged by the Approved Check Pilot (ACP) conducting the check ride that the Applicants violated section 602.32 of the Canadian Aviation Regulations (CARs) by operating an aircraft at an indicated airspeed of more than 200 knots (kts) below 3 000 feet (ft) above ground level (AGL) within 10 nautical miles (nm) of a controlled aerodrome, without being authorized to do so in an air traffic control clearance. Due to the alleged violation, the ACP graded each Applicant a Below Standard mark (‘l') for the sequence, resulting in a failure of the check ride, 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').
II. STATUTES, REGULATIONS AND POLICIES
 Paragraph 7.1(1)(b) of the Act provides as follows:
7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that
(b) the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfil the conditions subject to which the document was issued, or
 Section 602.32 of the CARs, concerning airspeed limitations, provides as follows:
602.32 (1) Subject to subsection (2), no person shall
(a) operate an aircraft at an indicated airspeed of more than 250 knots if the aircraft is below 10,000 feet ASL; or
(b) operate an aircraft at an indicated airspeed of more than 200 knots if the aircraft is below 3,000 feet AGL within 10 nautical miles of a controlled aerodrome unless authorized to do so in an air traffic control clearance.
(2) A person may operate an aircraft at an indicated airspeed greater than the airspeeds referred to in subsection (1) if the aircraft is being operated in accordance with a special flight operations certificate – special aviation event issued pursuant to section 603.02.
(3) If the minimum safe airspeed for the flight configuration of an aircraft is greater than the airspeed referred to in subsection (1), the aircraft shall be operated at the minimum safe airspeed.
 Guidelines for when an ACP is allowed to exercise the option of allowing a candidate to repeat a failed item on a check ride are found under the heading ‘Partial and Retest' in the Flight Test Guide, which provides as follows:
Except for a situation that results in a simulator crash or as in the case of an airborne PPC, a situation that if allowed to continue could result in loss of control of the aircraft, the ACP may allow a candidate to repeat a failed item if no other sequence in the PPC is rated a "(2)" or "(1)". The ACP will apply the following;
- without commenting on the error committed, allow the candidate to complete the PPC to ascertain that there are no other weaknesses in piloting skills. If another sequence is rated "(2)" or "(1)" the ACP will stop the check ride, the original mark of "(1)" will apply and necessary administrative action will be required. If no other weakness is noted then at the end of the flight test;
- without specifying what the error was, advise the candidate that a partial retest is required;
- immediately repeat the sequence in question;
- where the pilot achieves "(3)" or better on the repeated sequence, assign a mark of "(2)" for the sequence. The flight will be deemed a "partial and retest" which will not be recorded as a failure against the candidate's record. Annotate the flight test report and debrief accordingly; and
- where the pilot does not achieve "(3)" or better the original mark of "(1)" will apply and require administrative action.
- Annotate the flight test report and de-bridge accordingly.
If it is not possible to repeat the sequence due to time constraints or other reasons, the ACP will apply the original mark of "(1)" and assess the PPC as a "fail".
(1) Geoffrey Craig Brown
 Geoffrey Craig Brown is the Air Canada Jazz ACP who conducted the check ride on the crew of Mr. Warner, a Captain, and Mr. Kropla, a First Officer (F/O). Mr. Warner was the Pilot Flying (PF) and Mr. Kropla the Pilot Not Flying (PNF) at the time of the alleged airspeed violation in the controlled aerodrome. Mr. Brown testified that he was using an approved Transport Canada scripted PPC scenario, Air Canada Jazz LP DH8 Recurrent Scripted Training and Checking, PCW‑2, v. 1 ("Air Canada Jazz Training Guide") (Exhibit M‑1), and had briefed the crew in regard to the goals of the mission. Several days previously, the crew had been made aware that two Transport Canada Inspectors would be present in the simulator. William Blake would be conducting a monitoring verification of Mr. Brown, and Mr. Blake himself would be monitored by François Collins.
 Mr. Brown testified that, due to two technical faults with the simulator that day, the start of the check ride was delayed by approximately 45 minutes. He further stated that, shortly after commencing the taxiing portion of the check ride (due in part to inaccuracies in the simulator's taxi graphics) he had to intervene to provide the crew with instructions to reach the active runway. The issue was explained to both pilots and no fault was attributed to them.
 The crew conducted a take‑off and climb‑out and, as per the script, a malfunction was introduced on the aircraft in which the crew decided to return back to the departure airport, Toronto Pearson International. A holding instruction was given to the crew by Mr. Brown acting as Air Traffic Control (ATC). Mr. Brown stated that, at this time, the crew became preoccupied with programming the holding clearance. As the aircraft entered the 10 nm controlled aerodrome, at an altitude of 3 000 feet AGL, Mr. Brown observed an airspeed of 218 kts. Although the airspeed did eventually decay, Mr. Brown terminated the check ride.
 Mr. Brown testified that he notified both crew members of the violation of section 602.32 of the CARs. He then left the crew alone for a few minutes in order to advise his supervisor that a Failure to Qualify (FTQ) event had occurred. After then informing Mr. Blake of his decision, he proceeded to debrief the crew.
 Mr. Brown explained that a violation of section 602.32 of the CARs is grounds for failure and that, since neither crew member corrected the airspeed, both were at fault. He also debriefed the crew that a Basic Standard (‘2') grade was assessed to Mr. Warner on the initial climb-out as the aircraft was momentarily in icing conditions (Exhibit M‑2) as it entered cloud at 400 ft AGL without the crew turning on the airframe de-ice boots in accordance with the company Air Canada Jazz DH8 Aircraft Operating Manual (AOM), Volume 2 ("Air Canada Jazz DH8 AOM"), (Exhibits M‑2 and M‑3).
 During cross‑examination, Mr. Brown was asked if the simulator has the ability to indicate or simulate ice accretion. He responded that it does, but that it had not been programmed into the simulator for the check ride.
 Mr. Brown was asked if he recalled having to reposition the aircraft in the simulator due to inaccuracies with the taxi graphics and he replied that he could not recall but that it might have occurred.
 Mr. Brown was also asked if he recalled a conversation in the cockpit in which the crew discussed whether the aircraft was accumulating ice and again, he could not recall.
 While under cross‑examination, Mr. Brown stated that, in a simulator, the only two ways to confirm whether an aircraft is accumulating ice on the airframe are to ask the instructor if this is occurring, or by using the Bombardier definition for ‘icing conditions' (Exhibit M‑2). Mr. Brown agreed that ‘icing conditions' do not necessarily mean ice is accreting. When asked whether a crew can visually determine if ice is present while in a simulator, Mr. Brown responded that they cannot. As well, Mr. Brown added that, as a practice in simulators when in icing conditions, crews turn on the airframe de‑ice system prior to ice detection and prior to any ice accumulation.
 Mr. Brown was also asked if the crew had properly configured the aircraft for icing conditions prior to take‑off and he responded that they had. When asked if he could recall the crew discussing, once clear of the clouds during the initial climb-out, whether there had been any icing accretion, as well as Mr. Warner asking Mr. Kropla to reconfigure the aircraft, Mr. Brown responded that he could not recall.
 Mr. Brown was asked if he could recall whether the airframe de‑ice system was turned on during the climb‑out; he could not recall but was positive that the system had not been turned on from 400 ft until the levelling off altitude of 1 000 ft.
 Under cross‑examination, Mr. Kropla asked Mr. Brown if the delay prior to the start played a factor in the crew's performance and Mr. Brown stated that he does not believe so. Furthermore, while Mr. Brown agreed that the crew was entering a busy phase of flight, he assumed they would correct the airspeed. He stated that, although the speed was reducing, it never dropped below the required statutory maximum of 200 kts. Mr. Brown was also asked whether, due to the simulator's limitations in simulating icing conditions, he had briefed the crew to ask him if they were accumulating ice and he replied that it is not a part of the briefing according to the script and that he had not.
 Under re‑direct examination, Mr. Brown reiterated that the aircraft was in icing conditions as per the simulated weather conditions given to the crew.
(2) William Blake
 Mr. Blake testified that, during the check ride, he was conducting a check pilot monitoring of Mr. Brown which proceeded well. He stated that the weather conditions the crew had been briefed for prior to the check ride were conducive to icing conditions. After the check ride had been terminated by Mr. Brown, a debriefing was held to confirm the grounds for failure and then the crew was informed by Mr. Brown regarding the decision to terminate the check ride. All the required documents were provided to the crew.
 Under cross‑examination by Mr. Kropla, Mr. Blake testified that the airframe de‑ice system was turned on during the initial climb‑out phase at approximately 1 500 ft. Mr. Kropla stated that the airframe de-ice system was never turned on during the climb‑out.
 Mr. Warner asked Mr. Blake if the crew is permitted to decide when to turn on the propeller and windshield heating system or whether there is a mandatory requirement in icing conditions. The response from Mr. Blake was that the crew had no choice but to turn on these two systems as stipulated in the company AOM. Mr. Warner reiterated that the airframe de‑ice system should only be turned on when ice is detected.
 Mr. Blake was asked if the airframe de‑ice system must be turned on during take‑off. He responded that it is not to be turned on until 400 ft AGL or higher. As the discussion continued, Mr. Warner asked whether the system must be turned on when in icing conditions, or only upon the detection of ice. Mr. Blake could not recall the exact wording for this requirement.
 Mr. Blake stated that he did not recall the crew discussing the speed within the controlled aerodrome zone after the check ride had been stopped, but did recall that the speed had been decaying.
(1) Robert James Kropla
 Mr. Kropla is currently an F/O on the DH8, which he has been rated on since 1998, and has accumulated approximately 10 000 hours of flight time. Mr. Kropla testified that, based on his experience on the aircraft and based on the weather conditions on the day of the check ride, the aircraft was properly configured for take‑off. He further stated that, based on the Air Canada Jazz Training Guide (Exhibits M‑1 and A‑2[K]), the crew should not have been placed in a position where it was required to make assumptions. Based on this premise, and having received no briefing on any operational assumptions, the crew managed the de-icing scenario properly and the assessed Basic Standard (‘2') score was unwarranted.
 Mr. Kropla testified that, when the check ride was terminated, the aircraft speed was at 204 kts and, based on the Air Canada Jazz Standard Instrument Flight Rules (IFR) Tolerances (Air Canada Jazz Training Guide, Exhibit M‑1), was well within the +/- 10 kts permitted. He stated that, based on this Guide, the score for this specific item should have been assessed a Standard (‘3') mark or at worse a Basic Standard (‘2') mark as per the Transport Canada four‑point marking scale.
 Mr. Kropla stated that the 45‑minute delay due to simulator faults prior to the start of the check ride, coupled with the additional monitoring presence of two inspectors from Transport Canada, created an environment of additional stress and distraction. He stated that he felt rushed due to the delay encountered, which was contrary to the required check ride environment that an ACP should be striving to set (described in Exhibit A‑8[W]).
 Under cross-examination, the difference between a simulator and an actual aircraft in icing conditions was raised. Since visual cues are not available in a simulator, Mr. Kropla was asked how he had detected icing in his previous simulator experiences. He responded that he would ask the simulator instructor if the aircraft was accumulating ice. He added that this was not done during the check ride in question. Mr. Kropla confirmed that he did not turn on the airframe de-ice system after take‑off and that the speed of the aircraft entering the 10 nm controlled aerodrome was 218 kts and not the maximum of 200 kts as required by the CARs. He was also asked who the PF was when the simulator check ride was terminated and he responded that he was not sure.
 Further discussion under cross-examination centered on the application of the +/‑ 10 kts airspeed tolerances and whether they apply to a Canadian Aviation Regulation or a check ride accepted deviation. Mr. Kropla stated that they applied to both.
 Mr. Kropla stated that he had experienced other simulator delays prior to this one and that he did not fail this check ride as a result of the delay. The Minister's representative raised a question concerning Mr. Kropla's practice regarding the application of de-ice boots. Mr. Kropla responded that he waits for ice detection and then turns on the de‑ice airframe system.
(2) Grant William Warner
 Mr. Warner has been rated on the DH8 since 1986, and has accumulated over 4 000 hours on it. He has held a variety of positions with Air Canada Jazz and its predecessors, including Line Captain, Chief Technical Pilot, and ACP, all on the DH8, as well as many executive and management positions within the company. Mr. Warner testified that, as an experienced airman (airperson), he did not feel stressed in regard to the additional Transport Canada inspectors' presence that day, which he had been advised of several days prior to the check ride. The key issue for him was the actual interpretation of the airframe de-ice system's utilization. Another issue in his testimony revolved around the assumptions the crew was required to make during the check ride.
 Continued testimony by Mr. Warner centered on the ACP's decision to score a Basic Standard (‘2') on the initial climb-out due to Mr. Warner's failure to use the aircraft's airframe de-ice system. Previous training sessions and the limited simulated icing capabilities of the simulator resulted in the crew assuming no ice was accreting on the aircraft. During previous training sessions, when he had asked the training instructors if the aircraft was accumulating ice, the response had been negative. He stated that on an actual aircraft, the crew would rely on visual cues, including a wing inspection, to confirm ice accretion.
 Mr. Warner also testified that he is familiar with scripted check rides and that deviations and errors are expected during them. Mr. Warner believes that Mr. Brown deviated from this particular check ride's script by expecting the crew to assume ice accumulation during the initial climb‑out. He stated that, although they were briefed that there would be no repositioning during the check ride, the aircraft was repositioned during the taxiing phase. His perception was that Mr. Brown was attempting to make up time lost due to the delay encountered earlier. This might have created some self‑induced pressure on the crew to rush during the return to the airport.
 Mr. Warner testified that, at approximately 42 miles from the holding fix, he mentioned to the co-pilot to "watch the airspeed" as the actual control of the aircraft had been passed to the PNF, Mr. Kropla. Mr. Warner stated that when the check ride was terminated, the aircraft speed was at 204 kts. He was unsure of the aircraft's position. He did, however, mention that the aircraft was in the process of reducing its airspeed and that they were within the +/‑ 10 kts airspeed tolerances as approved in the Air Canada Jazz Training Guide (Exhibit M‑1). He emphasized that the airspeed did not jeopardize flight safety.
 Mr. Warner continued to testify in regard to the actual definition of ‘icing conditions', stating that airframe icing requires detection and visual confirmation prior to selecting an airframe de-ice system; only then would he turn the system on. Mr. Warner testified that an ACP must not create scenarios in which the crew is required to make assumptions or that create confusion. The crew had been briefed to conduct the flight as per normal operations. During the previous training session, no icing had been mentioned or detected, simulated or otherwise, and during the check ride the crew did not ask if icing was accumulating on the airframe. He stated that, on the initial climb-out, he made the observation to the co‑pilot that no icing was accumulating.
 Mr. Warner further testified that the aircraft was properly configured for take‑off. During the initial climb-out, the aircraft was momentarily in cloud from 400 ft AGL to approximately 2 500 ft AGL. Since no ice was assumed to be accumulating, the crew did not select the de-ice boots. Mr. Warner stated that de-ice boots are turned on when ice is detected on the airframe and not necessarily when the aircraft is in icing conditions.
 Mr. Warner testified that a Basic Standard (‘2') mark for the initial climb‑out due to a lack of icing awareness was incorrect. In accordance with the Flight Test Guide, this score prevented Mr. Brown from exercising the option of allowing Mr. Warner to repeat an item for which a Below Standard (‘1') score had been received. He further testified that Mr. Brown mentioned that this score prevented him from allowing Mr. Warner to repeat the failed item. Mr. Warner requested an historical report of Mr. Brown's pass/fail rate.
 Under cross-examination, Mr. Warner confirmed that headsets were worn during the check ride. (Both Mr. Blake and Mr. Brown did not hear any comments in regard to the crew's icing awareness). He stated that he was unsure of the aircraft's position when the CARs violation occurred. He stated that the Instructor Operation Station (IOS) can determine an aircraft's position, but he did not have the tools to do so in the cockpit. Mr. Warner admitted that he was late in complying with section 602.32 of the CARs.
 Mr. Warner was asked how a crew is able to detect ice accumulation in a simulator environment. His response was that it requires the instructor to advise the crew of ice accumulation or for the crew to assume that the aircraft is picking up ice. Mr. Warner discussed the difference between being in ‘icing' and being in ‘icing conditions'. He stated that the aircraft was properly configured for icing during and after take‑off and that Mr. Brown may have been confused since he stated that the airframe de‑ice system was turned on sometime after take‑off, though it had not been.
 The discussion continued in cross-examination as to how de-ice boots should be operated. Mr. Warner is of the belief that they require activation once icing is detected, whereas Mr. Brown stated that they should be turned on when in icing conditions and when accumulating ice.
 Mr. Warner was asked to clarify his statement in regard to flight safety not being compromised when the aircraft violated section 602.32 of the CARs. Mr. Warner stated that the speed was being corrected in a timely matter and that flight safety was not at risk. Mr. Warner continued to discuss the fact that he feels Mr. Brown is a difficult marker and that, had the crew been assessed a Standard (‘3') mark on the climb‑out phase, a retest would have been available for the failed cruise in the controlled aerodrome.
 The Minister's Representative submitted that the Transportation Appeal Tribunal of Canada ("Tribunal") must determine if the failed grade attributed to both Applicants in regards to the contravention of section 602.32 of the CARs was correct even if it was harsh and even if the initial speed was decreasing. The Minister's Representative argued that the crew exceeded the speed limit within the controlled aerodrome and, as such, contravened this Regulation, leaving the ACP with no other choice but to assess a Below Standard (‘1') mark.
 The Minister's Representative suggested that, ultimately, the retest option available to the crew was irrelevant as it is at the discretion of the examiner and not an automatic option in the case of a failed item. In accordance with the Flight Test Guide, an ACP may allow a candidate(s) to repeat a failed item, but it is at the discretion of the examiner.
 The Minister's Representative submitted that both Mr. Brown and Mr. Blake did not hear the crew discussing icing while in the cockpit. The airframe de-ice system indicated in Air Canada Jazz DH8 AOM (Exhibit M‑3) should be used by the crew when in icing conditions, and not only when icing is detected. The Minister's Representative argued that, since the weather at the time of the initial climb‑out was conducive to icing conditions, the crew should have applied the de-ice boots. The failure to do so contributed to Mr. Brown grading this exercise a Basic Standard (‘2').
(1) Robert James Kropla
 Mr. Kropla requested that the Below Standard (‘1') mark the pilots received for the approach to the controlled aerodrome and the Basic Standard (‘2') mark Mr. Warner received for the initial climb-out in icing conditions be increased, and that any records in Transport Canada reflect these changes. His request was based on the following:
- The crew was obliged to make assumptions as to icing contamination thus contradicting the Air Canada Jazz Training Guide (Exhibit A‑2[K]) in that the crew should not be subject to any scenarios in which they are required to make assumptions;
- The airspeed violation was within the approved standard IFR tolerances in accordance with the Air Canada Jazz Training Guide (Exhibit M‑1), that is, +/‑ 10 kts during normal flight;
- The 45‑minute delay at the start coupled with repositioning the aircraft resulted in a check ride that was behind schedule and in contravention of the need for an ACP not to rush the candidates (Exhibit M‑1). The addition of two Transport Canada officials added to the stress level of the crew and the ACP. Both of these issues added to an environment that was not conducive to allowing the crew to perform at their best ability.
(2) Grant William Warner
 Mr. Warner did not add any further requests to Mr. Kropla's, rather he explained his disagreement with the Below Standard (‘1') and Basic Standard (‘2') marks, based on the following:
- The ACP, Mr. Brown, deviated from the approved scripted scenario by requiring the crew to assume icing conditions. Previous training had not required the crew to make any such assumption;
- The de-ice system was operated as per the Air Canada Jazz DH8 AOM (Exhibit M‑3) and, as such, the Basic Standard (‘2') mark for this exercise was unwarranted. This prevented Mr. Brown from conducting a retest on the failed item;
- The Applicants did not benefit from the tolerance scale available to the pilots. The speed did exceed the limit set forth in section 602.32 of the CARs, however, the scale allows for a range of +/- 10 kts.
V. EVIDENCE, LEGISLATION AND POLICY ANALYSIS
 It is critical to clarify that Mr. Kropla's request to change the marks goes beyond the Tribunal's jurisdiction. Subsection 7.1(7) of the Act provides the Member hearing a matter related to the suspension, cancellation or refusal to renew a Canadian aviation document (CAD), pursuant to subsection 7.1(1) of the Act, with the option of confirming the Minister's decision or referring the matter back to the Minister for reconsideration. The Member is limited to these two options and cannot mandate any changes to the actual marks given on a check ride evaluation.
 Based on the evidence submitted and testimony heard, the following issues and concerns must be addressed:
- Whether the crew violated section 602.32 of the CARs;
- The usage, limitations and application of the Air Canada Jazz DH8 AOM as it relates to icing conditions and the airframe de-ice system;
- Whether the environmental conditions in the simulator were conducive to demonstrating pilot proficiency;
- The application of the ‘Partial and Retest' Capability option available to the ACP during a check ride.
A. Section 602.32 of the CARs
 Section 602.32 of the CARs is a regulatory requirement and intended to be adhered to. Its specification is clear and the testimony heard by both the Applicants and the Minister's Representative is not in dispute. The aircraft entered the designed airspace at 218 kts and was still at this airspeed abeam the runway. Testimony from Mr. Warner and Mr. Brown confirmed that this was the initial speed when entering the controlled aerodrome and that the aircraft had bled down to 204 kts by the time the check ride was terminated. Both Applicants testified that the acceptable airspeed IFR tolerance of +/- 10 kts, as outlined in the Air Canada Jazz Training Guide (Exhibit A‑3[K]), should have been applied. The deviation tolerances listed in the IFR guide are, however, meant to indicate variations in accuracy with respect to specified published manoeuvres and flight exercise sequences. No tolerances are outlined in section 602.32 of the CARs and, as such, this speed limitation must be adhered to. The Tribunal finds that the Minister has satisfied his burden of proof in demonstrating that section 602.32 of the CARs was contravened by the Applicants.
B. Icing Conditions and the Airframe De-Ice System
 Considerable testimony and evidence was submitted by the Minister's Representative and Applicants as to the crew's interpretation of ‘icing conditions' and the usage of the airframe de‑ice system. It is important that the Member address both issues since they played a critical role in a retest on the failed airspeed violation not being available to the Applicants.
 In evidence submitted by the Minister's Representative (Exhibits M‑1, M‑2, and M‑3) and through testimony from Mr. Brown, the weather programmed into the simulator for the take‑off portion of the check ride was conducive to icing conditions as per the manufacturer's definition. Both Applicants had properly configured and turned on the aircraft's ice protection equipment for this phase of the take‑off. There is no question in the Member's mind that the crew was aware of icing conditions on take‑off and ensured, in accordance with the Air Canada Jazz DH8 AOM, that all applicable ice protection systems were activated and the aircraft properly configured. According to the Air Canada Jazz DH8 AOM's requirements under icing conditions at take‑off (Exhibit M‑3), the airframe de‑ice system is not to be selected during take‑off until an altitude of 400 ft AGL or above is reached. Testimony from Mr. Brown confirmed clouds from 400 ft AGL to approximately 2 500 ft AGL. When asked by Mr. Warner during cross-examination whether the simulator can be programmed to simulate ice accumulation, Mr. Brown responded in the affirmative. When asked if he had done so, he responded in the negative.
 Testimony from Mr. Brown indicated that the crew did not turn on the airframe de‑ice system from 400 ft to approximately 1 000 ft AGL and may have turned it on after that. Mr. Blake testified that the system was turned on at approximately 1 500 ft AGL. Both Applicants testified that the system was never, in fact, turned on. Testimony here was contradictory as to when and if the system was turned on. Based on both pilots' extensive experience on this aircraft type, and based on the principle of ‘train as you would fly' as invoked by the Applicants to justify their usage of the airframe de-ice system, it would seem that the crew was in the best position to confirm that the system was not activated. As such, the Member agrees that the crew properly configured the aircraft for the weather conditions prevalent at take‑off.
 In the Air Canada Jazz DH8 AOM under ‘Normal Procedures', (Exhibit M‑3) take-off procedures in icing conditions are specifically addressed. According to the Procedures, the crew was properly configured for take-off. The procedures also specify the proper usage of the airframe de-ice system. The above‑mentioned exhibit indicates that "[t]he Airframe De-ice shall not be selected during take-off until above 400 ft HAA as follows: Through 400 ft HAA, select De-Ice Boots to FAST on initial detection of ice". Webster‑dictionary.org defines the word ‘detection' as "the perception that something has occurred or some state exists; the act of detecting something; catching sight of something". Based on testimony from the Applicants, it is clear that the crew was aware of icing conditions and the weather prior to take‑off. The crew flew the simulator mission as they would have flown in normal operations and, based on their own testimony, applied the same visual cues and indicators that they would have applied in an actual aircraft in order to detect ice. It is apparent that there is a difference in interpretation between Mr. Brown and the reference that the crew used on how the de-ice system is to be used in icing conditions. Based on evidence and testimony, the crew was left to determine if the aircraft was accumulating ice. The Applicants testified that they had discussed icing conditions during the climb‑out, but this was not heard or understood by either Mr. Brown or Mr. Blake.
 With that in mind, I find that the crew's interpretation and ultimately their usage of the de-ice boots is in line with the Air Canada Jazz DH8 AOM, which indicates that icing detection must be confirmed prior to their selection. Based on the lack of a clear briefing outlining how the crew was to ascertain icing in the simulator, they flew the simulator as they would have in a real operational environment. The crew had situational awareness of the weather conditions, knew they were operating in icing conditions, and applied the Air Canada Jazz DH8 AOM guidelines as indicated. The Minister's Representative failed to establish, on a balance of probabilities, that the crew did not comply with the Air Canada Jazz DH8 AOM as to the airframe de‑ice system's utilization.
C. The Check Ride Environment
 Another issue that the Tribunal must address is the check ride environment itself. Two areas of concern raised by the Applicants were the initial delay prior to the start of the check ride, and the presence of two Transport Canada Inspectors.
 Both Applicants were asked, in sworn testimony, if the delay of 45 minutes played a factor. Both Applicants testified that the delay was not a determining factor in the failed check ride, but that the initial repositioning of the aircraft during the taxiing phase may have created an impression that Mr. Brown was attempting to make up lost time. Mr. Brown testified that he could not recall if he had repositioned the crew, but did specify that if it was done, he briefed the crew. The Member does not believe the delay played a factor in the failed check ride.
(2) Transport Canada Inspectors
 An ACP must create an environment conducive to a true demonstration of a pilot's ability. Both Applicants were made aware of the presence of two Transport Canada inspectors in the simulator several days prior to the check ride. I have no doubt that Mr. Brown, as the Air Canada Jazz ACP, did all he could to minimize sources of stress and distraction during the check ride as well as provide the Applicants with his undivided attention in order to properly assess and grade their performance. Nevertheless, several key instances of miscommunication and difficulty in confirming cockpit discussions, has led the Member to believe that an already stressful check ride was made very challenging by the presence of not one, but two Transport Canada officials; consider the following:
- The confusion during the initial taxiing phase of the check ride over whether the crew had been repositioned or not;
- Whether the crew had discussed ice accretion in the cockpit during the initial climb‑out; and
- Whether the airframe de-ice system was actually selected at some point between 400 ft and 2 500 ft AGL. The Applicants testified that at no time was it ever selected, whereas testimony from Mr. Brown and Mr. Blake conflicted as to when it was turned on.
 Evaluation is the process of defining, observing and measuring a candidate's performance during a check ride. The Member has no doubt that, based on testimony and evidence, Mr. Brown is an experienced and competent ACP. However, the dual monitoring functions on this particular check ride may have played a factor in the evaluation process based on testimony in respect of missed communication, distraction and missed observations during the early stage of the check ride. This confusion certainly played a key factor in the evaluation score of a Basic Standard (‘2') for Mr. Warner (Exhibit M‑5, Item 8 and Item 10) and Mr. Kropla (Exhibit M‑4, Item 21) as vital key cockpit conversations may have been missed. Consequently, the Minister's Representative has failed to establish, on a balance of probabilities, that the evaluation was conducted and graded properly.
D. Partial and Retest Capability
 Mr. Warner testified under oath that at the debriefing Mr. Brown voiced the possibility of repeating the failed airspeed violation, but that the Basic Standard (‘2') grade Mr. Warner had received on the climb‑out prevented him from exercising that option. The Member finds Mr. Warner's testimony to be believable and consistent and, as such, believes that the Tribunal must address the possibility of a retest.
 The wording in the Approved Check Pilot Manual, 9th edition ("ACP Manual") (Exhibit A‑10[W]), specifically states that "[e]xcept for a situation that results in a simulator crash or as in the case of an airborne PPC, a situation that if allowed to continue could result in loss of control of the aircraft, the ACP may allow a candidate to repeat a failed item if no other sequence in the PPC is rated a ‘(2)' or ‘(1)'". Although the decision to offer a retest rested with Mr. Brown, testimony from Mr. Warner indicated that one would have been considered had Mr. Warner not received a Basic Standard (‘2') mark for icing conditions awareness.
 The Minister's Representative is correct in stating that the option to retest lies entirely with the ACP. Based on a balance of probabilities, however, and by the limited definition available in the ACP Manual, the Member can see no reason why the ACP would not have allowed the crew to retest this item. At the very least, Mr. Kropla did not receive a Basic Standard (‘2') or Below Standard (‘1') mark on any other item and might have been able to benefit from this option.
 The issue of the violation of section 602.32 of the CARs is clear; the Applicants contravened this Regulation and, as such, the Below Standard (‘1') grade was warranted. The issue that remains to be determined, after considering all the testimony and evidence, is whether the crew was given an opportunity to demonstrate the required skills and performance standards in accordance with the Air Canada Jazz DH8 AOM (Exhibit M‑1), the manufacturer's specifications; and whether the crew would have had an opportunity to retest the failed item. Credible testimony Mr. Warner indicates that the crew would have benefited, on a balance of probabilities, from a retest had the airframe de-ice system been properly used. In my opinion and, based on the evidence provided, the crew operated the aircraft systems in accordance with the Air Canada Jazz DH8 AOM and flew the mission under normal operating procedures. As such, the mark attributed to Mr. Warner is questionable at best. The Applicants demonstrated the required skills and understanding of the airframe de-ice system as specified in the Air Canada Jazz DH8 AOM. The guidance in the Flight Test Guide is, unfortunately, not clear. Although it specifies some determining criteria (for example, a simulator crash) the Member, based on consistent and credible testimony and the evidence provided by the Applicants, sees no reason why the crew should not have benefited from the retest option.
 The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, Robert James Kropla, 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. Consequently, the Member refers the decision back to the Minister of Transport for reconsideration.
 The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, Grant William Warner, 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. Consequently, the Member refers the decision back to the Minister of Transport for reconsideration.
VII. RECOMMENDATIONS AND OBSERVATIONS
A. ACP Monitoring Practices
 Consistency in the application of flight test guidelines is critical to the aviation industry to create and ensure a standard and fair evaluation process for pilots during check rides. Monitored check rides for the renewal of Designated Flight Test Examiner (DFTE) and ACP designations are necessary to ensure that the level of expertise and the application of flight test standards are kept uniform and consistent. However, an already stressful situation is certainly compounded when a monitored check ride occurs and even more so when dual monitoring occurs. It would be of benefit to compare pass/fail rates against these conditions. Such a comparison may reveal an unusual statistical trend that may need to be addressed. The key is for the pilots (as candidates) to be able to perform to the best of their ability and it is in the interest of all to ensure that levels of performance, evaluation, and assessment remain consistent.
B. Flight Test Guide – Partial and Retest
 As well, it would be of benefit to the aviation industry if the application of ‘Partial and Retest' in the Flight Test Guide was clarified and better defined. The key issue lies in the word ‘may'. A more detailed set of criteria as to when a retest is applied would be beneficial to both ACPs and the pilots undertaking a check ride. In the spirit of fairness and consistency, this would assist in understanding when and if a retest is warranted.
December 5, 2011
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