TATC File No. H-3758-60
MoT File No. 5802-404893
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
John-Franco Calabrese, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s 7.1(1)
Richard F. Willems
Decision: January 20, 2012
Citation: John-Franco Calabrese v. Canada (Minister of Transport), 2012 TATCE 3 (Review)
Heard in Vancouver, British Colombia, on September 15, 2011
Held: The Minister of Transport has proven, on a balance of probabilities, that the Applicant 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. The Minister's decision is confirmed.
 On November 23, 2010, the Minister of Transport ("Minister") issued a Notice of Suspension ("Notice") to the Applicant, John-Franco Calabrese, with regards to his Pilot Proficiency Check ("PPC") on November 22, 2010.
 The Notice reads 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 Nov. 22, 2010, you have demonstrated that you no longer meet the required standard for DH8 PPC and Group 1 Instrument Rating, in that you failed to complete a flight test sequence and procedure within established criteria. Your DH8 PPC and Group 1 Instrument Rating are 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 DH8 IFR/PPC and the document referred to above is reinstated by the Minister.
II. STATUTES AND POLICIES
 The basis for the suspension is established under subsection 7.1(1) of the Aeronautics Act, R.S.C. 1985, c. A-2 ("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.
 The grounds on which the Minister may refuse to issue or amend a Canadian aviation document are set out at subsection 6.71(1) of the Act:
6.71 (1) The Minister may refuse to issue or amend a Canadian aviation document on the grounds that
(a) the applicant is incompetent;
(b) the applicant or any aircraft, aerodrome, airport or other facility in respect of which the application is made does not meet the qualifications or fulfil the conditions necessary for the issuance or amendment of the document; or
(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the applicant or of any principal of the applicant, as defined in regulations made under paragraph (3)(a), warrant the refusal.
 The policies, procedures, and guidelines for Approved Check Pilots (ACPs) to follow when conducting check rides are found in the Approved Check Pilot Manual, Ninth Edition, TP 6533E, 11/2007 ("ACP Manual").
 The circumstances leading to a general assessment of ‘failed' are set out in Chapter 4.10 of the ACP Manual:
In order for a Flight Check to receive a General Assessment of "Failed", at least one sequence or item must be assessed "(1)". It also follows that, when any individual sequence has been assessed "(1)", the PPC must receive a General Assessment of "Failed".
During a PPC, a "(1)" assessment of an Instrument Rating related sequence constitutes a failure of the Instrument Rating and the PPC. The ACP will assess the PPC as "failed" at the bottom of the Flight Test Report Pilot Proficiency Check (form 26-0249/26-0279). Appropriate administrative action must be carried out in the suspension of any currently existing PPC and Instrument Rating in accordance with this manual Where the PF is assessed a "(1)" on an Instrument Rating related sequence, the above failure and associated suspension activity may be relevant to the PNF as well.
During a PPC/IFT, failure of a PPC related flight sequence that is not related what-so-ever to an instrument flight sequence constitutes an unsuccessful PPC only. In the case of a Part VII pilot, administrative action is taken in the suspension of the currently existing PPC only. The currently existing Instrument Rating is not affected, hence remains valid. In order to be re-instated on the line, at any flight crewmember position and regardless of the type of PPC (including upgrade), another PPC must be successfully completed.
When an ACP decides that a pilot has failed during the course of a PPC, the PPC must be immediately terminated. ACP's and candidates should keep in mind that it is not the ACP who fails the candidate, but rather it is the candidate whose performance on that day has not met the minimum skill standards needed to safely exercise the privileges of the licence or rating. Candidates may become aware or assume that a PPC item has been performed "Below Standard".
Where a candidate has failed the PPC and the ACP is a training pilot, the time remaining in the session may be used as training provided that:
- the candidate is advised at the time of failure and agrees with continuing the flight as a training flight;
- the ACP is a designated company training pilot on type;
- no other crewmember is being evaluated;
- upon completion of the training flight the candidate is debriefed on the reason for failure and where applicable, on the administrative suspension procedures that will follow including the candidate's rights to appeal the assessment to the TATC; and
- the ACP completes Flight Test Report Pilot Proficiency Check (form 26-0249/26-0279) assessed as "failed" and submits the original to Transport Canada and follows the procedures for PPC and Instrument Rating Suspensions.
(1) Edward Hugh Scullion-Paterson
 Captain Edward Hugh Scullion-Paterson is the ACP for Jazz Aviation LP ("Jazz") who conducted the check ride on Mr. Calabrese on November 22, 2010. He was also involved in Mr. Calabrese's training in preparation for this check ride; however, since Captain Paterson completed less than 50 per cent of the training, he was allowed to conduct the check ride, but not allowed to recommend the Applicant for one. He testified that he and the crew arrived at the flight simulator ("SIM") in time for a normal briefing at 2:00 p.m., half an hour before the check ride was scheduled to begin. He explained that he had problems printing out documents and advised the crew of the delay. As these delays extended, Captain Paterson kept the crew informed and confirmed with the SIM operators from CAE that no one was scheduled in the SIM after them. The crew was advised of this and that they would not be under any time constraints.
 Captain Paterson spoke to the two main issues of the check ride. The first issue was a single engine missed approach, during which two altitude excursions above the assigned altitude of 3 000 feet took place, the last one exceeding it by 244 feet. The normal allowance for deviation is 100 feet above the assigned altitude, however, because of the system failures involved and the crew recognizing and correcting the situation in a timely manner, he graded the exercise a Basic Standard (2), according to the four-point marking scale for check rides found in Chapter 4.6 of the ACP Manual.
 The second issue was a single engine Instrument Landing System ("ILS") approach, during which incorrect power settings resulted in the aircraft deviating above, and shortly thereafter, below the glideslope. Both deviations were beyond the tolerance allowed, and as a result, this exercise was graded a Below Standard (1).
 Captain Paterson testified that during the training he had done with this crew, he had seen issues with the operation of the auto pilot/flight director, and significant deviations from company standard operating procedures (SOPs). These were of enough significance for him to place an ‘irregularity report' in the crew's training files. In Exhibit M‑4, a training session spreadsheet for Mr. Calabrese shows that an additional training session was done and, at the completion of this, the crew was recommended for the PPC. In addition, Captain Paterson testified that all pilots are trained to a standard prior to being recommended for check rides.
 After the check ride, Captain Paterson gave Mr. Calabrese his phone number and asked him to call him if he needed assistance. About two days later, Mr. Calabrese called to inform Captain Paterson that he had not been contacted by Jazz since the check ride, so Captain Paterson called his supervisor, and was told that someone would contact Mr. Calabrese. The following day Mr. Calabrese called Captain Paterson again, telling him that Jazz had not yet contacted him. Captain Paterson called his supervisor again, and he was informed that the situation was being handled as they spoke. He had no further dealings with Mr. Calabrese until, in preparation for this Hearing, he learned that Mr. Calabrese had resigned from Jazz.
 Under cross‑examination, much time was spent discussing the length of the SIM session. Notably, Captain Paterson agreed that Mr. Calabrese's pilot flying (PF) portion of the check ride started at about 6:15 p.m. and ended at 8:03 p.m., which was when the approach, subsequentlygraded a Below Standard (1), was completed.
 When asked by the Applicant's Representative to explain why he had graded the approach as a failure, he explained that, due to an incorrect power setting, the airspeed had been unstable during the approach and that there were major deviations vertically, which caused glideslope indications beyond tolerance.
 When asked about the training sessions he had completed on Mr. Calabrese, Captain Paterson again testified that there had been some issues, and that the debriefings for the training sessions on November 10 and 11, 2010 had been about half an hour longer than normal due to the items that had to be covered before training could continue.
 In addition, Captain Paterson was asked if he had a copy of Mr. Calabrese's recommendation for the check ride. He testified that, although he has never seen the recommendation, it is highly unlikely that the check ride would have been scheduled without it and without all of the other paperwork required for a check ride to occur.
(1) John-Franco Calabrese
 Mr. Calabrese is a pilot with 4 500 hours flying time over 18 years and was a Training Captain on Navajos and Metroliners prior to joining Jazz.
 Mr. Calabrese requested a Hearing to appeal the suspension of his Group 1 Instrument Rating. He testified that he also takes issue with the fact that the Notice states that he has demonstrated that he no longer meets the required standard for a DH8 PPC. He was never in possession of a DH8 PPC as this was his initial check ride on this aircraft type, and he questions how this PPC can be suspended when he was never in possession of one.
 Mr. Calabrese testified that his training did not go that well, both in Ground School and during the SIM sessions. He believes that judgments were made about him based on his initial performance in Ground School, which created a bias that influenced decisions made during his SIM training and eventually during his check ride.
 He informed me that after the training session on November 10, 2010, Captain Paterson kept Mr. Calabrese's training records because the session had been very busy and long, and he needed to take them with him to complete. Mr. Calabrese has not seen those records since that day yet he also stated that he never asked for them.
 Since Mr. Calabrese was concerned about his progress in the SIM, he asked several instructors for their opinions on his progress, and most of the time he was told that the progress was normal.
 The training session on November 12, 2010 was supposed to be the pre-PPC session, which would mean that with normal progress, the next SIM session would be the PPC. During this session, Mr. Calabrese only flew about 35 to 40 minutes out of the 2 hours which would normally have been assigned to him. The other pilot needed extra time to complete his portion of the training because of the problems the crew was having, with the end result being that the Instructor did not recommend them for a PPC. A few days later, they were informed that training would continue, and that an extra training session had been scheduled for November 17, 2010.
 In Mr. Calabrese's opinion, the training event on November 17, 2010 was "fairly normal", though there were still some areas of concern. He did not feel that he was ready for the check ride. He also felt that the training pilot had some hesitation in recommending them for the check ride. Mr. Calabrese personally felt that his job at Jazz was in jeopardy, but stated that no one indicated that to him or put any pressure on him to move forward.
 Mr. Calabrese's testimony regarding the printer delays at the start of the check ride is similar to Captain Paterson's. After the printer delays, followed by a normal briefing and the first half of the check ride when he was the Pilot Not Flying (PNF), he felt that fatigue was becoming a factor in the check ride. During the break, he did notice another group that he believed was waiting for the SIM, however, he could not confirm this.
 In his testimony regarding the ILS approach, which was the exercise that caused this PPC failure, he recalled the localizer and glideslope coming in very fast, and that he was playing "catch-up" the whole way down, using excessive power deviations in order to try and correct the situation. The approach completed, they landed on the runway without crashing. He described that the approach "wasn't pretty" and had there been any passengers on board, they would have been upset.
 Mr. Calabrese testified that all throughout his training it was never mentioned to him that he would be terminated if he did not progress at a certain rate or if he failed the check ride.
 Several days after the check ride, Mr. Calabrese was asked to see the Chief Pilot for Jazz's Vancouver office, and was informed that he was not progressing at the pace they were looking for and given two options, in Mr. Calabrese's words: "Quit or be terminated".
 Mr. Calabrese spoke at length about his educational history and learning pace. He testified that he learns at a different pace, and that it usually takes him longer than others to absorb, understand and grasp knowledge. He did ask for and received some help from Jazz Instructors but he was not asked by the other students to join their study groups. As a result, he mostly studied on his own and he believes he missed out on a lot of information which could have been beneficial to him.
 Mr. Calabrese also testified that personal and family issues were affecting him. He had started a new job and his wife was on maternity leave, which weighed heavily on his mind.
 At no time during this period did Mr. Calabrese communicate to anyone at Jazz that he felt he was not ready for the check ride for fear of being suspended and his training ceasing.
 Much was said about the delay in starting the PPC SIM session. According to Captain Paterson's notes (Exhibit M‑4), it was scheduled to begin at 2:30 p.m. and end at 8:15 p.m. According to the last of the series of approach plots (Exhibit M‑6), the check ride ended at 8:03 p.m. due to the failed ILS approach – this would be a normal length of time for a SIM session. I have not heard any issue here that would cause undue fatigue.
 I have not heard anything problematic with the procedures used by Captain Paterson while conducting the PPC. The delay at the start of the session was beyond his control and he kept everyone informed of the situation as time went on. He did show concern about the added stress due to the delay, and advised the crew that there were no time constraints.
 From the testimony of both witnesses and the evidence on the approach plot (Exhibit M‑6) which shows the glide slope deflections beyond tolerance, I agree with Captain Paterson's grade of Below Standard (1) for the ILS approach.
 As to the suspension of Mr. Calabrese's Group 1 Instrument Rating, the failing item on this PPC was an ILS approach, which is an Instrument Rating-related sequence. Importantly, the ACP Manual contains the following statement:
During a PPC, a "(1)" assessment of an Instrument Rating related sequence constitutes a failure of the Instrument Rating and the PPC. The ACP will assess the PPC as "failed" at the bottom of the Flight Test Report Pilot Proficiency Check (form 26-0249/26-0279). Appropriate administrative action must be carried out in the suspension of any currently existing PPC and Instrument Rating in accordance with this manual. [emphasis added]
As such, Captain Paterson had no choice in this administrative matter, which he carried out correctly.
 Another administrative issue that needs to be addressed is the Notice (Exhibit M-8) which indicates that it is for a suspension, pursuant to subsection 7.1(1) of the Act, rather than for a refusal to issue, pursuant to subsection 6.71(1) of the Act. Mr. Calabrese's Flight Test Report (Exhibit M‑7) itself indicates that this PPC was for an initial PPC on a DH8 and Mr. Calabrese also testified that this was his initial check ride on the DH8. As a result, this event should have been classified as a ‘Refusal to Issue' under subsection 6.71(1) of the Act.
 I find that the error of suspending rather than refusing to issue the DH8 PPC was not prejudicial to Mr. Calabrese in any way since this error did not alter the fact that he did fail the check ride, nor does this error alter the ramification of the failure of the check ride.
 As to the circumstances surrounding Mr. Calabrese's resignation from Jazz, that issue is beyond the Tribunal's jurisdiction.
The Minister of Transport has proven, on a balance of probabilities, that the Applicant 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. The Minister's decision is confirmed.
January 20, 2012
Richard F. Willems
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