TATC File No. W-3763-62
MoT File No. 5802-368678
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Kyle Franczak, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C., c. A 2; ss 7.1(1)
Richard F. Willems
Decision: March 14, 2012
Citation: Franczak v. Canada (Minister of Transport), 2012 TATCE 10 (Review)
Heard in Edmonton, Alberta, on October 5, 2011
Held: The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, Kyle Franczak, did not demonstrate the required standards for an Approved Check Pilot delegation of authority, pursuant to subsection 7.1(1) of the Aeronautics Act. Consequently, this matter is referred back to the Minister of Transport for reconsideration.
TATC File Nos.: W-3763-62 (Kyle Franczak)
W-3764-60 (Trevor Stephen Annon)
W-3769-60 (Leeann Cheris McLaren)
 On January 26, 2011, Inspector Duncan Allan Wilson of Transport Canada was monitoring Captain Kyle Franczak, who was conducting a DH8 Pilot Proficiency Check ("PPC") on a crew from the airline, Canadian North. Captain Trevor Stephen Annon was the Pilot Not Flying ("PNF") for the relevant portion of the check ride and First Officer ("F/O") Leeann Cheris McLaren performed the Pilot Flying ("PF") duties. Both pilots had their DH8 PPCs suspended by the Minister of Transport ("Minister") because it was alleged that they were unable to demonstrate competency in autoflight modes. Captain Franczak had his Approved Check Pilot ("ACP") delegation of authority suspended because he did not recognize the alleged error made by the crew.
II. STATUTE AND POLICY
 Paragraph 7.1(1)(b) of the Aeronautics Act, R.S.C., c. A‑2 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…
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.
 Under section 4.6 of the Approved Check Pilot Manual, Ninth Edition, TP 6533E, 11/2007, titled "Assessment of Performance", the following is indicated:
The demonstration of a procedure or sequence that would normally rate a "2 – basic standard" may be repeated later during the flight check, at the discretion of the ACP if the procedure or sequence does not clearly come under the definition of "1 – below standard".
(1) Inspector Duncan Allan Wilson
 Inspector Duncan Allan Wilson is employed as a Civil Aviation Safety Inspector in the Commercial and Business Aviation division of Transport Canada. He has an H‑18 delegation which gives him the authority to conduct PPC and Instrument Flight Rules ("IFR") renewals and initial ratings, as well as monitor and approve ACPs.
 On January 26, 2011, Inspector Wilson was conducting an ACP monitor on Captain Franczak, who in turn was conducting a PPC ride on F/O McLaren as PF and Captain Annon as PNF.
 Shortly after the initial take-off, Captain Franczak issued a holding clearance to the crew which was to hold west at the Sea Island (Vancouver International Airport) non-directional beacon ("NDB") inbound on the localizer. The crew briefed a direct entry based on their track to the beacon of 020 degrees. Inspector Wilson testified that either a direct or parallel entry could have been used and would have been correct, but emphasized that the crew had briefed a direct entry, not a parallel entry.
 After crossing the Sea Island NDB, he observed F/O McLaren turning the heading bug to the right, past the bottom of the horizontal situation indicator ("HSI"), to a new desired heading.
 The aircraft initially banked to the right; however, once the heading bug had rotated past the bottom of the HSI instrument, the aircraft banked to the left, starting a turn to take the shortest direction to the new desired heading.
 Inspector Wilson testified that both crew members recognized that the aircraft was incorrectly turning to the left. Both pilots adjusted the heading bug in order to make the aircraft turn to the right, but were unsuccessful in doing so. At that point, Captain Annon suggested they allow the aircraft to remain in the left turn and perform a parallel entry to the holding pattern. The parallel entry was completed correctly and the aircraft remained in protected airspace.
 Inspector Wilson, throughout his testimony, emphasized that the failing mark of a Below Standard "1" (Flight Test Reports, Exhibits M‑6 and M‑7), was due to the crew's inability to correctly control the aircraft with the autopilot. Prior to agreeing to allow the aircraft to continue the left turn, the crew had been trying to control the aircraft to make the right turn for the direct entry into the holding pattern. He believes that neither pilot was able to control the aircraft with the autopilot, and that they eventually allowed the autopilot to fly the aircraft "uncommanded". He further testified that changing the holding entry from the one that had been briefed would have been a debriefing point, but was not part of the failing event.
 Inspector Wilson also testified that crews make mistakes during the course of a flight, but if those mistakes are identified and corrected in a timely manner, the problem is solved.
 Under cross-examination, Inspector Wilson agreed that the crew had discussed the incorrect turn issue, stating that "they elected to allow it [the aircraft] to proceed to do a parallel entry".
(1) First Officer Leeann Cheris McLaren
 F/O Leeann Cheris McLaren was the PF during the check ride in question. She started her employment at Canadian North in May 2010, and her initial training and check ride on the Dash 8-100 was done in June 2010. The check ride in question was her first recurrent PPC on the Dash 8. Prior to Canadian North she had flown as a Captain on the Beech 99 and the Cessna Caravan. She testified that she has not had much exposure to autopilots, the Caravan being the only aircraft with one installed, and it was only used in cruise.
 She testified that after the holding clearance had been accepted, she and Captain Annon determined that they could do either a parallel or direct entry. They agreed and briefed on the direct entry. After crossing the NDB, she turned the heading bug to the right for an outbound heading for the direct holding entry; however, because she had turned it too far, the aircraft reversed the turn to the left, taking the shortest distance to the desired heading.
 Captain Annon noticed the error, and told her that she had turned the heading bug too far. He had reached over and put in a correction; however, the aircraft was still continuing the left turn. She had concerns of remaining in protected airspace due to the fact there was a wind from the south (a tailwind), which, while this heading bug issue was taking place, was taking them further north. The aircraft was in a left bank and had been for some time, and would have continued downwind even further if it had been reversed to do a right turn. She felt that the safest thing to do was to continue the left turn to a parallel entry. Captain Annon agreed with her, and after an update to the holding pattern briefing, the heading bug was set for an outbound heading for a parallel entry.
(2) Captain Trevor Stephen Annon
 Captain Trevor Stephen Annon was the PNF on the check ride in question. He has been employed with Canadian North as a Captain on the Dash 8 since February 2008, and has been flying the Dash 8 since 2005.
 He recalled that the holding clearance was for the Sea Island NDB, not the localizer as was suggested by Inspector Wilson. F/O McLaren and he had discussed the entry, and decided to do a direct entry. He remembers that, after crossing the NDB, F/O McLaren spun the heading bug and the aircraft started into a right turn. However, she had turned the heading bug past the 180‑degree mark, and the aircraft started the turn to the left, which was the shortest route to the desired heading. She stated that the aircraft was in a left turn, and she tried to correct it. Since her correction was not working, he then spun the heading bug clockwise over top of the lubber line; however, the aircraft continued in the left turn. At this point he felt the best option was to do a parallel entry, his reasoning being that it would be the best and safest procedure to ensure they did not leave protected airspace. He was also concerned that with this turning error the wind could have put them far enough north that if they had reversed back to a right turn, they might have had to go back to the NDB and start the whole procedure again. The parallel entry was briefed, the heading bug set for the outbound leg of the parallel entry, and the entry procedure was completed.
(3) Captain Kyle Franczak
 Captain Kyle Franczak was the ACP being monitored by Inspector Wilson while conducting a PPC ride on Captain Annon and F/O McLaren. He has considerable experience on the Dash 8, both as a Captain, and as an ACP.
 Captain Franczak testified that he issued a holding clearance to the crew in accordance with the scripted check ride. The script was designed so that the crew would have to make a choice between a direct or a parallel entry, and also consider the tailwind of 25 knots affecting them on their track to the NDB, during the holding entry, and throughout the actual holding pattern itself. Once over the NDB, he observed F/O McLaren turning the heading bug to the right, but she had turned it too far, causing the aircraft to initially bank to the right; however, once the heading bug had passed the bottom of the HSI instrument, the aircraft banked to the left to take the shortest direction to the desired heading. At that point, Captain Annon advised that the aircraft was in a left turn. After a short delay, he recalled Captain Annon turning the heading bug to the right, but he had again turned it too far to the right, and the aircraft remained in the left turn. At that point, F/O McLaren suggested they re-brief on the parallel entry, which Captain Annon agreed to. She then placed the heading bug at a heading of 260 degrees, and the parallel entry was flown.
 At this point, Captain Franczak was satisfied that the crew was in control of the aircraft, and getting it to go where they wanted it to.
 Inspector Wilson testified that, shortly after the holding entry had begun, both crew members realized that the aircraft was not turning in the direction that they wanted it to. They both tried to correct the situation and they were unable to control the aircraft with the heading bug/autopilot. He agreed that they stayed in protected airspace; however, he believes that they were not in control of the aircraft for that short period of time after crossing the NDB. Unable to get the aircraft to turn to the right, they allowed it to continue uncommanded to the left, and at some time during this event, realized that they were set up for a parallel entry and continued with that procedure.
 Under cross-examination, Inspector Wilson agreed that the crew had discussed the incorrect turn issue, and in his words, "they elected to allow it [the aircraft] to proceed to do a parallel entry". By this statement, Inspector Wilson admits that he did hear the crew discussing the issue, with both being involved in the decision to switch holding entry patterns.
 Inspector Wilson further testified that crews make mistakes during the course of a flight, but if those mistakes are identified and corrected in a timely manner, the problem is solved.
 F/O McLaren testified that she was concerned about the tailwind and the distance travelled while the autopilot was not responding to her heading inputs. In order to not fly into unprotected airspace, she suggested they change the direct entry to a parallel. Captain Annon testified that he had the same concerns and agreed to this change of plans.
 In my view, the crew made a decision based on what they saw as the safest procedure to handle the problem they had created. They, as a crew, came up with a plan to solve the problem and were able to successfully complete the exercise.
 While I understand Inspector Wilson's concern of the crew not being able to control the aircraft with the autopilot, the crew made a decision to change the holding pattern entry, which could have easily been interpreted as allowing the aircraft to continue on its way with no inputs from the crew, due to the fact that the outbound heading for both entries is basically the same heading. He had a lot of time left in this PPC to set up a scenario in the simulator in order to have the crew demonstrate a similar procedure to see if they would make the same mistake again. I find that from the crew's testimony, they were working out the problems, and had made a decision based on the fact that they had a tailwind; and that, combined with another reversal of turn would have put them far enough north that they had concerns of leaving protected airspace. The decision made was to take the shortest turn, at this point, to place the aircraft in a proper position to enter the holding pattern; that meant changing the holding entry. From the testimony of both crew members, it is apparent they made conscious decisions and managed to get out of a situation that could have given them an airspace violation. One cannot take that decision-making ability away from them.
 Captain Franczak testified that after both pilots had worked with the heading bug, he heard the crew discussing the change of plan to the parallel entry, and from what he saw, the crew had the situation under control.
A. Captain Kyle Franczak
 The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, Kyle Franczak, did not demonstrate the required standards for an Approved Check Pilot delegation of authority, pursuant to subsection 7.1(1) of the Aeronautics Act. Consequently, this matter is referred back to the Minister of Transport for reconsideration.
B. Captain Trevor Stephen Annon
 The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, Trevor Stephen Annon, did not demonstrate the required standards for a Pilot Proficiency Check, pursuant to subsection 7.1(1) of the Aeronautics Act. Consequently, this matter is referred back to the Minister of Transport for reconsideration.
C. F/O Leeann Cheris McLaren
 The Minister of Transport has not proven, on a balance of probabilities, that the Applicant, Leeann Cheris McLaren, did not demonstrate the required standards for a Pilot Proficiency Check, pursuant to subsection 7.1(1) of the Aeronautics Act. Consequently, this matter is referred back to the Minister of Transport for reconsideration.
March 14, 2012
Richard F. Willems
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