Decisions

TATC File No. O-3869-27
MoT File No. 5802-205188

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Philibert Pierre Hénault, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C. 1985, c. A 2.


Review Determination
Franco Pietracupa


Decision: October 30, 2013

Citation: Hénault v. Canada (Minister of Transport), 2013 TATCE 31 (Review)

Heard in: Montréal, Quebec, on June 18, 2013

REVIEW DETERMINATION AND REASONS

Held: The Minister has proven, on the balance of probabilities, that the Applicant, Philibert Pierre Hénault, does not meet the qualifications or conditions necessary for the issuance of the Pilot Proficiency Check.

I. BACKGROUND

[1] On February 9, 2012, the Minister of Transport (Minister) issued a Notice of Refusal to Issue or Amend a Canadian Aviation Document (Notice) to the Applicant, Philibert Pierre Hénault, pursuant to paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act), with respect to a Pilot Proficiency Check (PPC) on a BH12 (Bell 212) helicopter.

[2] The grounds for the Minister's decision are stated in Appendix A as follows:

Qualifications or conditions necessary for issuance or amendment not met or fulfilled (par. 6.71(1)(b))

[…]

This supersedes the Notice of Suspension of your Instrument Flight Rating (IFR) Group 4 and Pilot Proficiency Check (PPC) effective December 6, 2011.

In accordance with item 22 on the attached 26-0279E form entitled “Flight Test Report Pilot Proficiency Check (Helicopter),” the Minister hereby refuses to issue a PPC for the BH12 Type helicopter.

II. STATUTES AND REGULATIONS

[3] Paragraph 6.71(1)(b) of the Act reads as follows:

6.71 (1) The Minister may refuse to issue or amend a Canadian aviation document on the grounds that

(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

[4] Subsection 700.16(1) of the Canadian Aviation Regulations, SOR/96-433 (CARs), reads as follows:

Flight Duty Time Limitations and Rest Periods

700.16 (1) Subject to subsections (5) and (7), no air operator shall assign a flight crew member for flight duty time, and no flight crew member shall accept such an assignment, if the flight crew member's flight duty time will, as a result, exceed 14 consecutive hours in any 24 consecutive hours. Where the flight is conducted under Subpart 4 or 5 using an aircraft other than a helicopter, flight duty time shall include 15 minutes for post-flight duties.

[5] Section 3.4 of the Transport Canada Approved Check Pilot Manual, TP 6533, 9th Edition, November 2007, indicates as follows:

3.4 CHARACTERISTICS OF EVALUATION

An evaluation may become useless if certain criteria are not respected. The following five characteristics, if used carefully when conducting a Flight Check, will result in an accurate and effective form of evaluation.

3.4.1 Reliability

Reliability ensures consistent results. As applied to the Flight Check, this would mean that two identical performances should result in the same Flight Check score.

Human factors can have a significant affect on Flight Check reliability.

Some of these factors are:

  1. Fatigue: insufficient sleep or rest prior to the Flight Check.
  2. Emotions: work or home personal problems.
  3. Health: cold or flu etc.
  4. Time of Day: very early in the morning, or last trip of the day, rushed.
  5. Distractions: noise, interruptions etc.

ACP's should be conscious of these factors and attempt to reduce as many variables as possible. The ACP may accept some of these factors as a reason for some lack of smoothness or accuracy in the candidate's performance. ACP's should also be aware that their ability to accurately assess the candidate's performance could be affected by these same factors.

[6] The 4-Point Marking Scale of the Transport Canada Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide (Aeroplane) (Flight Test Guide), TP 14727, reads as follows:

4-POINT MARKING SCALE

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.

4       Above Standard Performance remains well within the qualification standards and flight management skills are excellent.
  • Performance is ideal under existing conditions.
  • Aircraft handling is smooth and precise (i.e. well within limits).
  • Technical skills and knowledge exceed (i.e. consistently meet) the required level of competency.
  • Behavior indicates continuous and highly accurate situational awareness.
  • Flight management skills are excellent.
  • Safety of flight is assured. Risk is well mitigated.
3 Standard Minor deviations occur from the qualification standards and performance remains within prescribed limits.
  • Performance meets the recognized standard yet may include deviations that do not detract from the overall performance.
  • Aircraft handling is positive and within specified limits.
  • Technical skills and knowledge meet the required level of competency.
  • Behavior indicates that situational awareness is maintained.
  • Flight management skills are effective.
  • Safety of flight is maintained. Risk is acceptably mitigated.
2 Basic Standard Major deviations from the qualification standards occur, which may include momentary excursions beyond prescribed limits but these are recognized and corrected in a timely manner.
  • Technical skills and knowledge reveal limited technical proficiency and/or depth of knowledge.
  • Behavior indicates lapses in situational awareness that are identified and corrected by the pilot/crew.
  • Flight management skills are effective but slightly below standard. Where applicable, some items are only addressed when challenged or prompted by other crewmembers.
  • Safety of flight is not compromised. Risk is poorly mitigated.
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.
  • 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.

III. PRELIMINARY MOTION

[7] At the beginning of the Review Hearing, Mr. Hénault admitted that he failed the PPC on October 18, 2011, and does not contest the marks he was graded by the Approved Check Pilot (ACP).

IV. EVIDENCE

A. Minister

(1) Robert Joseph Bruce

[8] Robert Joseph Bruce is a Civil Aviation Inspector with Transport Canada. He testified that the Notice was sent to Mr. Hénault under section 6.71 of the Act, as the qualifications or conditions necessary for the issuance were not met or fulfilled by Mr. Hénault during his check ride. The conditions that were not met are indicated in his Flight Test Report (Exhibit M‑1). Mr. Bruce went on to clarify that Mr. Hénault was given a failing grade of ‘1' (‘Below Standard') by the ACP on Flight Test Report item 22. The ACP commented in regards to item 22 that the candidate displayed ineffective flight management skills despite prompting by the other crew members, and that risk was poorly mitigated.

(2) Douglas William Hollin

[9] Douglas William Hollin is employed by Canadian Helicopters Corporation (CHC) and has been an ACP for two years. He testified that he conducted the PPC on Mr. Hénault and Robert Masson in a helicopter simulator on October 18, 2011, in Dallas, Texas, United States of America (U.S.A.) at the FlightSafety International Training Center. Mr. Hollin was employed by Helicopter Transport Services (Canada) Inc. (HTSC) at the time. The simulator check ride took place at 4:00 a.m. The briefing in regards to the conduct of the check ride took place the day prior, that being October 17, 2011. Mr. Hollin confirmed that both pilots were present at the briefing.

[10] Mr. Hollin explained that both pilots arrived in Dallas approximately five to seven days prior to the check ride to attend an approved Transport Canada training program in preparation for the check ride. Mr. Hollin testified that at approximately 2:30 a.m. on October 18, 2011, the crew gathered in his hotel room for a pre‑flight test briefing. He asked the crew if they had any questions in regards to the upcoming flight test and if they were ready. Mr. Hénault stated to him that he was tired, but agreed that he was able to proceed with the simulator check ride. Mr. Hollin confirmed that both candidates were questioned as to their readiness both mentally and physically to undertake this test. He reiterated that they both responded affirmatively. No further questions as to their ability to undertake the test were asked once the briefing at 2:30 a.m. was complete.

[11] Mr. Hollin testified that the standards required on item 22 of the Flight Test Report were not met; specifically Mr. Hénault's Pilot Not Flying (PNF) duties. He clarified that the reason Mr. Hénault received a ‘1' on that item was that his ability to properly manage the aircraft's flight management systems did not meet standards. He further testified that Mr. Hénault seemed fixated on issues and problems, and lost situational awareness of where the helicopter was on the approach. He became distracted and unable to assist Mr. Masson in properly preparing and flying the required approach. Furthermore, speed and altitude deviations that should have been observed by a PNF were not noticed, and the Pilot Flying (PF) was not given any call‑outs from Mr. Hénault as to these deviations. Mr. Masson requested an approach checklist from Mr. Hénault but none was read out.

[12] Mr. Hollin testified that the preparation was not any better on the second approach. Both pilots lost situational awareness and the flight test was terminated, as both pilots had failed to meet standards. Mr. Hollin stated that during both approaches, Mr. Hénault displayed a loss of situational awareness, fixation, confusion and a lack of understanding of aircraft systems and radio operation. Mr. Hollin explained that Mr. Hénault's performance contributed in part to Mr. Masson's failed flight test as well. He explained that Mr. Hénault's lack of PNF skills and his inability to support his co-pilot contributed to Mr. Masson's failed approach. Under these circumstances, Mr. Hollin explained that he had no other choice but to fail Mr. Hénault in regards to item 22 of the Flight Test Report.

[13] Mr. Hollin stated that according to the Transport Canada-approved Flight Test Guide, since Mr. Masson had already been attributed a mark of ‘2' (‘Basic Standard') on another test item, he could not continue the flight test, and needed to complete another one. Subsequently, Mr. Masson was allowed to re-test, which he passed. Mr. Hénault was not re-tested although he did not receive any marks of ‘2' on the tested items.

[14] In cross‑examination by Mr. Hénault, Mr. Hollin was asked why he was not granted a re‑test, as was the case with Mr. Masson. Mr. Hollin explained that a condition of maintaining employment with the company for Mr. Hénault was to pass the check ride. Since the outcome of the simulator check ride was a failure, the company chose not to re-train and re-test Mr. Hénault.

[15] In re-examination, Mr. Hollin confirmed that on the morning of October 18, 2011, two crews were briefed consecutively, and that once the briefings were complete, Mr. Masson and Mr. Hénault were able to proceed to the simulator for the required session. He recalls that the first briefing was at 2:30 a.m., and that the other one followed it.

(3) Robert Masson

[16] Robert Masson is a helicopter pilot with over 44 years of experience. He was paired for training in October 2011 with Mr. Hénault. He recalls having a briefing in regards to the simulator check ride on October 17, 2011, that is, the day prior to the check ride. He testified that both he and Mr. Hénault then worked together until approximately 11:30 p.m. to prepare the flight profile that was given to them by Mr. Hollin. He explained that both he and Mr. Hénault were tired once all the required ground preparation was complete.

[17] Mr. Masson explained that he met with Mr. Hénault on the morning of October 18, 2011, at 2:30 a.m., and although he cannot recall the exact words used, both of the pilots made the decision to proceed with the check ride. He also testified that the ACP, Mr. Hollin, asked the crew that morning if they were ready for the check ride. Mr. Masson was asked by the Minister if he could recall Mr. Hénault's response to this question, but he could not. As to the physical state of Mr. Hénault during the check ride, Mr. Masson responded that he did appear fatigued and slow to respond to requests for checklists.

[18] In cross‑examination, Mr. Masson was asked to explain the schedule assigned to the pilots during the five days of training. Mr. Masson testified that the days were busy, with theoretical courses in the day, and evening review sessions. He also clarified that the theoretical courses were often administrative in nature. Mr. Masson was asked if he could recall when he and Mr. Hénault met with Mr. Hollin on October 17 and 18, 2011. He confirmed that they did meet, but could not recall the exact times.

[19] Mr. Masson testified that Mr. Hénault was attending a training course for the Bell 212 aircraft, and that the only training aid available for the pilots to learn the aircraft's systems consisted of a paper poster of the cockpit layout. He also explained that the simulator hours that had been allocated to them were inconsistent, but he could not recall if Mr. Hénault had expressed any negative comments in regards to his rest periods.

[20] Mr. Masson was asked if he could recall a meeting that took place after a simulator session on October 16, 2011, between himself, Mr. Hollin, and the instructor; a meeting that Mr. Hénault was not invited to attend. Mr. Masson could not recall this post‑simulator meeting. Mr. Hénault stated, during cross-examination, that the original test date of October 17, 2011, was rescheduled to the following day so as to provide the crew with an additional four hours of simulator training on October 17, 2011. Mr. Hénault stated that this was done because the instructor had not recommended the crew for the check ride, as the proficiency level required had yet to be attained. Mr. Masson stated that he did not remember the dates.

[21] In re-examination, Mr. Masson was asked what obligation a pilot would have when he is to operate a flight or take a check ride, but is experiencing fatigue and stress. He responded that the pilot has the obligation to refuse the flight as the CARs requirements in regard to crew resting and operating a flight is clear. Regarding check rides, Mr. Masson responded that he is unsure what, if any, regulations exist. He reiterated that he told Mr. Hollin that he was fit to take the check ride on October 18, 2011.

B. Applicant

(1) Philibert Pierre Hénault

[22] Philibert Pierre Hénault is a Helicopter Pilot with 35 years of experience in the industry. He also has fixed wing aircraft experience as well as experience working for Transport Canada as a Civil Aviation Inspector. He testified that the pre‑flight test briefing took place in Mr. Hollin's room on October 17, 2011, at 7:00 p.m. and ended at 8:45 p.m. He explained that on October 18, 2011, he woke up at 1:30 a.m. in order to be ready to meet Mr. Masson and Mr. Hollin at 2:45 a.m. in the hotel parking lot. He stated that Mr. Hollin was late, and that they all left the hotel together to head to the training centre at 3:15 a.m. in order to be ready for the simulator check ride scheduled at 4:00 a.m.

[23] Mr. Hénault stated that on the morning of October 18, 2011, Mr. Hollin did not ask him if he was physically ready to undertake the check ride. He stated that the only time the issue of fatigue was raised was when he indicated this to Mr. Hollin after the failed check ride. Mr. Hollin then enquired why this issue had not been raised prior to undertaking the check ride.

[24] Mr. Hénault testified that he did not raise the issue of fatigue because not only would the company look unfavorably on such a decision on his part, but also the simulator schedule could not permit any additional training as it was fully booked. He testified that his understanding was that a pilot refusing to undertake a check ride would be summarily dismissed.

[25] Mr. Hénault stated that he was in training for an initial Bell 212 course. His partner, however, had much more experience on this type of helicopter and was on a recurrent course. He testified that although they had been paired together, the gap between the pilots in training on and understanding the Bell 212 was significant.

[26] The Applicant submitted an HTSC Operations Manual (Exhibit R‑2) as evidence that the company did not follow its own Operations Manual. He stated that although he had previous experience on the Bell 214 ST helicopter, he was placed on a recurrent Instrument Flight Rules (IFR) training program for a Bell 212. He stated that this contravenes the Operations Manual in that it states that training should be conducted on the same helicopter type that a pilot is to operate. He testified that although he had failed the check ride on the Bell 212, he should have been trained and tested on a Bell 214 ST.

[27] Mr. Hénault further testified that the company erred in having him follow a Bell 212 recurrent course, that the difference between the Bell 214 ST and the Bell 212 is considerable, and that the course he had followed was too short in duration. He stated that industry practices for initial type rating courses are in duration of at least two weeks rather than five days, and that it would be difficult to complete the required training program for a recurrent IFR Flight Training course according to the company's Operations Manual in just five days.

[28] Mr. Hénault submitted the HTSC Training Schedule of the six‑day training program (Exhibit R‑3). He stated that based on the scheduled ground and simulator course times, as well as the self-study and review required, the rest periods and sleep needed to properly perform are unattainable. Mr. Hénault testified that this training program, which was developed by Mr. Hollin, is unacceptable. Moreover, he stated that as an ACP, Mr. Hollin had a responsibility to ensure that the candidates had enough rest before taking the check ride. He went on to explain that by day six, he had all the symptoms of extreme fatigue and was in no physical and mental condition to take the check ride.

[29] In cross-examination, Mr. Hénault stated that he was with Mr. Masson in Mr. Hollin's hotel room on October 17, 2011, at 7:00 p.m., and that the pre‑check ride briefing took place until approximately 8:45 p.m. Mr. Hénault reiterated that at no time during this briefing was he or Mr. Massonasked by Mr. Hollin if they were fit to take the check ride. He also did not agree that a pre-test flight briefing occurred at 2:30 a.m. on October 18, 2011.

[30] Mr. Hénault confirmed that he had operated the Bell 214 ST helicopter in IFR, and that IFR procedures are not at all different between the Bell 212 and 214 ST.

[31] Mr. Hénault was asked who has the responsibility to determine if one can conduct a flight or simulator session in commercial operations. He responded that the operator must adhere to proper rest periods in its scheduling practices and that if this is not done, the pilot has the responsibility to refuse to operate. When further questioned as to what he would do if he was stressed, ill and fatigued, Mr. Hénault responded that he would refuse but, as for the check ride, he stated that if he had chosen not to conduct the simulator session, he would have been automatically dismissed by his employer.

C. Minister's Reply

(1) Douglas William Hollin

[32] Mr. Hollin was asked to recall if he had specifically asked Mr. Hénault if he was fit to take the check ride. Mr. Hollin confirmed that he asked both pilots if they were fit to take the check ride on the morning of October 18, 2011. He stated that crew duty periods under section 700.16 of the CARs relate to flight time only and not simulator or ground training events. As to who should be responsible to undertake a flight if the pilot is not feeling well enough, Mr. Hollin responded that only the pilot can make this decision. Mr. Hollin further stated that if a pilot chooses not to continue or begin a check ride due to fatigue, the session is rescheduled, and the individual is not subject to any disciplinary actions. As to the duration of the training program, Mr. Hollin confirmed that most ground school training programs are now conducted online and prior to arriving at the training centre, and that the training program that the company used was approved by Transport Canada.

[33] In cross-examination, Mr. Hollin was asked why the training program was taken on a Bell 212 helicopter when Mr. Hénault had been operating a Bell 214 ST at the time. He explained that Mr. Hénault was to be reassigned on the Bell 212 during the summer months. The initial plan had been to train Mr. Hénault on the Bell 212 and then have him fly back to Iqaluit in order for him to complete his IFR training on the Bell 214 ST, which did not occur due to the failed check ride. When asked why as an ACP he did not provide Mr. Hénault with a second attempt at his PPC, Mr. Hollin replied that this is a Labour Board issue and did not discuss it any further.

[34] When asked about the training schedule, Mr. Hollin replied that the schedule fully meets standards and that any additional self-studying or briefings done by individual pilots are not his responsibility, and that the administrative content of the program was required and included onsite in Dallas. The required system training was conducted in most part by Computer Based Training (CBT). Mr. Hollin testified that no other pilot raised the issue of course schedule or fatigue that week.

(2) Robert Joseph Bruce

[35] Mr. Bruce was asked to specify or confirm if the required duration of a training program should be two weeks, as suggested by the Applicant. Mr. Bruce explained that Transport Canada identifies the course subjects that are required as well as the hours required to complete the course, but Transport Canada does not specify the mandatory duration in days. As to crew duty time limitations, Mr. Bruce stated that these apply to commercial flight operations. Mr. Bruce was asked who has the responsibility to determine if a pilot is fit to operate or take a check ride on any given day; his response was that the pilot ultimately determines if he can operate on that day.

[36] In cross-examination by the Applicant, Mr. Bruce reiterated that flight duty time limitations under Part 7 of the CARs apply only to commercial flight operations, not to simulator training programs.

(3) Robert Masson

[37] Mr. Masson was unable to recall if Mr. Hollin asked the crew during the pre-PPC briefing on October 18, 2011, if they were fit to undertake the simulator session. Mr. Masson testified that he alone assumes the responsibility to determine if he is fit to take a check ride.

V. ARGUMENTS

A. Minister

[38] The Minister's Representative submits that he has proven, on the balance of probabilities, that the Applicant did not meet the qualifications or conditions necessary for the issuance of a PPC, pursuant to paragraph 6.71(1)(b) of the Act.

[39] The Minister argues that Mr. Hénault had the responsibility to refuse to undertake the check ride if he was under fatigue and stress on October 18, 2011. Mr. Hollin testified that he asked both candidates if they were ready to take the PPC that morning. No one voiced any issues regarding fatigue at that time. He also submitted that no adverse employment issues would have been raised by the employer had Mr. Hénault refused to take the simulator check ride that morning. As to references by the Applicant to section 700.16 of the CARs, it is clear that this section applies to commercial flight operations, and is not intended to be interpreted for ground and simulator duty times.

[40] Finally, the Minister argues that the training program used by HTSC is approved by Transport Canada and meets the required course content.

B. Applicant

[41] The Applicant proposes that HTSC did not adhere to its own Operations Manual in that the course taken by Mr. Hénault should have been for the Bell 214 ST and not the Bell 212. He also argued that the ACP did not properly address the issue of extreme fatigue. He submitted that both the company and its Chief Pilot have a level of responsibility in ensuring that candidates receive an adequate and well-planned training program that ensures optimum performance during a check ride, which did not occur in this case.

C. Minister's Reply

[42] The Minister submits that if the training program was inadequate and the Applicant was fatigued on October 18, 2011, he had simply to refuse the check ride until such a time as he felt ready to undertake the evaluation.

VI. ANALYSIS

A. Relevant Legislation

[43] For ease of reference, I note that paragraph 6.71(1)(b) of the Act reads as follows:

6.71 (1) The Minister may refuse to issue or amend a Canadian aviation document on the grounds that

[…]

(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

[44] The Applicant admitted that on October 18, 2011, he did not meet the standards and conditions to have the PPC issued due to item 22 of the Flight Test Report. He did not dispute his performance on the PPC and agreed that item 22 merited a grade of ‘1'. Based on this, it is clear that the result of the failed check ride is not under question. With that said however, it is important for the Tribunal to address the issues raised by Mr. Hénault in order to determine if the training program, as conducted, was approved by Transport Canada.

B. Training Program

[45] I am sympathetic to the Applicant's argument that the course content and scheduling is challenging. With that said however, it is critical to note that the course and training program taken by Mr. Hénault were approved by Transport Canada. Industry practices on length and durations vary based on the content and delivery methods of certain components of the course. The Tribunal heard that some content of the course was delivered through CBT, which allows operators to reduce the number of days required onsite at the training facility. It was not clear as to how much of the ground school was delivered through CBT, but obviously this reduces the time for in-class instruction.

[46] It is also important to address the issue of the HTSC training guidelines, in that they state that a pilot shall be trained on the helicopter type he normally operates (Exhibit R‑3). Based on testimony, it appears that the company made a decision to train Mr. Hénault on a Bell 212, then have him conduct a recurrent IFR later on a Bell 214 ST. This seems to have been in line with the Operations Manual (Exhibit R‑2) and is supported in Mr. Hollin's testimony. As well, I note that the Applicant testified that he was placed on an IFR training program for a Bell 212; that he had previous experience on the Bell 214 ST; and that IFR procedures are not at all different between the Bell 212 and the Bell 214 ST. While an operator may elect to offer a more comprehensive training program, there was no testimony or evidence that what the operator did was unauthorized. Indeed, it is not clear why Mr. Hénault did not raise this issue to an instructor or a company representative at the beginning of the training program.

[47] Therefore, based on the testimony and evidence presented, I find that the training program was delivered as approved by Transport Canada.

C. Fatigue

[48] It is obvious that simulator times did vary during the period that the Applicant was on the training program. This is invariably part of a training program when training in simulators entails changes in sleeping habits, requiring adaptability by pilots. Mr. Hénault's testimony is credible and I have no doubt that the issue of fatigue was a factor in his performance that day.

[49] Testimony from Mr. Bruce clarified that section 700.16 of the CARs applies to commercial flight operations, not to ground and simulator training programs. There is no doubt that a training program must respect the human limitations of fatigue and duty times. Yet with little to no evidence or testimony regarding crew daytime duties while on ground and simulator training, the Tribunal rests its decision on the fact that the training program was approved by Transport Canada. Once onsite in Dallas, however, the responsibility to properly adhere to and respect the training program rested with the instructor, and it ultimately had to be verified and confirmed in some fashion by the ACP that the crew was fit to take the check ride. That said, no issues were raised—apart from comments that ground courses were mostly administrative and not operational—regarding the training program's content in the fashion that was approved by Transport Canada. Indeed, the Applicant argued that HTSC did not respect its Operations Manual such that the wrong training program was applied to him.

[50] Regarding the issue of the ACP verifying the pilots' fitness for the check ride, testimony from the Applicant and the Minister as to how the ACP confirmed that the crew was physically and mentally ready to undertake the check ride is contradictory. The Tribunal heard from two witnesses, Mr. Hollin and Mr. Masson, that Mr. Hollin raised the question in some form, while Mr. Hénault testified that this issue was not raised until after the check ride had been deemed a failure. With that said, and based on the testimony heard, it seems probable that the question was raised by the ACP during the pre‑PPC briefing. Both Mr. Hollin and Mr. Masson testified that questioning regarding the crew's readiness to take the check ride occurred during the pre‑PPC briefing.

D. Responsibility

[51] I have no issue in accepting the premise that the responsibility of fatigue must be shared by both the operator and the individual. Based on the testimony and evidence, it appears that the Transport Canada-approved course was delivered appropriately as indicated by the Operations Manual. As noted above, it was also heard during testimony that the issue of fatigue was raised by the ACP during the pre‑PPC briefing.

[52] I also find that ultimately the pilot undertaking a check ride or operational flight must have the final say as to whether he can or cannot perform in a safe and efficient manner on that particular day. Fatigue will vary between individuals; a pilot's sleeping habits, stress management, and health in general are not ultimately the responsibility of the ACP. Mr. Hénault testified that the issue of fatigue simply accumulated as the training progressed. He discussed this with his co-pilot on numerous occasions during the self-study times together. The situation, however, seemed not to have been raised with the company, the company instructor in Dallas, or the ACP, until after the check ride. In my view, Mr. Hénault had several opportunities to raise the issues of the training program he should be attending, the long hours of training and rest periods, and finally, that he was not ready to take the check ride on October 18, 2011. There was no evidence presented to suggest that disciplinary actions would have been taken by the company had the Applicant refused to undertake the PPC, apart from the Applicant's assertions to that effect. A pilot's responsibility for his own mental and physical well-beingcannot be shared or delegated. Unfortunately, the Applicant chose not to raise the issue and must bear the consequences of the check ride.

VII. DETERMINATION

[53] The Minister has proven, on the balance of probabilities, that the Applicant, Philibert Pierre Hénault, does not meet the qualifications or conditions necessary for the issuance of the Pilot Proficiency Check.

October 30, 2013

Franco Pietracupa

Member