TATC File No. O-3906-27
MoT File No. 5802-814424 (PAHR)
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Christopher Michan Jan Szydlowski, Applicant
- and -
Minister of Transport, Respondent
paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C. 1985, c. A-2
Decision: January 10, 2014
Citation: Szydlowski v. Canada (Minister of Transport), 2014 TATCE 2 (Review)
Heard in: Toronto, Ontario, on November 6, 2013
REVIEW DETERMINATION AND REASONS
Held: The Minister of Transport has not proven, on the balance of probabilities, that the Applicant, Christopher Michan Jan Szydlowski, failed to meet the qualifications or conditions necessary for the issuance of a Pilot Proficiency Check on a Beech 1900. Therefore, the matter is referred back to the Minister for reconsideration.
 On August 2, 2012, the Minister of Transport (Minister) sent a Refusal to Issue a Beech 1900 type rating to the Applicant, Christopher Michan Jan Szydlowski, with respect to a failed Pilot Proficiency Check (PPC) on June 2, 2012, pursuant to paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act).
II. STATUTES and POLICIES
 The basis for the refusal to issue is established under paragraph 6.71(1)(b) of the Act, which 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
 Excerpts from sections 3.1, 4.1, 4.3, 4.3.2, and 4.6 of the Approved Check Pilot Manual, 9th edition, TP 6533 (ACP Manual), read as follows:
3.1 AIM OF THE FLIGHT CHECK
Flight Checks conducted under and Part VII of the Canadian Aviation Regulations consist of Pilot Proficiency Checks (PPCs) and Line Checks.
The aim of a PPC is to:
(a) determine that the candidate/crew meets the skill requirements to fulfill their assigned responsibilities in a safe and competent manner for the PPC, Line Check or rating sought;
(c) to ensure acceptable levels of safety are maintained and, where possible, improved throughout the aviation industry, by requiring the application of sound airmanship and flight discipline.
4.1 FLIGHT CHECK PHILOSOPHY
Flight test principles intent is to focus on Threat and Error Management strategies and performance where it is recognized that from time to time, errors or deviations from standard practices will occur. While undesirable, it is a fact that flight crew or others associated with flight operations will make errors and that these errors if not recognized and managed properly could have serious consequences [italics added].
Today's Flight Check evaluators must recognize the potential safety threat for any given situation or commission of errors, and then determine the effectiveness of crew actions in managing the situation so as not to jeopardize safety.
4.3 THE FLIGHT CHECK
The ACP must create an environment conducive to a true demonstration of the pilot's ability.
4.3.2 Pilot Proficiency Checks
A realistic Flight Check environment will result in an effective assessment.
The PPC schedules define the PPC as a requirement for the flight crew to demonstrate their ability to safely operate a specific type of aircraft throughout the normal, abnormal, and emergency flight envelopes set out in the AFM, HFM, AOM, QRH, and SOPs [italics added].
When acting as ATC for the purposes of the PPC, ACPs must [italics added]:
(c) provide assistance that would normally be available from ATC when necessary to facilitate the objectives of the exercise or when requested by the crew and doing so will not compromise those objectives [italics added].
4.6 ASSESSMENT OF PERFORMANCE
An ACP may also tolerate an excursion from specified limits in the performance criteria if the candidate recovers in a timely manner. However, an excursion from prescribed limits, with or without a timely recovery, which jeopardizes the safety of the aircraft is unacceptable. [italics added].
(1) Nathan Myers
 Nathan Myers was the Approved Check Pilot (ACP) during the simulator check ride. He stated that he has been a pilot since 1999 and an ACP for a year and a half. Mr. Myers indicated that a pre-flight briefing was conducted for both Mr. Szydlowski and Hector Oliveros, in which Mr. Myers specified that the crew should follow normal Standard Operating Procedures (SOPs) and checklists during the evaluation. He further explained to the crew that no multiple unrelated failures would be programmed into the simulator, and that the crew should take enough time to properly assess the system malfunctions, and not let errors affect subsequent sequences during the check ride.
 Mr. Myers further explained that a Transport Canada‑approved simulator script (Exhibit M-1) was used to evaluate both pilots. Mr. Myers testified that Mr. Szydlowski was the First Officer (FO) for the first half of the check ride, and acting as the Pilot Monitoring (PM) for Mr. Oliveros, the Captain; after the first half of the check ride, Mr. Szydlowski was the Pilot Flying (PF). Mr. Myers stated that he entered a malfunction of low oil pressure on the left engine into the simulator.
 Mr. Myers explained that the PF did not call for the applicable checklist, and that had he done so, it would have indicated that the crew was to reduce torque on that engine to 2 000 foot‑pounds (ft·lbs). He further explained that once this fault had been identified, an animated discussion, including raised voices, took place for several minutes between the PF and PM regarding the appropriate action to take. He stated that the crew established communication with Air Traffic Control (ATC) to explain the situation, and that ultimately the crew decided to secure the engine and shut it down without consulting the Low Oil Pressure checklist.
 He stated that in choosing this option, the crew went from an abnormal to an emergency situation. Mr. Myers testified that shutting down the engine affected flight safety in that the crew would have been in an asymmetrical condition with a loss of thrust due to the engine being secured. This resulted in Mr. Szydlowski taking an unacceptable risk to flight safety due to the fact that he allowed the PM, Mr. Oliveros, to talk him into securing the left engine when, in fact, the engine would have still been available, albeit with reduced thrust.
 Mr. Myers further explained that the crew discussed the situation for approximately five minutes prior to shutting down the engine. He stated that had they consulted the checklist for a low oil pressure indication of between 60-90 pounds per square inch (psi), the action would have been to reduce thrust so as to not exceed 2 000 ft·lbs of torque (Exhibit M‑7). He stated that at no time did this oil pressure indication drop below the psi needed to trigger a red low oil pressure annunciation. Mr. Myers stated that it was clear from the discussion in the cockpit that Mr. Oliveros wanted to secure this engine to avoid further possible damage. He stated that Mr. Szydlowski disagreed numerous times, stating that this was not required and voicing his opinion that they should return immediately to land, but did not offer any other checklist alternatives. Mr. Myers testified that the correct procedure was to call for the Low Oil Pressure Indication checklist, which was not done.
 Mr. Myers explained that the crew interaction was acceptable during most of the check ride, but that tension gradually increased, cumulating in the failed test item. He explained that, overall, Crew Resource Management (CRM) between the two pilots was poor.
 In cross‑examination, Mr. Myers was asked to evaluate Mr. Szydlowski's performance until the low oil pressure malfunction. He responded that the check ride was successful until that point. Mr. Myers re-iterated that the PM at the time, Mr. Oliveros, had the immediate reaction when the fault was detected to secure the engine. He also testified that the PF, Mr. Szydlowski, disagreed with this course of action. He further stated that Mr. Szydlowski eventually agreed to secure the engine. He again confirmed that the crew's discussion regarding the low oil pressure indication took approximately five minutes.
 Mr. Myers further explained that the low oil pressure malfunction was programmed to activate at 800 feet above ground level. Mr. Myers confirmed that the crew requested additional time from ATC to resolve this problem, and that the standard practice in an airport such as at Toronto Pearson International would have been to issue a holding clearance or delayed vectors. He was further asked if it would have been standard practice for the crew to slow the aircraft down prior to entering a holding pattern, and he stated that it would have. When then asked if the left engine's power could have been below the 2 000 ft·lbs of torque while slowing down, Mr. Meyers indicated that this could have been possible.
(2) Hector Oliveros
 Hector Oliveros is a Captain on the Beech 1900 and has been a pilot for over 22 years. He stated that he was a candidate on the check ride that took place on June 2, 2012, and that training and briefings were normal prior to the check ride. He testified that he was exposed to the company SOPs and checklists during training, and that they were accessible during the simulator check ride. With respect to item 24 of the Flight Text Report (Exhibit M‑4), Mr. Oliveros testified that he suggested to Mr. Szydlowski that they secure the engine when the fault was identified. He recalled calling ATC and, although not in an emergency situation, requesting priority return to the airport. He stated that this was denied and a holding clearance was subsequently given to the crew. He also confirmed that the Low Oil Pressure checklist was not called for. He testified that he referred to the memory items in accordance with the SOPs in order to secure the engine.
 Mr. Oliveros further testified that the discussion between himself and Mr. Szydlowski centered on his suggestion to secure the engine. He felt that the weather was acceptable, that the aircraft was close to the airport, and that this would be the appropriate action at that time. He stated that Mr. Szydlowski eventually agreed to this course of action. He confirmed that the aircraft's oil pressure never dropped below the 60 psi trigger for the master warning light. He testified that approximately 10 minutes elapsed between the initial oil pressure malfunction and the decision to secure the engine. He stated that the initial request to return to land was denied, the holding clearance was given instead, and that they were in the holding pattern for some time before securing the engine.
 Mr. Oliveros was asked why he insisted the crew secure the engine. He testified that he had previously experienced an engine low oil pressure fault while flying in India. He stated that, at that time, he had followed the checklist but was faulted by the Indian authorities for not securing the engine. Post-flight inspections showed that the engine had experienced severe damage and at the time he was blamed by his company for not securing the engine. Mr. Oliveros explained that he followed all proper procedures, but was still faulted, and that this played a role in his strong views during the check ride regarding shutting down the engine.
 Mr. Oliveros testified that he was aware of the low oil pressure checklist, but that at no time during the discussion was this checklist called for. He explained that he also failed the check ride, due to the decision to shut down the engine.
 In cross‑examination, Mr. Oliveros testified that he waited for the PF to decide the next actions once the fault had been detected. He also testified that the responsibility to brief the holding pattern fell on himself as PM, but he could not recall if he did so. He also testified that the PF agreed to shut down the affected engine, although he could not recall the exact words used by Mr. Szydlowski in agreeing to this course of action.
(3) Andy Johnstone
 Andy Johnstone has been employed as a Transport Canada civil aviation inspector for approximately 20 years and is the ACP regional representative for Ontario. He testified that he is familiar with the Flight Test Report for this particular check ride. He stated that he agreed with the check ride's outcome and recommended that a Refusal to Issue a PPC be sent to both candidates, based specifically on the failure of the crew on item 24.
 Although he was not present at the time of the check ride, in cross-examination, Mr. Johnstone testified that in securing an engine, a crew can potentially jeopardize flight safety. Furthermore, it concerned him that the crew did not consult the Abnormal Emergency Procedures and the correct checklists. He further testified that had the correct checklist been consulted, it would have shown that securing the engine was unnecessary. In his opinion, the crew exacerbated the situation.
 In redirect examination, Mr. Johnstone was asked if an engine on the Beech 1900 is required to be shut down with a low oil pressure indication of 75 psi. He explained that, based on the checklist, the condition to shut down an engine did not exist at that time. He also elaborated that power was still available to the crew on the engine, albeit reduced, and that by electing to shut it down, they made the situation potentially worse. Mr. Johnstone also explained that at an indication of below 65 psi, the crew would have had no other choice but to secure the engine, or land at the nearest suitable airport using minimum power on the affected engine.
(1) Christopher Michan Jan Szydlowski
 Christopher Michan Jan Szydlowski testified that once he recognized the low oil pressure situation with the left engine, he reduced the power on the affected engine to below 2000 psi and entered a holding pattern in order to discuss the next course of action. He explained that the PM suggested they shut down the engine. He stated that he disagreed with this course of action, and confirmed that the discussion between them was heated. At some point during the holding pattern, he explained that the PM reached over to the affected thrust lever and actioned the movement to shut down the engine. He stated that at that point, the check ride was terminated.
 In cross‑examination, Mr. Szydlowski was asked how much time elapsed between the malfunction recognition and the engine shut‑down. He stated that at least five minutes passed. He also stated that the company checklists and SOPs were on board during the check ride.
 Mr. Szydlowski testified that he tried to persuade the PM not to shut down the engine, and could not recall agreeing to shut down the engine. He agreed that the whole discussion could have been avoided had he called for the correct checklist, but testified that he was busy trying to persuade the PM not to shut the engine down, and did not have the time to call for the abnormal checklist. He also agreed with the Minister that had the checklist been called for, Mr. Szydlowski would have realized that no securing of the engine was necessary.
 The Minister argues that it has been proven on the balance of probabilities that the Applicant properly failed the check ride on June 2, 2012. He submits that both Mr. Oliveros and Mr. Szydlowski recognized the low oil pressure indication on the left engine of 75 psi, but that after numerous discussions with the ACP, ATC and between themselves, the crew elected to shut down the affected engine.
 The Minister argues that based on testimony from Mr. Meyers, Mr. Oliveros and the Applicant, approximately six or seven minutes of time elapsed, during which time the crew had ample time to call for and carry out the correct checklist. Despite this, the crew elected to shut down the engine. He submits that had the engine been left operating, the crew would have had one and a half or one and three‑quarters power available to them. He submits that the ACP provided them with the time and opportunity to carry out the correct checklist, but that the crew did not take this opportunity. The Minister argues that the crew instead indulged in a heated, unprofessional discussion which could have been avoided had the correct checklist been called for.
 The Minister argues that although Mr. Szydlowski does not recall agreeing to shut down the engine, he did not testify that he did not agree to shut down the engine; he only stated that he does not recall agreeing to it. As the aircraft necessitates a two‑pilot crew, the evidence is clear that the crew made the decision to shut down a perfectly running engine and, as such, jeopardized flight safety.
 The Applicant argues that he did not have the opportunity to call for the correct checklist. He argues that neither the ACP nor the Captain could recall if he agreed to have the engine shut down.
C. Minister's Reply
 The Minister submits that the opportunity to make the correct call and consult the applicable checklist was offered to the Applicant by the ACP.
 I find that the Minister has failed to establish, on the balance of probabilities, that Mr. Szydlowski failed to meet the qualifications or conditions necessary for the issuance of a PPC on the Beech 1900. That stated, the Minister convincingly argued two points: that the Low Oil Pressure checklist was not consulted; and that the discussion between the PM and PF in regards to this malfunction was heated, and not conducive to constructive CRM between the two pilots. However, the critical factor in the ACP allocating a mark of “1” on item 24 centred on the comment in the Flight Text Report that “Safety of flight was jeopardized by unacceptable risk by allowing the Pilot Monitoring to talk them into securing the left engine when it was indicating 75 psi…” (Exhibit M-4). Based on the documentary evidence presented and testimony heard, I am not convinced that flight safety was ever jeopardized.
 According to the ACP Manual, Flight check philosophy and principles are based on threat and error management, during which times errors or deviations from standard practices will occur (Exhibit M‑2). The ACP Manual further explains that ACPs must focus on how the crew recognizes the threat, uses effective strategies to deal with the threat, practices good CRM and error mitigation, and advises ATC while maintaining situational awareness. In the actions and steps following the fault recognition, the crew did take the necessary steps to deal with the low oil pressure malfunction. Ultimately, the decision made was to secure the engine that had a low oil pressure readout. That stated, I am sympathetic to the role of the ACP. His expectation was for the PF to call for the Low Oil Pressure checklist. Although the CRM was not optimal during the discussion that followed, I find that the crew's decision to secure the engine did not, in itself, compromise the flight safety of the aircraft.
 In reviewing the testimony of Mr. Myers, Mr. Oliveros and Mr. Szydlowski, little doubt exists that the left engine Low Oil Pressure indication was promptly identified shortly after take‑off. The PM had the responsibility to identify the fault and establish communication with ATC. A request for an immediate return to land was denied by ATC. Both the ACP Manual (Exhibit M‑2) and the Beech 1900 SOPs (Exhibit M‑7)indicate that ATC should assist the crew as best as possible. In the case at hand, the request was denied and a holding clearance provided in its place. This added to the time available for the crew to discuss the next steps. Yet, in his role as ATC, the ACP should have been more accommodating. For example, when a crew requests an immediate return due to an engine problem, it would be expected that ATC facilitate and prioritize the return. Up until this point, however, the crew displayed situational awareness by requesting an immediate return to the field, and by requesting a holding pattern in order to discuss the abnormal fault. Testimony also indicated that the aircraft was safely in a holding pattern and that the engine thrust was reduced. Mr. Meyers testified that the engine torque may have been reduced to the required 2 000 ft·lbs once the aircraft reached its altitude.
 The ensuing discussion between the PM, Mr. Oliveros, and the PF, Mr. Szydlowski, must be addressed. The crew's discussion on whether to secure the engine was animated, heated and lengthy. However, I have found little evidence, either documentary or from testimony, to indicate that the actions of the crew jeopardized the safety of the aircraft. The PM and Captain for this check ride played a major role in the decision to shut down the engine. Mr. Oliveros testified about a previous real‑life engine malfunction that had occurred inflight, prior to joining the company. In all probability, this situation played a role in his insistence and strongly voiced opinion to shut down the engine. Mr. Szydlowski did have a different opinion, but I believe he was ultimately swayed to change his mind and shut down the engine. Had Mr. Szydlowski called for the Low Oil Pressure checklist, it may have avoided unnecessary discussion or delays, but ultimately the decision to shut down the engine was made by both pilots. This was not exemplary CRM, but the decision itself did not jeopardize flight safety.
 The crew's decision to shut down the engine may not have been what the ACP had expected, but it did not compromise flight safety. The decision did complicate matters, but single engine procedures are approved for the aircraft, including approaches and go-arounds (Exhibit M‑7). It is understandable from the ACP's point of view that he expected the crew to conduct the Low Oil Pressure checklist. The crew instead chose to shut the engine down, and no evidence was presented to show that after the decision had been made to shut down the engine, that this was not carried out properly or that the crew would not have then carried out the appropriate checklist, since the ACP chose to terminate the check ride immediately thereafter.
 In my view, the FO, Mr. Szydlowski, flying as PF, was influenced to shut down an engine with a low oil pressure indication. The PM played a major role in this decision, but having said that, the option to secure the engine is an approved procedure found in the Beech 1900 SOPs (Exhibit M‑7). In my view, the action leading up to this decision would certainly warrant a de-briefing, but not a failure. The ACP's role is to evaluate the crew's actions based on the scenario presented. The crew may at times have options in dealing with certain malfunctions, but they must ensure safety and adherence to SOPs. The decision to shut down the engine did not, in itself, jeopardize flight safety. The manner in which the crew came to this decision, and the fact that they did have another option, that is to call for an abnormal Low Oil Pressure checklist, is questionable and would need to be addressed by the ACP.
 Based on the above considerations, the decision to shut down the affected engine was performed correctly, was permissible as per company SOPs, and did not constitute a flight safety risk. The methodology as to how the crew ultimately decided to secure the engine is questionable, but the act of securing this engine did not jeopardize flight safety as it is an approved option available to them within the SOPs for the Beech 1900.
 The Minister has not proven, on the balance of probabilities, that the Applicant, Christopher Michan Jan Szydlowski, failed to meet the qualifications or conditions necessary for the issuance of a Pilot Proficiency Check on a Beech 1900. Therefore, the matter is referred back to the Minister for reconsideration.
January 10, 2014
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