Decisions

TATC File No. O-3924-27
MoT File No. 5802-075672

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Kenneth Robert Dennis, 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: December 19, 2013

Citation: Dennis v. Canada (Minister of Transport), 2013 TATCE 37 (Review)

Heard in: Toronto, Ontario, on October 2, 2013

REVIEW DETERMINATION AND REASONS

Held: The Minister has proven, on the balance of probabilities, that the Applicant, Kenneth Robert Dennis, did not meet the qualifications or conditions necessary for the issuance of a Pilot Proficiency Check.

I. BACKGROUND

[1] On November 2, 2012, the Applicant, Kenneth Dennis, requested a review of the Minister of Transport's (Minister) refusal to issue him an aircraft type rating for the Boeing B‑757 (B‑757) type aircraft, pursuant to paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C. 1985, c. A‑2 (Act).

II. STATUTES AND REGULATIONS

[2] 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;

III. PRELIMINARY MOTION

[3] Mr. Dennis acknowledged that he failed the first aircraft type rating Pilot Proficiency Check (PPC) conducted on March 25, 2011, and does not contest the decision by the Approved Check Pilot (ACP), Barclay Rutherford.

IV. EVIDENCE

A. Minister

(1) Barclay Rutherford

[4] Barclay Rutherford is the Chief Pilot of Morningstar Air Express Inc. (Morningstar Air Express), and has been a pilot for 27 years. He is also an ACP for the company. He explained that Mr. Dennis was a Captain for the company on B-727 aircraft and was transitioning to the B‑757 fleet. He explained that he conducted the first check ride on Mr. Dennis on March 25, 2011, which resulted in a failure to issue a B-757 aircraft type rating. He noted that Mr. Dennis went on record to state that he does not contest the results of this check ride.

(2) Stephen Lentle

[5] Stephen Lentle is the Director of Flight Operations and a pilot for Morningstar Air Express. He has been a pilot for over 29 years and has known Mr. Dennis for 23 years. Mr. Lentle explained that he performed the role of the Pilot Monitoring (PM) on the first check ride conducted on March 25, 2011. He testified that Mr. Dennis was debriefed after that failed check ride, and that the next day, Mr. Lentle explained his options to him, which included the opportunity for retraining and retesting. Mr. Dennis decided to undertake a second check ride after a four‑hour retraining session. Additional training was arranged at the FedEx training center. This additional training was conducted on March 28, 2011 by a FedEx instructor, and consisted of a four-hour session, including a review of the test items requiring retraining. Bob Austin acted as Mr. Dennis's PM.

[6] Mr. Lentle explained that a request for a Transport Canada Inspector to conduct the second ride was made. Due to the unavailability of inspectors, approval from Transport Canada was given to have him conduct the second check ride. He testified that this was also a jeopardy ride for the PM, Mr. Austin. Mr. Lentle testified that a briefing was held on March 29, 2011, prior to the check ride session. The scripted ride was briefed to the crew and included explanations regarding the roles and responsibilities of each pilot on board.

[7] Mr. Lentle stated that the check ride was progressing well until the Initial Climb, Item 8, which was assessed a mark of “2”, or “Basic Standard”, because Mr. Dennis did not notice the Flight Mode Annunciator (FMA) mode change during the climb. He explained that the aircraft levelled off momentarily before the error was caught and the climb resumed. He stated that Item 13, Holding, was assessed a mark of “2” because the PM entered the wrong holding clearance, and when reviewed by the pilot-in-command (PIC), Mr. Dennis, it was not detected or corrected. In the Descent, Item 14, Mr. Dennis was marked a “2” because he allowed the aircraft to accelerate to 307 knots below 10 000 feet, before eventually slowing the aircraft to 250 knots, as mandated by Air Traffic Control (ATC).

[8] Mr. Lentle further explained that a mark of “2” was also assessed on Item 25. The crew was conducting a Category II (CAT II) approach and Mr. Lentle introduced a radio altimeter failure, a piece of equipment that was required in order to fly the approach. Mr. Dennis was unaware of the failure until prompted by Mr. Austin.

[9] Mr. Lentle testified that Mr. Dennis's performance with respect to automation management was poor. He further elaborated that this was Mr. Dennis's second full course for an initial type rating on the B-757. These two courses comprised of a total of 10 weeks of training.

[10] Mr. Lentle stated that on Item 15, Instrument Landing System (ILS) Approach, a mark of “1”, or Below Standard, was given due to aircraft handling deviations counter to the aircraft's limitation. With respect to Item 18, Landing, Mr. Dennis was in a single engine configuration, flaps 20 selection, and elected to use the autopilot and autoland functions, which is in clear violation of the aircraft's certified autoland configuration (Exhibit M‑7). The decision to autoland was announced below minimums on the ILS approach, which were at 200 feet. Mr. Lentle testified that at 200 feet the PM called “minimums”, the captain called “landing”, then announced that he was going to autoland. The intention to use the autoland function was not briefed by Mr. Dennis at any time prior to the approach or prior to the minimums. When Mr. Dennis called to autoland, the PM responded “confirm autoland”, and the aircraft landed with autopilot and autoland systems.

[11] The Morningstar Air Express B757 Flight Crew Training Manual (Training Manual) (Exhibit M-7) clearly prohibits the use of autoland in certain aircraft configurations. It states that the use of autoland can only be performed at flaps 25 or 30, and is not authorized in a single engine configuration unless the failure occurs on the final approach after a normal final configuration is set. Mr. Lentle explained that this constituted a violation of aircraft operational limitations, and that no other mark but a “1” could have been given. A mark of “1” was also given to Mr. Dennis since the autopilot was not disconnected by 50 feet, as specified in the aircraft flight manual (AFM). Mr. Lentle stated that Mr. Austin understood his role as PM; that Mr. Austin was also an ACP; and that he was aware that he was in jeopardy during the check ride as well. He further explained that the PM made some errors during the check ride, but his overall performance was satisfactory.

[12] Mr. Lentle testified that when he started the debriefing, the Applicant was visibly upset with this second failure, and that he stated that there was no point in continuing and requested to leave. A second failure had serious repercussions according to Morningstar Air Express's collective agreement. A report of the check ride was emailed to Mr. Dennis 36 hours later (Exhibit M-6).

[13] In cross-examination, Mr. Lentle was asked if the call to autoland was given at 200 feet (minimums). He explained that the call to autoland was given after the PM's initial call at minimums, thus below 200 feet. Mr. Lentle does not recall any challenge or calls to autoland at 800 feet on the approach.

[14] In re-examination, Mr. Lentle was asked why Items 15 and 18 on the Flight Test Report were both assessed a “1” (Exhibit M‑6). He stated that both were related to the approach and occurred consecutively.

(3) Robert Austin

[15] Robert Austin is currently a Production Test Pilot and has been a Commercial Pilot since 1981. He was an ACP and employed by Morningstar Air Express as a pilot in 2011. He testified that he was involved in the additional training session for Mr. Dennis as PM on March 28, 2011, and was the PM for the second check ride on March 29, 2011. He stated that he was briefed as to his role in the check ride and understood that this was a jeopardy ride for him as well. He also stated that he was there to assist, but not lead.

[16] Mr. Austin recalled that on Item 18, the aircraft conducted a single engine ILS approach. After Mr. Austin called “minimums”, Mr. Dennis, as PIC, called “autoland”. He recalled responding with “confirm you are going to autoland”. Mr. Dennis responded with “yes”. In his view, all this transpired in the 20 or 30 seconds prior to landing.

[17] Mr. Austin testified that he was aware of the limitation against autolanding, but that he did not feel it was his place to tell Mr. Dennis that he was violating the limitation because a PM is there to assist but not lead. He recalled making an error entering the holding clearance; neither he nor Mr. Dennis caught the error.

[18] In cross‑examination, he was asked if the approach briefing was conducted by the Pilot Flying (PF) or by the PM, but he could not recall. Mr. Austin was asked if the PF's decision to autoland could have been made at 800 feet. Again, Mr. Austin recalled this call being made after the call at minimums at 200 feet. He did not take notes during the check ride and does not recall if the decision might have been made at a higher altitude.

[19] Mr. Austin was asked about the Morningstar Air Express 3-Step Process (Exhibit A‑1). He was asked why, if the decision to autoland was a mistake, he did not follow this process, that is, identify the deviation, challenge it, and ultimately intervene by taking control of the aircraft. Mr. Austin recalled that he was aware of the limitation, challenged Mr. Dennis, and based on his role as PM, which is to assist but not lead, he allowed the aircraft to autoland. When asked why he did not intervene, and instead allowed the aircraft to autoland, Mr. Austin stated that he challenged the decision and felt that it would not be the safest time to intervene. He also stated that unless an aircraft was in an imminent crash situation, he would not physically take control.

[20] In further cross‑examination Mr. Austin was asked if he was briefed that he was in jeopardy during the check ride. He explained that he could not recall being briefed but that he was aware he was in jeopardy as well. Mr. Austin was then asked why he was not assessed a fail on the check ride. Mr. Austin recalled making errors, but stated that he was not advised by the ACP of a failure as PM. Mr. Austin was asked if he recalled briefing the single engine ILS approach with weather minimums at 200 feet. Mr. Austin could not recall conducting such a briefing.

[21] In re-examination, Mr. Austin was asked if he would have been able to follow the 3-Step Process when the PIC, Mr. Dennis, announced that he was autolanding. Mr. Austin explained that once the call to autoland was made, the aircraft was within 20 seconds of landing, and he felt flight safety would have been jeopardized if he had then challenged Mr. Dennis further. He further explained that in a single engine approach, he would have had to take control of the aircraft, gain rudder control, and re-stabilize the aircraft, all within 20 to 30 seconds. His decision was that this was an unsafe manoeuver so close to the ground.

(4) Andy Johnstone

[22] Andy Johnstone is a Transport Canada Civil Aviation Safety Inspector for Flight Operations in the Ontario region, as well as the ACP representative. Mr. Johnstone recalled receiving a call in late March 2011 from Mr. Lentle requesting a Transport Canada inspector to conduct the second check ride for Mr. Dennis. He informed Mr. Lentle that he would not be available and provided a name of a second inspector who may be available. When he was informed that the second inspector was unavailable, he gave approval to Mr. Lentle to conduct the second check ride.

[23] Mr. Johnstone testified that he was involved in the ACP accreditation of Mr. Lentle and had never received any complaints regarding his work as an ACP.

[24] In cross‑examination, Mr. Johnstone stated that a check ride in a simulator should be treated in the same manner as an actual flight. He stated that he was somewhat familiar with Morningstar Air Express's Standard Operating Procedures (SOPs), the 3‑Step Process, as well as Crew Resource Management (CRM). He conceded that the process should be followed under most circumstances, but within reason. He stated that in certain critical phases of flight, such as in time‑critical situations, it would be difficult to ascertain if the process can be followed.

[25] Mr. Johnstone was asked if the PM could follow the 3-Step Process when the PM calls minimums at 200 feet and the call from the PF is to autoland. His response was that it would not be able to be followed as the time required to react and complete the process would be insufficient. In the case at hand, Mr. Johnstone stated that the PM could not be faulted.

[26] In re-examination, Mr. Johnstone was asked if, for Item 18, the PM should have followed the third step of the procedure, Intervention. Mr. Johnstone reiterated that based on the circumstances, such as how low the aircraft was, as well as the timeline of the event, the PM was not in violation of his roles and responsibilities. He went on to state that the ACP ultimately decides if the PM has done his due diligence and whether fault should be attributed to the PM.

B. Applicant

(1) Kenneth Robert Dennis

[27] Kenneth Robert Dennis is a Pilot and has flown various types of aircrafts, including the B-727, for 45 years. His last position with Morningstar Air Express was Captain on the B-727. He explained that the briefing prior to the check ride on March 29, 2011 was normal, including an explanation of the roles and responsibilities of the PF and PM. He also stated that to his recollection, he was the only one in jeopardy that day. As to the outcome of the check ride, Mr. Dennis has no issue with the items marked as a “2”, but has an issue with the items marked as a “1”, which are Items 15 and 18.

[28] Mr. Dennis testified that during the single engine approach relating to Items 15 and 18, he decided that, due to the rudder control needed for a single engine, it was safer not to transfer the controls to the PM. He instead decided to have him carry out the briefing, since the weather given was better than expected, and as per the company's SOPs, the PM was permitted to brief. Mr. Dennis testified that at approximately 800 feet, he asked the PM if he had any objection to an autoland approach. He stated that the PM responded with “confirm autoland”. Since no other objection or challenge was received from the PM, the approach was continued.

[29] Mr. Dennis testified that at several other occasions during the approach, specifically at 400 feet, 200 feet, and 50 feet, the PM could have challenged this decision and carried out the 3‑Step Process. He recalled calling “landing” after the call at minimums from the PM. He recalled that upon landing with the autopilot and autoland functions operable, the check ride was terminated.

[30] Mr. Dennis testified that when a limitation is going to be violated, the PM must follow the 3-Step Process and challenge the PF, or if all else fails, he must correct the situation. Mr. Dennis expected the PM, Mr. Austin, would have challenged his decision and explained the error in using the autoland function. He further stated that even if the decision to use autoland had been made at 200 feet, the PM should have challenged this decision and called for—or executed—a missed approach. He stated that the PM did not follow the 3‑Step Process, as required in the company's SOPs, to correct the error.

[31] Mr. Dennis stated that as he made his way to the debriefing, he realized the consequences of this failure. He explained that he was upset with his performance and knew that this would have ramifications on his career and job. Mr. Dennis recalled being told by Mr. Lentle that he was refusing the debriefing, but he does not recall ever making that statement. He did recall stating that there was no point in a debriefing and that the ACP, Mr. Lentle, was very distraught over the outcome of the check ride. He further testified that he agreed to be debriefed on the items marked as a “1” or “2”. Although the debriefing was short, he stated that he never refused to be debriefed.

[32] Mr. Dennis testified that the PM incorrectly entered the holding clearance. I note that although the PIC has the ultimate responsibility to ensure the accuracy of information in the Flight Management System, Mr. Dennis stated that the holding clearance was received, read back and reviewed on at least five occasions, and that at no time did the PM, or did he as PF, notice the error. He stated that when he looked at the Primary Flight Display, it appeared that the holding clearance had been entered correctly. As to the training received, Mr. Dennis explained that it was conducted by FedEx instructors who were unfamiliar with Morningstar Air Express's SOPs. Mr. Dennis felt that on several occasions, the training was rushed and not properly conducted.

[33] In cross-examination, Mr. Dennis was asked if he had ever conducted a single engine autolanding during his training sessions; his response was that he had not. Mr. Dennis was asked if he was aware of the autoland limitations in regards to single engine procedures. He responded that he was, but had temporarily forgotten this limitation during the check ride in the single engine approach.

C. Minister's Reply

(1) Stephen Lentle

[34] Mr. Lentle testified that in the briefing prior to the check ride, both pilots were told that the weather would be at or below minimums, in accordance with the script being used. He stated that the discussion to use autoland could not have been made at 800 feet as Morningstar Air Express has no SOP calls at this altitude during an approach. He again stated that the decision to use autoland in the approach was made at less than 200 feet. Based on the phase of landing and the altitude, as well as the fact that the aircraft was in a single engine configuration, there simply was no time for the PM to conduct the 3‑Step Process. Mr. Lentle testified that the safest course of action was for the PM to allow the violation to take place, since taking control of the aircraft from the PIC at this stage would have been unsafe. He further stated that had the decision to use the autoland been made by Mr. Dennis at a safer altitude, he would have expected Mr. Austin to properly challenge the decision.

[35] He further testified that even if Mr. Dennis had disconnected the autopilot and corrected this error, this test item would still have been marked a “2”. This would have resulted in a failure of the check ride as it would have been his fifth “2”.

[36] Mr. Lentle admitted that Mr. Dennis's failure shook him up. He stated that he told Mr. Dennis that he had to debrief him and that Mr. Dennis responded that there was no point to it. He affirmed that the debriefing was short in duration.

V. ARGUMENTS

A. Minister

[37] The Minister argues that the Applicant was aware of the aircraft limitation in that autoland is not authorized at flaps 20, nor in a single engine operation, yet proceeded to use the function. Mr. Lentle and Mr. Johnstone both testified that the PM would not have been able to apply the 3‑Step Process due to the aircraft's altitude and the late phase of landing it was in at the time. Even if the Applicant had disconnected the autopilot at this stage, Mr. Lentle testified that the Applicant would have still received a “2” for the approach, which would have resulted in a total of five “2s”—therefore, a fail.

[38] Regarding the Applicant's contention that the decision to use autoland was called at 800 feet, the Minister argues that two witnesses, Mr. Lentle and Mr. Austin, both testified that they heard the call to autoland at or below minimums, which is at or below 200 feet.

B. Applicant

[39] The Applicant argues that the Minister did not produce a preponderance of evidence to show that the details as portrayed by Mr. Dennis are not accurate. The Applicant states that Mr. Dennis called to autoland at 800 feet and that the 3‑Step Process was not followed by Mr. Austin, the PM. He states that had the PM followed this process, he would have caught the error and corrected the situation.

[40] With regards to the Minister's argument that the Applicant merited a “2” for disconnecting the autopilot prior to landing, the Applicant argues that this would have merited a “3” as the PIC would have corrected the error in time to land within limitations.

C. Minister's Reply

[41] The Minister argues that the preponderance of evidence, namely the testimony of Mr. Lentle and Mr. Austin, clearly shows that the call for minimums was made and that Mr. Dennis's initial announcement to autoland was made at roughly 200 feet, a point at which it is not reasonable to initiate the 3‑Step Process. He submits that the testimony was clear and straightforward in this matter.

VI. ANALYSIS

[42] As previously noted, 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;

[43] The Tribunal must decide whether the Applicant failed to meet the qualifications or fulfill the conditions necessary for the issuance of the B-757 aircraft type rating. The Applicant admitted that the first check ride conducted on March 25, 2011, was properly assessed as a failure. As such, the elements that the Tribunal needs to address center on the second check ride held on March 29, 2011.

[44] The three main issues in this case that need to be addressed are the following:

(1) Were Mr. Dennis and Mr. Austin properly evaluated during the check ride administered by Mr. Lentle on March 29, 2011, including whether they were briefed on their respective roles and responsibilities, as well as on whether the PM was in jeopardy during the check ride;

(2) Did Mr. Dennis, as PIC, call for autoland at an altitude sufficient to allow for proper CRM and adherence to the 3-Step Process; and

(3) Did the PM follow company SOPs according to the 3-Step Process when Mr. Dennis called to autoland in a single engine approach?

A. Issue #1

[45] In my view, the check ride on March 29, 2011, was conducted in line with the ACP Manual (Exhibit M-3). The ACP's role is to create conditions and an environment which allow a pilot to demonstrate that he or she has the skill and knowledge required to meet the standards for the issuance of the PPC. Testimony heard from Mr. Dennis and Mr. Lentle confirms that a proper briefing was held prior to the check ride and that the environment established allowed Mr. Dennis to be evaluated properly. The roles and responsibilities of the PM, who is to assist but not lead, were defined and explained. Mr. Lentle, as ACP, assessed the CRM skills of both pilots and evaluated their performance as a two-person crew.

[46] Mr. Dennis raised the question of whether Mr. Austin, as PM, was in any jeopardy during the check ride. Section 4.3.3 of the ACP Manual clearly states that “a PPC Flight Check is always a jeopardy ride for the individuals involved”. The B‑757 requires a two-person crew and, as such, both pilots are evaluated. Although Mr. Lentle cannot recall if he mentioned the fact that Mr. Austin was in jeopardy during the briefing, all three witnesses presented by the Minister confirmed that this was a jeopardy ride for both pilots. Mr. Austin testified that this was his understanding during the check ride. Based on the extensive level of experience of all three individuals, as well as section 4.3.3 of the ACP Manual, there is no doubt in my mind that Mr. Austin was also being evaluated and was in a jeopardy situation during the check ride. This is a standard Transport Canada policy and understanding. In my view, the crew was properly briefed and evaluated as a two-person crew. Even if the jeopardy ride condition is not specifically stated in a pre-flight test briefing, both pilots nevertheless remain in jeopardy.

B. Issue #2

[47] A key argument put forward by the Applicant is that the call to use the autoland feature for landing was made at 800 feet. Mr. Dennis submits that the timing of the call to use autoland is critical to his argument in that it would have allowed the PM to challenge the call using the approved 3‑Step Process, and either rectify this configuration or intervene by taking the control of the aircraft (step 3 of the 3‑Step Process). As such, it is an important element that the Tribunal must examine.

[48] Documentary evidence presented to the Tribunal indicates that the weather was set in the simulator at or below minimums for landing during the check ride. Mr. Lentle briefed the crew using Morningstar Air Express's Transport Canada‑approved B-757 Scripted PPC (Exhibit M‑4), which specifies that the weather was at or below minimums during the check ride. Mr. Lentle testified that he was using PPC script #2, which has the instructor set the weather specifications for a single engine CAT I approach, and specifies to set the instructor operator station to CAT I minimums. This would set the ceiling at approximately 200 to 250 feet.

[49] In the ACP Manual (Exhibit M-3), the ACP is instructed to brief the pilots that “the weather will be simulated at or below the weather minima for the approaches that will be conducted”.

[50] Testimony from Mr. Austin puts the ceiling at approximately 200 feet when he made the call of minimums. This would confirm the cloud ceiling for a CAT I ILS approach.

[51] Although Mr. Dennis's testimony is credible, I find that in all probability, based on documentary evidence and testimony, the call of “autoland” made by Mr. Dennis occurred at or shortly below the CAT I weather minimums. This would have put the ceiling at approximately 200 feet. Based on these facts, I would agree with the Minister that the call from Mr. Dennis to use autoland was made close to or slightly below 200 feet on this approach.

C. Issue #3

[52] Neither party argued the fact that landing in a single engine configuration, at flaps 20, with the use of the autoland system, is a violation of the aircraft manufacturer's limitations as stated in the Training Manual (Exhibit M‑7). Mr. Dennis, in testimony, admitted that he was aware of this, but simply forgot this limitation.

[53] There is no dispute from either party that Mr. Dennis announced his intention to use the autoland and autopilot functions during this approach configuration. In my view, the decision to use autoland, made at a critical phase of the approach, was properly challenged by the PM.

[54] First and foremost, the role of the PM in a check ride is to assist but not lead. This role is important in a check ride in that it allows the candidate being evaluated to be properly assessed. That stated, he is still mandated to follow company SOPs and proper CRM concepts for two‑person crews. Testimony heard from Mr. Lentle confirms that Mr. Austin understood this role. Calls from him were made throughout the check ride as per company guidelines. Mr. Austin testified that when he made the call at minimums, Mr. Dennis announced his intention to use autoland. This fact was also confirmed in testimony from Mr. Lentle. Mr. Austin testified that he challenged this decision by responding “confirm you are going to autoland”, to which Mr. Dennis responded “yes”.

[55] Mr. Dennis did not mention that he would be using this system prior to this moment. Regardless of who may have briefed the approach, Mr. Dennis had the final decision on how he would conduct the single engine approach. In initiating the 3-Step Process, Mr. Austin properly challenged the call as this was in violation of the aircraft manufacturer's limitations. He properly challenged Mr. Dennis to confirm that he had the intention to autoland. As such, in my view, this deviation from a prescribed procedure was recognized and challenged.

[56] Keeping in mind that this occurred on short final, Mr. Austin's decision was to not proceed with steps 2 and 3 of the 3‑Step Process. His decision not to intervene during the last few seconds of the approach was legitimate and understandable. The 3‑Step Process is an escalating process which has, as a last resort, the PM taking physical control of the aircraft. The aircraft was in a stabilized approach, and within 20 to 30 seconds of landing. Intervening at this point or commanding that the PIC disconnect autoland and autopilot might have destabilized this configuration. Based on his level of experience, this decision is defendable.

[57] It is important to mention that Mr. Dennis had several options when this challenge occurred, including disconnecting the autoland and autopilot, then landing or proceeding to a go‑around, neither of which he chose. The 3‑Step Process is in place first and foremost to ensure flight safety and threat recognition. In my view, the threat was recognized and challenged. The aircraft was in a stabilized configuration and under no immediate threat. Mr. Dennis chose to continue the approach, which resulted in a mark of “1”. Mr. Austin chose to allow the aircraft to land based on its proximity to the ground. For the reasons noted above, I find the marks of “1” given for Items 15 and 18 to be correct.

[58] The mark Mr. Dennis would have received had he recognized his error and corrected the approach configuration is pure speculation and not an issue the Tribunal needs to consider.

VII. DETERMINATION

[59] The Minister has proven, on the balance of probabilities, that the Applicant, Kenneth Robert Dennis, did not meet the qualifications or conditions necessary for the issuance of a Pilot Proficiency Check.

December 19, 2013

Franco Pietracupa

Member