TATC File No. A-3920-27
MoT File No. 5802-415443
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Claude Russell Connors, Applicant
- and -
Minister of Transport, Respondent
paragraph 6.71(b) of the Aeronautics Act, R.S.C., 1985, c. A-2.
Richard F. Willems
Decision: March 20, 2014
Citation: Connors v. Canada (Minister of Transport), 2014 TATCE 12 (Review)
Heard in: Moncton, New Brunswick, on October 2, 2013
REVIEW DETERMINATION AND REASONS
Held: The Minister of Transport has proven, on the balance of probabilities, that the applicant, Claude Russell Connors, failed to meet the qualifications or conditions necessary for the issuance of a pilot proficiency check. Therefore, the Minister's decision is upheld.
 On October 19, 2012, Captain Claude Russell Connors was the Captain of a crew performing a pilot proficiency check (PPC) in a Boeing 737 simulator. The approved check pilot (ACP) for this flight test was Captain Andrew Charles Halliday. The flight test was progressing normally until the crew programmed a hold entry in the flight management computer (FMC). Since the flight test had been progressing normally, Captain Halliday decided to carry on and perform a partial retest on the hold entry for Captain Connors. This hold entry procedure was also deemed to be incorrect and, as a result, the check ride was assessed as a failure.
 Following the check ride, the Minister of Transport (Minister) sent Captain Connors a Notice of Refusal to Issue or Amend a Canadian Aviation Document (Notice) indicating that he had failed the check ride according to paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act). The Notice reads as follows:
In consideration of the flight test occurring on October 19, 2012, you have demonstrated that you no longer meet the required standard for a Pilot Proficiency Check B73C in that you failed to complete a flight test sequence and procedure within established criteria.
II. Statute and Policies
 Paragraph 6.71(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
(1) Captain Andrew Charles Halliday
 Captain Andrew Charles Halliday has been flying for 40 years, starting with the (British) Royal Navy, continuing with the companies, Air Atlantic and Inter-Canadien, and finally flying Boeing 737s with CanJet Airlines. He has been an ACP since 1996, and is currently retired.
 Captain Halliday testified that he observed the first officer (F/O),who was the pilot not flying (PNF) for this portion of the check ride, make the correct entry in the FMC. Captain Connors, as pilot flying (PF), disagreed with the hold entry, and after some discussion between the crew, had it changed by the F/O. As such, the incorrect entry was left in the FMC and was executed. Since the check ride had been good until that point, Captain Halliday decided to continue the check ride. He cancelled the hold, and issued radar vectors in order to continue the check ride with the intent of using the partial retest procedure to revisit the hold entry problem that he had just observed.
 In the second portion of the check ride, with Captain Connors operating as the PNF, another hold clearance was issued, which included “standard turns”. A discussion between crew members took place as to which were standard turns. Captain Connors insisted that left turns were standard turns in a hold, whereas right turns are standard. Based on that fact, Captain Connors was assessed a Below Standard “(1)”, for the hold, and as a result, the PPC was failed.
(2) Inspector Danis Daigle
 Inspector Danis Daigle has been involved in aviation for 30 years, including 20 with the military, and 10 in civil aviation. For the last three years, he has been employed with Transport Canada as a Civil Aviation Inspector working out of the Halifax, Nova Scotia, office. His primary job is the oversight of CanJet Airlines. In the case at hand, Inspector Daigle issued the Notice to Captain Connors.
 During cross-examination, Inspector Daigle was asked for his opinion on various issues involved in performing check rides in general. However, the Minister did not request that Inspector Daigle be qualified as an expert witness. Additionally, he was not involved in the actual check ride, as he testified at numerous times during cross-examination. I am unable to give his testimony much weight due to a lack of relevance, since he was not involved in this check ride other than issuing the Notice.
(1) Captain Claude Russell Connors
 Captain Claude Russell Connors chose not to present any evidence himself under oath at this hearing, nor did he bring any witnesses to the hearing. As a result, the only evidence I can rely on is from the testimony of Captain Halliday.
 Captain Halliday testified that the scripted hold was given to the crew, which was to hold at the Montreal, Quebec, very high frequency omnidirectional range (VOR), south inbound on the 180 radial at 4,000 feet. The F/O, who was the PNF at the time, correctly entered the hold into the FMC. Captain Connors insisted that it be changed to what would have been holding north of the Montreal VOR, inbound on the 360 radial/180 track. Once Captain Halliday saw that the incorrect hold had been left in the FMC, and executed under Captain Connors insistence, he decided to do a partial retest based on the fact that this check ride had been progressing normally up until this point. Captain Halliday cancelled the hold prior to any airspace violation, then issued radar vectors to continue the check ride.
 During the course of the second portion of the check ride, in which Captain Connors was operating as the PNF, another hold was done; however, it was to hold as published, and Captain Halliday decided that it would not provide enough information regarding Captain Connors' technical skills and knowledge with respect to holds, and as such, would not provide a useful comparison to the weakness demonstrated by Captain Connors in the first hold. As a result, a third hold clearance was issued to the crew, which was to hold on the Montreal VOR, east, inbound on the 090 radial, with standard turns. Captain Halliday observed Captain Connors entering the data for the hold as left turns, and remembers the F/O telling Captain Connors that standard turns were to the right. Captain Connors insisted to the F/O that standard turns were to the left. Upon hearing that, Captain Halliday realized that the partial retest had not been successful and stopped the check ride.
A. Assessing Technical Skills and Knowledge
 Captain Connors argues that the reference to technical skills and knowledge in the comments section of his flight test report regarding data entry for the hold is incorrect. In the Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide: Flight Test Guide (Aeroplanes), 1st edition, TP 14727E (Flight Test Guide), Technical Knowledge is described as follows:
Flight Test Exercises
1. TECHNICAL KNOWLEDGE
Determine the candidate's ability to demonstrate a practical knowledge of selected systems, components, normal, abnormal and emergency procedures and operate aircraft systems in accordance with the POH/AFM.
The ACP will conduct an equipment examination requiring the candidate to demonstrate a practical knowledge of the airframe, engine, major components and systems including the normal, abnormal, alternate and emergency operating procedures and limitations relating thereto.
For 704 and 705 PPC's the equipment examination is optional when the pilot's training record contains a valid written examination, from initial or annual training.
Assessment the candidate's ability to explain the operation of the following systems:
i. avionics and communications (autopilot; flight director; Electronic Flight Indicating Systems (EFIS); Flight Management System(s) (FMS); Long Range Navigation (LORAN) systems; Doppler Radar; Inertial Navigation Systems (INS); Global Positioning System (GPS/DGPS/WGPS); VOR, NDB, ILS/MLS, RNAV systems and components; indicating devices; transponder; and emergency locator transmitter);
As is seen here, Technical Knowledge, as referred to under Flight Test Exercises, is a written exam or oral exam, and it includes an assessment of the candidate's ability to explain the operation of the flight management system (FMS).
 In section 13, Holding, under Flight Test Exercises in the Flight Test Guide, the aim is to determine that the candidate is able to establish the aircraft in a holding pattern:
Determine the candidate's ability to establish the aircraft in a holding pattern using an actual or simulated ATC clearance.
In actual or simulated instrument conditions, the candidate must demonstrate adequate knowledge of a holding procedure for a standard or non-standard, published or non-published holding pattern. If appropriate, the candidate must demonstrate adequate knowledge of holding endurance, including, but not necessarily limited to, fuel on board, fuel flow while holding, fuel required to alternate, etc.
Based on an actual or simulated clearance, the candidate will select a suitable entry procedure, enter the hold and establish the aircraft in the holding pattern. Also, the candidate will demonstrate the proper programming and use of Flight Management Systems as applicable.
Base the assessment on the candidate's ability to:
a. change to the recommended holding airspeed appropriate for the aeroplane and holding altitude, so as to cross the holding fix at or below maximum holding airspeed;
b. recognize arrival at the clearance limit or holding fix and initiate entry into the holding pattern;
c. follow appropriate entry procedures for a standard, nonstandard, published, or non-published holding pattern;
d. report entering the hold;
e. comply with ATC reporting requirements;
f. use the proper timing criteria required by the holding altitude and ATC or examiner's instructions;
g. comply with the holding pattern leg length when a DME distance is specified;
h. use the proper wind-drift correction techniques to accurately maintain the desired radial, track, courses, or bearing;
i. arrive over the holding fix as close as possible to the “expect further clearance” time;
j. maintain the appropriate airspeed/V-speed within ±10 knots, altitude within ±100 feet, headings/tracks/course within ±10° or within ½ scale deflection of the course deviation indicator, as applicable and accurately tracks radials, courses, and bearings; and
k. maintain proper aircraft control and flight within operating configurations and limitations while in the hold.
Based on an actual or simulated clearance, the candidate will select a suitable entry procedure, enter the hold, and establish the aircraft in the holding pattern. Also, the candidate will demonstrate the proper programming and use of the FMS as applicable.
(2) 4-Point Marking Scale
 In considering the 4-Point Marking Scale, Technical Skills and Knowledge is referred to in each standard. In Below Standard, it states “Technical Skills and knowledge reveal unacceptable levels of technical proficiency and/or depth of knowledge”.
(3) Technical Skills and Knowledge in the ACP Manual
 For ease of reference, Technical Skills and Knowledge in Appendix J of the ACP Manual reads as follows:
|ELEMENT||SUB-ELEMENT||GOOD PRACTICE||POOR PRACTICE|
|TECHNICAL SKILLS AND KNOWLEDGE||Practical Understanding||- Practical use and understanding of aircraft systems, automation, data, charts, weather and physiological factors |
- Competency that gets the job done safely and efficiently
|- Lacking in-depth understanding of aircraft systems, automation, data, charts, weather and physiological factors |
- Lack of knowledge detracts from outcome
- Poor competency has potential to affect safety
|Following SOPs/Rules/Regulations||- Knowledge of all applicable SOPs, rules and regulations |
- Follows all SOPs, rules and regulations
- Advises other crewmembers and takes precautions when going outside SOPs
|- Not aware of some SOPs, rules or regulations |
- Does not follow all SOPs, rules or regulations
- When deviating from SOPs does not consider potential problems or adverse outcomes or advise other crewmembers
 Under the heading, Following SOPs/Rules/Regulations, it is indicated that a pilot must have knowledge of and follow standard operating procedures (SOPs), rules and regulations. Captain Connors erred in his insistence of the use of incorrect hold entry procedures in two of the holds in this check ride.
 Captain Halliday's use of the term “technical skills and knowledge” in the comments section of Captain Connors's Flight Text Report (Exhibit M‑2) does not refer to the portion of the flight test that took place prior to the PPC in the simulator, but rather it refers to the two hold entries that caused the failure of the check ride at issue. After having heard his testimony and examining the evidence, I agree with his analysis of the check ride.
 Captain Connors also argued that Captain Halliday interfered with crew resource management (CRM) in the setup of both holds. For the first hold, Captain Halliday testified that once he saw that the hold had been entered incorrectly, and executed as such, he cancelled the hold, issued radar vectors and continued the check ride. I see no interference with CRM in that instance.
 In the case of the last hold, once Captain Halliday heard Captain Connors, while being challenged by the F/O, insisting that a standard hold requires left turns, he realized that the check ride was a failure and stopped the ride at that point. Again, I do not see any interference with CRM in this portion of the check ride.
B. Partial and Retest
 The section, Partial and Retest, in the Flight Test Guide reads as follows:
PARTIAL AND RETEST
Except for a situation that results in a simulator crash or as in the case of an airborne PPC, a situation that if allowed to continue could result in loss of control of the aircraft, the ACP may allow a candidate to repeat a failed item if no other sequence in the PPC is rated a “(2)” or “(1).” The ACP will apply the following;
1. without commenting on the error committed, allow the candidate to complete the PPC to ascertain that there are no other weaknesses in piloting skills. If another sequence is rated “(2)” or “(1)” the ACP will stop the check ride, the original mark of “(1)” will apply and necessary administrative action will be required. If no other weakness is noted then at the end of the flight test;
2. without specifying what the error was, advise the candidate that a partial retest is required;
3. immediately repeat the sequence in question;
4. where the pilot achieves “(3)” or better on the repeated sequence, assign a mark of “(2)” for the sequence. The flight will be deemed a “partial and retest” which will not be recorded as a failure against the candidate's record. Annotate the flight test report and debrief accordingly; and
5. where the pilot does not achieve “(3)” or better the original mark of “(1)” will apply and require administrative action.
6. Annotate the flight test report and de-bridge accordingly.
If it is not possible to repeat the sequence due to time constraints or other reasons, the ACP will apply the original mark of “(1)” and assess the PPC as a “fail.”
 Captain Halliday testified that due to the incorrect hold entry procedure insisted on by Captain Connors, he was going to do a partial retest. After observing Captain Connors successfully completing the remainder of his portion of the check ride, he then advised Captain Connors that they would be doing another hold. He did not use the words “partial” or “retest”. Both these hold errors, although different, did however reveal a lack of knowledge of hold entry procedures. Had this error occurred in an operational flight, protected airspace would have been penetrated, and flight safety jeopardized. Given that the crew was advised that they were going to do another hold, I do not consider the fact that the words “partial” and “retest” were not used, to be sufficient reason to negate the results of a check ride. Importantly, in the first hold error a lack of knowledge and poor CRM was revealed, then confirmed by the FMC setup on the last hold. Although I have noted this omission, the outcome of the check ride does not turn on it.
C. Operating in Different Capacities
 Captain Connors takes issue with the fact that, when the last hold was performed, the crew was not operating in the same capacity as they were for the first portion of the check ride. Captain Connors was the PNF for the last hold, but was the PF for the first hold. Captain Halliday testified that Company SOPs require that the PNF programs the FMC below 10,000 feet. I find that his operating as PNF had no effect on the outcome of the check ride, as during the course of everyday operations, pilots should be able to program the FMC in either capacity as required by the situation.
D. Providing a Copy of the Flight Test Report
 With respect to the issue of not providing Captain Connors a copy of the failed check flight, from the testimony of Captain Halliday, it appears that he and Captain Connors had come to an agreement at the end of the check ride that a copy would be provided to him. Although the ACP Manual does state that the candidate is to be offered a copy of the report immediately following a failed PPC, from Captain Halliday's testimony, it seems they had come to an agreement. From the email string in evidence (Exhibits A‑2 to A‑4), I find that the delay was not excessive.
 The Minister of Transport has proven, on the balance of probabilities, that the applicant, Claude Russell Connors, failed to meet the qualifications or conditions necessary for the issuance of a pilot proficiency check. Therefore, the Minister's decision is upheld.
March 20, 2014
Richard F. Willems
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