Decisions

TATC File No. O-3975-27
MoT File No. 5802-294339 (PAHRL)

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Andrew Charles Turcotte, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
Richard F. Willems


Decision: March 21, 2014

Citation: Turcotte v. Canada (Minister of Transport), 2014 TATCE 13 (Review)

Heard in: Sudbury, Ontario, on November 7, 2013

REVIEW DETERMINATION AND REASONS

Held: The Minister of Transport has proven, on the balance of probabilities, that the applicant, Andrew Charles Turcotte, has not provided proof of a completed and passed multi-engine flight test. Therefore, the Minister's decision is upheld.

I. BACKGROUND

[1] In 1991, Andrew Charles Turcotte was a student at Laurentide Aviation taking multi‑engine training. Mr. Turcotte's log book indicates that on October 10, 1991, he completed a flight test given to him by Glenn French. Mr. Turcotte stopped flying in 1993, and resumed in 2002.

[2] In 2004, he started the process of having Transport Canada issue him a multi‑engine rating, and was informed that it was unable to do so until a retest had been completed and all the necessary paperwork received by Transport Canada. In May 2013, he once more started the process of having Transport Canada issue him the rating. In a letter dated May 16, 2013, Transport Canada informed Mr. Turcotte that the Minister had decided to refuse to issue him a multi-engine rating because he was unable to show proof of meeting the requirement of standard 421.38(3)(a) to the Canadian Aviation Regulations, SOR/96-433 (CARs). Specifically, he had not provided proof of a completed and passed multi‑engine flight test.

II. STATUTES and standards

[3] Paragraph 6.71(b) of the Aeronautics Act, R.S.C., 1985, c. A‑2 (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

[4] Standard 421.38(3)(a) to the CARs reads as follows:

421.38 Requirements

(3) Multi-engine Class Rating - Requirements

(a) Skill

An applicant for a multi‑engine class rating shall successfully complete a flight test as pilot-in-command of a multi-engine class aeroplane, in accordance with Schedule 7 “Flight Test for the Issuance of a Multi-Engine Class Rating – Aeroplane” of Standard 428 - Conduct of Flight Tests.

III. EVIDENCE

A. Minister

(1) Deborah Fyke

[5] Deborah Fyke is the acting supervisor for civil aviation services in the Ontario region. She has been in the general aviation division for 26 years in pilot licensing.

[6] She described the procedure that she undertook in 2013 to locate Mr. Turcotte's multi‑engine flight test. In 1991, prior to using electronic files, all applications were submitted in duplicate. She found no evidence of a multi-engine flight test in the regional office and also had headquarters in Ottawa check its files. She checked the electronic file system, which has been in place since 2000, and found no record of the flight test on Mr. Turcotte's file.

[7] Next she checked the file systems for the instructor who had done the training, as well for Mr. French, who was the pilot examiner in this case.

[8] In the 1990s, a card system was used to record all flight tests. This system was also checked using Mr. Turcotte's file number, and again no flight test was found. The only reference to the flight test in question was a note dated 1994, which indicated that Mr. Turcotte was looking for the 1991 flight test (Exhibit M‑8); however, no follow-up action seems to have taken place at that time.

[9] She stated that the search did reveal that an attempt had been made by Mr. Turcotte in 2004 to have the endorsement made (Exhibit M‑4). What was found was a copy of Mr. Turcotte's log book entries for the training, pre-flight test, and multi-engine flight test; as well as a receipt for the payment of the multi-engine endorsement, dated October 28, 2004 (Exhibit M‑6), and the application for the multi-engine endorsement, dated October 25, 2004 (Exhibit M‑5). This application was not signed by the instructor that was shown to have done the training, nor by the person who had conducted the pre-flight test recorded in Mr. Turcotte's log book (Exhibit M‑7).

[10] At the conclusion of the 2004 attempt, there is a telephone record signed by Louis Parsons which spells out the remaining steps that Mr. Parsons felt were necessary to issue a multi-engine rating, which were a letter of recommendation from a qualified instructor, as well as another flight test.

[11] Mr. Turcotte chose not to cross-examine the witness.

(2) Richard Schobesberger

[12] Richard Schobesberger has been with Transport Canada since 1988. Prior to that time, he accumulated 7,500 hours of flying time primarily in instructing, multi-engine training, and testing. He currently holds the title of regional manager of civil aviation services.

[13] Mr. Schobesberger described the process that would take place at Transport Canada when dealing with an application for a multi-engine rating. Transport Canada looks for the application form, the fee, and the flight test with all the appropriate sections completed, as well as the instructor's recommendation, and other documents depending on the nature of the application. In the case of Mr. Turcotte's application, there is no copy of the flight test, and as a result, no assessment of his skill level of the required exercises. He stated that by conforming to the required exercises and the grading system, Transport Canada is able to ensure that all pilots meet the standards.

[14] He further stated that in his opinion, since Mr. Turcotte's flight test was done over two decades ago, and since there is no proof of any training having taken place since that time, he would be apprehensive to issue him a multi-engine rating. He would be concerned that the skills necessary to operate the aircraft would not be available in the case of an emergency.

[15] He testified that a pilot examiner is required to keep records of all the flight tests done by them for two years, and that this is part of the agreement of the letter of appointment.

B. Applicant

(1) Andrew Charles Turcotte

[16] In October 1991, Andrew Charles Turcotte was a student at Laurentide Aviation. He testified that on October 10, 1991, he completed a multi-engine flight test administered by Mr. French, and was given a temporary pilot licence with a multi-engine endorsement signed by Mr. French; however, he does not have that document at this time.

[17] From 1993, Mr. Turcotte was no longer involved in flying until 2002, when he began to pursue anything missing in his flight training records. He contacted Laurentide Aviation and he believes that the chief flight instructor (CFI) at the time used the company logs to verify that the flight times logged into Mr. Turcotte's personal log book were correct (Exhibit M‑7).

[18] Mr. Turcotte testified that the training and test flights took place, but that he never had custody of the flight test report itself.

IV. DISCUSSION

[19] From the evidence before me, I see that Mr. Turcotte has four hours of multi‑engine time. In 1991, Laurentide Aviation's CFI certified the flight times in Mr. Turcotte's personal log book. This was confirmed in 2004 by another one of Laurentide Aviation's CFIs.

[20] Mr. Turcotte testified that he was given a flight test by Mr. French, and I have no reason to doubt that.

[21] What we do not have in evidence, however, is the flight test report, or the contents of the flight test report, or what was done, or the ability to which it was done. Without this information, it has not been proven that Mr. Turcotte successfully completed a flight test as required for the issuance of a multi-engine rating pursuant to standard 421.38(3)(a) to the CARs. Consequently, the Minister's refusal to issue him a multi-engine rating is reasonable.

[22] Without a verification of the skill portion of the flight test, Transport Canada would not be able to uphold the requirement to maintain the standard required by the Minister in order to ensure a level of competence and safety in all aspects of aviation.

[23] However, I am also concerned by the timeframe involved. I see no flight time logged in a multi-engine aircraft since 1991, which is 22 years. No one could be expected to be able to safely handle an emergency, such as asymmetric thrust, on a multi‑engine aircraft after not having flown one for that amount of time.

V. DETERMINATION

[24] The Minister of Transport has proven, on the balance of probabilities, that the applicant, Andrew Charles Turcotte, has not provided proof of a completed and passed multi-engine flight test. Therefore, the Minister's decision is upheld.

March 21, 2014

Richard F. Willems

Member