TATC File No. P-3781-60
MoT File No. 5802-306868
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Michael John Blossom, Applicant
- and -
Minister of Transport, Respondent
subsection 7.1(1) of the Aeronautics Act, R.S.C., 1985, c. A-2
Arnold Marvin Olson
Decision: June 18, 2014
Citation: Blossom v. Canada (Minister of Transport), 2014 TATCE 22 (Review)
Heard in: Smithers, British Columbia, on April 9, 2014
REVIEW DETERMINATION AND REASONS
Held: The Minister has not proven, on a balance of probabilities, that the Flight Test Report of the flight test conducted on March 29, 2011 constitutes a fair and accurate assessment of the performance of the flight crew necessary for the issuance of a Pilot Proficiency Check. As such, the resulting suspension of the Applicant, Michael John Blossom, should be reviewed. Therefore, the matter is referred back to the Minister for reconsideration.
 On March 29, 2011, the Minister of Transport (Minister) issued a Notice of Suspension to the Applicant, Evan McCallum, which states as follows:
Pursuant to subsection 7.1(1) (suspend, cancel or refuse to renew) of the Aeronautics Act and in consideration of the flight test occurring on March 29, 2011, you have demonstrated that you no longer meet the required standard for SH7 IR PPC [Shorts 7 Instrument Rating Pilot Proficiency Check] in that you failed to ensure aircraft complied with ATC clearance. Your SH7 IR PPC is hereby suspended. This suspension comes into effect immediately and remains in effect until you demonstrate that you meet the required standard by [passing a] SH7 IR PPC.
 On the same date, the Minister also issued a Notice of Suspension to the Co‑applicant, Michael John Blossom, which states as follows:
Pursuant to subsection 7.1(1) (suspend, cancel or refuse to renew) of the Aeronautics Act and in consideration of the flight test occurring on March 29, 2011, you have demonstrated that you do not meet the required standard for SH7 IR PPC in that you failed to ensure aircraft complied with ATC clearance. Your Group 3 IR is hereby suspended. This suspension comes into effect immediately and remains in effect until you demonstrate that you meet the required standard by [passing a] IR PPC.
 The Transportation Appeal Tribunal of Canada (Tribunal) received a request for review from Mr. McCallum on April 25, 2011, and one from Mr. Blossom on April 28, 2011.
II. STATUTES, REGULATIONS AND POLICIES
 The basis for the suspension is established under subsection 7.1(1) of the Aeronautics Act, R.S.C., 1985, c. A-2, which reads as follows:
7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that
(a) the holder of the document is incompetent,
(b) the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfil the conditions subject to which the document was issued, or
(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the holder of the document or of any principal of the holder, as defined in regulations made under paragraph 6.71(3)(a), warrant it,
the Minister shall, by personal service or by registered or certified mail sent to the holder or the owner or operator of the aircraft, airport or facility, as the case may be, at their latest known address, notify that person of the Minister's decision.
 The relevant subsection of section 602.31 of the Canadian Aviation Regulations, SOR/96‑433 (CARs) reads as follows:
(1) Subject to subsection (3), the pilot-in-command of an aircraft shall
(a) comply with and acknowledge, to the appropriate air traffic control unit, all of the air traffic control instructions directed to and received by the pilot-in-command; and
(b) comply with all of the air traffic control clearances received and accepted by the pilot-in-command…
 The procedures and guidelines for Pilot Proficiency Checks (PPCs) conducted by Civil Aviation Safety Inspectors (CASIs) and Approved Check Pilots (ACPs) are contained in the Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide (Aeroplanes), First Edition, TP14727E, 11/2007 (Flight Test Guide). Excerpts read as follows:
Flight Crew Concept
ACPs conducting PPC/IFR (Pilot Proficiency Checks/Instrument Flight Rules) in a multi‑crew aircraft will evaluate the flight crew under the crew concept and not on an individual basis.
A PPC must include a demonstration of instrument flight (IF) proficiency if the candidate possesses a valid Instrument Rating; and the candidate conducts commercial IFR operations on the PPC aeroplane.
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 “(2)” or “(1).”
4-Point Marking Scale
2 – Basic Standard – Major deviations from the qualification standard occur, which may include momentary excursions beyond prescribed limits but these are recognized and corrected in a timely manner.
1 – Below Standard – Unacceptable deviations from the qualification standard occur, which may include excursions beyond prescribed limits that are not recognized or corrected in a timely manner.
j. on final approach course, allow no more than ½ scale deflection of the localizer and/or glideslope indications…
(1) R. Stephen Hewitt
 Inspector Hewitt is an experienced CASI with Transport Canada in the Pacific Region. He is a subject matter expert on a variety of aircraft types. On March 29, 2011, he conducted a PPC flight test in the area of the Prince George, B.C. airport on the Applicants, Mr. Blossom and Mr. McCallum, the results of which are contested by the Applicants.
 During this flight test, Inspector Hewitt was himself being assessed by a second CASI (the Monitoring Inspector) as an ACP through a recurrent ACP Monitor.
 The flight test was assessed as a failure. While under direct examination, Inspector Hewitt explained how he arrived at his assessment. After a visual flight rules (VFR) portion of the flight test involving re-sequencing from air traffic control (ATC) and deviations due to weather conditions, the crew was vectored to intercept a localizer for an approach to runway 15 as depicted on the approach chart (Exhibit M-1). The crew did not turn to follow the localizer and instead proceeded through it. After consultation with the Monitoring Inspector it was agreed that the PPC would be terminated.
 Subsequent to the flight test failure, a documents and records request was made to NAV CANADA to secure voice data and radar data relative to the flight.
 The voice data audio tape (Exhibit M-2) was introduced into evidence. On the audio tape, one can hear the following relevant communications:
- The subject aircraft UMC establishes communications 25 miles north of the Prince George airport in visual meteorological conditions and requests clearance for an approach to an instrument landing system (ILS) and a missed approach.
- The Prince George ATC sector indicates they are starting to “close in” with deteriorating weather conditions. The aircraft is vectored for the approach and then re‑sequenced to accommodate air ambulance traffic. There follows several transmissions where ATC vectors are modified until eventually the aircraft is pointed back toward the airport.
- A hold is requested by UMC: “Wondering if we might be able to hold on the published hold over the Prince George NDB [non-directional beacon] on the missed approach rather than executing the published missed approach. We would plan to do the missed approach, kind of a non-standard, with a hold as published at the Prince George NDB.”
- The aircraft is subsequently cleared for the approach by ATC: “UMC cleared heading 120 degrees, intercept the localizer, cleared straight-in ILS runway 15 approach.”
- A read-back from the aircraft is heard: “Heading 120 degrees, intercept the localizer, cleared ILS approach, UMC.”
- The aircraft then receives the missed approach clearance: “On the missed approach fly the published missed approach to 8,000 and cleared to hold as requested at the Prince George NDB as published at 8,000.”
- The read-back from the aircraft is heard: “OK, fly the published missed approach and climb to 8,000 and hold as published at the Prince George NDB.”
- One minute and forty seconds later is heard a query from ATC: “UMC, just showing you one mile east of the localizer, are you going to correct there?”
- And the reply: “Yeah, going to regain, going around a cell here.”
- Subsequent communications are heard on the tape between ATC Centre and the Prince George sector making reference to UMC going through the localizer and a subsequent “big-time” correction to regain the localizer.
 The approach chart for NDB A runway 33 (Exhibit M-3) was introduced into evidence, showing the location of the Prince George NDB to which the previous communications referred.
 Next, the ATC radar report for the Prince George area (Exhibit M-4) was introduced into evidence, showing various screen shots depicting the location of UMC. The aircraft is shown proceeding in a southeasterly direction across the localizer at an altitude of 5,700 feet to a deviation of approximately one mile. It subsequently corrects to the localizer and then tracks directly to the airport.
 The Flight Test Reports prepared by Inspector Hewitt (Exhibit M-5 for Mr. Blossom and Exhibit M-6 for Mr. McCallum) were introduced into evidence. The Comments section for Mr. McCallum reads as follows:
During PNF duties, failed to ensure compliance with ATC clearance. Aircraft deviated through localizer into unprotected airspace below MSA. Crew failed to recognize until queried by ATC. Safety of flight not assured. Ride terminated. Debriefed.
 Inspector Hewitt was asked whether he would change anything if he were to write up his remarks at the present time. He responded that his prior experience in higher performance aircraft with higher speeds gave rise to a misunderstanding of the location of the aircraft, leading him to think that it had flown further away from the localizer than it actually had. He believed they were in an area where the minimum sector altitude (MSA) was 7,000 feet and that they were well below that altitude. He said his comments should have been that the crew failed to ensure compliance with the ATC clearance and track the localizer inbound.
 While there was significant weather in the area at the time of the occurrence, Inspector Hewitt observed that he could see the runway.
 He recalled that, upon observing the full deflection of the localizer on the instruments, he motioned for the Monitoring Inspector to come forward from the passenger compartment and validate that observation. It was at that time that ATC queried the aircraft to assist them in re‑establishing the localizer. He indicated the safety standards expected of a professional flight crew were not met. Should a crew wish to deviate from an ATC clearance or be unable to comply, it should make a request to ATC rather than simply start a self‑vector.
 Section 602.31 of the CARs (Exhibit M-7) was introduced into evidence and read. The notices issued to Mr. Blossom (Exhibit M-8) and Mr. McCallum (Exhibit M‑9) were also introduced.
 An excerpt from section 723.88 of the Commercial Air Service Standards (Exhibit M-10) was introduced into evidence, indicating the required items to be demonstrated during a PPC. Selected items were read as follows:
(e) A Transport Canada inspector or approved company check pilot shall determine whether a person has demonstrated the knowledge and the skill in accordance with the following factors:
(i) the pilot's adherence to approved procedures
(g) A PPC must include a demonstration of instrument flight (IF) proficiency if:
(i) the candidate possesses a valid Instrument Rating; and
(ii) the candidate conducts commercial IFR operations on the aeroplane in which the PPC is conducted.
 A portion of the Flight Test Guide (Exhibit M-11) was introduced into evidence. Inspector Hewitt referred to the section entitled Performance Criteria for the Precision Instrument Approach, and identified two items used in assessing the flight test as a failure:
c. comply in a timely manner, with all clearances, instructions, and procedures issued by ATC and advise accordingly if unable to comply.
j. on final approach course, allow no more than ½ scale deflection of the localizer and/or glideslope indications.
 Inspector Hewitt described that the very next day, as a courtesy to the crew and commercial operator, he retested the same crew with no additional training. The retest was successful, “a good ride”, and licence privileges were restored. He did not believe additional training was required as, in his opinion, the failed flight test was just a momentary lapse in situational awareness by an otherwise proficient crew.
 In cross-examination, the circumstances of the ACP Monitor as well as the professional relationship between the two inspectors were examined. Inspector Hewitt maintained that Inspector Stewart was free to voice a disagreement should one have arisen. He also maintained that although Inspector Stewart was sitting in the passenger compartment during the flight test, at the point of full deflection on the localizer, he was called forward and concurred with his observation.
 Inspector Hewitt recalled cumulus cloud in the general area and one directly on the approach to the runway, although he did not consider it a safety concern to fly through it. He observed Mr. Blossom “self-vectoring” to remain clear of it. He said he had very good situational awareness throughout the intercept heading, the vector through and the continued turn to final approach.
 When questioned about his statement that “safety of flight was not assured”, Inspector Hewitt replied that he stood by his statement since, although they had not in fact passed into an area where they were below MSA, they were headed in that direction and would be in that area in a short period of time. He did not see any inconsistency in his belief that the cause of the failure was just a momentary lapse by the flight crew and his statement that safety of flight was not assured.
 Under questioning about the request of the flight crew to in turn ask ATC for a non‑standard missed approach instruction right at the point of high workload, he replied that he had made the request of them sometime prior to localizer intercept and that even under high workload conditions, professional flight crew were expected to recognize, trap and mitigate errors and to not allow themselves to be distracted.
 Inspector Hewitt agreed that his statement that the “aircraft deviated through localizer into unprotected airspace below MSA” was not, in fact, a true statement. Nevertheless, it remained his opinion that the results of the flight test should stand because the crew did not comply with the ATC clearance.
 Inspector Hewitt was asked how it could be, in view of his statement that safety of flight was not assured, that the ATC personnel indicated no safety concern nor did they file a report in the Civil Aviation Daily Occurrence Reporting System (CADORS). He replied that the ATC query asking about the intentions of UMC indicated a concern for safety.
(2) Inspector Scott Stewart
 Inspector Stewart presents as a credible witness with an extensive aviation background. During the flight test he was seated in the passenger compartment and was tapped on the shoulder to step forward to the cockpit. He did so and observed a full deflection of the course deviation indicator. He did not hear any request to ATC for a deviation.
 He estimated that about four minutes elapsed from when the crew was asked to request of ATC a non-standard missed approach until localizer intercept. He indicated that such a non‑standard request by pilots is not uncommon when simulating engine-out conditions due to reduced climb capability. He agreed there was no discussion with the flight crew about when they might “get the engine back”, so it could leave some questions in the mind of the crew as to how the manoeuvre might be accomplished.
(1) Michael John Blossom
 Mr. Blossom has an extensive aviation background of over 30 years and 18,000 flight hours. He has never failed a flight test, with the exception of the one in question.
 On the day of the flight test, he had several safety concerns. In their simulated engine-out configuration, one engine was at flight idle and he was concerned about the risk of engine flameout in icing conditions. He recalled that he had a strong desire to stay out of cloud if at all possible. He was also concerned that the inspectors were not buckled into their seats and Inspector Hewitt was, because of the limited cockpit seating, forced to stand behind the pilot's seat and hold on.
 The pilot workload was very high. It was not at all clear to him how he would execute the non-standard missed approach in a single-engine configuration with reduced climb capability. In that moment of distraction he did not prompt the pilot not flying (PNF) to make a radio call indicating that they would be requiring a deviation around weather before rejoining the localizer.
 He maintained that at all times he knew exactly where he was by looking out the window and seeing the runway as well as by reference to the airport approach chart. He asserted that he was situationally aware at all times.
 Mr. Blossom recalled the debriefing after the failed flight test and how the inspector's primary concern was their descent below MSA rather than their failure to comply with the ATC instruction.
 On cross-examination, he agreed that on March 29, 2011, at the end of the day, he was in possession of the Notice of Suspension providing the failure to comply with an ATC clearance as the reason for the suspension.
 He confirmed his previous statement that he had been distracted momentarily by the confusion regarding the non-standard missed approach instruction and agreed that he had not directed Mr. McCallum to communicate with ATC as “there was too much going on”. He offered the opinion that “generally the prudent thing to do is to advise ATC if deviating but that in real-life situations, minor deviations of this sort happen often and ATC “is good with it”.
(2) Evan McCallum
 At the time of the flight test, Mr. McCallum was the chief pilot of the small air operator Sustut Air. Subsequent to the failed flight test, he extracted data from an onboard GPS and interfaced it with Google Earth through a software application. He introduced this evidence as Exhibit A-1. He does not dispute that the data closely reconstructs the Minister's previously-introduced radar data showing the aircraft proceeding through the localizer. He brings this evidence forward to clearly show that the aircraft did not, in fact, descend below MSA as initially indicated by Inspector Hewitt in the Comments section of the Flight Test Report.
 The aircraft track, the localizer centerline and the MSA quadrantal boundaries are all clearly depicted. The subject aircraft location appears to be 1.5 miles from the sector with the problematic higher MSA and approximately 1 to 1.5 miles east of localizer centerline.
 Mr. McCallum introduced into evidence an investigation of a fatal accident involving an engine similar to that of the subject aircraft (Exhibit A-2). This report detailed a dual engine flameout while at flight idle in icing conditions. He stated that it was this information that had formed his opinion that safety would be compromised should they fly into the cloud conditions existing on the localizer centerline.
 In cross-examination, he was questioned about the sequence of events that would transpire while approaching the localizer. He replied that the first indication would come from the automatic direction finder needle, followed by the course deviation indicator beginning to move. He agreed that he should have made a verbal “localizer alive” call as per company procedures, but doubts that he did so, nor did he communicate with ATC as he was “too loaded up”. When asked what took precedence between complying with ATC or complying with “what the guys in the back wanted”, he replied that compliance with ATC was the top priority. At the same time, they felt their livelihoods and the very survival of the company were at stake since the inspector was also the Principal Operations Inspector for the air operator.
 The Minister argues that the evidence establishes, on a balance of probabilities, that the “failure to comply with ATC clearance”, outlined in the Notice of Suspension, did occur. The Minister's representative submits a voice record of ATC communication verifying that the instruction to the subject aircraft was received. He also provides ATC radar reports indicating that the aircraft proceeded through the localizer rather than turning to intercept it.
 The standard established by the Flight Test Guide allows, on final approach, a deviation of no more than one-half scale on the localizer. Both Inspector Hewitt and Inspector Stewart observed a deviation of full deflection.
 The Minister argues that the request of the flight crew to in turn request from ATC a non‑standard missed approach clearance was made in the interest of efficiency to set up the aircraft for the next approach. It was not a particularly unusual request from an aircraft in a simulated engine-out condition. It was requested of the crew some four minutes prior to the localizer intercept, sufficiently in advance of the localizer intercept as to not create an onerous workload for the crew.
 It is the Minister's position that the prevailing weather conditions were adequate for the exercise, since Inspector Hewitt could see the runway from the aircraft. They were in visual flight conditions and, further, the aircraft was certified to fly in cloud and in icing conditions, and the flight test was being conducted under instrument flight rules, not dependent on visual flight conditions.
 Once the aircraft had proceeded through the localizer in a descent, the Minister argues that Inspector Hewitt made an honest mistake in believing that they had descended below MSA. His opinion that safety of flight was not assured was reasonable. The Minister observes that the flight test was conducted in accordance with the Flight Test Guide, that the inspector did not observe the required standard of proficiency and that he correctly assessed a failure.
 The Applicants do not dispute that the aircraft proceeded through the localizer. They introduced evidence themselves showing a deviation of approximately one mile to the east. They submit that the deviation was in part due to their being overloaded by the inspector at a critical phase of flight. They were in and out of cloud, flying in a simulated engine-out configuration and highly concerned with a risk of actual engine flameout. The overload condition was created by confusion in regard to the non-standard approach clearance they had been asked by the inspector to conduct.
 The deviation was also due in part to a safety concern: to stay clear of cloud and turbulence in consideration of the two unbuckled inspectors. In any event, the deviation was conducted reasonably.
 They acknowledge they should have advised ATC of the deviation but, as there was “too much going on” for the reasons mentioned, they did not do so.
 The Applicants' central argument and concern is in relation to the written comments on their Flight Test Reports stating that they descended below MSA and, as a result, that safety of flight was not assured. The Applicants submit that they knew this not to be true in the moment as well as in the debriefing that followed. They argue that since the evidence shows the initial assessment regarding the altitude of flight to be false, there is no basis for the further assessment that safety of flight was not assured.
 The Applicants submit that this error constitutes a blemish in their professional records and that Transport Canada has known about this error for three years, could have corrected the records at any time and yet has not done so. This is the reason for which they requested a review by the Tribunal.
 There are three issues to be decided:
1. Was the flight test conducted fairly?
2. Was the flight test assessed fairly?
3. Is there a basis for issuing the suspension of licence privileges, and if not, is there a remedy available?
Issue #1. Was the flight test conducted fairly?
 I find that the flight test was, in general, conducted fairly and in accordance with the Flight Test Guide. The possible exception was that the Applicants were not accorded an opportunity to repeat a failed item. The Flight Test Guide allows for this possibility:
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 “(2)” or “(1).”
 That the mistake was characterized by the Minister as a “momentary lapse by an experienced crew” would indicate that an opportunity to repeat a failed item might have been considered. It is quite possible that a repeat was not offered on the basis of the assessment, in fact in error, that the aircraft had descended below MSA and that safety of flight was not assured.
 It is not contested that the aircraft did not comply with the ATC clearance. The Applicants' own evidence shows that it did not do so.
 The Applicants' defence amounts to one of due diligence. However, to be successful, such a defence would require the Applicants to prove they took all reasonable care. Given the situation described—weather, turbulence, concern for icing and engine flameout and the confusion regarding the non-standard missed approach clearance—the crew did not have to continue the approach. They always had the option of requesting a radar vector back outbound to give themselves time to get sorted out.
 I find that an experienced crew would know that intentionally deviating through a localizer on a check ride without advising ATC is an ill-considered manoeuvre.
 Instead, I find that the failure to intercept the localizer or to communicate in a timely manner with ATC was due to distraction by the flight crew. In a high workload situation, it is important that flight crew exercise the full suite of crew resource management skills. The Flight Test Guide lists some of these skills: avoiding “tunnel vision”, communicating decisions clearly, eliminating distractions during high workload situations, prioritizing tasks and “staying ahead of the aircraft”.
 I find that the flight test was conducted fairly.
Issue #2. Was the flight test assessed fairly?
 Contrary to the comments on the Flight Test Report, the aircraft did not descend below MSA. This statement is based on an honest mistake by the inspector arising from a misunderstanding of the position of the aircraft. Since the aircraft was in visual flight conditions and the inspector could see the runway throughout the approach, I find there is nothing else on which to base his assertion that the safety of flight was not assured. Therefore I find the statement on the Flight Test Report that safety of flight was not assured to be invalid.
 When read as a whole, the Flight Test Report is not a fair and accurate assessment of the flight test and is sufficiently flawed as to render it unreliable.
 Had the Comments section been completed correctly, the results of the flight test would have stood as a failure.
Issue #3. Is there a basis for issuing the suspension of licence privileges, and if not, is there a remedy available?
 Absent a fair and accurate assessment of the flight test, there is no reasonable basis for the suspension of privileges of the flight crew's licences.
 It is reasonable for the Applicants to expect that Transport Canada's decision to suspend them would be made on a full consideration of the facts of the case. However, this cannot be said to have been done in this case, as the suspension is based in part on a Flight Test Report with erroneous information in regard to safety of flight. As such, the decision to suspend the Applicants' licence privileges should not be upheld.
 The interests of fairness and natural justice are best served by sending the matter back to the Minister for reconsideration so that the flight crew's records can be corrected.
A. TATC File No. P-3779-60
 The Minister has not proven, on a balance of probabilities, that the Flight Test Report of the flight test conducted on March 29, 2011 constitutes a fair and accurate assessment of the performance of the flight crew necessary for the issuance of a Pilot Proficiency Check. As such, the resulting suspension of the Applicant, Evan McCallum, should be reviewed. Therefore, the matter is referred back to the Minister for reconsideration.
B. TATC File No. P-3781-60
 The Minister has not proven, on a balance of probabilities, that the Flight Test Report of the flight test conducted on March 29, 2011 constitutes a fair and accurate assessment of the performance of the flight crew necessary for the issuance of a Pilot Proficiency Check. As such, the resulting suspension of the Applicant, Michael John Blossom, should be reviewed. Therefore, the matter is referred back to the Minister for reconsideration.
June 18, 2014
- Date modified: