TATC File No. O-4038-27
MoT File No. 5802-393548
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Robert Martin, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C., 1985, c. A-2, paragraph 6.71(1)(b)
Canadian Aviation Regulations, SOR/96-433, standard 421.34(5)(a)
Patrick T. Dowd
Decision: October 7, 2014
Citation: Martin v. Canada (Minister of Transport), 2014 TATCE 34 (Review)
Heard in: Toronto, Ontario, on September 8, 2014
REVIEW DETERMINATION AND REASONS
Held: The Minister has proven, on a balance of probabilities, that the applicant, Robert Martin, failed to comply with the requirements of Standard 421.34(5)(a) of the Canadian Aviation Regulations for the issuance of an Airline Transport Pilot Licence. Consequently, the decision of the Minister is upheld.
 On February 28, 2014, the Minister of Transport (Minister) issued a letter to the applicant, Robert Martin, advising him that he did not meet the qualifications necessary for the issuance of an Airline Transport Pilot Licence (ATPL). The letter alleged that the applicant failed to comply with Standard 421.34(5)(a) of the Canadian Aviation Regulations, SOR/96-433 (CARs). Accordingly, pursuant to paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C., 1985, c. A-2, the Minister refused to issue the applicant with an ATPL.
 On April 3, 2014, the Transportation Appeal Tribunal of Canada (Tribunal) received a letter from the applicant requesting a review of the Minister's decision.
II. STATUTES AND REGULATIONS
 Standard 421.34(5)(a) of the CARs reads as follows:
421.34(5)(a) Within the 12 months preceding the date of application for the licence, an applicant shall demonstrate in a multi-engined aeroplane with no central thrust configuration and fitted with instruments and equipment suitable for IFR flight in controlled airspace, familiarity with and the ability:
(i) to perform both normal and emergency flight procedures and manoeuvres appropriate to the aeroplane in which the flight test is conducted; and
(ii) to execute all manoeuvres and procedures set forth in Division XIV for issue of a Group 1 instrument rating.
(b) For issue of the Airline Transport Pilot Licence - Aeroplane, the Minister shall only endorse a Group 1 Instrument Rating on the licence.
 Subsection 6.71(1) of the Aeronautics Act reads in part 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; or
(1) Ms. Sharon Chandler
 Ms. Chandler is employed by Transport Canada as an aviation safety officer in the licensing department. Part of her responsibilities is to monitor applications for ATPLs and she has considerable experience with this task in her position. Ms. Chandler described the requirements that candidates must meet on applying for an ATPL as outlined in Standard 421.34 (Exhibit M‑2) and section 400.03 of the CARs (Exhibit M‑4).
 Mr. Martin was shown, on his application form dated January 22, 2014 (Exhibit M‑1), to have completed Transport Canada's two required written examinations, the SAMRA (Meteorology, Radio Aids to Navigation and Flight Planning) and SARON (Air Law, Aeroplane Operation and Navigation General), within the prescribed period of 24 months preceding the submission of the application (on February 21 and 24, 2012, respectively). However, candidates applying for an ATPL must also have passed an initial Class 1 instrument rating test performed in a multi-engine aeroplane within the last 12 months prior to the submission of the application. Mr. Martin failed to meet this requirement because, as indicated on his Flight Test Report of January 18, 2014 (Exhibit M‑3), he underwent his initial pilot proficiency check (PPC) on a Redbird FMX flight training device (FTD), which is not approved by Transport Canada for an initial PPC. Concurrently, during processing of the application, the time limitation on the other two required examinations had expired.
 By way of explanation, to obtain a Class 1 rating, the candidate undertakes an initial check PPC. Thereafter, the pilot renews this rating by performing a recurrent PPC.
 On cross-examination by the applicant, Ms. Chandler denied having advised the applicant that a PPC completed on the FTD he used was acceptable for an initial PPC, a statement echoing what appears in an email by Ms. Chandler sent to a colleague on April 14, 2014 (Exhibit M‑5), in which she reacted to the claims made by the applicant in his request for review of March 25, 2014 (Exhibit M‑6). Ms. Chandler also stated that Transport Canada would, however, accept a recurrent PPC completed on this particular FTD.
 The Minister's representative introduced into evidence Standard 421.46 of the CARs, which sets out the requirements pertaining to the various instrument ratings (Exhibit M‑7).
(2) Inspector Henri DeBruyn
 Inspector DeBruyn is an aviation safety officer specializing in the area of technical matters and with considerable expertise in this field. The Minister's representative had Inspector DeBruyn comment on Transport Canada's Flight Test Guide – Instrument Rating Groups 1, 2 and 3 Aeroplane, TP 9939E (Exhibit M‑8) and Transport Canada's Qualification Test Guide – CAR Part IV Flight Training Devices – Level 2 or 5 Aeroplane, TP 13799E (Exhibit M‑9).
 Inspector DeBruyn also explained that the particular FTD used by the applicant was approved by Transport Canada as a Level 2 device for training and recurrent PPC renewals only as specified on the certificate issued by Transport Canada to Golden Horseshoe Aviation for the Redbird FTD (Exhibit M‑10). He further explained that according to Transport Canada's Aeroplane and Rotorcraft Simulator Manual, TP 9685E, a Level 2 FTD may be granted approval for initial certification of an applicant if their performance is compared to a reference set of values (Exhibit M‑11, Chapter 4, section 4.2.8). He added that the Full Flight Simulator (FFS) Levels C and D could also be used for the initial ride for an ATPL. These simulators are used mainly by major airlines and are required to meet a higher standard than an unapproved FTD. The witness stated it is a flight safety consideration to ensure candidates are evaluated in a device that is approved by Transport Canada.
 Mr. Martin, the applicant, testified on his own behalf. He did not call any witnesses or provide any exhibits to the Tribunal.
 Mr. Martin testified that he was not advised by Ms. Chandler or by Transport Canada's approved check pilot that the FTD he was intending to use was not approved for an initial ATPL PPC. He testified that both these individuals were aware of his plans well before he made his application. He was perplexed by the situation that an FTD could be used for a recurrent PPC, but not for an initial one. The remainder of his attestation consisted of the expense he was subjected to and the frustration he felt in regard to the obstacle in which this matter affected his advancement in his occupation.
 The Minister's representative reviewed the applicable legislation, the exhibits, Transport Canada's policy statements, and the witnesses' evidence to support Transport Canada's refusal in this situation. There was sympathy for the applicant in the statement by [the Minister's representative] that Transport Canada took no pleasure in refusing to issue an ATPL. He submitted that the Minister had proven on a balance of probabilities that the applicant had not met the requirements of standard 421.34(5)(a) of the CARs.
 The applicant essentially repeated the statements he made in his testimony and it is not necessary to duplicate them here.
 I do not have the jurisdiction to abrogate the legislation of the Minister, nor do I have the ability to interfere with the proper administration of this legislation by Transport Canada. Since the applicant did not meet the requirements set out in Standard 421.34(5)(a) of the CARs, I therefore agree that Transport Canada exercised its authority appropriately in refusing to issue an ATPL to the applicant, Robert Martin, under paragraph 6.71(1)(b) of the Aeronautics Act.
 The applicant failed to produce any witnesses or documentation to support the position that he had been misled by Transport Canada or by their Approved Check Pilot. Had he done so, perhaps the defence of due diligence would have been available. I have the deepest sympathy for the applicant and I share his puzzlement as to why an FTD can be used for a recurrent PPC and not an initial one. That being said, the applicant contributed to this situation by waiting so close to the end of the limitation period before completing the requirements for the issuance of an ATPL. Because of this, there was no time available for Transport Canada to deal with the circumstances should a problem arise, which in fact turned out to be the case.
 The Minister has proven, on a balance of probabilities, that the applicant, Robert Martin, failed to comply with the requirements of Standard 421.34(5)(a) of the Canadian Aviation Regulations for the issuance of an Airline Transport Pilot Licence. Consequently, the decision of the Minister is upheld.
October 7, 2014
Patrick T. Dowd
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