Decisions

TATC File No. Q-4010-27
MoT File No. 5802-123043

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Richard Archambault, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C., 1985, c. A 2, subsection 6.71(1)


Review Determination
Franco Pietracupa


Decision: November 24, 2014

Citation: Archambault v. Canada (Minister of Transport), 2014 TATCE 37 (Review)

Heard in: Montréal, Quebec, on August 19, 2014

REVIEW DETERMINATION AND REASONS

Held: The Minister has not proven, on a balance of probabilities, that the applicant does not fulfil the conditions necessary for the amendment of his Canadian aviation document as per section 6.71 of the Aeronautics Act. Therefore, the matter is referred back to the Minister for reconsideration.

I. BACKGROUND

[1] On November 5, 2013, the Minister of Transport (Minister) issued a Notice of Refusal to Issue or Amend a Canadian Aviation Document to the applicant, Richard Archambault, pursuant to section 6.71 of the Aeronautics Act, R.S.C., 1985, c. A‑2 (Act). According to the Notice, the refusal was based on the fact that Mr. Archambault did not have 100 hours of experience as pilot-in-command on the type of helicopter for which he was seeking to obtain an approved check pilot (ACP) delegation. As such, the R22 type would not be added to his ACP aircraft designations.

[2] On November 27, 2013, the applicant requested a review of the Minister's decision by the Transportation Appeal Tribunal of Canada (Tribunal).

II. STATUTES AND RELEVANT STANDARDS

[3] Subsection 6.71(1) 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

(a) the applicant is incompetent;

(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

(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the applicant or of any principal of the applicant, as defined in regulations made under paragraph (3)(a), warrant the refusal.

[4] Relevant sections of Transport Canada's Approved Check Pilot Manual, Ninth Edition, TP 6533E, 11/2007 (ACP Manual) read as follows:

1.3 ACP SIMULATOR ONLY (WITHOUT MEDICAL CERTIFICATE)

Where an ACP's medical expires or where the Minister has suspended or refused to renew a ACP's medical certificate, the ACP may obtain authority to continue with ACP duties, in a simulator only, provided an application for simulator only authority is submitted to the appropriate TC Regional Office.

ACPs granted PPC (simulator only) authority having no medical certificate:

(a) must have held a valid ATPL pilot license, an Instrument Rating and applicable Type Rating;

(b) have experience as a Line Pilot with an Air Operator; and

(c) have accumulated not less than 100 hours on type with an Air Operator.

[...]

1.7.5 Cancellation, Suspension, Refusal to Renew or Refusal to Issue

[...]

The Issuing Authority - may, pursuant to 7.1(1) of the Act, suspend, refuse to renew or refuse to issue an examiner's authority to conduct flight tests on the basis of any of the following:

(a) upon the written request of the ACP;

(b) when there is no longer a need for the ACP's service;

(c) a record of violation of the Canadian Aviation Regulations resulting in one or both of the following penalties:

(i) an administrative monetary penalty assessed in accordance with sections 7.6 to 8.2 of the Aeronautics Act, where there has been a violation of a designated provision; or

(ii) the suspension of a Canadian Aviation Document in accordance with section 6.9 of the Act, in respect of any contravention of a provision of Part 1 of the Act.

(d) failure to attend a required ACP recurrent course;

(e) failure to maintain an Instrument Rating except where allowed.

(f) unacceptable performance in any phase of ACP duties or responsibilities, including the inability to accept or carry out the supervising principle inspector's instructions;

(g) the need for repeated direction in the proper conduct and administration of flight tests;

(h) failure to conduct flight tests in accordance with the instructions, techniques and procedures set forth in the Approved Check Pilot Manual (TP 6533E), Flight Test Guide or PPC schedule;

(i) for any reason the Issuing Authority considers appropriate and in the public interest.

[...]

APPENDIX G - ACP MANUAL GRADING GUIDE

[...]

1 - 4 Grading Scale

Below Standard (1)
Basic Standard (2)
Standard (3)
Above Standard (4)

III. EVIDENCE

A. Minister

(1) Frédéric Prillieux

[5] Mr. Prillieux is an associate director at Transport Canada in Montréal. For the past seven years he has held several functions within the organization, including that of civil aviation inspector. Decisions related to the ACP program are escalated to his office. He stated that he was involved in the decision regarding a refusal to issue to Mr. Archambault an ACP delegation on the R22 helicopter.

[6] Mr. Prillieux provided the Tribunal with a brief overview of the ACP program. He explained that the Minister has the authority to delegate certain flight testing functions to approved individuals outside of Transport Canada, in the interest of efficient public funding and spending. The ACP program issues this delegation to individuals who have met all the required qualifications for the privileges received. The Minister however maintains at all times the right to cancel, suspend or refuse to issue or renew this delegation as stated in section 1.7.5 of the ACP Manual. This also includes the right to restrict the number of aircraft types on an ACP delegation of authority as outlined in the ACP Manual (Exhibit M‑1).

[7] Mr. Prillieux went on to explain that the ACP must continue to maintain his or her qualifications, including by undergoing an annual Pilot Proficiency Check (PPC) on one of the aircraft type(s) for which he or she holds an ACP delegation. In fixed-wing aircraft, blanket type ratings allow individuals to maintain “common” type rating on families of aircrafts by conducting one PPC within this group, but that this situation differs on helicopters as each type has its own type rating requirements and no blanket type exists.

[8] Because of the complex differences between various helicopter models, coupled with the various company operational categories, the Minister retains the right to limit the number of types an ACP can be accredited for based on risk assessment, safety and the ACP's currency level on each type.

[9] Under section 1.7.3 – Renewal of Delegation – of the ACP Manual, the ACP has the responsibility to request his or her delegation renewal 90 days prior to its expiration. Mr. Prillieux explained that the ACP must attend an ACP recurrent course once every three years successfully and complete an annual PPC renewal and Transport Canada ACP monitoring flight observation. He reiterated that under the ACP program, the Minister can limit the number of ACPs and the types on their respective delegations based on several factors.

[10] One example given was industry demand in certain regions where it would make budgetary sense to have an ACP who is already in the region or is already a company employee carry out this service. Mr. Prillieux stated that the Minister does, at all times, reserve the right to conduct any flight test, observe a flight test being conducted by the ACP and ensure that the ACP has the required skill set to act in its name.

[11] Mr. Prillieux stated again that the demand for flight test services in a given region also plays an important role in the decision to nominate ACPs in respective regions. He went on to explain that an ACP conducting flight tests on helicopter must have the specific aircraft type on his or her licence and have had at least one PPC completed annually on one of the types listed. Mr. Prillieux explained at length the general requirements that a pilot must demonstrate during the ACP nomination process, including the flight hours criteria. Exceptions can occur where the Minister may qualify as an ACP an individual who has a type rating that no one else has on their licence and/or allow a “one-time” flight test exception to an individual based on a proper risk assessment. The Minister can at any time, based on its evaluation, add other criteria to its decision process.

[12] When Mr. Archambault applied for a delegation on the R22 type, he was asked to provide his number of hours as pilot-in-command on this type (Exhibit M‑4). At the hearing, Mr. Prillieux was asked specifically why 100 hours of on-type experience were required for Mr. Archambault to add the R22 type rating to his delegation. He testified that a provision for experience on specific types was included in the previous version of the ACP Manual and this same provision would be added to its upcoming revision. However, at the time of Mr. Archambault's request, the current ninth edition of the ACP Manual did not and still does not contain any reference to hours of experience on type, other than a mention of 100 hours experience for simulator ACPs who have no medical certificate.

[13] According to Mr. Prillieux, although this criterion does not appear in the current ACP Manual, his office in the Quebec region has continued to apply it to ensure that the level of experience of ACPs is adequate in order to properly evaluate candidates during flight tests, as illustrated in a risk assessment conducted in late 2011 (Exhibit M‑2). Mr. Prillieux stated that most ACPs operating in company who have their application denied based on this criterion simply wait until they have flown the hours and then re‑apply for the delegation.

[14] Mr. Prillieux also testified that when Mr. Archambault requested to have the R22 type added to his delegation, a risk assessment was conducted by Transport Canada (Exhibit M‑3). Based on this assessment, it was decided that 100 hours on type would be required. The document noted that:

(a) the applicant was involved in a helicopter accident in May 2009 in which he was conducting an instructional flight (no injuries were reported but the aircraft sustained extensive damage);

(b) because the R22 is a two-seat helicopter, the Minister would not be able to properly monitor Mr. Archambault conducting a flight test on this type; and

(c) no demand existed for an additional ACP on this type as two R22 ACPs were already delegated in the region to service five R22 helicopters.

[15] An important factor taken into consideration was the accident that occurred on May 13, 2009 during an instructional flight on a Bell 206L helicopter in which the aircraft experienced a hard landing (Exhibits M‑5 and M‑6). No injuries were reported. Mr. Archambault, the instructor on board, accompanied a student pilot.

[16] Several ACP Monitor Reports conducted by Transport Canada on Mr. Archambault dating back to 2008 were also presented as evidence (Exhibits M‑7, M‑8, M‑9, M‑10 and M‑12). Mr. Prillieux stated that certain elements of the applicant's performance were scored a 2 (Basic Standard). These elements included pre-flight briefings and scope of flight check. Finally, the applicant's May 2, 2011 monitor check (Exhibit M‑10) was deemed a failure, which Mr. Archambault contested (Exhibit M‑11), resulting in a successful retest on May 4, 2011 (Exhibit M‑12). A Notice of Suspension resulting from the failed May 2 monitor was also entered as evidence (Exhibit M-13).

[17] In October 2011, Mr. Archambault was given an additional delegation for an A109 helicopter. Mr. Prillieux stated that at the time, the applicant had 10.4 hours on this type but had been granted the delegation based on a grandfather clause and the fact that no inspector within Transport Canada had this rating. No risk assessment was carried out.

[18] Mr. Prillieux stated that although the R22 was a less complex helicopter than other types for which Mr. Archambault had delegation, his lack of recent experience resulted in the requirement for 100 hours on type. He also confirmed that at the time of the request, Mr. Archambault did have a valid PPC for the R22 but did not have a delegation for this type on his ACP credentials. Another factor considered in requiring the 100 hours of experience centred in the fact that the R22 is predominantly a helicopter used in flight training schools. As PPCs conducted on this type would likely involve pilots at the beginning of their careers, the ACP would therefore be more susceptible to be required to take control of the aircraft.

[19] Under cross-examination, Mr. Prillieux was asked if the ACP program was governed provincially or nationally. He responded that the program is national. When asked where the reference to the 100 hours can be found in the ACP Manual, Mr. Prillieux admitted that this criterion was not written in the manual but that the Minister does have discretionary oversight in the selection requirements for ACPs. The 100-hour requirement serves as the first criterion to determine the qualifications of the ACP. If a candidate does not have the hours, then other factors are taken into consideration such as industry demand for an ACP on the requested type.

[20] Mr. Prillieux confirmed that had the applicant formulated his request to add the R22 delegation in a region other than Quebec, he may not have been required to have 100 hours on type. An application could be dealt with differently from one region to another.

[21] Mr. Prillieux was asked if he was aware that the applicant had over 100 hours on type in only two of his various ACP delegations. He responded that he was unaware of this and not an expert in helicopter operations.

[22] During re‑examination, Mr. Prillieux confirmed that the yearly monitoring of the ACP by Transport Canada inspectors is a factor that would be taken into consideration during the request for additional delegation privileges. Customer complaints as to the conduct of flight tests are also reviewed during this time. A risk assessment is also conducted on the ACP if he or she is inactive or may not be working with a company in any operational context.

(2) Martin Faucher

[23] Martin Faucher is a technical team lead with Transport Canada's Civil Aviation branch and has been employed in that department since 2000. He has oversight responsibility with regard to ACPs within the region. He conducted an ACP monitor on Mr. Archambault in November 2013.

[24] In October 2013, Mr. Faucher met with the applicant in order to plan the yearly monitoring flight required to maintain his ACP delegation (Exhibit M‑14). The administrative ground session is meant to review the past year's activity and performance, as well as the ACP's strengths and weaknesses, and provide recommendations and feedback. These sessions normally last two to three hours and are followed by the in-flight monitoring portion of the renewal. As indicated in the applicant's Progress Record (Exhibit M‑15), during this session, Mr. Faucher realized that Mr. Archambault did not have a valid PPC on one of the aircraft types listed on his ACP delegation, thus rendering the ACP authorization void.

[25] Mr. Faucher made the decision to continue the administrative interview with the applicant. They reviewed matters related to feedback and comments made during previous monitoring checks conducted by Transport Canada. Once completed, Mr. Faucher advised Mr. Archambault that he must successfully complete a PPC on any of the helicopters designated on his privileges prior to any monitoring flight taking place. That day, Mr. Archambault requested to add the R22 type—for which he held a valid PPC—to his delegations. The next day, on October 24, 2013, when he received an email advising him that his request was denied, he cancelled the ACP monitor planned for the following day with Mr. Faucher (Exhibit M‑17).

[26] The monitoring flight conducted by Mr. Faucher on November 28, 2013 (Exhibit M‑16) was assessed as a “pass”, with some areas such as pre-flight briefings being evaluated at a score of 2 (Basic Standard). In this specific monitoring flight, no issues or concerns with regard to flight safety were noted or observed.

[27] Mr. Faucher stated that based on the applicant's lack of regular flight activity, low number of actual flight tests conducted and the fact that he was not associated with any operational flight companies over the last few years, he would be recommending that the validity of his delegation be limited to one year as allowed by Transport Canada's ACP / AQP Bulletin 02/12 (Exhibit M‑18).

[28] Mr. Faucher stated that annual monitoring of the ACP is intended to assess the ACP's ability to properly conduct a PPC and not necessarily his or her ability to operate the helicopter as the pilot flying. He did confirm that the R22 is not a complex helicopter compared to the multi-engine turbine models but does present its challenges, one of these being its use primarily in flight training centres with low-time student pilots. Mr. Faucher stated that he was aware of the accident that took place in May 2009 involving Mr. Archambault but was not involved in the investigation.

[29] Under cross-examination, Mr. Faucher confirmed that a PPC on one type of helicopter will normally suffice to meet the requirements for other helicopters under that grouping. The example given was that of the Bell 206 series of helicopters. A PPC on a Bell 206 would cover the range of Bell 206 helicopters under the applicable grouping with the condition however that the pilot undertake the necessary training on the differences between models.

[30] Mr. Faucher was asked to confirm that the applicant was delegated to conduct PPCs on R44 helicopters after completing a PPC on an R22 and taking a course on the differences with the R44 aircraft. This was confirmed but Mr. Faucher insisted that these two helicopter types were not listed under the same blanket coverage category as is the case with some Bell helicopter types.

[31] Mr. Faucher also confirmed that an exemption does exists in which a chief pilot can conduct flight tests on the company's pilots under subparts 702 or 703 of the Canadian Aviation Regulations, SOR/96‑433, without being approved as an ACP.

B. Applicant

[32] The applicant did not testify on his own behalf, nor did he call any witnesses or introduce any documentary evidence.

IV. ARGUMENTS

A. Minister

[33] The Minister's representative submits that pursuant to sections 4.3 and 6.71 of the Act, the Minister has the discretionary power to refuse to add or issue a delegation to any applicant. Section 4.3 states that the “Minister may authorize any person or class of persons to exercise or perform, subject to any restrictions or conditions that the Minister may specify, any of the powers, duties and functions of the Minister under this Part ...”, and section 6.71 defines the grounds on which the Minister may refuse to issue or amend a Canadian aviation document.

[34] The Minister submits that the requirement to have 100 hours of experience as pilot-in-command prior to adding this delegation to Mr. Archambault's ACP privileges is warranted and falls under the discretionary power it possesses. Mr. Prillieux testified that all requests received to amend or issue privileges are reviewed in a case-by-case fashion. The Minister argues that the 100-hour requirement did exist in previous versions of the ACP Manual and remains in the manual's ninth edition for ACPs conducting PPCs in simulators. Based on the high number of types already included in the applicant's ACP privileges, and taking into consideration his past performance during monitoring flights with Transport Canada, the decision was justifiable.

[35] The risk assessment analysis submitted in evidence also provides the justification and demonstrates the transparency of the decision made by Transport Canada's Quebec regional office. The Minister submits that the 100-hour requirement is a common practice within the region and is applied to all ACPs fairly prior to the evaluation of each request being completed.

[36] The decision falls within the Minister's discretionary powers. Although the Minister concedes that Mr. Archambault may have had the R22 delegation granted to him in other regions of the country, based on his overall performance on ACP monitoring flights, a previous accident and the fact that there is already a sufficient number of ACPs for the R22, the decision to add the 100-hour requirement prior to delegating this type on his licence confirms the Minister's due diligence in the matter.

[37] Finally, the Minister admits that Mr. Archambault benefited from a grandfather clause as an ACP, which explains why the A109 type was included in his delegations without any minimal hours being required. The R22 however falls in a different aircraft category, is only a two-seater and is used primarily in flight training. Mr. Faucher's testimony clearly indicates that the Minister had a safety issue with adding this delegation on Mr. Archambault's licence and had to act accordingly to apply the 100-hour requirement.

B. Applicant

[38] The applicant argues that the R22 aircraft is a much improved aircraft compared to four or five years ago and that the Minister's claim that the model is more difficult to operate is false. He also contends that no expert witness was called by the Minister to confirm their claim in regard to its complexity.

[39] With respect to the accident that was discussed during the hearing, the applicant was acting as a flight instructor and all briefings applicable to this flight were done professionally. He feels that the accident should not be a factor in the Minister's decision to require 100 hours for the R22 delegation. The fact remains that an accident can occur any time one undertakes a flight. In the applicant's 45 years of flying experience, safety has been the number one concern at all times. Mr. Archambault argues that when he conducts a PPC, he covers all aspects of safety, including by ensuring that the training is completed, that the operations specifications are respected and that he meets with both the chief pilot and the candidate.

[40] His initial R22 type rating was conducted by the manufacturer and under challenging conditions. The 100-hour requirement is not referred to in the ACP Manual or in any other documents pertaining to requirements to hold an ACP delegation.

[41] Mr. Archambault argues that the exemption clause giving chief pilots the ability to conduct check rides on pilots within the company is unfair as these individuals are not required to attend any ACP courses or hold a valid PPC. Ultimately the ACP is a federal program governed by the Canadian Aviation Regulations and standards.

[42] Regarding the failed ACP monitor that occurred with Inspector Gérald Vallé, the applicant argues that the flight test was flawed and the evaluation wrongly assessed. Transport Canada in fact agreed to retest the applicant within a few days, which confirms that the earlier monitoring flight had been flawed.

C. Minister's Reply

[43] The Minister submits that no blanket types exist in helicopter operations. Also, at no time did the Minister's representative have Mr. Faucher testify as an expert on the R22 aircraft nor did she find the applicant either to be an expert with only a dozen hours on this type. The risk assessment was applied properly and the accident that was discussed did occur.

[44] Finally, the Minister argues that Mr. Archambault was asked to simply follow the ACP Manual briefing guides and the scores he received throughout the various monitoring evaluations were accurate in that he did not follow the proper guidance sequence in these briefings. As an example, the importance of mentioning the word “simulated” during testing must be made clear during the pre-flight briefing as it can affect safety in the event of an actual emergency; Mr. Archambault failed to do so during the ACP monitor conducted on November 28, 2013 (Exhibit M-20).

V. ANALYSIS

[45] The Minister's power to make decisions considered to be in the public interest is a broad one and based largely, although not exclusively, on the responsibility for aviation safety. The Minister should exercise this power transparently and in good faith. This must include the Minister making these decisions based on standards that are clear and consistently applied in a fair manner to all licence holders both regionally and, even more importantly, on a national scale.

[46] Thus, the Minister must show through existing documentation and regulations, as well as through good judgment and risk analysis, that requiring 100 hours of on-type experience as pilot-in-command prior to adding the R22 to Mr. Archambault's ACP delegation falls within standard guidelines and national practices.

[47] In my view, the guiding documents would be subsection 6.71(1) of the Act and the ACP Manual, Ninth Edition.

(1) Subsection 6.71(1) of the Act

[48] Subsection 6.71(1) of the Act confers on the Minister a discretionary power, namely, to review the record of an applicant and refuse to issue or amend an aviation document on various grounds, the following two being relevant in this instance:

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

(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the applicant or of any principal of the applicant, as defined in regulations made under paragraph (3)(a), warrant the refusal.

[49] Referring to paragraph 6.71(1)(b), the Minister's representative has argued that the applicant does not meet the necessary qualifications, that is, experience on type, to amend his ACP privileges in order to add the R22 type rating.

[50] According to the Minister, the applicant must have 100 hours of experience on type prior to having the right to exercise ACP privileges on that type. On the other hand, the risk assessment conducted by Transport Canada in October 2013 identifies as the principal risk the accident that took place in May 2009 (Exhibit M‑3). It is clear to me that this factor should be considered and properly evaluated in light of the role and responsibility of Mr. Archambault. However, it is not clear how specifically this event correlates to the requirement of 100 hours on the R22 type on several fronts.

[51] Mr. Archambault was acting as an instructor on the flight in which the accident occurred and not as an ACP, the latter role being the one at issue in this instance. The role of instructor, which, granted, may involve greater risks as one flies with a student pilot, is different than that of an ACP evaluating an already licenced commercial pilot who is undertaking a PPC. If anything, the applicant's role as an instructor could have come under scrutiny, not his role as an ACP.

[52] The accident occurred in May 2009. Broadly speaking, assessing such an event as a risk would be fair. However, in the years following the event, it seemed to have had little or no impact on Mr. Archambault's role as an ACP on multiple types. To raise this event five years later and imply that it constitutes a risk factor seems surprising since no evidence, including the yearly monitoring checks, indicates that the applicant presents a safety risk in his functions as an ACP. Testimony from both of the Minister's witnesses has indicated that the R22, although primarily a flight training aircraft, is simpler to operate than any other types already on the delegation of the applicant. I would be inclined to think that any issues related to risk would have been addressed by Transport Canada during the months after the accident rather than be taken into consideration five years later.

[53] Paragraph 6.71(1)(c) of the Act indicates a particular concern for the public interest and mentions the aviation record of the applicant, clearly referring to safety and compliance with aviation regulations. It is entirely correct for Transport Canada to consider the history or record of an applicant's past contraventions in establishing its concern for the public interest. I refer to this Tribunal's determination in Bancarz v. Canada (Minister of Transport), 2005 TATC File No. W‑3058‑27 (Review), a decision upheld by the Federal Court which states that “[t]he public interest as asserted by the Minister is a societal interest that relates to the protection and safety of the public and the users of the system as part of its policy regarding the development, regulation and supervision of all matters connected with aeronautics, and the maintenance of an acceptable level of safety”.

[54] The Minister has stated that it is not in the public interest to grant the applicant the additional R22 delegation to his ACP privileges in large part due to an accident that occurred while instructing a student pilot in May 2009.

[55] In my view, the Minister has not adequately established any reasonable public interest concerns based on its actions or inactions following the May 2009 event. Not only did the applicant continue to exercise his duties as an ACP following this occurrence, no evidence was presented to the Tribunal in regard to any sanctions, suspensions or refusals to renew any of Mr. Archambault's privileges and ratings until 2013, when the Minister decided to require 100 hours of on-type experience for the additional R22 delegation.

(2) ACP Manual, Ninth Edition

[56] Mr. Prillieux's testimony clearly indicates that the APC Manual is the guiding document with respect to the ACP program. The manual is used by Transport Canada employees as well as by the Minister's delegated representatives to ensure consistency and standardization in all aspects of the program. This includes, but is not limited to, the initial ACP selection criteria, the duration of the delegations and the process for renewing and amending ACP authority, particularly in regard to requesting the addition of authority.

[57] The ACP Manual does provide the Minister, if the public interest benefits and safety is not compromised, with the possibility of waiving certain requirements. As discussed earlier, the risk assessment required to deviate from this manual remains inconsistent both in its analysis of the risks involved and, more importantly, in the application of the required hours of experience. This inconsistency is apparent with regard not only to the applicant's previous delegations but also to the application of the hours of experience requirement by the various regional offices.

[58] The only mention in the ACP Manual of a 100-hour requirement is found in section 1.3 – ACP Simulator Only (Without Medical Certificate) (Exhibit M‑1). Both of the Minister's witnesses testified that previous version of the ACP Manual did include this requirement but that the current edition, the one in force at the time of the refusal to grant the additional delegation, does not contain any reference to it other than in section 1.3.

[59] According to Mr. Prillieux's testimony, the applicant may have been able to apply for this additional delegation outside Quebec and been granted this privilege without being required to have 100 hours. I believe that the Minister should provide some evidence regarding the existence of this policy and its consistent application across Transport Canada regional offices. However, the Minister did not demonstrate that such a policy was being applied on any sort of consistent basis.

[60] Furthermore, Mr. Archambault was granted additional delegations prior to this request. Testimony revealed that he had minimal hours of experience on more complex helicopters and was granted ACP privileges nonetheless. This demonstrates that Transport Canada did not apply the same policy in granting delegations to the applicant in the past. As such, a policy or requirement has not been shown to exist or be applied in any consistent manner regionally or nationally by Transport Canada, or even with respect to the applicant himself.

[61] It would seem apparent from testimony by the Minister's witnesses that the applicant's performance during several past ACP monitors was of concern. The fact that the applicant had grandfather rights to multiple types in his delegation and his inactivity in operational theatre was of obvious concern. The Minister, in an email sent on December 5, 2013 to the applicant (Exhibit M‑19), clearly indicated these concerns to justify reducing the validity of the delegation from two years to one year as per ACP / AQP Bulletin 02/12 (Exhibit M‑18). Nonetheless, the Notice received by the applicant stated the sole basis for the refusal to issue him a delegation on the R22 aircraft was his lack of 100 hours of experience on type. Indeed, there is a large gap between the arguments the Minister puts forward now to attempt to justify its position and the grounds on which the applicant was told the decision was made. This demonstrates a lack of fairness, transparency and consistency on the part of Transport Canada.

[62] Section 1.7.5 – Cancellation, Suspension, Refusal to Renew or Refusal to Issue – of the ACP Manual provides further guidance to the Minister in regard to refusing to renew or issue further authority to Mr. Archambault. Several subsections can provide the Minister with grounds to not issue this validation, particularly item (b), which allows the Minister to refuse to issue authority if there is no need for the service. Testimony during the review hearing did indicate that this situation existed in regard to the R22. Items (f), (g) and (h) under section 1.7.5 also provide clear performance standards that an ACP must meet, failing which the delegation can be revoked or not be issued. The Notice received by the applicant, however, justified the refusal solely on grounds not accounted for in the ACP Manual, namely a requirement of 100 hours of experience on type.

[63] While Transport Canada has discretion on the matter of issuing ACP delegations, I believe its policies ought to be exercised in an independent manner, but with limitations in the interests of transparency, fairness, equity and consistency. I am not convinced on a balance of probabilities that the Minister was reasonable in requiring that the applicant accrue 100 hours on type as pilot-in-command prior to issuing this delegation.

VI. DETERMINATION

[64] The Minister has not proven, on a balance of probabilities, that the applicant does not fulfil the conditions necessary for the amendment of his Canadian aviation document as per section 6.71 of the Aeronautics Act. Therefore, the matter is referred back to the Minister for reconsideration.

November 24, 2014

Franco Pietracupa
Member