TATC File No. H-4065-27
MoT File No. 5802-134968
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Clément Campeau, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C., 1985, c. A-2, subsection 6.71(1)
Decision: March 18, 2015
Citation: Campeau v. Canada (Minister of Transport), 2015 TATCE 3 (Review)
Heard in: Montréal, Quebec, on February 10, 2015
REVIEW DETERMINATION AND REASONS
Held: The Minister has proven, on a balance of probabilities, that the applicant does not fulfil the conditions necessary for the issuance of a Canadian aviation document as per section 6.71 of the Aeronautics Act.
 On May 13, 2014, the Minister of Transport (Minister) issued a Notice of Refusal to Issue or Amend a Canadian Aviation Document (Notice) to the applicant, Clément Campeau, 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. Campeau did not meet the qualifications or conditions necessary for the issuance of a Pilot Proficiency Check (PPC) on a B73C aircraft. The Minister alleged that during the flight test that occurred on May 13, 2014, Mr. Campeau did not demonstrate the required standard in that he displayed poor situational awareness that led to an inability to properly capture the localizer on an instrument landing system (ILS) approach.
 On June 9, 2014, the applicant requested a review of the Minister's decision by the Transportation Appeal Tribunal of Canada (Tribunal).
II. STATUTES AND RELEVANT STANDARDS
 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.
 Transport Canada's Pilot Proficiency Check and Aircraft Type Rating Flight Test Guide (Aeroplanes), First Edition (11/2007), TP 14727E (Flight Test Guide), sets out a 4-point marking scale, which reads as follows:
4-POINT MARKING SCALE
When applying the 4-point scale, award the mark that best describes the weakest element(s) applicable to the candidate's performance. Remarks to support mark awards of 1 or 2 must link to a safety issue, a qualification standard (performance criteria), or an approved technique or procedure.
Performance remains well within the qualification standards and flight management skills are excellent.
• Performance is ideal under existing conditions.
• Aircraft handling is smooth and precise (i.e. well within limits).
• Technical skills and knowledge exceed (i.e. consistently meet) the required level of competency.
• Behavior indicates continuous and highly accurate situational awareness.
• Flight management skills are excellent.
• Safety of flight is assured. Risk is well mitigated.
Minor deviations occur from the qualification standards and performance remains within prescribed limits.
• Performance meets the recognized standard yet may include deviations that do not detract from the overall performance.
• Aircraft handling is positive and within specified limits.
• Technical skills and knowledge meet the required level of competency.
• Behavior indicates that situational awareness is maintained.
• Flight management skills are effective.
• Safety of flight is maintained. Risk is acceptably mitigated.
Major deviations from the qualification standards occur, which may include momentary excursions beyond prescribed limits but these are recognized and corrected in a timely manner.
• Performance includes deviations that detract from the overall performance, but are recognized and corrected within an acceptable time frame.
• Aircraft handling is performed with limited proficiency and/or includes momentary deviations from specified limits.
• Technical skills and knowledge reveal limited technical proficiency and/or depth of knowledge.
• Behavior indicates lapses in situational awareness that are identified and corrected by the pilot/crew.
• Flight management skills are effective but slightly below standard. Where applicable, some items are only addressed when challenged or prompted by other crewmembers.
• Safety of flight is not compromised. Risk is poorly mitigated.
Unacceptable deviations from the qualification standards occur, which may include excursions beyond prescribed limits that are not recognized or corrected in a timely manner.
• Performance includes deviations that adversely affect the overall performance, are repeated, have excessive amplitude, or for which recognition and correction are excessively slow or nonexistent, or the aim of the task was not achieved.
• Aircraft handling is rough or includes uncorrected or excessive deviations from specified limits.
• Technical skills and knowledge reveal unacceptable levels of technical proficiency and/or depth of knowledge.
• Behavior indicates lapses in situational awareness that are not identified or corrected by the pilot/crew.
• Flight management skills are ineffective, unless continuously challenged or prompted by other crewmembers.
• Safety of flight is compromised. Risk is unacceptably mitigated.
III. PRELIMINARY ISSUE
(1) Agreement of Fact
 Mr. Campeau acknowledged that he failed the Type Rating PPC ride conducted on May 13, 2014 and does not contest the decision by the check pilot, Boris Stec.
(1) Mary Pollock
 Ms. Pollock is a civil aviation safety inspector and an occupational health and safety officer with Transport Canada. Ms. Pollock testified that she is familiar with the failed check ride conducted by Mr. Stec on May 13, 2014 on Mr. Campeau, as well as the Notice of Refusal letter issued to Mr. Campeau following this failure, with the attached flight test report (Exhibit M‑1).
(2) Boris Stec
 Mr. Stec is an approved check pilot (ACP) and line captain for Sunwing Airlines. His role with the company includes flight and simulator training, administering check rides and line training. He has been a company check pilot for 10 years with over 7,500 hours of simulator experience.
 Mr. Stec testified that he has administered over 500 check rides and has known the applicant for 9 years. He explained that he has already conducted several check rides on Mr. Campeau over the last few years and all were successful. Concerning the May 13, 2014 check ride, Mr. Stec contacted Mr. Campeau via email the day before, on May 12 (Exhibit M‑2), to advise him that the check ride was scheduled for the next day at 01:00 a.m. to 06:00 a.m. As this was a single pilot check ride, Mr. Stec suggested to the candidate to meet at a later time since the full allotment of that time slot would not be required. It was agreed that the crew would meet at approximately 02:15 a.m. on May 13 for the pre-flight briefing.
 The pre-flight briefing took place at the agreed time and no observations were noted by Mr. Stec as to the candidate's overall physical condition. A remark was made regarding the time of the check ride and all agreed it was an early time slot.
 Mr. Stec testified that several items on the check ride were graded a 2 (basic standard) as errors were observed and then corrected either by the applicant on his own or after prompting from the pilot monitoring (PM). As an example, he noted that small errors were observed during the flight management system preparation before the flight but that the PM had challenged the applicant as to this input and the errors were corrected (Exhibit M‑1).
 With regard to item 16 on the flight test report, Mr. Stec had asked the PM through a private intercom communication in the simulator not to prompt Mr. Campeau during the ILS approach as he had observed an error with an automation selection on the aircraft and wanted to properly assess Mr. Campeau's ability to recognize this mistake and take appropriate steps to correct the error. Mr. Campeau had deselected the Approach (APPR) mode on the selector after having been cleared for the approach. No corrective action was taken and the aircraft flew through the localizer. Mr. Campeau had displayed a lack of situational awareness as to the state of the aircraft and its overall automation state. After a full‑scale deflection on the tracking needle, Mr. Stec assessed this item as a 1 (below standard).
 Mr. Stec testified that once the ride was terminated, Mr. Campeau elected not to be debriefed. Mr. Stec explained that it would be important that the debrief be held and once Mr. Campeau agreed to it, he explained to him his rights under the Act. Mr. Stec stated that at no time did Mr. Campeau raise the issue of not feeling fit to take the check ride either with him or with the PM.
 Mr. Stec's testimony closely mirrors his written account of the flight test contained in a confidential report on the flight test that was entered as evidence (Exhibit M‑5). The Minister also introduced into evidence the Flight Test Guide (Exhibit M-3) and Transport Canada's Approved Check Pilot Manual, Ninth Edition (11/2007), TP 6533E (Exhibit M‑4).
 In cross-examination, Mr. Stec was asked if he could recall the applicant mentioning that that the new proposed time was not acceptable. He could not recall the applicant mentioning any issue pertaining to fatigue. The only mention made by the crew concerned the time of the slot itself—that being very early morning. Mr. Stec also confirmed that he did not review the training files of the applicant prior to the ride.
 Based on the fact that Mr. Stec had conducted other check rides on Mr. Campeau, he was asked if the subpar performance he had observed that day was indicative of the candidate's actual capability or was out of character for the candidate's level of experience on this aircraft. Specifically, Mr. Stec was asked if what he was evaluating was out of character for this candidate. Mr. Stec responded that he had not taken that into consideration and he was simply evaluating what he was seeing and observing.
(3) Fred Albonico
 Mr. Albonico is a Sunwing pilot with over 20 years' experience. On May 13, 2014, he was assigned to act as the PM (right seat) for the check ride being conducted on Mr. Campeau. He attended that morning's pre‑flight briefing and noted nothing unusual with the conduct of the briefing or the conduct of either the ACP or Mr. Campeau. He recalls a comment by Mr. Campeau as to the time of the simulator slot but nothing else.
 Mr. Albonico testified that during the check ride he did prompt Mr. Campeau several times in order to challenge and correct certain decisions or actions being taken. This pertained to normal cockpit resource management and he thought nothing abnormal of it.
 Mr. Albonico confirmed that during the ILS approach that resulted in the failed evaluation, he was prompted by the ACP to allow the candidate to correct his error. He noted that the re-arming of the APPR mode was not done and the ride was terminated shortly after. He participated in the post-flight briefing and testified that at that time Mr. Campeau did state that he was tired and wanted to go home. This was the only time that the issue of fatigue was mentioned.
 In cross-examination, Mr. Albonico was asked specifically about the error that Mr. Campeau had made in entering a temperature in the flight management system. He was asked whether it was very unusual for an experienced pilot to commit such a mistake. Mr. Albonico responded that it was not normal to see this kind of mistake but that he had observed this on occasion.
 When asked whether he had noted that the overall performance by Mr. Campeau was generally weak and that it was not normal for this pilot to be making these errors, Mr. Albonico stated that he did not judge and that his role was to provide the required PM support.
(1) Clément Campeau
 The applicant, Mr. Campeau, represented himself and took the witness stand. Mr. Campeau has no issue with the conduct of the check ride itself. He has acknowledged that the conduct and evaluation of the check ride were fair. He has, however, raised a serious issue with the scheduling of the simulator check ride and fatigue factor, which explains his performance. He testified that the check ride was inevitably destined to fail due to fatigue and the lack of advance notice from the company regarding the rescheduling of the event in question.
 According to Mr. Campeau's schedule for the training event (Exhibit A-1), all sessions were conducted from 01:00 a.m. to 06:00 a.m. Mr. Campeau testified that he had acclimatized to the hours. He had initially been scheduled for a check ride on May 10, 2014 from 01:00 am to 06:00 a.m. Due to a simulator malfunction this ride could not be completed and he was sent home to wait for further instructions.
 The company scheduler, Ms. Jane McCann, eventually contacted Mr. Campeau on May 12 at 10:00 a.m. to confirm that a second PPC had been arranged for the next morning, that is, on May 13 at 01:00 a.m. Mr. Campeau testified that he had objected to this time based on the fact that he had re-adapted back to a normal circadian schedule. He was advised that in this case, no firm schedule could be confirmed as to the next availability or time and she would need to get back to him. He explained that under this circumstance he accepted the time slot.
 Mr. Campeau calculated that based on the original call on May 12, he would have been on duty and awake for 15 to 16 hours consecutively until the proposed check ride time. He was adamant that under this circumstance the test was destined to fail as fatigue would play a major role. He did raise the issue that the under the Sunwing pilots' collective agreement, he should have been given at least 48 hours of advance notice prior to the second check ride event (Exhibit A-2). This was not respected. He further explained that he had voiced a concern to Mr. Stec regarding the time of the proposed check ride on May 13, 2014.
 In cross-examination Mr. Campeau was asked if he did not in fact receive the 48 hours' notice to train prior to the beginning of his recurrent course. The applicant responded that he was referring to the 48 hours' notice required prior to the second check ride.
 The Minister asked the applicant if he had raised the issue of his inability to take the PPC based on his unfit to perform condition. Mr. Campeau's response was that no clear directive exists within the company as to how to raise such an issue or advise management of his unfit to work condition. He did state that the company scheduler was advised. He admits that no other person within the company was clearly advised of this fact though he made some remarks with regard to the time of the simulator check ride.
 Mr. Campeau was asked specifically why he did not clearly request another time slot for the check ride based on his condition. Mr. Campeau reiterated that he felt it would not be right to request a third PPC slot as this was already a second attempt at completing his training. Furthermore, he was unsure of what process there was within the company to pursue this option. When asked why he did not clearly indicate his fatigue condition prior to the check ride to the check airman, the applicant stated that he did comment on the time of the simulator slot but did not specifically claim he was unfit to take the ride.
C. Minister, recalling Mr. Stec
 Mr. Stec was recalled to testify to the issue of processes that are available to pilots within Sunwing with regard to reporting fatigue. He stated that pilots do have the necessary tools to report fatigue to both the company and the union. A reporting form is available and references to proper reporting procedures are also mentioned in the company's flight crew operations manual and safety management system program.
 The Minister submits that pursuant to section 6.71 of the Act, and with the admission of fact from the applicant, Mr. Campeau did not meet the required standards for the issuance of a PPC on the B73C aircraft.
 The Minister also argues that the pilot must have the responsibility to clearly indicate to the ACP whether he or she is fit to take the check ride. Processes exist within the company to advise that one is not fit to conduct a flight or, as in this case, a check ride. This is a step that the pilot alone is responsible for and that cannot result in punitive action being taken. Nothing prior to the check ride indicated that the applicant was unfit to perform.
 The applicant argues that the Minister's position that he was returning from a seven-month medical leave of absence has no relevance to his state of fatigue on May 13, 2014. He argues that his reservations with regard to the second PPC time slot was clearly stated to the company scheduler at the time he had spoken to her and that his overall fatigue state should have been evident to both the ACP and the PM.
 Mr. Campeau remarked that during the post-flight briefing he clearly alluded to the fact that he was tired and needed to go home to sleep.
 The Minister argued that the grounds for refusing to issue a PPC to the applicant were that the individual did not meet the qualifications or conditions necessary for the issuance. Based on the admission of fact from Mr. Campeau, this assertion has been proven.
 I have no doubt that the testimony heard from all the witnesses is credible and sincere. Mr. Campeau's position revolves around two issues: (1) fatigue; and (2) advance notice.
 All parties involved in this review are very aware of the effects of fatigue in flight safety. Research is clear as to the need to address this issue in all industries and more specifically in aviation. Fatigue increases the likelihood of poor decisions or errors being made and affects overall decision-making abilities. Testimony heard from two of the Minister's witnesses leads me to conclude that in all probability, a fatigue awareness program does exist within Sunwing. Testimony by Mr. Stec indicates that both the operator and the pilot have a shared responsibility in properly managing fatigue. The operator must make all efforts to provide policy, mechanisms and processes to ensure crews can operate safely. The crew members also have a responsibility to manage their personal rest time to ensure they are fit for duty and to inform the operator of factors that may mean they are not fit for duty.
 This responsibility applies to flights, training and check rides. It is clear from testimony that Mr. Campeau did have an issue with the scheduling of the second check ride. He alone would be the best judge in determining if he would be able and fit to take this ride. However, and based on testimony, Mr. Campeau did not convey his message clearly or promptly to the affected departments that would of been able to act on it. I have no doubt that the company scheduler may have been told of this issue but it was not clear as far as how this concern was voiced by the applicant. No testimony or evidence was provided that any other person in any management position was told anything more on that day. Failing this, Mr. Campeau also had the opportunity to clearly advise his ACP or co‑pilot that he was unfit to take the flight test. Mr. Campeau should have done so prior to the check ride. It is my understanding based on testimony that a clear and concise message from the applicant that he was unfit to take the check ride would have resulted in a rescheduled session and been dealt with in a non-punitive manner by the company.
(2) Advance Notice
 The applicant has raised the issue of the company's responsibility in providing him with 48 hours of advance notice for all PPCs, IFR check rides and line checks. Based on Mr. Campeau's testimony, this was not adhered to since he only received a call for the check on May 12 at 10:00 a.m. for a 01:00 a.m. time slot on May 13. This guidance is found in the collective agreement (Exhibit A-2) and should be addressed. The 48-hour notice was provided prior to the start of the recurrent program and respected up to the time the first check ride was cancelled. Based on simulator availability and scheduling constraints, the time of the second ride was only communicated to the applicant with less than 48 hours of advance notice.
 However, Mr. Campeau had the opportunity to decline this slot from the first moment it was assigned to him, he had the opportunity within the existing company guidelines to declare himself unfit for duty and, failing this, he had the opportunity to inform Mr. Stec that he would not be able to take part in the check ride due to fatigue. The attempt may have been made on his part to bring up the issue, but from the evidence and testimony heard, Mr. Campeau's concerns were not clearly conveyed to those involved or brought forward using the appropriate means as described by Mr. Stec. In any event, I am not convinced that the alleged problem in scheduling in this case outweighs Mr. Campeau's responsibilities with regard to the check ride.
 The Minister has proven, on a balance of probabilities, that the applicant does not fulfil the conditions necessary for the issuance of a Canadian aviation document as per section 6.71 of the Aeronautics Act.
March 18, 2015
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