TATC File No. O-4098-27
MoT File No. 5802-806796 (PAHRL)
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Leszek Grzeszczyk, Applicant
- and -
Minister of Transport, Respondent
paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C., 1985, c. A-2
Patrick T. Dowd
Decision: May 31, 2016
Citation: Grzeszczyk v. Canada (Minister of Transport), 2016 TATCE 15 (Review)
Heard in: Toronto, Ontario, on May 10, 2016
REVIEW DETERMINATION AND REASONS
Held: The Minister has proven on a balance of probabilities that the applicant, Leszek Grzeszczyk, failed to meet the qualifications, or the conditions, necessary for the issuance of a Canadian aviation document; namely an Airline Transport Pilot Licence (ATP).
 The Minister of Transport (Minister) issued a Notice of Refusal (Notice) to issue a Canadian aviation document to the applicant, Mr. Leszek Grzeszczyk, by way of registered mail on September 26, 2014, stating he did not meet the qualifications necessary for the issuance of an ATP certificate.
 The reasons contained within the Notice read as follows:
Specifically, you do not have the required total number of hours and night cross country pilot in command (PIC). Transport Canada cannot approve a Pilot in Command Under Supervision Program from foreign countries and therefore you cannot use the Pilot in Command Under Supervision time towards the issue of the licence.
II. STATUTES, REGULATIONS, AND POLICY
 Paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C., 1985, c. A-2
Canadian Aviation Regulations (CARs 401.06 (1) (b) (c)
Canadian Aviation Regulations (CARs 401.11 (1) (2)
Canadian Aviation Regulations (CARs 421.11 (2)
Canadian Aviation Regulations (CARs 421.34 (4) (a) (b)
 The basis for the refusal to issue or amend a Canadian aviation document is established under paragraph 6.71(1)(b) of the Aeronautics Act, which states:
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;
 The applicable regulations are the Canadian Aviation Regulations (SOR/96-433) (CARs):
401.06 (1) Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner specified in the personnel licensing standards, issue a flight crew permit or licence to the applicant or endorse the applicant's flight crew permit or licence with a rating if the applicant provides documentation to the Minister that establishes
(b) that the applicant meets the applicable requirements set out in the personnel licensing standards in respect of
(i) minimum age,
(ii) medical fitness,
(iv) experience, and
(v) skill; and
(c) that the applicant has successfully completed, within the applicable period specified in the personnel licensing standards preceding the date of application for the permit, licence or rating, a flight test in accordance with the personnel licensing standards.
401.11 (1) No person shall record in a personal log the flight time acquired by a co-pilot while acting as pilot-in-command under supervision, unless the flight time
(a) was acquired in accordance with an airline transport pilot licence training program approved by the Minister pursuant to subsection (2) and carried out in accordance with the personnel licensing standards; and
(b) is recorded in the personal log in accordance with the personnel licensing standards.
(2) The Minister shall approve a training program referred to in paragraph (1)(a) if the applicable requirements set out in the personnel licensing standards are met.
Personnel Licensing and Training Standards, Canadian Aviation Regulations (CARs) 2015-2
421.11 (2) Air operators using small aeroplanes and Air operators using helicopters may institute a program of supervision referred to in subsection (1) provided that they have received authorization to do so from the Minister based on the operator's ability to institute such a program in a safe and effective manner.
421.34 (4) Experience
An applicant shall have met the training requirements for the issue of a Commercial Pilot Licence - Aeroplane that is not restricted to daylight flying and completed a minimum of 1500 hours total flight time of which a minimum of 900 hours shall have been completed in aeroplanes. The total flight time shall include a minimum of:
(a) 250 hours pilot-in-command flight time in aeroplanes which shall include where applicable, a maximum of 100 hours pilot-in-command under supervision flight time completed in accordance with Section 421.11. The pilot-in-command and/or pilot-in-command under supervision flight time shall include a minimum of 100 hours cross-country flight time of which a minimum of 25 hours shall have been by night;
(b) 100 hours night flight time as pilot-in-command or as co-pilot of which a minimum of 30 hours shall have been acquired in aeroplanes;
III. PRELIMINARY MATTERS
 No preliminary motions, agreed statement of facts, or agreed upon documents were presented.
 On April 14, 2014, Canada repealed s. 401.10 and s. 421.10 of CARs, and adopted the ICAO Equivalent Standard to harmonize Canadian requirements with ICAO. This standard does allow for the inclusion of time obtained in a Pilot in Command Under Supervision program. However, as before, the Minister must approve the program under CARs 421.11. The program the applicant received was not approved by the Minister.
 Ms. Parsons acted as the Case Presenting Officer for the Minister. She provided the Chair and the Applicant with a folder of the relevant Sections of CARs. Ms. Parsons, in her opening statement, advised that Transport Canada had a legal responsibility to review all applications for aviation documents. She advised the chair she only had one witness and would be introducing four exhibits. Ms. Parsons then called her witness, Ms. Deborah Syke to the stand.
 Ms. Syke was very experienced, having served with Transport Canada for 29 years. Presently she holds the position of Civil Aviation Safety Inspector, Flight Operations. Ms. Syke confirmed she had reviewed Mr. Grzeszczyk's application for an ATP certificate. She recalled the conversation with the Applicant, but because of the passage of time she could not remember the exact words exchanged. However, she was firm in her statement that she did not advise the Applicant he could use the time accumulated on the PIC Under Supervision program. She was equally positive the Applicant did not inform her of the foreign location of the program. Ms. Syke stated this time could be counted if the Minister had approved the program under CARs 401.11(1). No approval was granted. Ms. Syke stated the refusal was not permanent and the Applicant could reapply after obtaining the required time. It would also be necessary, because of the lapse of the 24 month validity period, for the Applicant to repeat the SAMRA and the SARON examinations.
 Ms. Parsons introduced four exhibits that were examined and identified by the witness:
(a) M-1 Mr. Grzeszczyk's application for an ATP certificate.
(b) M-2 Relevant copies of pages from the Applicant's log book.
(c) M-3 E mail from the Applicant to Jessie Dimas and her reply.
(d) M-4 Notice of Refusal.
 There was no cross examination by the Applicant.
 This completed the Minister's evidence.
 The Minister's representative presented a short closing argument. The applicable, relative legislation in support of the Minister's decision was reviewed. Ms. Parsons stated the necessity of the Minister's approval of a foreign PIC Under Supervision program was vital for the inclusion of the flying time toward the issuance of the ATP certificate.
 The Applicant called no witnesses, presented no exhibits, nor did he take the stand. He did, however, offer a statement to the chair in which he expressed frustration at the fact Canada would not accept PIC Under Supervision time acquired in a country that was both a member of the UE and ICAO.
 The Applicant stated he would be receiving a Captain's course from Polish Airlines in September and after which he would fly the line. He estimated that after two months of line flying, he would have sufficient flying time to satisfy Transport's requirements for an ATP certificate. The Chair felt it was the Applicant's intention to reapply.
 With great sympathy for the Applicant, because his was a valid assumption the Minister would accept time acquired in a PIC Under Supervision program anywhere, I find Transport Canada acted correctly in accordance with CARs and the Aeronautics Act. The individuals present at the hearing were very professional and I sensed a regret they were unable to accept Mr.Grzeszczyk's application.
 The Minister has proven, on a balance of probabilities, that the Applicant, Mr. Leszek Grzeszczyk, failed to meet the qualifications and conditions for the issuance of an Airline Transport Pilot Licence--Aeroplane under Part 421.11 of the Canadian Aviation Regulations.
May 31, 2016
P. T. Dowd
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