TATC File No. P-4110-27
MoT File No. 5802-389230
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Marcos Rafael Richard, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.71(1)(b)
Canadian Aviation Regulations, SOR/96-433, s. 705.106(1)(c)
Decision: December 5, 2016
Citation: Richard v. Canada (Minister of Transport), 2016 TATCE 34 (Review)
Heard in: Calgary, Alberta, on September 22, 2016
REVIEW DETERMINATION AND REASONS
Held: The Minister has proven on the balance of probabilities that the applicant, Marcos Rafael Richard, failed to meet the qualifications or conditions necessary for the issuance of a Canadian aviation document, namely a DH‑8 instrument rating pilot proficiency check.
 On October 16, 2014, the applicant, Marcos Rafael Richard, took a flight test for the issuance of a Canadian aviation document identified as a DH‑8 instrument rating pilot proficiency check (PPC). Transport Canada alleges that while undergoing the recurrent PPC in the simulator, Mr. Richard failed to maintain situational awareness as the Pilot Not Flying (PNF) and allowed the aircraft to exceed the prescribed airspeed tolerance.
II. STATUTES AND REGULATIONS
 Paragraph 6.71(1)(b) of the Aeronautics Act, R.S.C., 1985, c. A‑2, provides:
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; …
 Paragraph 705.106(1)(c) of the Canadian Aviation Regulations, SOR/96‑433 (CARs), provides:
705.106 (1) Subject to subsection (3), no air operator shall permit a person to act and no person shall act as the pilot-in-command, second-in-command or cruise relief pilot of an aircraft unless the person
(c) has successfully completed a pilot proficiency check, the validity period of which has not expired, for that type of aircraft, in accordance with the Commercial Air Service Standards;
 Standard 725 - Airline Operations - Aeroplanes, from Part VII - Commercial Air Services of the CARs Standards provides in part:
725.106 Pilot Qualifications
(2) Pilot Proficiency Check (refers to paragraph 705.106(1)(c) Canadian Aviation Regulations)
(g) A proficiency check of a pilot-in-command shall be completed in the seat normally occupied by the pilot-in-command and a check of a second-in-command shall be completed in the seat normally occupied by the second-in-command. The pilot proficiency check shall consist of a demonstration of both pilot flying (PF) duties and pilot not flying (PNF) duties.
 Schedule I - Pilot Proficiency Check (PPC) - Synthetic Training Device to Standard 725 provides in part:
(2) Flight Phase
(d) Instrument Procedures
Instrument procedures shall consist of IFR pre-flight preparations, terminal and enroute procedures, arrival and departure procedures, system malfunctions and where applicable, the proper programming and use of Flight Management Systems, (as applicable).
(ii) a holding procedure;
(1) Eric Ismay
 Mr. Ismay is an approved check pilot (ACP) as per Exhibits M-1 and M-2 (ACP Delegation of Authority from Transport Canada). He conducted the PPC of October 16, 2014 involving Pilot Flying (PF) James Smith and Mr. Richard as the PNF (Flight Test Reports, Exhibits M‑4 and M‑3 respectively). The ride was to validate both pilots. Air operator North Cariboo Air's DH8 Standard Operating Procedures (Exhibit M‑7) state the following in section 2.6.5: “Max speed is 175 KIAS [knots indicated airspeed] in the hold. The standard configuration and speed in the hold is clean – 150 knots.” During the hold portion of the PPC, the aircraft was flown at speeds up to 48 knots above the company's Standard Operating Procedures for over five minutes. The ACP terminated the ride at that point.
 In cross-examination, Mr. Ismay agreed with Mr. Richard that the maximum holding speed 16 km from an airport is 175 knots and the PF failed due to having maintained excessive speed during three orbits of the hold. Mr. Richard asked Mr. Ismay if it is possible to recognize a holding speed if it was not briefed initially. Mr. Ismay said he assessed the overall performance and there was no recognition of speed error by either pilot. He also agreed that the PF failed to brief the hold.
(2) Kevin Webber
 Mr. Webber is a Transport Canada Flight Operations Inspector. Mr. Webber explained the role of the ACP (Approved Check Pilot Manual, Exhibit M‑5) and confirmed that Mr. Ismay is a valid ACP. He reviewed the principles of examination and skill requirements. During the PPC of October 16, 2014, PF Smith failed to brief the hold and maintained excessive speed in the hold. Mr. Richard, as the PNF, failed to recognize the speed as too high, i.e. beyond the tolerance for speed of plus or minus 10 knots as per the Pilot Proficiency Check and Aircraft Type Rating – Flight Test Guide (Exhibit M‑6, page 27, item 13(j)).
 There was no cross-examination of Mr. Webber.
(1) Marcos Rafael Richard
 Mr. Richard was sworn in and gave a history of his flying experience. He stated that PPCs are normally done with one captain and one first officer. He stated that he had not been recommended for the PPC but he chose to try. He also said “Yes, I failed in allowing the PF to fly at excessive speed. But should I lose my license over this?”
 Mr. Richard stated he was not allowed to demonstrate his PF skills. However, by failing his PNF duties, he was judged a failure for the DH‑8 instrument rating PPC.
 Martin Forget, the Minister's representative, reviewed the marking procedures and the CARs in effect at the time of the ride and he stated “in the hold, speed is relevant”.
 Mr. Richard indicated during the hearing that he should not lose his license for failing to prevent the PF flying at excessive speed.
 The issue before the Tribunal is to decide whether the applicant meets the qualifications or fulfils the conditions necessary for the issuance of a DH‑8 instrument rating PPC. In order to justify his refusal to issue the document, the Minister needed to prove, as per the Notice of Refusal, that the applicant failed to maintain situational awareness as the PNF on October 16, 2014 while undergoing a recurrent captain's PPC in simulator ID no. 724. The Minister needed to prove that the loss of situational awareness was reflected when the applicant allowed the aircraft to exceed the prescribed airspeed tolerance over the declared speed in the hold.
 The holding procedure is one of the many things that pilots have to demonstrate to the ACP during a PPC. As per the testimony, neither pilot recognized that the speed that they were holding at was well in excess (by 48 knots) of the maximum speed of 150 knots for a hold. They were given ample time to take corrective action. Mr. Richard failed to maintain situational awareness as the PNF on October 16, 2014 by allowing the aircraft to exceed the prescribed airspeed tolerance. Pursuant to the Pilot Proficiency Check and Aircraft Type Rating – Flight Test Guide (Exhibit M‑6), the PNF must maintain situational awareness, which in this case would have included Mr. Richard recognizing the holding speed as too high.
 The Minister has proven on the balance of probabilities that the applicant, Marcos Rafael Richard, failed to meet the qualifications or conditions necessary for the issuance of a Canadian aviation document, namely a DH‑8 instrument rating pilot proficiency check.
December 5, 2016
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