Decisions

CAT File No. H-0039-60
MoT File No. 5802-216704

CIVIL AVIATION TRIBUNAL

BETWEEN:

First Officer Paul Thain, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c.A-2, s. 4.3(1), 7.1(1)(b), (3), 8.5

Pilot Proficiency Check, Suspension, PPC, Canadian Aviation Document


Review Determination
Pierre Rivest


Decision: October 6, 1997

TRANSLATION

I refer the result of the pilot proficiency check of First Officer Paul Thain back to the Minister for reconsideration, and ask that, if it is reversed, no evidence of the failure of October 24, 1994 appear in the Applicant's file.

The Review Hearing on the above matters was held September 17, 1997 at 10:00 hours in the Standard Life Building in Ottawa, Ontario.

All the witnesses were sworn in.

During the Review Hearing, a number of aeronautical terms, abbreviations and acronyms were used in English. I will use them in the same way or translated, whichever approach furthers the best possible understanding.

BACKGROUND

On October 24, 1994, the two Applicants (Air Canada pilots) had their privilege to fly the Airbus-320 (A-320) aircraft suspended following a pilot proficiency check (PPC) on a simulator of that aircraft.

The main reason for these failures was the fact that each of the two pilots had made a landing with the aid of the autopilot (A/P) when the flaps were locked in configuration 0 (CONF 0), even though another flap configuration had been selected, constituting an abnormal flight situation.

This procedure appears to be prohibited by the Aircraft Operating Manual (AOM) published by the air carrier.

The Applicants are claiming otherwise, and are asking the Tribunal to refer the matter back to the Minister for reconsideration.

The checks in question were under the supervision of Captain Raschig, company check pilot (CCP), whose proficiency in this capacity was also being checked under the supervision of Inspector Matthews of Transport Canada.

THE LAW

Subsection 7.1(1) of the Aeronautics Act states that:

7.1 (1) Where the Minister decides ... to suspend ... a Canadian aviation document on the grounds that the holder of the document is incompetent ..., the Minister shall, by personal service or by registered mail sent to the holder ... at the latest known address ..., notify the holder...

Subsection 7(3) of the Act permits the holder affected by a decision of the Minister to have the Tribunal review the decision in question.

Finally, subsection 4.3(1) of the Act stipulates that:

4.3 (1) The Minister may authorize ... any other person to exercise or perform, subject to such restrictions or limitations as the Minister may specify, any of the powers, duties or functions of the Minister under this part...

It is precisely such powers that are delegated to the CCP. He is therefore authorized, on the Minister's behalf, to determine whether or not a flight test (or on a simulator) is satisfactory.

Documents R-1 and R-2 (d) and (f) filed by the Respondent cite other sections of the regulations under subsection 4.3(1) of the Act. They confirm the Minister's powers of delegation to check pilots and determine what constitutes competency in a pilot during a proficiency check.

THE FACTS

I. Introduction

Before the parties were heard, two points were established:

  • While the cases of Paul Prentice and Paul Thain are separate, the acknowledged events are similar and had the same consequences, and on October 14, 1994, occurred consecutively in the presence of the two Applicants. I therefore agreed, with the consent of all parties, that the two Applicants could make a joint presentation, it being assumed the decision would apply to both.
  • The Respondent brought it to the Tribunal's attention that, contrary to what was written in the letter of Lila Stermer, of the law office of Gravenor Keenan, dated November 21, 1994, and included in the documents submitted to the Tribunal before the hearing, the case does not concern the suspension of a pilot licence, but rather a temporary suspension of the privilege to fly the A-320, until a subsequent PPC is passed.

When subsection 7.1(1) of the Act refers to a "Canadian aviation document", it does not distinguish between a licence or a permit and the endorsements, certifications or privileges that may pertain to it.

However, in the first paragraph on page 3 of Federal Court Decision T-590-95, of June 3, 1996, concerning pilots Beingessner and Kolankowski, Mr. Justice Rothstein very clearly states that the privileges, endorsements and other certifications pertaining to a licence or permit must be regarded as a Canadian aviation document within the meaning of subsection 7.1(1) of the Act.

There is therefore no need today to make the above distinction, as it is indeed a Canadian aviation document that has been suspended.

II. Testimony and Cross-examination

Owing to the complexity of the debate, the technical terms used, and the comparisons made between identical or nearly identical texts, the most comprehensible approach to relating the proceedings of the hearing is to place the arguments used, during both examination and cross-examination, side-by-side in order to establish parallels and comment on the documents in the order in which they were placed in evidence.

I also believe it is important, first of all, to establish a list of points that will be debated, and to distinguish between:

  1. approach and landing;
  2. the designation of approach modes (APPR mode), for example, CAT I, II, III (sometimes expressed as CAT 1, 2, 3);
  3. the configuration of the flaps, expressed by the terms CONF 0, 1, 2, 3, FULL;
  4. the use of ILS radio instruments and other navigation systems for approaches;
  5. the instrument panel known as the ECAM, which is a screen connected to a computer that gives the pilots a certain amount of information about the progress of the flight, such as flap configuration, normal and abnormal flight situations, and use of the A/P;
  6. the expressions approved, authorized, prohibited, recommended or not recommended, permitted, and others.

The Applicants submitted two important documents:

Exhibit A-1 consisting of several tabs numbered 1 to 6, cites texts in support of their arguments;

Exhibit A-2 explains in detail the Applicants' understanding and philosophy based on the texts included in A-1.

The Respondent produced in evidence the following documents:

Exhibit R-1 confirms the date and place of the PPCs and the regulations which support the CCP in his decision to suspend the Applicants' proficiency rating;

Exhibit R-2 contains a series of tabs from (a) to (h) and texts in support of its arguments.

Following are the arguments presented by both parties, and the interpretation each gives their respective supporting texts.

Note: all underlining, unless otherwise indicated, has been added by the undersigned.

1. Applicants' document A-1, tab 1, paragraph A 1 (a): This is an excerpt from the Air Canada AOM. Under the heading "ILS Approach", it states that automatic landings "may" be performed on runways approved for CAT 1, 2 or 3, but it does not mention in what flap configuration (CONF) this may or may not be done.

The Respondent said nothing about this.

2. Document A-1, tab 1, paragraph 2: Under the subheading "Autopilot Requirement", this time it states CAT 2 and CAT 3 approaches (and not landings) must be flown with autopilot.

The Respondent's only comment about this is that it refers to a normal flight situation whereas, during the test, the situation was abnormal. But nowhere does the text mention normal or abnormal situations or flap configuration.

3. Document A-1, tab 1, paragraph D 4 c (l): Under the heading "Autopilot", this time the use of A/P and other navigation systems is approved for CAT I approaches.

No mention is made of landing or of flap configuration (CONF). Moreover, this case is of no interest to us as it would seem—I will come back to this later—that the request was to perform an ILS CAT II approach.

In the next paragraph (2), however, the A/P is approved, this time for CAT II and CAT III "APPR mode" for approach and landing, but provided the flaps are in CONF FULL or CONF 3.

The Respondent relies mainly on this paragraph to say that the Applicants were wrong, as the flaps were in CONF 0 (see R-2, tabs (c.1) and (c.2)). In tab (c.1), however, the Respondent refers to a directive of the Airbus manual, not a directive of the Air Canada manual. This also appears to contradict paragraph A 1 (a) mentioned earlier. Finally, the Air Canada directive adds that the "Quick Reference Handbook" (QRH) is to be consulted if nothing happens. I will come back to the QRH later.

In the last two situations, however, it is not stated that use of the A/P is prohibited, but merely approved.

4. Document A-1, tab 2: The Applicants point out what appears to be a contradiction between pages (A) and (B). The first is an Air Canada directive which refers to the flaps in an abnormal situation, the ECAM and a restriction in CAT 2 approach mode ONLY. The second is an Airbus directive which, for the same flap problems, does not mention the ECAM, and refers to the CAT 1 approach mode ONLY.

According to the Applicants—and this has not been denied—the ECAM is THE INSTRUMENT on which pilots rely during flight, as its primary function is to give them all the relevant information about the progress of the flight. It is directly connected to the on-board computer which guides and detects the aircraft's manoeuvres.

In the course of the test, during the approach and landing, the ECAM never indicated that the manoeuvres performed by the crew were incorrect; it gave the green light the whole time until the landing, showing that the flaps were in CONF 0, that is, in an abnormal situation.

The Respondent pointed out that in document R-2, tab (b) merely describes the relationships between certain flap selections and what the ECAM screen shows, while in tab (c.1), in the "Approach" subparagraph, the use of A/P in ILS APPR mode is approved for CAT II and CAT III approach and landing for CONF FULL and CONF 3.

This, then, is consistent with what is said in paragraph 3 above, but does not clarify the situation.

5. Document A-1, tab 3: The Applicants maintain that after experiencing an abnormal or emergency situation and taking the first corrective measures required, pilots are to consult a manual called the "Quick Reference Handbook" (QRH).

In section 3.08 of this manual, which talks about flap malfunction, no mention is made of the use or non-use of the A/P. There is, however, a reference to the ECAM.

6. Both parties referred to insert #220 published by Air Canada (A-1, tab 5 and R-2, tab (e)).

The Applicants make two points in this regard:

  • the drawbacks (not dangers) of enabling the spoilers prior to an automatic landing;
  • and the prohibition against landing with the flaps in CONF 3; rather, landing with the A/P in CONF FULL is required.

The Applicants stress that the prohibition pertains only to flight in CONF 3. Whereas they were in CONF 0.

In any event, nowhere is it stated in this insert whether this directive applies at all times, that is, during VFR flight and during both IFR flight and approach, whether in CAT I, II or III. The matter of spoilers is not relevant here.

7. Document A-1, tab 6, pages (A) and (B): These are two more inserts.

The first, #266, appears to amend a previous insert, but it is not known which one. Its conclusion, however, is that the use of A/P is not recommended with abnormal flaps configurations.

That is not to say that it is prohibited, and one assumes that this pertains to the landing (and not the approach, if one refers to the text from the beginning of line 3 to the end of line 9).

Insert #275 (page B), still with regard to flaps and landings, appears to be a further amendment to the previous insert, #266, but this time it prohibits the use of A/P is not authorized with abnormal flaps configurations, and, it would seem, in any configuration (CONF).

This contradicts what document R-2, tab (a) maintains, since in CONF FULL or CONF 3, an auto-landing would be in accordance with the Airbus manual.

To all of this, the Respondent, through its expert witness, Mr. Kevin W. Horton, argues that the Airbus manufacturer never certified the A-320 for automatic landing if the flaps were in a position other than CONF FULL or CONF 3. The second page of tab (c.1) of document R-2 bears this out.

It should be known, however, that Air Canada pilots do not have access to the Airbus flight manual and must function with the one published by Air Canada.

8. Finally, the Applicants mention insert #368, which amends those referred to earlier. It clears up any misunderstanding by very clearly stating that the use of the A/P is not authorized at an altitude below 500 feet. This insert is not among the documents filed in evidence, but has been read by all the parties, including the Tribunal. With this directive, Air Canada would appear to be more restrictive than Airbus, and that is its privilege.

9. The testimony of Inspector Matthews of Transport Canada merely confirms what he saw during the flight and that he agreed with the decision of the CCP. He was on board primarily to evaluate the proficiency of the CCP.

10. To all the foregoing, the Applicants added the following considerations:

  • The new philosophy for flying aircraft as sophisticated as the Airbus-320 requires maximum use of the A/P and instruments such as the ECAM.
  • In an emergency, one must depend on the instrument readings, and in the case of the A-320, the ECAM gives all the information necessary to guide the aircraft.
  • During their PPC, it was their view that the landing manoeuvre with the flaps in CONF 0 was an emergency and abnormal manoeuvre, and given the prevailing weather conditions, and the fact they were flying at night, they were clearly justified, for safety, in using the A/P for the approach and landing.

ARGUMENTS

Applicants

The arguments of the two Applicants, presented separately, may be summarized as follows:

According to the weather conditions that existed at the time of the proficiency check, CAT II and CAT III approaches and landings were possible. Even though it was a CAT II approach that was requested, the pilot had the option of electing the approach and landing according to the weather conditions.

A CAT II approach must be performed using the A/P.

During the proficiency check, an emergency situation had to be dealt with.

Throughout the approach, the ECAM never indicated that the A/P was not to be used and that no automatic landing should be made, while it indicated the flaps were jammed.

Insert #220 is unclear: it reads "not recommended"; this does not mean prohibited. Pilots have a right to clearer manual directives; moreover, insert #220 has been amended three times since, and the last version to date, #378, is now clear; thus, the directives of the Air Canada manual have not been violated, and those of the Airbus manual are not accessible to Air Canada pilots, who can do no better than what their manual says.

The QRH says nothing about the use of the A/P in an abnormal situation. The decision was therefore made to land with the aid of the A/P, based on the readings of the flight instruments available to them, including the ECAM, which is not prohibited, and this resulted in a perfect and safe landing.

In an emergency, the A/P is a very helpful tool.

In closing, the letter from the chief pilot (document A-1, tab 4, page 2) would seem to indicate ambiguity in the wording of certain paragraphs. If there are ambiguities which lead to an incorrect interpretation, the pilots should have been allowed a second try, which they were not.

Respondent

The landing was made with the aid of the A/P with the flaps jammed in CONF 0 during a CAT II approach, which is forbidden by the ANO, Series VII, No. 2, because it does not comply with the order.

Exceeding an aircraft's limitation automatically results in a failure (document R-2, tab (f)).

The possible consequences of an automatic landing that has not been approved by the manufacturer are not known. For now, the A/P cannot be used other than in CONF 3 and CONF FULL for landings, according to the Air Canada and Airbus manuals.

The PPC was therefore correctly evaluated by the check pilot, the inspector and the company's chief pilot, the documents provided to the pilots being sufficiently clear.

SUMMARY AND CONCLUSION

To summarize, the following questions must be answered:

  1. What exact manoeuvre (which exercise) did the CCP require the pilots to perform and assess a "U" ("Unsatisfactory")?
  2. What manoeuvre did the Applicants perform and what was their basis for performing it as they did?
  3. Are there contradictions or omissions, real or apparent, in the directives the pilots must follow, and if so, does this create enough confusion for the results to generate controversy as to the proper course of action, particularly in an emergency or abnormal situation?
  4. What section of the regulations was allegedly violated?

After analysing the arguments submitted by the two parties, I have arrived at the following answers:

1. It seems that the exercise to which the Applicants were subjected during the proficiency check on October 24, 1994, and which resulted in a failure, was a CAT II ILS approach at night, with the flaps jammed in CONF 0, in CAT III weather conditions.

I base my conclusion on the testimony, but the flight test report is inconclusive in this regard.

2. The Applicants landed with the aid of the A/P, which appears to be prohibited in this case, as the situation was a CAT II.

The weather conditions at the time could allow for a CAT III ILS approach and landing, which means that the ceiling and visibility were better than CAT II mode conditions.

In such a case, can pilots choose the approach mode they want according to the prevailing weather conditions? In reality, yes, but during a proficiency check, I believe they should do what is asked of them. But to avoid any confusion, particularly on a simulator, the weather conditions should be the same as those of the approach mode requested.

3. As for the texts referred to, they are certainly no model of clarity. Sometimes they authorize; sometimes they approve (in whole or in part, without giving reasons); sometimes they require ("must", "request") or leave the choice open ("may"); sometimes they recommend against; sometimes they prohibit, and often in directives which, while not identical, deal with the same flight elements; all with no mention of omissions. For example, the QRH says nothing about the use of the A/P. Are omissions to be taken as prohibitions?

The directives of the Airbus manual and those of the Air Canada manual do not always agree, and while the Respondent based much of its defence on the Airbus manual, we know that the Air Canada pilots do not have access to it.

Moreover, what interpretation should be given based on the fact that one of the main flight instruments, the ECAM, says one thing and the written directives say another? In the texts submitted in evidence, the ECAM is mentioned three times: in document A-1, tab 3, page 2, which states that the ECAM has been checked; in document A-1, tab 2; and in document R-2, tab (b), which mentions the type of information the pilot sees on the ECAM. Nowhere is use of the ECAM prohibited. The ECAM is as important an instrument as the Flight Director – FD or the ILS radio navigation instrument. If certain flight instruments and certain directives conflict, it is up to the air carrier (or manufacturer) to indicate which take precedence, and I have seen no such indication.

Nor does the imprecision in the technical terms used foster a proper understanding of the directives. Sometimes we read CAT I, II, III, sometimes CAT 1, 2, 3, and reference is also made to CONF 0, 1, 2, 3, FULL.

Finally, at times, but quite seldom, a directive is made very explicit with the addition of the word "ONLY", while no mention is made of other possibilities or situations.

All this, then, leads to confusion which, in an abnormal or emergency situation, can cause pilots to make decisions based more on personal judgment than on texts.

This is what happened here when it was decided to rely on an important flight instrument, the ECAM. This, moreover, is what the letter from chief pilot Bailey suggests (document A-1, tab 4, page 2), as in the fourth paragraph he acknowledges that a disagreement occurred on the assessment of the exercise in question due to the "ambiguity of the AOM" without, however, explaining the importance of this ambiguity, as it supports the determination made by his check pilot.

As for Inspector Matthews, he had the choice of upholding or overturning the decision of the CCP. Paragraph 5.3.1 of the Transport Canada Company Check Pilot Manual (TP 6533E) is very explicit and confirms that if the CCP's evaluation and that of the inspector do not coincide, the latter takes precedence. Mr. Matthews confirmed at the hearing that he agreed with the CCP's evaluation.

Finally, it is not known whether this is the first time this dispute has arisen, and if, when in training, pilots are made aware of the restrictions just mentioned.

4. In order to know which sections and regulations may have been violated, we must refer to ANO, Series VII, No. 2, sections 53 and 54, subsections (1), (2) and (3), and phases 6 and 7 in Column I of Schedule C.

In paragraph 5 of document R-1, the Respondent writes, "If a candidate exceeds an aircraft limitation during a PPC, then that sequence must be assessed as unsatisfactory in accordance with Air Navigation Order VII No. II."

I found no such mention. What Schedule C of that order states (document R-2, tab (f), last page) is:

A pilot proficiency check shall be conducted in such a manner that the pilot satisfactorily demonstrates his knowledge, skill and judgement relative to

(a) the aeroplane, its systems and components;

(b) ...in accordance with the procedures and limitations contained in the applicable approved Aircraft Flight Manual, the air carrier's Operations Manual, check list and other approved material applicable to the type of aeroplane; and

(c) (...). (underlining added)

Section 2 of Schedule C states:

Each phase of a pilot proficiency test as listed in Column I of the following table shall be performed in accordance with the procedures set forth in Column III of the table for the proficiency check items listed in Column II of the table.

Section 3 of the same appendix completes section 2, by stating:

When performing any of the procedures enumerated in the table in item 2, a pilot shall demonstrate judgement commensurate with a high level of safety, and in determining whether the pilot has shown such judgement the check pilot shall consider

(a) the pilot's adherence to approved procedures;

(b) the pilot's action in situations requiring a decision based on his analysis where there is no prescribed procedure or recommended practice; and

(c) the pilot's qualities of airmanship in selecting a course of action.

While everything appears to come down to the issue of procedures or approved limitations, there is also the matter of judgment in ambiguous situations. What does one in fact do when the approved (or prescribed) procedures are not clear or have omissions or contradictions? Why, for example, under the heading "Approach"—document A-1, tab 1, paragraph A 1 (a) —is landing mentioned? For the Respondent, everything seems to rest on paragraph D 4 c (2) of document A-1 and on the Transport Canada memorandum, document R-2 (a).

The first text reads, "The use of A/P in APPR mode is approved for CAT II and CAT III approach and landing for CONF FULL and CONF 3."

In my view, the word ONLY should follow CONF FULL and CONF 3; also, CAT III weather conditions prevailed even though the check pilot had asked for an approach in CAT II mode, and no mention is made, there or elsewhere, of the ECAM, which gave the green light throughout the exercise.

The second text reads, "An auto-landing conducted with SLATS/FLAPS in any configuration other than CONF FULL or CONF 3, e.g., with the FLAPS locked at zero degrees, would not meet the original certified configuration for auto-land operations and would be contrary to the Airbus A320 Flight Manual."

Short of writing "are not" and "do not meet", doubt persists as to the possibility of deviating from the relevant directives. However, the memorandum, which is clearer than the directive as to flap configuration, did not exist at the time of the incident.

In conclusion, it is my view that directives as important as those referred to should be far clearer and more precisely written.

I acknowledge that it is not up to pilots to decide whether a directive is good or not; this would result in dangerous situations.

In the present case, however, the Applicants acted reasonably by relying more on the aircraft instruments than on the directives. Nothing prohibits the use of the aircraft instruments; quite the contrary. Indeed, it is the only way to fly by instruments. If the readings of the instruments and the directives conflict, it is up to the carrier or manufacturer (and even Transport Canada) to rectify the situation with clear directives which can be easily consulted and which are unambiguous in relation to each other.

Also, the omissions seem to me to be flaws that can lead to greater misinterpretations and even contradictions, making it impossible to assess the best course of action, particularly in emergency or abnormal situations.

I find that the Applicants have proven, on the balance of probabilities, that they acted for the best in the circumstances and based on their instruments, which is not prohibited. For all practical purposes, one could even invoke section 8.5 of the Aeronautics Act:

8.5 No person shall be found to have contravened a provision of this Part or of any regulation or order made under this Part if the person exercised all due diligence to prevent the contravention.

I believe this is what the Applicants have done and proven.

DETERMINATION

I therefore refer the result of the pilot proficiency check of Applicants Prentice and Thain back to the Minister for reconsideration, and ask that, if it is reversed, no evidence of the failure of October 24, 1994 appear in the Applicants' files.

Pierre Rivest 
Member
Civil Aviation Tribunal