Decisions

TATC File No. H-3283-27
MoT File No. 5802-176807

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Myron Duane Peter Loewen, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.71


Review Determination
Tracy Medve


Decision: December 20, 2006

I confirm the decision of the Minister of Transport contained in the refusal to issue a commercial pilot licence – aeroplane, dated June 21, 2006.

[1]    A review hearing on this matter was held Wednesday, November 15, 2006 at 10:00 a.m. at the Federal Court of Canada at Winnipeg, Manitoba.

I. BACKGROUND

[2]    The matter under consideration in this case is the refusal to issue a commercial pilot licence – aeroplane (refusal) to Myron Loewen. Mr. Loewen submitted an application for a commercial pilot licence on May 3, 2006. On June 21, 2006 Transport Canada issued the refusal pursuant to section 6.71 of the Aeronautics Act, R.S.C. 1985, c. A-2.

[3]    The Minister's grounds for the refusal were as follows:

1. Mr. Loewen did not have the requisite 20 hours of instrument flight time required by clause 421.30(4)(b)(i)(C) of the Personnel Licensing and Training Standards (Standards) of the Canadian Aviation Regulations, SOR/96-433 (CARs). In particular, it was the Minister's position that 8.2 hours of the required instrument flight time were completed with individuals who did not hold a Canadian flight instructor rating as required by subsection 425.21(3) of the Standards and subsection 400.01(2) of the CARs.

2. An additional 7.2 hours of Mr. Loewen's instrument training time were invalidated because they were conducted in a flight training device not meeting the requirements of section 606.03 of the CARs and Transport Canada general aviation policy letter 2004-04 as the certificate number of the flight training device was not entered after each logged training session.

3. Mr. Loewen's pilot training record (PTR) had not been maintained pursuant to subsections 405.33(1) and (2) of the CARs in that signatures to certify the accuracy of training times and simulator certificate numbers were missing.

[4]    Based on the foregoing, it was the Minister's conclusion that Mr. Loewen's application was incomplete and that he did not meet the requirements of subsection 421.30(5) of the Standards.

[5]    Mr. Loewen has asked the Tribunal to review the Minister's decision to issue the refusal.

II. EVIDENCE

A. Bohdan Skrynyk

[6]    The Minister's sole witness was Bohdan Skrynyk, Inspector, Personnel Licensing, Transport Canada. Mr. Skrynyk is based at Transport Canada headquarters in Ottawa.

[7]    It was Mr. Skrynyk's testimony that he had received a call from Mr. Loewen in about February 2006 with a query regarding the proper procedure for recording time in his logbook for Canadian purposes. Mr. Loewen was in Arizona, U.S.A., at the time. This led to a discussion regarding instrument time and Canadian commercial pilot licence requirements. Mr. Skrynyk testified that he told Mr. Loewen that he could use a Federal Administration Aviation (FAA) flight instructor for the instrument flight time requirements for an instrument flight rules (IFR) rating but not for a Canadian commercial pilot rating time requirement. He indicated that Mr. Loewen would have to find a Canadian flight instructor or return to Canada for the requisite dual flight time.

[8]    Mr. Skrynyk indicated that he spoke two or three more times with Mr. Loewen by telephone regarding the application and requirements for Mr. Loewen's commercial pilot licence. On May 6, 2006 Mr. Loewen's flight test would be one year old and the application would need to be made prior to the end of that one-year period. Given the looming deadline for the application, Mr. Skrynyk suggested that Mr. Loewen submit his application together with as much back up information as possible. It was Mr. Skrynyk's intention to review the information provided by Mr. Loewen to determine whether there was a way to meet the requirements for the issuance of the commercial licence.

[9]    Mr. Skrynyk confirmed receiving Mr. Loewen's application for the commercial licence prior to the May 6, 2006 deadline. Exhibit M-1 contains (a) a copy of Mr. Loewen's covering letter, (b) a copy of his medical certificate, (c) details of rental aircraft flights, (d) copies of the FAA licences of two flight instructors used by Mr. Loewen for dual flight training, and (e) the commercial pilot licence application. Exhibit M-2 is a copy of Mr. Loewen's commercial pilot flight test report, dated May 6, 2005.

[10]    A review of the PTR (exhibit M-3) satisfied Mr. Skrynyk that Mr. Loewen had met some of the commercial pilot licence requirements. He then reviewed whether there was evidence in the PTR of the requisite 20 hours of dual instrument time following the issuance of Mr. Loewen's private pilot licence on August 17, 2004. The information indicated that 5.4 hours of the logged time occurred before the private licence was issued which meant that Mr. Loewen would have required a total of 25.4 hours to meet the commercial licence requirement.

[11]    To verify the dual instrument hours, Mr. Skrynyk reviewed Mr. Loewen's logbook (exhibit M-4) and confirmed that there was a total of 25.4 hours of instrument flight time. He then attempted to confirm whether the training had been done by a qualified flight instructor. Mr. Skrynyk's review identified a total of 8.2 hours logged by Mr. Loewen with FAA flight instructors on "N" registered aircraft. He concluded from this that Mr. Loewen's dual instrument flight time was deficient by 8.2 hours for the purposes of his commercial licence. His review of the logbook also revealed that 7.2 hours of instrument time logged in a flight simulator was not properly documented as the certificate number of the flight training device was not included in the log. Additionally, there were some signatures missing from the PTR.

[12]    Mr. Skrynyk testified that he entered the names of the FAA flight instructors in the Transport Canada system to check whether they had Canadian flight instructor ratings, but this search was not fruitful. He also discussed with Mr. Loewen whether he would be in a position to obtain a U.S. commercial pilot licence instead. Based on an anticipated agreement between Canadian and U.S. authorities, it was Mr. Skrynyk's belief that it might be easier for Mr. Loewen to have a Canadian commercial pilot licence issued subsequent to that agreement; however, Mr. Loewen was not in a position to obtain a U.S. commercial pilot licence.

[13]    From his review of the information provided, Mr. Skrynyk concluded that Mr. Loewen had not met the requirements for the issuance of a commercial pilot licence. Mr. Skrynyk testified that he would have permitted Mr. Loewen to provide the missing information on the flight training device and obtain the missing signatures for his logbook after the application period had expired. Therefore, the primary reason for coming to the refusal decision was the 8.2 hours of instrument time logged with FAA flight instructors.

B. Myron Loewen

[14]    Mr. Loewen testified on his own behalf. He did not refute the testimony of Mr. Skrynyk and both witnesses were complimentary of one another's demeanor throughout this process. Primarily, it was Mr. Loewen's testimony that he had reviewed the Transport Canada Aeronautical Information Manual, but it does not contain information about the requirements of a qualified flight instructor. He reviewed paragraph 421.30(4)(b) of the Standards, but it does not contain anything pertaining to the requirement that the instructor be a Canadian flight instructor. He also read the IFR requirements and assumed that since it was possible to use an FAA flight instructor for an IFR rating (which he suggested had much higher training requirements than a commercial pilot rating), he assumed that it would be acceptable for a commercial pilot licence. In his words, he made a good faith effort to follow the "spirit of the law".

[15]    Mr. Loewen also read in as part of his evidence an email he had sent to the Tribunal Registrar asking for a review of the refusal (exhibit A-1). The contents of the email support Mr. Loewen's position as stated above and further suggest that he had been given information by his Canadian flight instructors and their contact at Transport Canada (Calgary) which led him to believe he would be able to fulfill the requirements for his licence while out of Canada. However, Mr. Loewen did not provide additional evidence with respect to this matter and I am therefore not in a position to consider it further. The gist of Mr. Loewen's email is that he misunderstood the Canadian regulations pertaining to the requirements for a Canadian commercial pilot licence. The email also indicates that Mr. Loewen is looking for a waiver of the Canadian requirements because the quality of the training he did receive (with FAA airline transport rated instructors) and the content of that training were at least equivalent to Canadian standards.

III. LAW

[16]    Paragraph 6.71(1)(b) of the Aeronautics Act reads as follows:

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 . . . .

[17]    Subsections 400.01(1) and 2 of the CARs provide:

400.01(1) In this Part,

. . .

"dual instruction flight time" means the flight time during which a person is receiving flight instruction from a person qualified in accordance with section 425.21 of the Personnel Licensing and Training Standards respecting Flight Training . . . .

. . .

(2) Any reference in this Part to a permit, licence, rating or foreign licence validation certificate is a reference to a valid Canadian permit, licence, rating or foreign licence validation certificate.

[18]    Clause 421.30(4)(b)(i)(C) of the Standards reads as follows:

(b) an applicant who holds a Private Pilot Licence - Aeroplane or a Private Pilot Licence - Aeroplane issued by a contracting state other than Canada, shall have completed 65 hours of commercial pilot flight training in aeroplanes consisting of a minimum of:

(i) 35 hours dual instruction flight time, under the direction and supervision of the holder of a Flight Instructor Rating - Aeroplane, including:

. . .

(C) 20 hours of instrument flight time in addition to the experience stated in (A) and (B) above. A maximum 10 hours of the 20 hours may be conducted on an approved aeroplane simulator or flight training device . . . .

[19]    Subsection 425.21(3) of the Standards provides that:

(3) A person who conducts flight training toward the issuance of a commercial pilot licence shall have a flight instructor rating for the category of aircraft used for the training.

[20]    Section 606.03 of the CARs reads as follows:

606.03  (1) No person shall use synthetic flight training equipment for pilot training or a pilot proficiency check required pursuant to Part IV, this Part or Part VII unless there is in force in respect of that equipment a flight simulator certificate or flight training device certificate issued pursuant to subsection (2) or an equivalent approval or certificate issued under the laws of a foreign state with which Canada has an agreement respecting such equipment.

(2) The Minister shall, where it is determined that the synthetic flight training equipment meets the standards set out for that equipment in the Aeroplane and Rotorcraft Simulator Manual, issue to the operator of that equipment a flight simulator certificate or flight training device certificate.

(3) A certificate issued pursuant to subsection (2) shall set out the following information:

(a) the name of the operator of the synthetic flight training equipment;

(b) the type, model or series number of aircraft represented;

(c) the qualification level of the synthetic flight training equipment; and

(d) the date of issuance of the certificate.

(4) No certificate issued pursuant to subsection (2) remains in force unless the synthetic flight training equipment in respect of which the certificate has been issued

(a) maintains the performance, function and other characteristics that are required for the issuance of the certificate, except in the cases set out in the Simulator Component Inoperative Guide (SCIG);

(b) is maintained in accordance with the procedures set out in the Aeroplane and Rotorcraft Simulator Manual; and

(c) is changed as required, where the aircraft type, model or series number represented by the synthetic flight training equipment undergoes a change as a result of the issuance of an airworthiness directive or an amendment to this Part or Part VII that affects the training being conducted.

(5) A certificate issued pursuant to subsection (2) remains in force where the synthetic flight training equipment in respect of which the certificate has been issued is re-evaluated

(a) in the case of a flight simulator, at least every six months; or

(b) in the case of a flight training device, at least every 12 months.

(6) Subject to subsection (7), the certificate referred to in subsection (5) remains in force

(a) in the case of a flight simulator, until the first day of the seventh month following the month in which the flight simulator was evaluated; or

(b) in the case of a flight training device, until the first day of the thirteenth month following the month in which the flight training device was evaluated.

(7) The Minister may extend the period in respect of which a flight simulator certificate or a flight training device certificate is in force by up to 60 days where the Minister is of the opinion that aviation safety is not likely to be affected.

[21]    Subsections 405.33(1) and (2) of the CARs read as follows:

405.33 (1) A person who conducts flight training for the issuance of a private pilot licence, a commercial pilot licence or a flight instructor rating - aeroplane or helicopter shall, for each trainee, maintain a pilot training record that meets the personnel licensing standards.

(2) On request from a trainee receiving training for the purposes referred to in subsection (1), the person responsible for maintaining the trainee's pilot training record shall

(a) certify the accuracy of the entries; and

(b) provide the trainee with the record.

IV. DISCUSSION OF EVIDENCE

[22]    This hearing was conducted with the utmost professionalism on the part of both parties. Mr. Skrynyk's testimony was straightforward and credible on all points. It was apparent that he had considerable sympathy for Mr. Loewen's situation and made every attempt to assist with the issuance of a commercial licence. However, it was Mr. Skrynyk's conclusion that Mr. Loewen did not meet the requirements of the CARs for the issuance of a commercial pilot licence and that he was not in a position to circumvent the requirements, regardless of how much he may have wanted to assist Mr. Loewen.

[23]    There is no dispute about the evidence in this case. Mr. Loewen, who was also a very credible witness, does not deny that the 8.2 hours of instrument time, which are the primary reason for the refusal, were conducted with FAA flight instructors.

[24]    Having this evidence before me, it is left to determine whether the Minister's representative, Mr. Skrynyk, was correct in concluding that the CARs do require that Mr. Loewen's flight instruction be conducted with a Canadian flight instructor.

[25]    It is by a fairly circuitous route that one arrives at the conclusion that a Canadian licence is required, as averred by Transport Canada. Clause 421.30(4)(b)(i)(C) of the Standards states that:

(b) an applicant who holds a Private Pilot Licence - Aeroplane or a Private Pilot Licence - Aeroplane issued by a contracting state other than Canada, shall have completed 65 hours of commercial pilot flight training in aeroplanes consisting of a minimum of:

(i) 35 hours dual instruction flight time, under the direction and supervision of the holder of a Flight Instructor Rating - Aeroplane, including:

. . .

(C) 20 hours of instrument flight time in addition to the experience stated in (A) and (B) above. A maximum 10 hours of the 20 hours may be conducted on an approved aeroplane simulator or flight training device . . . .

[26]    Subsection 425.21(3) of the Standards provides that:

(3) A person who conducts flight training toward the issuance of a commercial pilot licence shall have a flight instructor rating for the category of aircraft used for the training.

[27]    Subsection 400.01(1) of the CARs provides that:

"dual instruction flight time" means the flight time during which a person is receiving flight instruction from a person qualified in accordance with section 425.21 of the Personnel Licensing and Training Standards respecting Flight Training . . . .

[28]    None of the foregoing makes it clear that the flight instructor must hold a Canadian flight instructor rating. This does not become apparent until one reads subsection 400.01(2) of the CARs which states:

(2) Any reference in this Part to a permit, licence, rating or foreign licence validation certificate is a reference to a valid Canadian permit, licence, rating or foreign licence validation certificate.

[29]    If tenacious enough, one can arrive at the conclusion that the 20 hours of instrument flight time must be with the holder of a valid Canadian flight instructor rating. There is no dispute about the evidence: 8.2 hours of the dual flight time submitted by Mr. Loewen were in fact conducted with FAA flight instructors. Consequently, on this basis Transport Canada would be correct in issuing the refusal.

[30]    Mr. Loewen asked the Tribunal to take into consideration his good faith effort to meet a requirement which he misunderstood in order to qualify for the issuance of a commercial pilot licence. Unfortunately, regardless of how much sympathy the Tribunal may have for the circumstances leading up to the refusal, it is not within the powers of the Tribunal to grant Mr. Loewen such relief. Perhaps there are exception options available to Transport Canada, but there are no such exemption powers available to the Tribunal.

[31]    The Minister's representative acknowledged that the other grounds for issuing the refusal were reparable after the fact and it is therefore unnecessary to make any findings with respect to those grounds.

V. DETERMINATION

[32]    Based on the foregoing, I confirm the decision of the Minister of Transport contained in the refusal to issue a commercial pilot licence – aeroplane, dated June 21, 2006.

December 20, 2006

Tracy Medve
Member
Transportation Appeal Tribunal of Canada