Decisions

CAT File No. O-1735-59
MoT File No. 749664

CIVIL AVIATION TRIBUNAL

BETWEEN:

Changiz Afshari, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss. 7.1(1)(b),
Canadian Aviation Regulations, SOR/96-433, ss. 401.48, 421.49, 705.106, 705.113, 705.127

Suspension, Reverse Decision, PPC, Recurrent PPC, Pilot Proficiency Check, Instrument Rating, Initial PPC, Failure, Finding of Fact, Company Check Pilot, Authority of Company Check Pilot


Review Determination
Allister W. Ogilvie


Decision: March 9, 1999

There is uncontroverted evidence that Mr. Afshari's Pilot Proficiency Check of November 20, 1998 was unsatisfactory. Therefore, I must confirm Transport Canada's decision to suspend Mr. Afshari's instrument rating.

A Review Hearing on the above matter was held Monday, February 22, 1999 at the Federal Court of Canada, in Toronto, Ontario.

BACKGROUND

In the fall of 1998 Morning Star Air Express Inc. was contemplating an expansion of its operations which would require additional flight crews for its Boeing 727 aircraft. Among others it contacted Mr. Afshari who had a resume on file with them.

Mr. Afshari is a very experienced pilot, having flown many types of heavy transport aircraft throughout the world. He emigrated to Canada some years ago and desired to continue his career in aviation. To that end he studied for and successfully completed Transport Canada's exams for his Canadian pilot's licences. He then sent out his resume to numerous air carriers.

Mr. Afshari was invited to Edmonton to attend Morning Star's training course. At the conclusion of the training on November 20, 1998, Mr. Afshari performed a Pilot Proficiency Check (PPC). The check was assessed as unsatisfactory and subsequently Mr. Afshari's instrument rating was suspended. It was that action which brought the matter before the Civil Aviation Tribunal.

EVIDENCE

The Minister was represented by Ms. L. Crane and Mr. Afshari represented himself.

Testimony elicited established that in the fall of 1998, Morning Star was anticipating an expansion of its flight operations to accommodate one of its customers. As it needed to have crews for B727 aircraft available in a short time frame, it was seeking qualified B727 pilots. Mr. Boettcher was the Director of Flight Operations at that company. He contacted Mr. Afshari and they discussed his qualifications and availability, and then Mr. Boettcher invited him to Edmonton for a ground school.

Evidence shows that Mr. Boettcher was authorized, while in the employ of that company, to conduct PPCs on B727 aircraft. He conducted a PPC on Mr. Afshari on November 20, 1998. For various reasons outlined in his testimony he adjudged the ride to be unsatisfactory.

In the de-briefing session he advised Mr. Afshari that the ride was considered a failure. As a consequence, he noted upon Mr. Afshari's document that the instrument rating was cancelled and drew a line through it. The Minister of Transport was subsequently advised.

During cross-examination of Mr. Boettcher, the results of the PPC were not questioned, but Mr. Afshari posed many questions regarding the employer/employee relationship. Despite assertions to the contrary, Mr. Boettcher maintained that he had hired Mr. Afshari over the phone. He stated that in the telephone conversation, Mr. Afshari had said his PPC was one year and two months expired. He maintained that Mr. Afshari had become an employee, albeit for a short time.

In his testimony, Mr. Afshari described his many qualifications and experience as a pilot, which included extensive B727 flight time. In the fall of 1998 he was seeking employment and was contacted by phone by Mr. Boettcher of Morning Star. Mr. Afshari stated that in the initial telephone conversation he had told Mr. Boettcher that his PPC was over two years expired and that Mr. Boettcher replied that he would need full training.

He was soon contacted by another employee of the company and sent an itinerary for training. He and several other pilots completed a four-day ground school in Edmonton and then proceeded to Kelowna for simulator training.

Mr. Afshari was candid in his testimony regarding the PPC. He stated that he accepted the failure and had no argument as to the test flight. However, he contended that he received insufficient and inappropriate training. As well, his view was that he was only being evaluated for a potential position, that he was not at that time hired as a pilot with Morning Star.

ARGUMENT

Ms. Crane argued that the Minister had proven that the PPC conducted on November 20, 1998 was properly completed by an authorized check pilot. She maintained that the check pilot correctly adjudged the PPC to be a failure and that he took appropriate action in suspending the instrument rating. Further the candidate himself had testified that he did not disagree with the check ride findings so there could be no doubt of the conclusion. She acknowledged that there may have been employment related issues but argued that they were irrelevant to the consideration before me.

Mr. Afshari reiterated his earlier testimony, arguing that Mr. Boettcher knew he did not have a valid PPC and hence he should have had full training. He argued that the whole issue had been rushed by Morning Star's desire to quickly accommodate its customer.

THE LAW

The Canadian Aviation Regulations (CARs) Personnel Licensing and Training Standards respecting Flight Crew Permits, Licences and Ratings (Standards) state:

421.49 Renewal of Instrument Rating

(1) An applicant for renewal of an instrument rating shall have passed the flight test referred to in paragraph 421.46(2)(c).

Paragraph 421.46(2)(c) of the Standards:

(c) Skill

An applicant shall complete a flight test in accordance with the Flight Test Standard - Instrument Rating (TP 9939).

DISCUSSION

ISSUE — The issue to be decided is whether on November 20, 1998, Mr. Afshari passed the PPC which included his instrument rating. There is no question that he did not. The evidence adduced by the Minister established that fact. Mr. Afshari honestly and candidly stated that he did not object to the finding of the PPC.

There is some controversy as to Mr. Afshari's employment status at the time of the PPC. Ms. Crane argued that such consideration was irrelevant, but I find that Mr. Afshari's argument warrants discussion.

The PPC was conducted by Mr. Boettcher a Company Check Pilot (CCP). That term is not defined in the Aeronautics Act or the CARs but is found in the Approved Check Pilot Manual (ACP)[1] (Exhibit M-1) at paragraph 1.1.1h) where it states "CCP means a Company Check Pilot." Although not made clear by its definition, a perusal of the manual gives one the impression that, the check pilot, employed by a company, is delegated by the Minister to perform check rides on pilots, employed by that company (emphasis added). Also Mr. Diamond, in cross-examination, stated that the check authority only extended to the company.

If Mr. Afshari was not a pilot employed by the company, at the time of the PPC, did Mr. Boettcher have the authority to suspend or cancel his instrument rating?

The purported authority by which Mr. Boettcher took the administrative action of cancelling the IFR rating is found at section 6.12.1 of the Approved Check Pilot Manual which states:

6.12.1 Administrative procedures include action to be taken when acceptable standards have not been met by a Company pilot. Such actions shall include: (Emphasis added)

(...) 

d) suspension of an instrument rating when the pilot fails to demonstrate an adequate level of competency in those sequences which form the Standards for the instrument rating. The ACP will draw a line through the English and French endorsements on the license and will inscribe the notation: "Instrument Rating Suspended" or "suspension de la qualification de vol aux instruments" as appropriate, and sign and date the licence. The ACP will immediately notify the RMCBA or Chief, Airline Inspection who will ensure that a notice of suspension or cancellation is issued.

That this administrative action pertains to persons (pilots) employed by the company is also reflected in the CARs where it states:

Training and Qualification Records

705.127 (1) Every air operator shall, for each person who is required to receive training under this Subpart, establish and maintain a record of

(...) 

(d) information relating to any failure of the person, while in the air operator's employ, to successfully complete any training, pilot proficiency check or examination required under this Subpart or to obtain any qualification required under this Subpart; and

(Emphasis added)

Whether Mr. Boettcher as a CCP for Morning Star would have the authority to suspend an instrument rating for a pilot, not employed by Morning Star, is an issue which is raised by Mr. Afshari's contention that he was not an employee but was merely in attendance for an evaluation.

In the circumstances of this case I need not answer that question as I do find that Mr. Afshari was employed by Morning Star. The company created for itself exigent circumstances due to its commitment to have B727 crews available in a short time frame. Mr. Boettcher testified that he hired Mr. Afshari over the phone. I find that testimony believable, in these circumstances, partly because of Mr. Afshari's exemplary qualifications. He was just what the company required. The PPC forms utilized and administrative procedure taken subsequent to the check were all consistent with the theme that Mr. Afshari was an employee of Morning Star. Although he contends the sessions were in reality only an evaluation, that contention is not consistent with the notation on the receipt for payment of the ride which states: "Company PPC & IFR ride" (Exhibit M-6). On balance the evidence shows that Mr. Afshari was employed by Morning Star on November 20, 1998.

DETERMINATION

There is uncontroverted evidence that Mr. Afshari's PPC of November 20, 1998 was unsatisfactory. Therefore, I must confirm Transport Canada's decision to suspend Mr. Afshari's instrument rating.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


th Civil Aviation Directorate, 6 Edition/Revision 1, June 1998, No. TP 6533E.


Appeal decision
Philip D. Jardim, Pierre J. Beauchamp, Pierre Rivest


Decision: August 16, 1999

The Appeal is allowed. The Appeal Panel refers the matter back to the Minister to reconsider his decision to suspend Mr. Afshari's instrument rating.

An Appeal Hearing on the above matter was held before three designated Tribunal Members on Wednesday, June 23, 1999 at 10:00 hours at the Lester B. Pearson International Airport, in the city of Toronto, Ontario.

BACKGROUND

After a period of ground school and flight simulator training for qualification as Captain on Boeing 727 aircraft operated by Morning Star Air Express Inc. (Morning Star), Mr. Changiz Afshari failed a simulator Pilot Proficiency Check (PPC) ride on November 20, 1998, administered by company check pilot (CCP) Mr. D. Boettcher, and Mr. Afshari's instrument rating was consequently suspended.

A review hearing was held on February 22, 1999 and Mr. Allister Ogilvie, Vice-Chairperson of the Civil Aviation Tribunal, confirmed Transport Canada's decision to suspend Mr. Afshari's instrument rating.

THE LAW

Subsection 7.1(1) of the Aeronautics Act:

7.1 (1) Where the Minister decides

(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,

the Minister shall, by personal service or by registered or certified mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.(emphasis added)

GROUNDS FOR APPEAL

The Appellant is appealing the Review Determination of Mr. Ogilvie on the following grounds:

  1. The Tribunal erred in finding that the instrument rating of Mr. Afshari be suspended.
  2. The Tribunal erred in finding that the evidence before it was uncontroverted.
  3. The Tribunal erred in finding that there was jurisdiction or authority for the check pilot to suspend Mr. Afshari's instrument rating on the facts before the Tribunal.
  4. Such further and other grounds as this Honourable Tribunal may allow.

At the hearing before the Appeal Panel, a further question was raised, and that is whether the CCP, Mr. D. Boettcher, could administer a recurrent PPC check ride if Mr. Afshari's PPC had been expired for a period exceeding 24 months.

Transport Canada for its part, maintains that the Minister had met the burden of proof imposed by the Act, and had proved its case. Accordingly, the representative of the Minister submits that there are no grounds to disturb the findings of fact of Mr. Ogilvie and his interpretation of the law, and therefore nothing to justify referral of the matter back to the Minister for reconsideration. Consequently it is urged that the appeal of the determination should be dismissed.

THE FACTS

In the fall of 1998, Morning Star required additional flight crews for its Boeing 727 aircraft.

The Appellant, Mr. Afshari, who had a résumé on file with the company, was contacted and invited to Edmonton to attend a training course. At the conclusion of the training on November 20, 1998, Mr. Afshari submitted to a PPC in a Boeing 727 flight simulator. This check ride was administered by Mr. D. Boettcher, the director of flight operations for Morning Star, as well as a Captain on the Boeing 727 aircraft with checking authority. The check was assessed as unsatisfactory, and subsequently Mr. Afshari's instrument rating was suspended. A review hearing was conducted by Mr. Ogilvie on February 22, 1999 in Toronto. In his review determination dated March 9, 1999, Mr. Ogilvie confirmed Transport Canada's decision to suspend the Appellant's instrument rating.

DISCUSSION

The issues raised by the Appellant before this Appeal Panel can in essence be grouped under two headings:

i. Mr. D. Boettcher, a CCP, acted outside his authority in administering a PPC to Mr. Afshari who was not an employee of Morning Star;

ii. Alternatively, even if Mr. Afshari was an employee, Mr. Boettcher acted outside his authority in administering a PPC which was classified as a recurrent PPC when in fact, Mr. Afshari's last PPC had been expired for a period of more than 24 months.

Preliminary Determination

Let us say at the outset that we accept for the purposes of this discussion, the Minister's submission that when a candidate fails the portion of a PPC which is directly related to his competence as an instrument flight rated pilot, he not only fails his PPC but will also see his instrument rating suspended until such time as he requalifies by the successful completion of a new PPC which will encompass the failed instrument rating check ride.

Mr. Afshari was not an employee

The Appellant's first submission is that Mr. D. Boettcher exceeded his authority as a CCP in administering a PPC ride to Mr. Afshari who, at the time, was not an employee of the company. The submission therefore is, that since a CCP's authority only extends to its own employees, unless specifically authorized otherwise by the Minister, and since according to the Appellant's submission, Mr. Afshari had not been duly hired by Morning Star or Mr. Boettcher, the latter had no authority to even initiate a PPC. The substantiation of that position is found according to Appellant's counsel by, for example, the use of the term "candidate" by Mr. Boettcher in reference to Mr. Afshari's ride failure (at page 50 of the transcript of the Review Hearing), or in the fact that Mr. Boettcher or Morning Star failed to properly document Mr. Afshari's experience before he underwent either the training or the check ride and that he therefore was not yet an employee of theirs. Appellant's counsel finds it inconceivable that Mr. Afshari could have been hired on the phone following a simple few telephone conversations, and that when he reported for training at Edmonton and then further at Kelowna, a lack of further verification of Mr. Afshari's background is indication that he was not yet an employee.

Therefore, this conduct of Morning Star and/or Mr. Boettcher, where no application form is filled out by Mr. Afshari, there is no check of his log books, no interview and no real elaboration of the relationship of employer-employee, leads one to only one conclusion and that is that he was not hired.

This issue was discussed at length in the Review Determination by Mr. Ogilvie, who found that in fact Mr. Afshari was employed by Morning Star:

The company created for itself exigent circumstances due to its commitment to have B727 crews available in a short time frame. Mr. Boettcher testified that he hired Mr. Afshari over the phone. I find that testimony believable, in these circumstances, partly because of Mr. Afshari's exemplary qualifications. He was just what the company required. The PPC forms utilized and administrative procedure taken subsequent to the check were all consistent with the theme that Mr. Afshari was an employee of Morning Star. Although he contends the sessions were in reality only an evaluation, that contention is not consistent with the notation on the receipt for payment of the ride which states: 'Company PPC & IFR ride' (Exhibit M-6). On balance the evidence shows that Mr. Afshari was employed by Morning Star on November 20, 1998. (Emphasis added)[1]

Now it is well settled law that findings of fact by a trial judge should not be disturbed on appeal "unless it can be established that the trial judge made some palpable and overriding error which affected his assessment of the facts"[2].

These principles have been applied by this Tribunal. As was noted in the appeal notes filed by the Respondent, in Trent Wade Moore v. Minister of Transport[3], the Appeal Panel states:

I am satisfied that a finding of fact by the Hearing Officer should only be overturned on one of the two grounds. The first is an entire absence of evidence to support it, which raises a question of law... The second is, notwithstanding that there is some evidence concerning the finding, it is non-the-less unreasonable and incapable of being supported by the evidence. Apart from these limited instances, an Appeal Tribunal, hearing an appeal on the record should not interfere with the fact findings of the hearings officer.

This distinction may be subtle, but it is vital both to the preservation of the integrity of the Appeal process and the safeguarding of the fundamental rights of the individual.

And in Thomas Ritchie Phillips v. Minister of Transport[4], it was held:

Unless the findings of the hearings officer are patently unreasonable and cannot be supported by the testimony — under oath — the Appeal Tribunal should be reluctant to substitute its findings.

Having reviewed the transcript and listened to the Appellant's representations, we see no reason to interfere with the Member's finding of facts on that issue, which as we mentioned earlier, he examined and discussed having had the benefit of hearing the testimony of all witnesses and of being in the best position to assess their credibility.

Notwithstanding Appellant's counsel's surprise at the way Mr. Afshari was hired, we therefore nevertheless can find no "palpable or overriding error" in the Member's determination on this issue.

Validity of PPC-initial v. recurrent

We now turn to the second issue raised by the Appellant which is that even if Mr. Afshari was an employee, Mr. Boettcher, nevertheless acted outside the scope of his authority in administering a PPC in the way that he did on that day, that is administering a recurrent PPC, when an initial PPC should have been administered, and this only after a full initial ground school and simulator training had been completed.

The Appellant argues that this is the case, because Mr. Afshari's last PPC had been expired for a period of more than 24 months.

This issue is more problematic as the Member's determination does not deal with this question at all.

THE LAW

The relevant portions of the Canadian Aviation Regulations (CARs) stipulate:

Pilot Qualifications

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, ... unless the person

(a) holds the licence, ratings and endorsements required by Part IV;

(...)  (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;

(...) 

Validity period

705.113 (1) Subject to subsections (4) and (5), the validity period of a line check ... expires ...

(2) Subject to subsections (4) and (5), the validity period of a pilot proficiency check expires

(a) on the first day of the seventh month following the month in which the check was completed;

(b) on the first day of the thirteenth month following the month in which the check was completed, where the pilot successfully completes the six-month recurrency training that has been approved by the Minister, in accordance with the Commercial Air Service Standards, as a substitute for the pilot proficiency check and that is identified in the company operations manual;

(...)  (6) Subject to subsection (7), where the validity period of a pilot proficiency check ... has been expired for 24 months or more, the person shall requalify by meeting the training requirements specified in the Commercial Air Service Standards.

(...) 

Training and Qualification Records

705.127 (1) Every air operator shall, for each person who is required to receive training under this Subpart, establish and maintain a record of

(a) the person's name and, where applicable, personnel licence number, type and ratings;

(b) if applicable, the person's medical category ...

(c) the dates on which the person, while in the air operator's employ, successfully completed any training, pilot proficiency check or examination required under this Subpart or obtained any qualification required under this Subpart;

(...)

725.106 Pilot Qualifications

(1) Training Requirements

Training requirements specified in subparagraph 705.106(1)(b)(iii) Canadian Aviation Regulations are initial training on type, regaining competency training, or annual training.

Division XIV—Instrument Rating

Period of Validity

401.48 An instrument rating is valid for the period specified on the licence in accordance with the personnel licensing standards, where the period does not exceed 24 months.

725.113 Validity Period

(...)

(3) PPC, Line Check or Training Expired for 24 months or more

Where the flight crew member's pilot proficiency check, line check or training has expired for a period of 24 months or more, that flight crew member shall successfully complete the air operator's initial training program and a pilot proficiency check on the type of aeroplane. (emphasis added)

(...)

Personnel Licensing and Training Standards respecting Flight Crew Permits, Licences and Ratings

DIVISION XIV – INSTRUMENT RATINGS

421.48 Period of Validity

(1) 24 months calculated to the first day of the twenty-fifth month following the month in which the flight test was conducted.

(2) An instrument rating may be issued for a period of less than twenty four months.

DISCUSSION

At issue, are two different versions of the company, Morning Star and/or CCP Mr. Boettcher's knowledge of the currency of Mr. Afshari's B-727 PPC. If we believe Mr. Boettcher and follow the Minister's representative's submission, at the time of hiring, Mr. Afshari had claimed that he had last flown the B-727 one year and two months previously. The training program was thus given by Morning Star to Mr. Afshari, based on what Mr. Boettcher had understood from the telephone conversation he had with Mr. Afshari.

On the other hand, Mr. Afshari's submission is that he had informed Mr. Boettcher of the status of his licence, and had told him that the last PPC that he had successfully completed on the B-727 was more than two years earlier, and that Mr. Boettcher was well aware of Mr. Afshari's licence status; the mention of "one year and two months" was in reference to his instrument rating.[5]

We therefore have on this question, two contradictory versions and the Minister's representative submits that we must accept Mr. Boettcher's version, as the Member did in his determination when he accepted Mr. Boettcher's version on the issue of whether Mr. Afshari was an employee of Morning Star or not. The submission is that wherever the testimony of Mr. Boettcher and Mr. Afshari conflicts, the Member believed Mr. Boettcher, and that we should accept the testimony of Mr. Boettcher on this question as well.

As mentioned earlier, Mr. Ogilvie made no finding of facts on this issue; are we then to believe everything Mr. Boettcher said, and discard all of Mr. Afshari's evidence? It is well settled law that in assessing the evidence of a witness, it is not an all-or-nothing proposition. The trier of fact may accept only some of what a witness said and reject the rest.[6]

We agree with the Minister's submission that whether Mr. Afshari should have been given initial training or recurrent training depends upon the facts that were known to Mr. Boettcher "at the time of hiring, ground school and PPC flight test".[7]

It may well be that when Mr. Afshari was brought to Edmonton for training, Mr. Boettcher believed that Mr. Afshari's PPC had been expired for one year and two months, and it is based on that belief, that he undertook the recurrent training that was planned by Morning Star for him. However, even if that is the case, this matter should have been put to rest before the check ride by the checking of the licences and the training record of Mr. Afshari.

A PPC is only first valid for a period of six months and will expire on the first day of the thirteenth month following the month in which the check was completed only "where the pilot successfully completes the six-month recurrent training that has been approved by the Minister ... as a substitute for the pilot proficiency check and that is identified in the company operations manual"[8].

After review of the Appellant's and the Minister's representatives' submissions, as well as the transcript, we are satisfied that Mr. Afshari knew he had not received the appropriate training, that is initial v. recurrent training, given the time elapsed since his last PPC on the B-727.

Furthermore, as the Member found in his determination, there is no doubt that Mr. Afshari also knew that what he was undertaking was a check ride, and not an evaluation. Although he may not have realized that if he failed the PPC for the B-727 this would jeopardize his instrument rating, the regulations are quite clear on this.

On the other hand, the CCP, Mr. Boettcher, made a number of errors or omissions.

He obviously failed to record the expiry date of the last PPC of Mr. Afshari, whether on the B-727 or on another aircraft, as he was required to do by his Approved Check Pilot (ACP) Manual.

He also obviously did not properly check or ascertain from company records or Mr. Afshari's own documentation, the exact date of Mr. Afshari's last PPC on the B-727.

The ACP Manual (Exhibit M-1) provides that:

6.4 Documentation

6. 4.1 Prior to commencing a PPC ... the ACP will examine and verify the validity of the:

Pilot Licence, and Instrument Rating (if applicable);

Medical Certificate;

Pilot's training file; (emphasis added)

(...)

6. 4.2 A check ride will not be conducted if licensing and/or training documents are not presented, are not valid or if the company has failed to provide training for the candidate as specified in the air operator's approved training plan. Training shall be documented and certified and include a recommendation for the candidate to undergo the check ride. (we have underlined)

Furthermore, in carrying out the check ride he failed to stop the ride when he had determined that Mr. Afshari was not meeting the standards required for his instrument rating and PPC in failing to properly carry out a first ADF approach[9] and then a second one.

Once that had been determined, he was under the obligation to stop the ride[10].

And finally Mr. Boettcher could not even initiate the check ride that was administered, given the level of training that Mr. Afshari had received, had the CCP properly checked the documentation[11].

The Air Transport Pilot licence document, per se, does not give the check pilot any information on the validity of a PPC on a particular aircraft, if there is more than one endorsement on this licence. The validity period that appears is that of the instrument rating. The check pilot, particularly in the case of a new pilot with the company, would have to check the supporting documentation, also referred to among other names, as the competency card[12].

This competency card will contain the information required to support the currency provisions referred to in the CARs, such as annual ground and emergency training, six months recurrent training, annual line check, instrument rating check, etc.

Only if these currency provisions have been met within the validity period of up to 24 months, is the PPC still valid. If the currency requirements have not been met within 24 months of the last PPC, this PPC is expired and a full initial course is required, as well as the successful completion of an "initial" PPC ride, which entails more procedures (for example steep turns, stalls, Category II/III approaches if the operator is so qualified etc.[13]) than a simple recurrent PPC ride.

"A PPC which has expired for more than 24 months shall be conducted by an inspector or a Type A CCP as an initial PPC[14]."

So it would appear that the check pilot erred either wilfully or unknowingly in administering this check ride where in fact appropriate training had not been carried out.

On the other hand, Mr. Afshari knew very well that his PPC had expired for a period of greater than 24 months and that he required a full course and a new initial PPC on the B-727 to requalify.

As an experienced pilot, he also had to know that the training he received in Edmonton and Kelowna, was not a full course with a view of requalification, and this he apparently never raised before his ride.

We cannot agree with the Appellant's proposition that when he submitted to his ride, he thought he was only going for an evaluation. Although the check pilot, as mentioned above, may not have carried out his duties with all of the attention to the precepts of the ACP manual that it required, he did examine the documentation presented to him, briefed on the scenario they would follow and after said briefing, there can be no doubt that Mr. Afshari should have known he was about to undertake a check ride for a PPC which could put in jeopardy his instrument rating[15].

And so, although had the check pilot examined the documentation appropriately, the ride in question should never have been initiated, the fact is that Mr. Afshari accepted to submit himself to the ride, knowing he did not have the appropriate initial training.

If the ride had been successful, he would surely have accepted the resulting apparent qualification. He is therefore in a poor position to claim that he has been aggrieved and that his instrument rating should not have been suspended, when he failed said ride in a manner which would put in question his competency as an instrument rated pilot.

Although the representative of the Minister submits that the evidence of Mr. Boettcher is more credible than that of Mr. Afshari on this question of the expiry date of Mr. Afshari's PPC and that the circumstances seem to support Mr. Boettcher's testimony, that is:

The company needed pilots immediately in order to fulfil the Federal Express contract so initial training was not an option. The company went to considerable time and expense to train the pilots. Mr. Afshari made no mention during the training that his PPC had been cxpired for two years and that he needed initial training. Mr. Boettcher gave Mr. Afshari the training that he believed was required by the legislation based on the information given to him by Mr. Afshari.[16]

the CARs require substantiation of competency greater than just the words of the candidate. The CCP must verify, before the ride, the candidate's licence and training record to establish its validity, expiry date and appropriateness of training for the planned ride in the light of the currency and training requirements of the CARs mentioned earlier.

The fact that Exhibit M-3, Mr. Boettcher's draft notes, prepared in anticipation of the ride and filled out at the time of the briefing before the ride (checking of licences and training records and PPC cards) and during the ride, show "PPC expired" without a validity or expiry date inscribed, whereas the first officer Mr. Sargent's form was filled out with the last validity date, would seem to indicate that either the CCP could not find a past PPC valid date and therefore did not inscribe it or voluntarily omitted to enter it because it would have shown that the planned ride and related training did not meet the requirements of the CARs.

One other explanation could be that the CCP just "forgot" to inscribe it, a simple omission with no illegal intent; but then how does that fit in with the inscriptions relating to expiry dates of Mr. Afshari's IFR (99-10-01) and Medical Certificate (99-06-01) as well as Mr. Sargent's. How could he simply have forgotten the inscription that would have jeopardized the validity of the planned ride?

This, seen in the context of Mr. Boettcher's evidence, as pleaded by the Minister's representative, that the company was short of qualified captains, required immediate additions to its crews, and that he did not have the time to run Mr. Afshari through a full initial course, would seem to indicate, that at the very least, CCP Mr. Boettcher may have been under some pressure to complete the ride and may thus have failed to ascertain and ensure before administering the ride, that the applicable licences were held and that the appropriate training and currency requirements discussed above had been met.[17]

Now the purpose of the extensive regulations and standards that have been developed over the years is to ensure flight safety by requiring the appropriate qualifications of, amongst others, pilots flying large aircraft. Because of the complexity of modern day large aircraft and the obvious consequences to life and property following large aircraft accidents, both training standards and currency requirements must be strictly adhered to, to ensure pilot qualifications.

In the case at bar, it is obvious that Mr. Afshari cannot pilot a Boeing-727 as a crew member until he has successfully completed a full initial course and appropriate "initial" check ride.

Should he, given the circumstances described above, also lose the privileges of the instrument rating that he held on a different type of aircraft the day of that last check ride?

Since we find that both parties were at fault, one for administering the ride and the other for submitting to it, the result of this ride should be reconsidered.

It is to state the obvious to declare that there can be substantial differences between the carrying out of an ADF approach in a three-engine, swept-wing jet aircraft, versus that same approach, in a much smaller four-engine turboprop aircraft. Tracking, altitude control and full approach procedure techniques and required skill can be quite different.

The record shows that Mr. Afshari had successfully carried this out recently in a De Havilland Dash 7 aircraft (13 months); should he now lose the instrument flying privileges of his licence, following his failure under the circumstances described above?

We find that since the CCP acted outside the bounds of his authority, by administering the check ride in the manner that he did in the particular circumstances of this case, he consequently had no authority to suspend Mr. Afshari's instrument rating.

DETERMINATION

The Appeal is allowed. The Appeal Panel refers the matter back to the Minister to reconsider his decision to suspend Mr. Afshari's instrument rating.

Reasons for Appeal Determination by:

Pierre J. Beauchamp, Member

Concurred:

Pierre Rivest, Member
Philip D. Jardim, Member


[1] Review Determination, at page 5.

[2] Laurentide Motels Ltd. c. City of Beauport [1989] 1 S.C.R. 705.

"As regards determining the facts, which is the sovereign right of the trial judge, an appellate court, and a fortiori a second appellate court, will intervene only when it has been shown that there is a manifest or palpable error by the trial judge. It is now almost axiomatic to say that determining the facts is the province of the trial judge, who has seen and heard the witnesses and is in a position to assess the credibility that the testimony of each should be given. Recently, in Lensen v. Lensen, [1987] 2 S.C.R. 672, Dickson C.J. reiterated the limits governing intervention by an appellate court in this regard: palpable and overriding error. The Chief Justice wrote (at p. 683):

It is a well-established principle that findings of fact made at trial based on the credibility of witnesses are not to be reversed on appeal unless it can be established that the trial judge made some "palpable and overriding error which affected his assessment of the facts"...

This principle has often been reiterated by this Court: Pelletier v. Shykofsky, [1957] S.C.R. 635; St-Pierre v. Tanguay, [1959] S.C.R. 21; Dorval v. Bouvier, [1968] S.C.R. 288; Métivier v. Cadorette, [1977] 1 S.C.R. 371; Beaudoin-Daigneault v. Richard, [1984] 1 S.C.R. 2."

[3] CAT File No. C-0138-33, Appeal Determination, February 14, 1991, at page 5.

[4] CAT File No. C-0014-33, Appeal Determination, January 26, 1987, at page 4.

[5] Transcript, pp. 88, 97, c. Afshari Ex-in-Ch.

[6] R. v. Osolin [1993] 4 S.C.R. 595 pp 654-655, Sopinka J. citing with approval J.M. Williams ("Mistake of Fact: The legacy of Pappajohn v. The Queen" (1985), 63 Can. Bar Rev. 597 at pp 6l1-612:

"The question remains, however, whether it is correct to assume that a jury will accept one story in its totality and reject the other completely? It would seem not. Where there are conflicting versions of facts, the trier of fact must "find" what happened. It is well accepted that in doing so, the trier of fact is not bound to deal with one party's evidence as a whole but may accept some of it and reject that which is unacceptable".

[7] Respondent's closing written submission and response to the question of the appeal panel, June 30, 1999, p. 7.

[8] Paragraph 705.113(2)(b) of the CARs; see also Exhibit M-1, p. 6-8, 6.8.8.

[9] (automatic direction finding).

[10] See M-1, ACP Manual, No. 6.8.6 "When an ACP decides that a pilot has failed during the course of a check, the check shall be terminated." (we have underlined)

[11] CARs 705.113(2) and (6), and Standards 725.106, Schedule I.

[12] Diamond's testimony, Transcript pages 23 and 26 and subsection 725.113(28) of the Standards.

[13] see Standards 725.124 and 725.106, Schedule I.

[14] see M-1, ACP Manual, Nos. 5.3.7 and 6.1.3 A PPC ... is deemed to be an initial check if the validity period of the last check of type has expired by 24 months or more.

[15] Id. ACP Manual, page 6-8, No. 6.8.8:

"6.8.8 As the instrument rating is valid for a period of 2 years, the competency of each pilot to fly instrument procedures will be monitored during each PPC done during the validity period of the Instrument Rating. Should a pilot fail to demonstrate an adequate level of competency in those sequences mandatory for instrument flying competence, that pilot's Instrument Rating shall be suspended by the ACP conducting that PPC. That pilot would then have to pass a PPC prior to resuming flying duties with an air operator."

And Standards 725.106(2)(b) and (i):

725. 106 Pilot Qualifications

(2) Pilot Proficiency Check

(b) All of the manoeuvres required to satisfy renewal of an Instrument Rating shall be part of the pilot proficiency check.

(i) Where a pilot successfully completes the pilot proficiency check, the pilot is considered as having successfully completed the flight check requirements for the renewal of the applicable instrument rating.

[16] Respondent's closing written submission, note 7, at page 8.

[17] See transcript page 65 D. Boettcher Cr-Ex (C. Afshari)

"A. If you had told me that you hadn't been flying, or were not current, your training had lapsed by more than 24 months, you would not have been brought out, because we did not have time to run you through a full, initial course."