Decisions

CAT File No. O-2065-60
MoT File No. 66138

CIVIL AVIATION TRIBUNAL

BETWEEN:

Clive Francis Ken, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)(b)


Review Determination
William Thornton Tweed


Decision: January 29, 2001

The Minister's decision to assess Captain Clive Francis Ken's pilot proficiency check on May 8, 2000 as failed does not meet the requirements of the Aeronautics Act. The failure should therefore be removed from his record. I refer the matter back to the Minister for reconsideration.

A Review Hearing on the above matters was held Wednesday, December 6, 2000 and Thursday, December 7, 2000 at 10:00 hours at Public Works, Sinclair Centre, in Vancouver, British Columbia.

BACKGROUND

Both Applicants Ken and Andrews are employed by Canada 3000 as captains on the Airbus EA330. On May 8, 2000, they were given a recurrent pilot proficiency check (PPC) as captains on the EA330 simulator in Miami, Florida, USA. The check was conducted by Captain Michael Philip Betts Hudson, a Canada 3000 check pilot. At the conclusion of the ride, and for the same reason (failure to refer to the Quick Reference Handbook (QRH)), the performances of both Captains Ken and Andrews were assessed by Mr. Hudson as failures.

The hearing of both the applications of Ken and Andrews took place in Vancouver, British Columbia on December 6 and 7, 2000 at the same time. All three pilots, Hudson, Ken and Andrews, testified and it was agreed by all parties that the evidence would apply in its entirety to both applications. For that reason my decision as to both applications is identical.

EVIDENCE

Captain Hudson testified that he was conducting the check ride on the basis of a new script which called for a landing with a flap/slat fault. In the particular exercise there was a simulated fault that led to a slat lock. The crew landed the aircraft without referring to the QRH as is required. A failure was assessed, and the ride ended. Captain Hudson gave no evidence that the crew failed to handle the emergency situation scripted, the aircraft was ever in danger, the aircraft ever varied from the required flight profile, any limitation was exceeded, or any item on the QRH check list was missed. He did admit that the electronic centralized aircraft monitor (ECAM) on the simulator is different from the aircraft, the simulator ECAM did not refer the crew to the QRH as the aircraft ECAM would have, and there was no prior briefing on the ECAM differences between the simulator and the aircraft. He also said that the pilots failed "because the software was not to the right standard."

Captains Ken and Andrews both admitted that they did not pull the QRH. They did point out that it is part of their training that, except for a few situations that require immediate attention, check lists are not memorized. The Airbus training places great emphasis on ECAM discipline requiring crews to follow and action each item shown, including referring the crew to the QRH when the ECAM directs such a reference, the QRH is also referred to when the ECAM does not deal with a particular emergency situation. In this case the simulator ECAM dealt with the emergency but it did not refer the crew to the QRH.

The Applicants also pointed out a few other deficiencies in the evaluation process. Captain Andrews who has not been a first officer for a number of years was required, after approximately two hours training, to complete his PPC from the right seat. The simulator data base and the approach plate were not consistent, and the training sessions prior to the ride did not deal with the scripted emergency.

DISCUSSION

Mr. Pratt in his summation asked the rhetorical question "are the standards high?" and answered it by saying "you bet they are." I certainly endorse that notion, and there was nothing in the testimony or the submissions of the Applicants that would suggest that the standards were too high. Their complaint was that the standard of evaluation was too low. If the Minister is going to expect high standards from pilots, then to be consistent with the principle of fairness, there needs to be an equally high standard of evaluation. The candidates need to know what is expected of them and receive appropriate training. The candidates also need to be fully briefed on any differences between the simulator they are being evaluated on and the aircraft they are flying. In the circumstances there is no doubt in my mind that the candidates would have pulled the QRH if they had received a reasonable briefing.

Mr. Pratt also referred me to Harold George Leslie v. Minister of Transport (CAT File No. O-1640-60). I have read that Review Determination and I am not persuaded. The circumstances are different, in Leslie the Applicant exceeded a limit set out in a technical bulletin he acknowledged reading prior to the ride. Captain Leslie did not disconnect the auto pilot above 500 feet as required. In the circumstances before me no limits were exceeded.

THE LAW

Paragraph 7.1(1)(b) of the Aeronautics Act:

7.1 (1) Where the Minister decides

[...]

(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

[...]

the Minister shall, by personal service or by registered 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.

The Concise Oxford Dictionary defines incompetent as: "not qualified or able; lacking a desirable ability or qualification; not able to perform its function."

CONCLUSION

There is no evidence to support a finding of incompetence on the part of the Applicants. Quite the contrary, the evidence shows that in spite of numerous deficiencies in the evaluation process the Applicants operated the simulated aircraft in an entirely safe and competent manner. The assessment of a failure should be removed from the records of both Captains Ken and Andrews.

The Minister's decision to assess the PPCs of Captains Gordon Russell Andrews and Clive Francis Ken on May 8, 2000 as failed does not meet the requirements of the Aeronautics Act. The failures should therefore be removed from their record. I refer these matters back to the Minister for reconsideration.

William T. Tweed
Member
Civil Aviation Tribunal