Decisions

TATC File No. O-3084-60
MoT File No. 5802-396747

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

John Wesley Hatfield, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S., c. 33(1st Supp.) ss 7.1(1)
Approved Check Pilot Manual (ACP), s. 9.1.4, 10.1.4, 10.2, 10.6.5 and 10.6.6

pilot-in-command, Pilot Proficiency Check (PPC), pilot non-flying, flight test report, Flight Safety simulator


Review Determination
Pierre J. Beauchamp


Decision: April 27, 2006

The matter is referred back to the Minister for reconsideration.

A review hearing in the above matters was held on April 20 and 22, 2005, and continued on June 21, 2005. Written submissions were submitted by the parties during the following month.

BACKGROUND

On November 12, 2004, Captains West and Hatfield operated as a crew each performing a recurrent Pilot Proficiency Check (PPC) ride conducted by Minister of Transport Inspector Len Kaufman on a Falcon 50EX simulator.

Both checks were assessed as unsatisfactory and Captains West and Hatfield have asked for a review of that assessment.

As the matters arise out of the same simulator ride, involving the same individuals, it was agreed that both hearings would be held together. The testimony and evidence received will therefore be common to both although as some of the reasons for the failure assessments differ, and as each applicant retains the right to a full hearing and opportunity to make his own case, each will receive a written determination.

OPENING STATEMENTS

At the outset of the hearing the parties presented a general overview of their case. Mr. Flewelling in his opening statement indicated that he would bring witnesses to establish the following facts:

The candidates of this ride, Messrs. West and Hatfield, operate a Biovail Falcon 50E under licence for Skyservice Aviation Inc. After recurrent training in a Flight Safety simulator, they submitted to a PPC ride which Mr. Kaufman, a Minister of Transport qualified inspector administered. The ride ended as a failure and the failed sequences included:

1) Holding;

2) Missed Approach Power Loss;

3) Crew Coordination; and

4) Emergencies.

A number of items were held to have been attained with difficulty and assessed as satisfactory with briefing (S/B). These sequences included:

1) Engine Start;

2) Cockpit Checks;

3) Area Departure;

4) #2 Hydraulic System Failure; and

5) Two Engine Out Approach.

On the other hand, Captain West argued that he would make the case that firstly, the ride was conducted in such a way that to use his terms, the ride was like a polar bear running, that is, the time constraints imposed by Mr. Kaufman were such that no appropriate time was afforded the candidates to conduct a proper exercise. Secondly that Mr. Kaufman deviated from the Approved Check Pilot Manual (ACP) in the conduct of the ride and finally, that the way the ride was conducted exhibited incompetence and a lack of professionalism which led to the outcome.

Mr. Hatfield on his part stated that he felt that he would be able to establish that the ride was not conducted appropriately under the auspices of the ACP Manual.

EVIDENCE – THE MINISTER

Mr. Kaufman who acted as the check pilot conducting this ride on the two candidates testified first. He is an inspector with Transport Canada and has held that position at Commercial and Business Aviation for over 16 years. He is qualified on the Falcon 50 and 900 aircraft and testified that he had conducted hundreds of check rides mostly in simulators, including rides on the Falcon 50, the Falcon 50EX, the Falcon 900, and 900EX as well as Citation 500 series aircraft. Among all of these rides conducted over the course of 16 years, he stated that he had assessed less than 10 failures.

Mr. Kaufman described the events that took place on November 12, 2004, and described the differences that existed between the simulator aircraft to be used for that ride that is, a Falcon 50EX aircraft, whereas the underlying aircraft for the qualification is a Falcon 50 and the fact that the pilot candidates, in this case, actually operate a Falcon 50E aircraft for Biovail. He indicated the essential differences between these three types of aircraft; basically the difference between the 50EX and 50E aircraft are mostly centred on a different flight management system where the EX-model has certain upgrades that the E-model does not have. In point of fact, he stated that the differences on the two aircraft were actually briefed to him by the candidates who had accomplished their recurrent training in that simulator and had each spent a minimum of four hours as pilot flying in the previous days.

He then reviewed the briefing that he gave the candidates and indicated that at that time he gave them the opportunity to use the FMS system or not use it during the ride; the candidates chose to use the FMS.

On the question of time constraints which had been raised by Mr. West, both at the time of debriefing that day, as well as in the earlier representations at the hearing, Mr. Kaufman stated that he never mentioned to the candidates that there would be any time constraints and had no intention to impose any such time constraints on them whatsoever.

He testified that during the initial part of the briefing they held a question and answer period that lasted 30 minutes, proof that there was no time constraint felt by Mr. Kaufman or imposed on the candidates. This question and answer period was followed by a briefing, which Mr. Kaufman testified, was carried out as per the ACP Manual.

Referring to the ACP Manual (Exhibit M-3), Mr. Kaufman reviewed section 9.1.1 in relation to the standard to be applied for such a ride and the definitions relating to exercises that are rated satisfactory (S), satisfactory with briefing (S/B), or unsatisfactory (U), emphasizing the crew concept aspect of such a ride (sections 9.1.5 and 9.1.6).

THE CHECK RIDE

Under the questioning of Mr. Flewelling, Captain Kaufman then reviewed the Flight Test Report PPC form (Exhibit M-4) for Mr. West and reviewed the items that were checked off as satisfactory with briefing, or unsatisfactory, as identified under the different subheadings. He therefore reviewed the ride not in a chronological fashion but essentially in the manner in which the items had been indicated in the Flight Test Report form. Going through each sequence he identified the reasons for the comments that had been made which are as follows:

1E Boost pump failure went unnoticed from power on to pre-take off checks.

Crew was unable to explain why stand by hydraulic pump powered system #1 during start up. Reason Was* (mechanics lever in ground test mode).

2D Crew departed into known icing conditions and flew several minutes without wing ice on.

3A As pilot flying (PF) he initially flew toward unprotected side of localizer hold. Pilot said that he had confused the Nav / Heading modes of the flight director. As Pilot not flying he was cleared to hold west of a VOR and then entered a hold north of the VOR into the FMS and the crew flew the incorrect hold more than 10 degrees (90) deviation from designated track.

4E As pilot flying (PF) he did not advise PNF that airbrakes were extended on approach. During missed approach power loss crew failed to ensure the required checks were completed when they did not retract air brake or landing gear until 1000 feet AGL. Slow to raise flaps and had difficulty controlling aircraft.

6B As PNF he noticed failure of #2 hydraulic system and notified pilot flying. Crew then took no action to call for appropriate check list or review failed systems. (flaps air brake nose steering etc.) Crew attempted to use flaps and air brake and steering on approach and landing while systems were disabled.

6D Landed at excessive high speed. Did not use flaps. No warnings from PNF during approach. Repeated successfully.

7B Crew did not work together as a team. There was little communication during check ride. Little warning to other pilot when needed.

Reviewing these items, Mr. Kaufman testified that three of the items 3A, 4E and 7B had been assessed as unsatisfactory, and therefore, failure items, and the four other items 1E, 2D, 6B and 6D had been assessed as satisfactory with briefing.

His testimony also covered Mr. Hatfield's check ride which had also been assessed as a failure, where items 3A dealing with the holding procedure, 6B dealing with a #2 hydraulic system failure, and 7B dealing with crew coordination, having been assessed as unsatisfactory and the other item 2D having been assessed as satisfactory with briefing. The summary of Mr. Hatfield's Flight Test Report items appears as follows:

2D On initial take off pilot was cleared to climb to 2000 ASL then make left turn. Pilot initiated turn at 800 feet and was corrected by pilot not flying.

3A As pilot flying he confirmed an incorrect FMS hold entry made by Pilot not flying and subsequently he flew the hold north of the VOR when he was cleared to hold west. This was more than 10 degrees (90) deviation from the designated track.

6b Pilot not flying advised of #2 hydraulic system failure. As Pilot flying he acknowledged the failure but took no action. Pilot failed to carry out secondary actions when he did not call for appropriate check list or review failed systems. (flaps air brake nose steering etc.) He did not follow procedures listed in the AFM or SOP. Crew attempted to use flaps and air brake and steering on approach and landing while systems were disabled. Pilot indicated the notice of this failure went "over his head" No warning from the pnf to take further action at the time.

7B Crew did not work together as a team. There was little communication during check ride. Little warning to other pilot when needed.

As discussed earlier, although the two rides were assessed independently on two different Flight Test Report forms, they dovetail each other, as both Mr. West and Mr. Hatfield were acting as a crew, and some of the elements of one failure dealing with one individual obviously appear as elements for the other candidate in his own report form, and so Mr. Kaufman's testimony touched on both of these rides at the same time.

Mr. Kaufman then went on to review more specifically the conduct of the ride and the performance of the candidates. He first discussed point 1E of the check report of Captain West which was a satisfactory with briefing handling of a boost pump failure that he had selected as part of his scenario. Mr. Kaufman had requested this failure to be set up by the simulator technician. According to his testimony, the failure of the fuel boost pump for #2 engine went unnoticed by the crew as it carried out its cockpit check and the crew continued on to carry out the start of the APU without having first checked that the fuel boost pump for #2 engine, which serves the APU, had in fact operated, this being indicated by the fuel boost pump light being extinguished on the panel. The switch had been turned on but the associated warning light had not extinguished and was missed by the candidates.

The APU did start without the boost pump assist, and Mr. Kaufman indicated that as the crew proceeded to start engine #2, which is the first engine that is started in the sequence of engines, the sequence being 2, 3 and 1, the crew again failed to check that the associated boost pump for #2 engine was in fact operating, and did start the engine without the assistance of this boost pump. The engine did start and the boost pump failure was only noticed on the pre-take-off check.

Mr. Kaufman's point on this was that a competent crew would have checked the associated warning light when selecting the boost pump on and would have noticed immediately the failure of the boost pump itself, which they had not done until much later, that is after the APU and engine #2 start at the after-start check list.

Furthermore, on this item 1E, Mr. Kaufman indicated that he had also selected an additional failure which consisted of simulating a fault where the transfer lever for the standby hydraulic system, located in the tail of the aircraft, has been left in the ground mode thereby simulating a condition where this lever position would not have been noticed during the walk-around portion of the pre-flight of the aircraft. The indication of this lever remaining in the ground mode is that at engine start, there would be system pressure on #1 hydraulic system (when normally, at this stage, there should be none), and the standby hydraulic pump light would be on to indicate to the crew that the standby hydraulic pump was operating.

In this case, his testimony was that the crew did notice the light and pressure and had a discussion as to why there would be system pressure in the hydraulic system, and when queried by Mr. Kaufman, had no explanation as to why this could be. This indicated to him that they had inadequate knowledge of the functioning of the hydraulic system.

His testimony went on to discuss item 2D where the crew departed into known icing conditions and flew for several minutes without wing anti-ice on. This testimony was to the effect that the system for the Falcon 50 aircraft being an anti-ice system and not a de-ice system for the wings, it requires the wing ice to be on as soon as the aircraft enters icing conditions whether actual icing is forming on the wings or not.

Mr. Kaufman testified that the weather scenario given for the take-off was a ceiling of 200 feet overcast with visibility of one-half mile and a temperature of -1°C and light snow. This consisted of icing conditions which, as far as he was concerned, would have required the crew to immediately upon retraction of the landing gear, as the wing icing must only be used in the air, to continue on to selecting the wing anti-ice system on immediately.

The failure of the crew to do so in such conditions was a departure from the Standard Operating Procedures (SOPs) of the aircraft and merited therefore a satisfactory with briefing assessment. When asked by this Tribunal member whether there had been any discussion in the briefing prior to the ride on the use of wing and air foil ice or icing conditions, Mr. Kaufman had indicated that there had been no mention of this in his briefing.

The testimony of Mr. Kaufman then turned on to the issue of holding and section 3A of his assessment on the Flight Test Report. Mr. Kaufman testified that there were two hold procedures that were carried out during the course of the ride, the first one occurring after the initial take-off out of Peterborough. Both holds were carried out at the Kennedy Airport, one at the Canarsie VOR and one on the localizer for runway 04 left, at the final approach fix for the runway.

With regard to the first hold on the inbound course for the 04 left localizer approach at Kennedy at the final approach fix, Mr. Kaufman testified that the crew turned the aircraft away from the protected side after the initial passage of the holding fix on entry to the hold and that after this initial wrong turn, Captain West caught his mistake and turned back to the protected side. Mr. Kaufman stated that he thought that at the time Captain West had indicated that he had confused the NAV heading mode of the flight director to explain his initial mistake.

Mr. Kaufman then went on to describe the second holding procedure which would eventually terminate the ride, when Captain Hatfield was the pilot flying and Captain West was the pilot not flying. Mr. Kaufman testified that the clearance given to the crew was to hold west of the Canarsie VOR on an inbound track of 090. Captain West, Mr. Kaufman claimed, said out loud that would be inbound to the VOR on 180° and then entered that into the FMS and confirmed that with the pilot flying which was Mr. Hatfield, who in turn confirmed the FMS 180° entry. Mr. Kaufman stated: "[t]hat is the hold that they entered into the FMS and that is the hold they flew; that is when I ended the ride". Mr. Kaufman further testified that the holding clearance had been given on the ground as part of the take-off clearance. He declared that according to the ACP Manual, paragraph 10.2.5(d), this constituted the violation of an air traffic control clearance and as such had to be rated as unsatisfactory.

Mr. Kaufman then went on to discuss point 4B in which as pilot flying Captain West did not follow the appropriate SOPs for his aircraft in that he did not advise the PNF, Captain Hatfield, that air brakes were extended during the approach. Furthermore, during the missed approach portion of that approach and with an associated power loss, he indicated that the crew failed to properly clean up the aircraft during the go-around procedure by not retracting the air brakes or the landing gear until approximately 1,000 feet and being slow to raise the flaps and had difficulty in controlling the aircraft.

Mr. Kaufman testified that to the best of his recollection the air brakes were selected out prior to the approach and that Captain West then flew the approach with the air brakes selected out without mentioning this to the co-pilot, Captain Hatfield. This is a deviation from the standard which requires that such selection of air brakes be called out by the PF to the PNF for his awareness. Furthermore, the whole missed approach procedure was unsatisfactory in that it did not follow SOPs as required by the aircraft operating manual or the company SOPs.

To that effect Mr. Kaufman submitted Exhibit M-10 which is the Falcon 50 Pilot Training Manual excerpt at page MAP-25. It describes the missed approach procedure with one engine inoperative, and requires during the go-around that the power levers be advanced to full take-off thrust, the go-around attitude be set, that the air brakes be positioned at 0 and the flap handle set at 20° flaps. According to Mr. Kaufman, the landing gear was not retracted during the go-around procedure and the flaps were not set at 20°. Mr. Kaufman further testified that under the circumstances a rocking motion was observed, but that given the circumstances, Captain West did a "good job" at maintaining aircraft control. The flaps and gear were eventually only retracted at around 1,000 feet which was a major deviation from the SOPs and hence justified an unsatisfactory assessment. To that effect Mr. Kaufman quoted the ACP Manual at paragraphs 10.2.5(a)(c)(e) and (h) which state:

Unsatisfactory (U)

10.2.5 A sequence shall also be rated Unsatisfactory if:

(a) it endangers the aircraft, passengers or crew;

[...]

(c) multiple errors are made in the completion of any one exercise;

[...]

(e) the aim of the exercise is complete but there is a major deviation from standard procedures or practices or the safety of the aircraft was jeopardised;

[...]

(h) the candidate demonstrates unsatisfactory knowledge of aircraft systems... or procedures.

Moving on to section 6B of the Flight Test Report, Mr. Kaufman testified that this exercise during the check ride was assessed as a satisfactory with briefing procedure for Captain West, whereas it was assessed as unsatisfactory for Captain Hatfield. Mr. Kaufman said that he had failed the #2 hydraulic system while Captain Hatfield was the PF and Captain West the PNF, well before the approach had been initiated. He stated: "I would have expected the crew to ask for extended vectors to carry out the appropriate check lists".

Mr. Kaufman then referred to the Skyservice Aviation Inc. SOPs, subsection 7.2(4):

(4) Crew Coordination – General The importance of the crew operating as a team to deal with an abnormal or emergency situation cannot be overstated. The general sequence for handling an abnormal or emergency situation is described in the following paragraphs:

(a) The first crew member who notices an abnormal or emergency condition should make the applicable call either identifying the condition or initiating the appropriate action;

(b) The PF or Captain, (if appropriate), will call for the applicable check [list];

(c)The PNF will complete the check; and

[...]

Mr. Kaufman testified that the crew failed to carry out any of these procedures, that the PNF, Captain West, called the hydraulic #2 system failure but that Captain Hatfield simply acknowledged the failure and continued the approach, and later would call for use of air brakes and flaps and eventually upon landing, Captain Hatfield tried to use the nose wheel steering when all these systems were unserviceable. In discussing this failure at the debriefing, Captain Hatfield would say "this failure went over my head". The way in which this whole hydraulic failure was handled by both Captains Hatfield and West as a crew, their lack of use of check lists or of knowledge of the appropriate systems, in this case the hydraulic system failure #2 and the associated loss of the flaps, nose wheel steering and air brakes system warranted a satisfactory with briefing assessment for Captain West and an unsatisfactory assessment for Captain Hatfield.

Mr. Kaufman's testimony then turned on to item 6D of Captain West's PPC report in relation to his handling of a two-engine out approach. Mr. Kaufman explained that at the outset he had planned initially for an engine to fail on take-off at 15 knots below V1. The simulator operator did fail the engine well below V1; however, this failure went unnoticed by the crew, and the aircraft was nonetheless taken off by Captain West with one engine out.

Mr. Kaufman testified that he then decided to use that opportunity to carry out a two-engine out approach which is a required element of a PPC but that to help the crew properly carry out this procedure, he set the weather at CAVU, and to avoid the necessity for the crew to carry out an emergency landing gear extension since he was planning to fail the #2 engine having failed #1 engine already, which would entail the loss of the #1 hydraulic system, he had the crew lower the gear, then failed #2 engine, and positioned them downwind, with two engines out, flying on #3 engine only, and gave them clearance to land.

In this configuration, flaps are available as they are powered by hydraulic system #2. However, he testified that the crew flew the entire approach at 180 knots without the use of any flaps where the appropriate speed would have been approximately 135 knots for the approach. The pilot not flying (Captain Hatfield) did not intervene and said nothing and the crew approached at that speed, and at approximately 200 feet above ground, the aircraft crashed.

Mr. Kaufman testified that since he felt that he had contributed to this situation which would normally have been a failure point for the crew, he permitted them to repeat the exercise which was carried out successfully, hence the satisfactory with briefing assessment of that exercise.

Finally at subparagraph 7B, the whole ride was assessed as unsatisfactory and that entailed both Captain Hatfield and Captain West's performances as this segment relates to crew coordination. On that point, numerous deviations from the normal crew coordination standards had been observed: the lack of crew coordination in the handling of the hydraulic system failure, in the handling of the two-engine out approach procedure, the lack of calls with reference to the use of air brakes, the excessive airspeed during the two-engine out procedure had all contributed to the unsatisfactory standard attained by the crew on this ride. As far as Mr. Kaufman was concerned, a lot of these failings could have been corrected had the appropriate crew coordination existed between the pilots throughout the ride. The lack of crew coordination had therefore contributed to the ineffectiveness of this ride.

FLIGHT TEST REPORT – CAPTAIN HATFIELD

Mr. Kaufman then testified on the Flight Test Report for Captain Hatfield (M-12) and simply reiterated the four points that appear namely:

2D On initial take off pilot was cleared to climb to 2000 ASL then make left turn. Pilot initiated turn at 800 feet and was corrected by pilot not flying.

3A As pilot flying he confirmed an incorrect FMS hold entry made by Pilot not flying and subsequently he flew the hold north of the VOR when he was cleared to hold west. This was more than 10 degrees (90) deviation from the designated track.

6b Pilot not flying advised of #2 hydraulic system failure. As Pilot flying he acknowledged the failure but took no action. Pilot failed to carry out secondary actions when he did not call for appropriate check list or review failed systems. (flaps air brake nose steering etc.) He did not follow procedures listed in the AFM or SOP. Crew attempted to use flaps and air brake and steering on approach and landing while systems were disabled. Pilot indicated the notice of this failure went "over his head" No warning from the pnf to take further action at the time.

7B Crew did not work together as a team. There was little communication during check ride. Little warning to other pilot when needed.

In his closing testimony Mr. Kaufman reiterated that at the briefing after the ride both crew members admitted that they had made mistakes, at which time they were both advised following the debriefing of each sequence that had been assessed a failure.

Mr. Kaufman stated that at that time he was in no hurry to catch a flight to get home that night and advised them that he could stay overnight if they required him the next day and that he would be available to carry out another simulator ride if they could get it that next day. Captain West left for approximately 20 minutes trying to book a simulator for the next day but apparently that was unsuccessful and upon being advised of this, he left, and went home.

In closing, he declared that he stood by his overall assessment fully realizing the seriousness and stress associated with the failure.

Cross-examination of Mr. Kaufman by Captain West

In cross-examination, Captain West reviewed with Mr. Kaufman the same sequence of events that he had testified to in his direct testimony.

On the issue of the boost pump failure, Mr. Kaufman reiterated that prior to the first engine start two failures had been programmed: one was the standby hydraulic pump selector lever left in the ground test mode, and also a #2 boost pump failure. Under questioning by Captain West, Mr. Kaufman did not recall whether any more failures had been programmed prior to the first engine start.

On the question of the use of the air foil anti-icing system, Mr. Kaufman reiterated his earlier testimony that he had never seen any other crew operate that way, that is not selecting the airframe anti-icing system on immediately after take-off in such conditions. According to him to do otherwise would not be an operation consistent with the SOPs.

On the question of the first hold (3A) where the pilot flying initially turned towards the unprotected side of the localizer hold, he admitted that after crossing the hold fix the FMS will fly the aircraft to the unprotected side first and that if not corrected this would constitute an unsatisfactory situation. However, in this case, the mistake was caught and corrected by the crew and therefore as per the ACP Manual he classified this as an S/B assessment. Again he reiterated that this was occurring early in the ride and he wanted to give the candidates a certain amount of leeway to be able to give them a proper assessment.

With regards to the second hold, under the cross-examination of Captain West, Mr. Kaufman could not recall exactly whether the holding clearance had been given on the ground or after take-off. Furthermore, as far as the particulars of the clearance were concerned, when questioned by Captain West as to whether the clearance was to hold west on the VOR on a track of 090°, Mr. Kaufman was not sure, and he stated that he might have indicated heading. As far as the time constraints involved with this holding procedure, Mr. Kaufman indicated that he would normally try to give lots of time to the candidates so that they could be set up 10 miles back from the hold, especially if their holding clearance is given while the aircraft is airborne.

On the question of paragraph 4E and the unsatisfactory assessment relating to the missed approach that was carried out where the crew encountered difficulty in controlling the aircraft, Mr. Kaufman defined the difficulty in control as speed getting low, the wings rocking back and forth and the reason for this being that the aircraft had not been cleaned up as per the Skyservice SOPs.

The next issue covered was the two-engine out approach where the speed of 180 knots had been maintained. When questioned by Captain West as to whether the check lists for the two-engine out approach provide for a landing without flaps, that is with slats only, Mr. Kaufman indicated that that was possible but that in the case of that particular ride, his statement referred to the fact that the aircraft was being flown 40 knots faster than appropriate, and that at the time that the simulator had crashed, he had looked at the speed and it indicated 180 knots at touchdown.

In reviewing that sequence of events, Mr. Kaufman reiterated that that particular take-off was carried out with low visibility, and that when #1 engine rolled back the crew decided to continue. When asked by this member why the ride was not stopped at that point, that is, when the engine failed below V1 and the crew continued the take-off, he indicated to the Tribunal that although this could have been used as a fail point, at that particular time, he did not do so because he did not consider that the ACP Manual required a failure in such a situation, particularly considering this type of ride, in that type of company where there is a limited number of pilots, and considering the costs involved with the check ride.

Mr. Kaufman then proceeded on with describing the events that occurred following the take-off, that he had then decided to salvage the scenario and make use of that opportunity to proceed with carrying out the two-engine out approach.

Under the questioning of Captain West, Mr. Kaufman did state that in the two Flight Test Reports for both West and Hatfield, the rejected take-off portion of the check ride had been rated as satisfactory nonetheless.

When questioned by Captain West as to whether the fact that an unsatisfactory assessment had eventually been given to the engine fail procedure during the missed approach, and whether that would be leading the candidate on, Mr. Kaufman stated that as far as he was concerned, in the best worlds, if the ride had continued and had the rest of the procedures been carried out very well, that unsatisfactory assessment might have only been held to be a satisfactory with briefing assessment. He felt that it was within his powers to decide that the determining factor was the wrong entry hold, at the time that Captain Hatfield was the pilot flying, and this became the determining factor for a failure assessment to both pilots. And so, although there could have been assessments of more U's, for example at paragraph 7(c) under PNF duties, this would have been superfluous as the wrong hold procedure was the determining factor.

Mr. Kaufman then reviewed the part of the exercise dealing with the #2 hydraulic system failure associated with an engine out approach, #3 engine having also failed. Under the questioning of Captain West, it was established that the #2 hydraulic system failure was achieved by failing both the standby hydraulic pump, followed by a #3 engine failure. When asked by Captain West whether that would constitute multiple unrelated emergencies, Mr. Kaufman retorted that on a three-engine aircraft, a one-engine failure is not considered an emergency, just an abnormal, and so it is not a problem to add another abnormal that complicates the situation. In this case we had a failed engine and a failed #2 hydraulic system, but according to Mr. Kaufman, there was ample time to carry out the appropriate check lists and complete the procedure safely. Mr. Kaufman stated: "[i]f the crew is having difficulty, I am not going to make it easy for them."

In this case, with regards to the crew coordination aspect of the completion of these abnormals, Mr. Kaufman stated that he would have expected them to discuss the situation, review the systems and carry out the approach. However, all that he observed was a statement by the PNF (Captain West) that there was a hydraulic failure and acknowledgement by the PF, and then subsequently calls for flaps, speed brakes, etc.

On the question of the amount of time available to carry out these procedures, Captain West asked whether during a PPC, where the check pilot is giving radar vectors, whether it is acceptable to vector the crew inside the final approach fix? Mr. Kaufman replied that this is not impossible, but that he would not carry that out normally, and further, that if there were mistakes on the radar vectoring from the check pilot, that would not be part of the ride, and he could not chastise the crew for this. As far as this particular ride was concerned, there was nothing on the ride report indicating that it had been bad radar vectoring.

Finally returning to the question of the start of #2 engine, Captain West questioned Mr. Kaufman on his recollection as to whether he had intervened during the sequence. Mr. Kaufman answered that he did not recall having done so in this particular case, but that he had done so in the past, and further pressed on that point, he admitted that during a simulator ride he has advised pilots as to the appropriate procedure, the H procedure, in relation to the manner of carrying out a certain check required before engines start.

Mr. Kaufman's Cross-examination by Captain Hatfield

Mr. Hatfield's cross-examination of Mr. Kaufman centred principally on the question of the #2 hydraulic system failure accompanying a #3 engine failure, and the issue of available time to carry out the approach.

Mr. Kaufman could not be shaken from his belief that the failure of #3 engine was given with ample time for the crew to be able to carry out the associated procedures. It was established in his testimony that the #2 hydraulic system failure was (and could) only be noticed by the crew upon the failure of #3 engine, because the failure of the #2 hydraulic system was associated with the previous undetectable failure of the #2 standby hydraulic pressure pump. Since this pump is a demand pump which would not be in service as long as there was pressure in the system, there would be no indication to the crew of its failure prior to the loss of system pressure following a #3 engine failure and consequently, a #3 hydraulic pump failure, causing the appropriate warning to appear that the #2 hydraulic system was not available.

It was also established that this situation would compound the situation (#3 engine failure), because a certain number of systems relating to the flaps and the air brakes and nose wheel steering would not be available.

Although questioned several times as to the location of the aircraft when #3 engine was failed, and the intimation that the aircraft was inbound on the localizer, past the final approach fix when this failure occurred, Mr. Kaufman insisted that the failure had occurred at least 10 minutes prior to that somewhere downwind and going away from the airport. And as far as Mr. Kaufman was concerned, the fact of having a #3 engine failure associated with a #2 hydraulic system failure should not normally cause any difficulty as long as ample time was available for the crew to carry out the appropriate check lists, and if the crew felt that it did not have the appropriate time, it should have requested appropriate radar vectoring to provide that time.

Captain R. MacDonald, Chief Pilot for Skyservice

Captain MacDonald testified next and was accepted as an expert witness. Captain MacDonald has been flying for over 26 years, is one of three chief pilots for Skyservice and his previous experience as a general aviation pilot has included work with Execaire and Innotech, and he has been with Skyservice for the last three years. He holds type ratings on the Lear 35, the Hawker Siddley 25 and the Falcons 50 and 900.

The first part of his testimony, under the questioning of Mr. Flewelling, dealt with the question of crew coordination and on that subject and the concept of single crew versus multiple crew, Captain MacDonald quoted from the ACP Manual, section 10.10.17 which reads:

Crew Co-ordination

10.10.17 An assessment of crew co-ordination is required for proficiency checks on aircraft with two or more crew members. The actions of the individual should contribute to the overall effectiveness of the crew during normal, abnormal, and emergency situations. Crew co-ordination and crew resource management in each required sequence, while observed individually, have an interrelationship in the overall operation of the aircraft and require consolidation in one rating.

Generally, Captain MacDonald's testimony corroborated the assessment of Mr. Kaufman on both the Flight Test Reports.

On the question of the use of the standby hydraulic pump lever in ground mode, he stated that he uses that failure on a regular basis mostly on initial rides to bring awareness to the crews, particularly since the crews on initial rides, at that stage, have not seen the aircraft but only a video of a walk-around. In the case of this particular crew it should have been picked up easily and been a non-event and, therefore, the satisfactory with briefing assessment was correct. With regards to the use of speed brakes on approach, he reiterated Mr. Kaufman's testimony that if the pilot flying extended the speed brakes and did not advise the PNF, this could constitute an S/B situation since a call must be made according to the SOPs, in both extending and retracting the speed brakes.

As far as the question of the go-around procedure that was carried out was concerned, he disagreed with the satisfactory with briefing (S/B) assessment. For him in this particular case, in the absolute, it would be an unsatisfactory rating because at that time, the power is in a low energy regime, particularly considering the altitude of the aircraft; in addition, there was a lack of following the appropriate check lists, and a lack of manoeuvring the aircraft appropriately, to say nothing of the fact that the limitation on the use of speed brakes within 500 feet above ground was not observed.

On the question of the failure of the #2 hydraulic system and the lack of calls for check lists, and then the use of flaps and air brakes and nose wheel steering by Captain Hatfield, Captain MacDonald stated that there were, in fact, no memory items associated with this failure. The crew should have nonetheless evaluated the failure of the system and although the loss of systems was not a recall item, these systems should be known to the crew. The satisfactory with briefing assessment was thus correct.

Furthermore, if excessive speed was flown with no intervention from the PNF, that would constitute a contravention to the SOPs. As far as Captain MacDonald was concerned, the definition of excessive speed is any speed that is outside of tolerance of the ACP Manual which is +10 knots to -5 knots on approach, and that would constitute an unsatisfactory assessment.

In summary, as far as rating the crew generally with regards to crew coordination, since it is important for the crew to work together as a team and recognize problems, their failure to do so would justify an S/B. It was obvious that the crew did not work together as a team, that there was no communication between them and no warnings emanating between the PF and the PNF. Furthermore, as far as knowledge of SOPs was concerned, it would appear to have been weak and should also have been debriefed.

Cross-examination of Captain MacDonald by Captain West

The cross-examination by Captain West of Captain MacDonald established essentially the following facts:

1) On a Falcon 50 aircraft if the pilot flying asks the PNF to select speed brakes there is no requirement to make a verbal call;

2) When vectoring an aircraft during an approach, if the aircraft was vectored inside the final approach fix, that would not provide a sufficient amount of time to carry out the appropriate check lists for abnormal situations occurring at that time, and he would not do that; consequently, if the crew asked for a missed approach when it had not completed the appropriate check lists, he could not refuse to allow the requested missed approach;

3) Captain MacDonald uses scripted PPCs in the simulator to ensure that the amount of time allotted to the series of exercises is sufficient;

4) He had only observed Mr. Kaufman carrying out a check ride once, and that was when he himself submitted to a check ride administered by Mr. Kaufman. At that time, as far as he was concerned, Mr. Kaufman had carried out a very good check ride; however, as far as the other candidate that was with him (who was a new first officer) was concerned, he stated that the same high standard of check ride did not apply in that case, and that was because there was insufficient time allotted for the new pilot, and consequently his performance suffered from that. Captain MacDonald explained that traditionally the first portion of a ride runs a little longer, and from his point of view, on that ride, he felt that the candidate was a bit rushed and felt that had he had more time, he could have carried out and flown a better ride;

5) That normally upon the assessment of an unsatisfactory rating on a portion of a ride he would terminate the ride at that time because the ACP Manual calls for the check pilot to stop the ride at the time; and

6) On the question of whether, on a two-member crew ride if a ride progresses to the second portion of the ride, whether that can be interpreted by the first pilot as a pass, Captain MacDonald indicated that when asked this by candidates, he answers that he has to assess the candidate in both duties and that it is possible to attain an unsatisfactory rating in the PNF duties. However, check pilots should not normally progress past an unsatisfactory assessment as that is just leading the candidate on.

On re-direct by Mr. Flewelling, Captain MacDonald reviewed the question of the power loss below V1 and stated that, in the example given above, that would be assessed as unsatisfactory, if in fact, the crew had taken off after an engine failure below V1, even if this occurred in the early portion of the ride. The question, as far as evaluation was concerned, was how close the failure had occurred to V1. When asked whether it was conceivable that an engine roll-back could go unnoticed, he stated no.

Testimony of Mr. Welsh

Mr. Welsh, a civil aviation inspector in the Commercial and Business Aviation section of Transport Canada, testified on the conduct and evaluations of check rides. He explained that it is possible in certain circumstances to assess more than one unsatisfactory evaluation in the course of one check ride as an exercise can be broken down into separate events and each of them evaluated separately.

As far as system knowledge is concerned, he admitted that a crew with a certain amount of flying time, such as in this case 700 hours on an aircraft, would be expected to have good general system knowledge. However, that crew would also be expected to carry out the appropriate procedures according to the relevant check lists since these are not memory items. In that context the satisfactory with briefing evaluation of the handling of the hydraulic failure was correct.

EVIDENCE - THE APPLICANTS

The first witness called by Messrs. West and Hatfield was Captain Bruce Campbell, Vice-President of Skyservice for flight operations. He was qualified as an expert witness; his experience includes service in the Canadian Armed Forces, as a pilot for 24 years, having spent four years in the Training department of Bombardier as a qualified instructor on the Challenger and the Global aircraft. He has been with Skyservice since 2001.

His testimony covered the question of calls that have to be made according to the SOPs, particularly as they relate to the use of speed brakes. His testimony was to the effect that when acting as pilot-in-command, he does not have to call the use of speed brakes. He testified that the SOPs at Skyservice are not aircraft specific since there are 15 different aircraft types, so that they have a generic SOP, and the specifics appear in the aircraft operating manuals and check lists.

Under cross-examination by Mr. Flewelling, Captain Campbell stated that obviously pilots are not permitted to operate outside of SOPs, and in the case of the use of speed brakes within 500 feet above the ground, that did constitute a contravention to SOPs. Asked whether the SOPs require the speed brakes and landing gear to be retracted during the go-around and whether not to do so would be in contravention of the SOPs, he stated "yes". He reiterated that the SOPs require crew coordination, the calling for appropriate check lists when faced with an emergency or abnormal situation. Normally, abnormal check lists should be carried out and completed 1,500 feet above ground, but that in all of these cases, some judgment must prevail.

THE EVIDENCE OF CAPTAIN WEST

In his testimony, Captain West first reviewed the ride in general terms and then as Mr. Kaufman had done before, reviewed specific items of the ride reports to present his version of the events. Captain West described how they first met Inspector Kaufman on November 12, 2004, when they arrived for briefing approximately one hour and 15 minutes prior to the scheduled simulator ride.

Mr. Kaufman indicated to them during the briefing that he had a limousine scheduled for 1700 hrs, that there were no rooms available in Peterborough and that he had therefore booked a 1900 hrs flight home.

During this part of the briefing, the simulator operator advised them of the availability of the simulator and Mr. Kaufman then proceeded to review the first portion of the ride. He indicated that they would start the aircraft from a black cockpit, execute the start-up checks and the taxi checks and that they would be departing runway 01 at Peterborough and proceeding on to fly the Peterborough 05 departure to 10,000 feet for air work. After air work, there would be a reason to return to JFK for approaches; that was the extent of the briefing.

Captain West testified that he then offered to brief Inspector Kaufman on the differences between their aircraft and the simulator which differences were quite extensive, but was cut short; Inspector Kaufman indicated that it was not necessary to brief him. When the simulator operator asked which airport and approaches he should be programming, Mr. Kaufman advised him that he would let him know as they went.

As far as the differences between the Falcon 50 model E that they fly and the Falcon 50EX which the simulator represented, the differences are primarily in the avionics package as well as the engines.

Once in the simulator, Captain West first occupied the left seat and they proceeded to complete their cockpit pre-flight check. He explained that on their aircraft, they follow a flow procedure for engine start; in this simulator which is a different model than the aircraft that they fly, he completed his checks using the Flight Safety check lists. This "flow QRH Flight Safety check list" was used only once a year in the simulator.

During the pre-start check they encountered numerous failures such as:

1) #2 boost pump failure;

2) APU fire;

3) hydraulic standby system lever left in ground mode; and

4) battery not connected to bus (which turned out to be an unprogrammed simulator fault).

This whole process, including dealing with the abnormals and discussions with Inspector Kaufman, lasted approximately one hour.

For example, Inspector Kaufman insisted that the #2 fuel boost pump must be on for APU start. They had initially not noticed that the pump had been failed (the light had not extinguished when the pump was selected on) whereas the manual for their aircraft, the Falcon 50EX, shows that where there is greater than 60 lbs. of fuel in the tank (they had 110 lbs.) the pump is not required for start. They had not checked the light until after the engine start as per the after-start check list, since the Flight Safety check list does not require a check of the light until then.

Another example is the discussion that occurred with reference to the standby hydraulic lever being left in the ground mode, and the indications relating to that situation, and finally, as the crew was starting #3 engine, Mr. Kaufman inquiring why they were not using the "flow procedure" (they were using the Flight Safety check list) and his proceeding to demonstrate it stating "every good Falcon pilot he knew followed this flow procedure".

Captain West stated that he found this "infuriating".

After take-off, they proceeded to carry out the normal air work. During the steep turn portion of the exercise, Mr. Kaufman's cell phone rang (twice), which Captain West testified he found disconcerting.

On the question of wing ice use, Captain West testified that the Falcon 50 aircraft uses unregulated bleed air for slat anti-icing and therefore the system must not be used on the ground. The normal procedure is to use it, if required, after take-off by selecting it on when the aircraft enters icing conditions as indicated by the ice detection light illuminating, or by visual observations from the cockpit.

As the simulator has no ice detection light, and no visual capability (for ice information), air foil ice was only turned on passing through 3,000 feet.

With regards to paragraph 4E of the Flight Test Report, particularly as it relates to the missed approach procedure he had flown, Captain West testified that there had been some roll during the missed approach phase of that approach on two engines, that he had called for flaps 20 and gear up in a timely manner, but admitted that the speed brakes had been delayed, and retracted at 700 feet MSL, not at 1,000 feet MSL as stated by Mr. Kaufman.

He indicated that he then flew another approach following this missed approach and upon landing asked Mr. Kaufman whether he could repeat this procedure as he was not satisfied with it. Mr. Kaufman replied that this would not be necessary. He interpreted that statement as meaning that the exercise had been carried out successfully.

Captain West also expanded on paragraph 3A of the Flight Test Report dealing with the statement that he had initially flown towards the unprotected side of the localizer while carrying out his holding procedure. He explained that because of the differences between the avionics package of the aircraft he regularly flies, and the avionics package on the simulator, he had momentary confusion in switching from VHF NAV mode to FMS NAV mode following the missed approach procedure and while entering the hold. This requires the switching from one mode to the other, and during this short time, the aircraft drifted slightly off to the unprotected side of the localizer; however, the localizer track bar was not fully deflected.

With reference to 6D and the exercise which entailed the two-engine out approach and landing at excessive high speed, Captain West testified that on that portion of the exercise, they lined up for a low visibility take-off (600 RVR on 04 at JFK) and that there had been no further briefing as to the planned exercise. As far as he was concerned, on that take-off, the engine did roll back but the roll-back occurred not at 20 knots below as Mr. Kaufman had testified, but it rolled back at V1. They continued the take-off and levelled off at 2,000 feet and were on radar vectors approximately downwind for runway 04 at Kennedy when they were advised by Mr. Kaufman that the #1 engine roll-back should have occurred sooner and they were then briefed that this would be a two-engine out approach and were given opportunity to configure the aircraft (with the gear down) appropriately.

Captain West testified that, at that time, he could see the airport at the edge of the visual on the left side, that Mr. Kaufman then failed #2 engine and that he started a timer as the runway just went out of sight, and 15 seconds later having started a descent and declared an emergency, they started to execute the two-engine inoperative check list and he commenced a 90°turn to left base to acquire visual referenced to the airport again.

Under such circumstances, that is with two engines shut down on one side, in this case engines 1 and 2, there is an associated hydraulic #1 system failure. Captain West testified that under these circumstances, the check list calls for an airspeed of 160-190 knots and referring to the Flight Safety F50 Pilot Training Manual (R-15), he stated that the final approach speed is 170 knots; at that point, they were flying at 180 knots and because of the compressed time to turn, they had not completed the landing check list. At 1,000 feet they were still descending rapidly with 30° bank to the left and with the co-pilot still completing the check lists. At that time he decided to land with slats only, which he testified, was permissible according to the Flight Training Manual. He indicated that during the descent, he reduced the rate of descent to less than 1,000 feet a minute at approximately one mile on final, and was reducing power to land when the simulator crashed. At that point he asked what had happened and Mr. Kaufman stated that they had crashed. Captain West testified that the radio altimeter at that point showed 180 feet above ground level. He stated that this was not an unusual occurrence, and that the same thing had occurred previously and also subsequently to their check ride.

Captain West then requested from Mr. Kaufman to repeat the exercise which he did successfully. That was the end of the first portion of the exercise and they then had a break in the session before Mr. Hatfield moved to the left seat.

Captain West went on to describe the second portion of the session as Captain Hatfield became the pilot flying (PF).

Captain West stated that this ride constituted an upgrade for Captain Hatfield, that they boarded the simulator while the engines were still running and no check list had to be carried out. As the simulator motion system came up (with the bell sounding) and while they were getting seated and organized in their respective seats, Mr. Kaufman gave them the initial instructions for the first portion of that ride: they would be taking off from runway 31 right at JFK with RVR at 600 feet, and the instructions were for a take-off, runway heading, climb to 3,000 feet with a right turn on a heading of 330 to intercept a 300° radial.

After take-off at approximately 800 feet, Mr. Hatfield initiated a right turn which he, as PNF, called to his attention, and which he corrected immediately. The aircraft did not turn more than 10° off the heading. With reference to item 6B of Exhibit M-12, the Flight Test Report for Mr. Hatfield, Captain West explained the series of events as follows: for this sequence the instructions were to take off from runway 31R at Kennedy, proceed via radar vectors for an ILS to runway 04 L. Captain West indicated that they departed normally and somewhere during the process of the positioning of the aircraft downwind for the ILS 04L, the #2 standby hydraulic pump had been failed. This situation is undetectable at that stage if all engines are running and there exists no other system failure in the hydraulic system.

Referring to Exhibit R-17 which is the JFK New York ILS runway 04 approach chart, Captain West referred the Tribunal to the drawing which he inserted into this approach chart as an exhibit and as a demonstration of the approximate flight path flown by the aircraft and the crew during this portion of the exercise: downwind approximately abeam the Canarsie VOR, the #3 engine failed for no apparent reason. The crew ran the appropriate check list and attempted a re-light which was unsuccessful.

He advised the PF of that situation and that #2 hydraulic system had no pressure although the quantity was fine. By then they were on radar vectors inbound and the multi-function display (the R NAV presentation) indicated that while they were being vectored they would intercept the final approach inside the final approach fix. Captain West advised Captain Hatfield that they were close and that they had not completed all the check lists required. Captain Hatfield was aware of the situation and of their position, and asked Captain West to ask for a hold or delaying vectors. Captain West said: "I asked Mr. Kaufman who replied: "No, just continue, I have you covered. We intercepted the localizer, inside the final approach fix at approximately 4 nautical miles and at an altitude of 2,000 feet. We had full deflection of the glide slope as we were very high".

Captain West continued that he told Captain Hatfield that the one-engine out check list had been carried out but not the loss of hydraulics and that they were not ready for the approach. Captain Hatfield applied power and initiated a go-around at which point Mr. Kaufman intervened immediately and said "No continue down". Captain West testified that they were close and it required a rate of descent of 1,500 feet per minute to catch the glide slope and consequently their full attention was centred on flying the aircraft and that they had no time to complete the last of the check lists. Captain West stated that Captain Hatfield did attempt to use the air brakes and the nose wheel steering but given the circumstances they had no time to review and perform the required check list. Nonetheless, Captain Hatfield was successful in landing the aircraft and stopping on the runway.

Captain West testified that at that point he was so unnerved that he said shamefully, "this is..." to which Captain Hatfield agreed.

Captain West stated again that although Mr. Kaufman had testified earlier that this failure of #3 engine had occurred at least 10 minutes prior to landing, Captain West indicated that that could not be, as the whole sequence had taken less than 10 minutes, and yes, Captain Hatfield had commented that the whole procedure had gone over his head.

Captain West then turned his attention to item 3A and the holding procedure that was assessed as unsatisfactory.

He indicated that this event immediately followed the previous sequence, and that at this time, he was angry, frustrated and confused. Mr. Kaufman had indicated that this would be the final procedure and it would consist of radar vectors for VOR approach to runway 04L at Kennedy, with a circling to land on runway 31R. They briefed the procedure on the ground, set up the radials, re-programmed the FMS accordingly and were cleared to take off.

Referring to Exhibit R-18 which consists of the New York JFK VOR runway 04 left approach chart, Captain West testified that after take-off, Mr. Kaufman, at 400 feet above ground, cleared him for a left turn direct the Canarsie VOR to hold. The clearance was to hold at the Canarsie VOR hold west inbound on the 090° radial expect further clearance at 21:30Z. Captain West referred to Exhibit R-12 which is a copy of the sheet that the crew used for recording clearances and weather during the simulator ride.

Captain West testified that he scrambled to find the fix identification, entered it into the FMS and it displayed a course to the VOR. Captain Hatfield followed the command bars of the flight directory as he was in FMS NAV mode, while he executed the after take-off check list. Once again, Captain West testified that they were under severe time constraints as they were nearing the Canarsie VOR, and he started questioning himself as he remembered that the clearance was "cleared to hold west on the 090°R" which would normally be to the east of the Canarsie VOR.

With the Canarsie VOR less than six nautical miles away from the airport, there was very little time available. At three nautical miles away from the Canarsie VOR he selected the hold page on the FMS and the new hold prompt. The active flight plan page appeared and showed the active leg but he could not get the hold page to display. He explained that there was a difference between the Collins 6000 system package (Proline 2) of the simulator and their usual aircraft Collins 6100 system, and it took him a few tries before he could eventually select the appropriate hold page.

Upon entering the desired and cleared quadrant and radial on the hold page, that is west/090, he received an INVALID entry message on the FMS. He testified that "in a panic I quickly thought of the reciprocal and because of the stress and the speed, I quickly thought I needed 180° for reciprocal and instead of 90 plus 180, I entered 180 in the hold page". The hold appeared and was accepted, and he then noticed that the holding that was depicted on the FMS was different from what they had selected on the radials. He advised Captain Hatfield that the hold on the FMS was incorrect and advised him to switch to VHF NAV mode. At this time the aircraft had already crossed the Canarsie VOR on a southwest heading and while on autopilot, the aircraft started to fly the northerly hold.

Captain West indicated that he again advised Captain Hatfield to switch over to VHF NAV mode which the latter did, and as Captain West reached over and switched his course director to 090°, they were still confused because of the short time available. By then they were in the southwest quadrant, with the aircraft turning right and proceeding northbound and as he advised Captain Hatfield to turn right back to the VOR as they crossed the 270° radial, they were advised by Mr. Kaufman that the ride was being stopped, Mr. Kaufman stating "you guys are not communicating. I'm sorry but we're going to stop here".

After the ride had ended, and as they were deplaning the simulator, Captain West queried Mr. Kaufman about the holding clearance to which Mr. Kaufman angrily answered "I said 090° heading". Captain West testified that he saw no point in continuing the discussion and that was the end of his testimony.

Cross-examination - Captain West

Under cross-examination by Mr. Flewelling, Captain West maintained the essence of his earlier testimony. On the question of the use of speed brakes below 500 feet he reiterated that during that approach he had in fact used the speed brakes or left them extended below 500 feet and had carried out the missed approach with the speed brakes out denying that he had stated in his direct testimony that they had been retracted at 700-800 feet. Questioned as to whether it would constitute poor management to carry out a go-around with the gear and speed brakes out, Captain West retorted that that depended on the circumstances and would give no further answer. He was of the opinion that the SOPs limitations of the aircraft were to the effect of not extending the speed brakes below 500 feet above ground and not to operate the aircraft with speed brakes extended below 500 feet.

Finally, on the question of the #1 hydraulic failure associated with the double engine failure, Mr. Flewelling was able to establish through Captain West that the speed mentioned in the check list, (160-190 knots), is to assist in getting the gear down, and that in actual fact, the VREF speed for the exercise in question was 123 knots for a straight-in approach landing with slats and flaps at 20; in the case of the VREF speed for a landing with slats only, it would have been 30 knots faster, that is, 153 knots. Captain West testified that Captain Hatfield had warned him of the high speed during that approach.

Testimony of Captain Hatfield

Captain Hatfield's testimony started with a discussion of the use of the air brakes below 500 feet. He referred to Exhibit D-13 which is the Falcon 50 AOM excerpt dealing with limitations for air brakes which states that extension of the air brakes within 500 feet from the ground is not permitted. Referring to Exhibit D-14, an excerpt of the Canadian Oxford Dictionary, the term extension is defined as:

1) the act or an instance of extending; and

2) the process of being extended.

His testimony was to the effect that they are taught in training that although the speed brakes cannot be extended, that is activated below 500 feet, that if they are already extended before 500 feet above ground, they do not require retraction at that stage, the limitation being just in relation to the act of extending the air brakes below 500 feet.

Turning to the Flight Test Report (M-12) for his own ride, he was of the opinion that although the test report shows the outcome that is the result of the ride, it does not accurately reflect the ride. Referring to section 6B, Captain Hatfield's testimony was to the same effect as that heard above from Captain West, that is that the #2 hydraulic failure was only noticed upon the failure of the #3 engine which occurred while on radar vector for an ILS approach. There had been no indication of the standby pump failure before that, as up until that point the #2 hydraulic system was powered by the #3 engine pump. Upon the failure of #3 engine the crew had to carry out:

1) the engine shut down/re-light procedure;

2) generator loss check list;

3) a #2 hydraulic failure check list; and

4) the one-engine inoperative approach check list.

None of these check lists had memory items to carry out, they were all "read and do". At the time of this occurrence, they were on radar vectors and being vectored to intercept the localizer. Captain West advised that he had completed the engine failure and generator failure check lists and he still had the hydraulic failure check list to carry out: "[h]e asked if I wanted delaying vectors to continue the check list and I answered yes". He requested that from ATC (Mr. Kaufman) and they were told to continue the approach. At that point they intercepted the localizer but were well above the glide slope. He then initiated a missed approach immediately because of their position, that is on final approach and well above the glide slope, and as Captain West advised air traffic control "initiating missed approach", Mr. Kaufman indicated "continue" and capture the glide slope. They were inside the final approach fix approximately 3½ miles from the runway and did manage to capture the glide slope and land the aircraft. He testified that it was only an instinctive reaction that brought him to use air brakes and nose wheel steering during the approach and landing, given the circumstances. Turning to the question of the holding procedure, he reiterated Captain West's testimony about the clearance being given as they were climbing through 400 feet to a left-turn direct to the Canarsie VOR and to standby for holding clearance, which came as: "[h]old on the Canarsie VOR, west inbound on a 090° radial maintain 2,000 feet".

He reiterated the difficulty of Captain West in inserting the holding clearance in the flight management system, their reverting to raw data upon receiving an "invalid" message from the FMS, at which time Mr. Kaufman terminated the ride. Captain Hatfield testified, as had Captain West before him, that given the fact that they had received a clearance less than five miles from the holding point (the Canarsie VOR), they had no available time to cross-check everything, and the fact that the software differences compounded the problem; that was the reason why the error had been made in entering the wrong hold in the system.

Captain Hatfield's Cross-examination

Under cross-examination by Mr. Flewelling, particularly as it relates to the holding procedure, Captain Hatfield indicated that he had apparently confirmed a clearance that did not make sense that is, holding west on the 090° radial, and that at that time, he had not asked the PNF to request either ATC clarification, or delaying vectors.

Turning to the question of the use of the air brakes below 500 feet, Mr. Flewelling brought Captain Hatfield's attention to Exhibit M-13 which is a description page for the flight controls for the Falcon 50, and referred to the caution which states: "CAUTION: Air brakes should be fully retracted by 500 ft AGL. When airbrakes are extended, angle of attack indications are invalid and AOA flags come into view (Teledyne AOA system)."

When questioned on the meaning of that caution note, Captain Hatfield testified that he was of the opinion that this was a caution, and as it used the term "should", it was not a limitation but a recommendation, although he admitted that Captain MacDonald's testimony had been to the effect that the air brakes should not be used below 500 feet above ground.

Turning to the question of the use of air foil anti-icing system, under the questioning of Mr. Flewelling, and referring to Exhibits M-14 and M-15 dealing with that system, he also reluctantly agreed that the anti-ice air foil protection should have been used as soon as possible after take-off, and that the conditions that he had been briefed to expect did correspond to the conditions referred to in the manual, requiring the use of air foil anti-icing system.

Turning to the two-engine out approach and crash while Captain West was the pilot flying, Captain Hatfield tried to put the whole exercise in a proper perspective, stating that they had completed a take-off, an engine loss, and while downwind, Mr. Kaufman reached down and put the gear down and then they proceeded with a second engine loss and then all of a sudden the weather is CAVU and they are asked to carry out the two-engine inoperative approach. His point was that they were rushed, and that Mr. Kaufman obviously felt the same way as they were permitted to repeat the exercise.

This completed the testimony in this matter and the parties proceeded on to their argument.

ARGUMENTS

Minister of Transport's submissions

Mr. Flewelling submitted that Captain West and Captain Hatfield's licences had been suspended, pursuant to subsection 7.1(1) of the Aeronautics Act as they had ceased to meet the qualifications necessary to maintain their licences, namely their PPCs and instrument rating.

The decision in both cases, he felt, was justified in that the Minister, through the testimony of the witnesses presented, namely Mr. Kaufman, Mr. MacDonald and Mr. Welsh, had established that the applicants had failed to meet the standard required, as expressed in their respective ride reports.

Mr. Flewelling argued that the question of the credibility of the witnesses was important in this case as the testimony of Messrs. Kaufman, West and Hatfield was quite contradictory on just about all of the points brought out in the two ride reports.

Generally, it was the point of view of the representative of the Minister that the applicants were willing to say anything to support their position even in the face of contradictory evidence from Mr. Kaufman, or of the supporting evidence submitted to the Tribunal.

1) For example, with reference to the failure of the fuel boost pump during start which had not been noticed by the crew until the pre-take-off check, Captain West's testimony was that as far as that was concerned, he was not at fault because the check list did not require him to check for lights until the pre-take-off check;

2) With regards to the question of the standby hydraulic pump powering #1 hydraulic system during start-up, and the inability of the crew to explain how this could be, Captain West's testimony was to the effect that it was not their fault for not knowing this as it was a training problem;

3) On the question of the crew flying into known icing conditions without using their wing anti-ice systems, contrary to the aircraft limitations, Captain West would argue that he only uses this system when he can see ice on the wings, and therefore according to Mr. Flewelling, the latter either did not understand the aircraft systems, limitations, or was only making such a statement to support his case at any cost;

4) On the question of the crew failing to enter and fly a VOR hold, Captain West's testimony was to the effect that he had tried at least four times to load the hold definition into his FMS, but in the same breath stated that they were not given enough time to prepare for the hold. Furthermore, on this question of the holding procedure, Mr. Flewelling submitted that the crew should have made appropriate use of the available raw data (RMI or HSI) to position the aircraft correctly for the holding procedure, even if the FMS information was not available. In real life he submitted, it is possible that a holding clearance will be given with very little time available and when such prompt action is required, the use of raw data in such a situation may be initially preferable to the FMS use. In addition in such a case, if the crew is unable to determine the holding pattern and entry procedure, they always have the opportunity to ask for delaying vectors or obtain assistance from air traffic control, which both Captain West and Captain Hatfield failed to do;

5) On the question of use of the air brakes, Mr. Flewelling submitted that Mr. Kaufman had established in his testimony that the crew had flown the entire approach with the use of the air brakes and carrying out a missed approach with an associated engine failure, the air brakes and landing gear had not been retracted until 1,000 feet above ground. He submitted that it was common knowledge, regardless of the interpretation to be given to the aircraft limitation in this case with regards to air brakes, that air brakes are never left out during the process of carrying out a missed approach, especially with an associated engine failure. When questioned on this, according to Mr. Flewelling, Captain West was evasive;

6) On the question of the #2 hydraulic system, it was submitted that Mr. Kaufman's testimony was that this had occurred well before the crew attempted an approach. Although Captain West had advised the pilot flying, Captain Hatfield, of this failure no check lists were accessed or reviewed and the crew attempted to use flaps, air brakes and nose steering on landing, all systems that were not functional. When cross-examined on this question, Captain West stated that again the check lists had not been carried out because they were not given enough time. When asked why they had not asked for delaying vectors, Captain West's testimony was that they had, but had been refused not only delaying vectors, but also the request of a missed approach. As this contradicted Mr. Kaufman's specific testimony, Mr. Flewelling submitted that this was simply not believable; and

7) Finally, on the question of the two-engine out approach, Inspector Kaufman had noted that the crew had used excessive speed and did not use flaps during that approach which resulted in a crash of the simulator. On this question Captain West had countered by stating that the simulator had crashed on its own at 120 feet, but had finally admitted that the speed was 180 knots. On this question of speed, and the two-engine out approach, the testimony of Captain West on the use of speed between 160-190 knots, as indicated at the #1 hydraulic failure quick reference check list (R-14) was misleading, as this speed is to be used in the context of assistance to lowering the main landing gear. As in this particular scenario, Mr. Kaufman had already lowered the landing gear prior to the aircraft initiating its one-engine operative (two-engine out) approach, the reference to the speed was inaccurate and further proof that Captain West was willing to say or do anything to win his case.

In summary, Mr. Flewelling submitted that this whole matter came down to determining whose recollection of events was more accurate, that is, who was really telling the truth, and since Mr. Kaufman's testimony should be relied on, and was corroborated by the testimony of both Captain Campbell and Mr. Welsh, the evidence had shown that the applicants had failed to attain the required standard, that Mr. Kaufman had acted correctly on this suspension, and that it should stand.

Captain Hatfield's submissions

Mr. Hatfield submitted two essential points as to why the result of the check rides should not stand:

1) Inspector Mr. Kaufman did not give enough consideration to the fact that there were substantial differences between the simulator used for the exercise and the aircraft that the crew was qualifying on. These differences explain the difficulty that the crew experienced particularly as it related to the holding procedure which was rated as unsatisfactory; and

2) Mr. Kaufman failed to give the appropriate consideration to the compressed amount of time given to the crew to carry out the exercises he assigned them. Captain Hatfield argued that when you just look at the reports, everything looks fine if one does not consider the amount of time allotted, but given the very short amount of time allotted for these exercises, the result is more understandable.

As far as the particular systems are concerned, Mr. Hatfield argued that as far as the question of the standby hydraulic system operating on the ground, and their lack of understanding of that situation, as testified by Mr. Kaufman, it was understandable because recently, about a month before, there had been a situation of miss-wiring of the stall 1 and 2 buttons in the cockpit, and when questioned by Mr. Kaufman on this, that was the first thing that came to his mind.

With regards to the use of the air brakes throughout the two-engine out approach, this procedure had been repeated and had been done successfully. As far as the other approach that was flown, that is, one-engine out approach, his point was that such an approach, because of the use of engine ice, requires a certain minimum N1 (78%) and the use of air brakes is required to maintain an appropriate speed during the approach.

Finally, as far as the fatal holding procedure was concerned, he submitted that he had accomplished raw data holding procedures on a different type of aircraft (Citation) in the past with no difficulty. This situation should therefore have been no different.

Captain West's submissions

Captain West's submission is based on two points:

1) Mr. Kaufman failed to provide an environment in which the candidates could perform adequately while at the same time not abiding by the precepts of the ACP Manual; and

2) Mr. Kaufman failed to properly understand either the aircraft systems or the company's SOPs which tainted his assessment of the crew performance.

Generally speaking, Captain West submitted that Mr. Kaufman had made several comments prior to the commencement of the ride with reference to his time constraints and travel arrangements. This was evident, he submitted, by the fact that during the ride Mr. Kaufman had refused on a number of occasions either the carrying out of a missed approach or delaying vectors during a rushed exercise failed by Captain Hatfield. Furthermore, Mr. Kaufman's cell phone had rung on a number of occasions (he submitted three times) during the ride which again impacted on the crew performance.

Captain West submitted that Mr. Kaufman not only deviated from the ACP Manual but was in contravention of the directives of that manual in that for example:

  • he gave instructions on how he liked the engines to be started;
  • he failed to provide appropriate briefing prior to carrying out the ride;
  • he was in contravention of the ACP Manual when he rushed the ride in order to satisfy his time requirements;
  • he was in contravention of the manual when he gave misleading and vague and incorrect air traffic control clearances; and furthermore
  • he was in contravention of the manual when he failed to brief the candidates on the standards expected; and
  • in failing to provide clear or in fact any instructions as to how he wanted the exercises to be flown and the parameters by which they should abide.

Finally, Mr. Kaufman had been negligent in not creating an environment conducive to assessing ability or knowledge, in carrying out what he termed the least organized and the most confusing chain of events he had ever observed during a check ride, and finally, that Mr. Kaufman had been negligent in not considering the vast differences between the aircraft the crew actually flies and the simulator in which the ride was being conducted.

Proceeding to rebut the arguments of Mr. Flewelling as far as the proper assessment of the failure points, Captain West then reviewed some of the issues:

1) With reference to the fuel boost pump, Captain West argued that the fuel boost pump is not required to be on prior to APU start;

2) With reference to the limitation on the use of speed brakes below 500 feet, which he submitted Mr. Kaufman had testified was a requirement, Captain West submitted that this was not a requirement under the Aircraft Flight Manual which states only that "extension" of the speed brakes is prohibited below 500 feet; and

3) On the question of the use of airframe anti-ice, it was Captain West's position that Mr. Kaufman had testified that there was a requirement to depart with the airframe anti-ice on, in icing conditions, which he submitted was in direct contravention of the Aircraft Flight Manual. He submitted that a competent crew would depart with the airframe anti-ice off and select it on as required when airborne and out of a critical phase of flight.

4) Referring further to the use of the speed brakes, he pleaded that due to bleed air requirements, it is "normal" to use speed brakes throughout the approach during a descent in icing conditions.

Since all of these four items above had been noted as either S/B or U on the check ride reports, they showed a lack of system knowledge on the part of Mr. Kaufman.

With reference to the two-engine inoperative approach, Captain West submitted that the sequence of events had been such that the crew had been committed to land during the entire procedure and had been given no parameters as to what they were actually doing. As this occurred within the traffic pattern, he submitted that there was simply not enough time to accomplish the check lists and calculate the effects on performance for this configuration. To prove that Mr. Kaufman had recognized the difficulties with the parameters he had set was that the exercise was repeated successfully, when on the second approach, the crew now fully understood the exercise and the parameters, and had made time to complete the associated check lists.

Finally, on the question of the hold that terminated the check ride, Captain West submitted that he stood by his testimony, that is that the series of events where the holding clearance was given while in a left turn at 400 feet above sea level, to the Canarsie VOR which is in actual fact only approximately six miles away, simply did not provide adequate time to locate and tune the VOR, discuss the hold entry, and complete the check lists and execute the hold, when the original take-off clearance had only entailed proceeding on for radar vectors for a circling approach at Kennedy using the Canarsie VOR.

Captain West submitted that the clearance itself (hold west on the 090° radial) was wrong and impossible to carry out. He argued that when he later questioned Mr. Kaufman on it, he had claimed that he had not said 090° radial but had said 090° heading; in either case whether it be radial or heading, both are impossibilities, and he submitted that the confusion that ensued in the cockpit was directly attributable to the actions of Mr. Kaufman.

Furthermore, the idea of requesting delaying vectors, as submitted by Mr. Flewelling, did not appear to the crew as an option, as two previous requests for such vectors during the check ride had been refused.

Finally, Captain West submitted that the Minister's reference to "real life" was redundant, and an over simplification. There was nothing "real life" about this check ride. The fact is that Mr. Kaufman had not executed his duties as required by the Minister, nor had he met the minimum standards in the conduct of his duties as described in the ACP Manual. Captain West submitted that simple adherence to the Minister's orders and the allowance of reasonable time to complete the sequences would have allowed an accurate evaluation of the crew as pilots, and have negated the requirement for this entire hearing.

DISCUSSION

The issue for me to decide is whether on November 12, 2004, Captains West and Hatfield failed to demonstrate the required standard for certain manoeuvres which are normally included in the renewal of their PPC and instrument ratings.

The Minister must prove on a balance of probabilities that they did not meet that standard. To that effect, the Minister submitted the Flight Test Report forms (M-4 and M-12) and the testimony of Inspector Kaufman, as well as that of two other expert witnesses, Messrs. Welsh and MacDonald.

The examination of the results of this ride must be done with the standard expected of both the candidates and the check pilot in mind. The standards are promulgated in the ACP Manual which contains the standards, policies, procedures and guidelines that pertain to the ACP Program and is published for use by Transport Canada inspectors as well as Approved Company Check Pilots.[1] The policies and procedures specified in this manual must be abided by Transport Canada inspectors in the conduct of PPCs, and the standards of performance therein described, maintained by the candidates submitting to such a ride.

The applicants West and Hatfield generally plead that Mr. Kaufman, having failed to abide by these policies and standards, imposed on them a series of situations and conditions that prevented them from being able to perform to their normal high standard, and precipitated a number of the errors and omissions that were noted on the Flight Test Report forms. In essence, they submit that the check ride was poorly handled from the outset, including the lack of appropriate briefing prior to the exercise, the numerous interruptions of the check pilot through the performance of their initial duties on the ramp checks, as well as in flight in the conduct of some of the exercises, his failure to adhere to standard air traffic control terminology, and the issuance of, in the case of the holding clearance, an impossible clearance to abide by. All these factors contributed to their lack of satisfactory performance.

Let us then examine this simulator ride with these respective positions in mind. I shall examine it as one entity, that is a continuous series of events, as each candidate occupied in turn, each seat and acted at different times, as either the pilot flying (PF) or the pilot not flying (PNF).

Captain West's Flight Test Report form indicates seven elements that required particulars, as each sequence of a flight which is graded as SB or U requires a narrative in the "comments" section of the form as stipulated in s. 10.1.4 of the ACP Manual. The manual also states:

10.2 Rating Scale

Satisfactory (S)

10.2.1 A sequence shall be rated Satisfactory if:

(a) it contains minor errors only...

Satisfactory with Briefing (SB)

10.2.2 A sequence shall be rated satisfactory with briefing when:

(a)aircraft handling and knowledge are safe but of a lower standard than would be expected and any deficiency can be corrected during briefing;

(b) the candidate had a brief excursion from published tolerances but initiated corrective action;

(c) a sequence deviates from standard procedures or practices but does not create a more hazardous situation and is repeated satisfactorily...

Unsatisfactory (U)

10.2.4 If a sequence cannot be rated Satisfactory or Satisfactory with Briefing according to the preceding guidelines, it shall be rated Unsatisfactory.

10.2.5 A sequence shall also be rated Unsatisfactory if:

(a) it endangers the aircraft, passengers or crew;

[...]

(d) it violates an ATC clearance or altitude;

(e) the aim of the exercise is complete but there is a major deviation from standard procedures or practices or the safety of the aircraft was jeopardised;

[...]

(g) it exceeds aircraft limitations ...

Three of these annotations that is 3A, 4E and 7B were rated by Mr. Kaufman as unsatisfactory, any one of which would have been sufficient cause to justify a failure assessment.

On the other hand, Captain Hatfield's ride report form contained four elements that stood out during the course of his ride, three of which were rated as unsatisfactory.

Of these combined six unsatisfactory elements, two are identical, that is 7B on each report, the crew failing to "act as a team" with little communication or warning to the other pilots during the check ride. Two relate to the same event, that is the inappropriate hold procedure with Captain Hatfield as the pilot flying.

For the other two, one relates to Captain West in relation to the carrying out of an inappropriate missed approach procedure, and one to Captain Hatfield's inadequate handling of a #2 hydraulic system failure.

It is useful to refer here again to the ACP Manual at chapter 9 under the heading "Flight Check Assessments", section 9.1.4:

9.1.4 In order for a flight check to receive a General Assessment of "Failed", at least one sequence or item must be assessed as "U". It also follows that, when any individual sequence has been assessed as "U", the PPC must receive a General Assessment of "Failed". A PPC for which all sequences have been assessed as "S" or "SB" must receive a General Assessment of "Pass", regardless of how many sequences have received "SBs".

Let us then review the testimony on these items. Item 4E which is rated as unsatisfactory for Captain West contains two different segments of flight, the approach and the go-around.

a) Captain West is described as having, as pilot flying, not advised the PNF that the air brakes were extended on approach; and

b) During the missed approach sequence that followed this approach where he had not advised the PNF of his use of speed brakes, Mr. Kaufman states that the crew failed to carry out the standard missed approach procedure as described in the aircraft SOPs, in that according to his testimony, the air brakes and landing gear were not retracted until 1,000 feet ASL.

On the first point, that is the use of the air brakes without advising the PNF that they were being extended by the PF, there seems to be consistent testimony from all the witnesses except for Mr. Kaufman as to the practice and the application of the SOPs of the company on that question. Captain West's testimony was to the effect that in the Falcon 50 aircraft there is no requirement to call the use of the speed brakes extension by the PF to the PNF when the PNF is actually aware of the situation. This statement was corroborated by Captain MacDonald in his cross-examination when he stated that as long as both crew members had situational awareness in relation to the use of speed brakes, there was no requirement for such a call. The testimony of Captain Bruce Campbell, Vice-President, Skyservice was to the same effect, that is that when acting as pilot-in-command, there is no requirement in all circumstances to call the extension of the speed brakes.

The second portion of the approach, that is the missed approach procedure as it relates to the use of the speed brakes, is quite another issue. Mr. Kaufman's testimony was to the same effect as his comments at 4E, that during the missed approach procedure the crew had been slow in retracting the speed brakes. His recollection was that the speed brakes and gear were not retracted until 1,000 feet ASL and that the crew had some difficulty in controlling the aircraft during the go-around procedure as there was some rolling effect, and that given the circumstances (gear still down and air brakes out), the crew had done a good job in maintaining control of the aircraft.

Captain West's testimony, as far as the go-around procedure was concerned, was that it had been carried out according to the SOPs, that is that during the go-around process when Captain Hatfield had called a positive rate, he had called for gear up, although he admitted that he had been slow retracting the air brakes. When cross-examined on that question by Mr. Flewelling, Captain West was not quite as certain; for example, when asked at what time did Captain Hatfield say positive rate, his recollection was that it was when the aircraft had reached 1,000 foot per minute climb rate, and that the air brakes had in fact been retracted at 700 feet above sea level. The evidence submitted by the Minister at M-10, which is the extract of the Falcon 50 Pilot Training Manual describing the missed approach one-engine inoperative slats and flaps at 20 procedure, shows the standard missed approach procedure for jet aircraft of that category, that is that on go-around, the power levers are set at full forward take-off thrust, the go-around attitude is set in this case 14°NU, the next step is that the air brakes are positioned to 0, the slats flap handle is moved to 20° or insured at 20°, a positive rate of climb being achieved, the gear is selected up.

It is quite obvious from the testimony that that is not exactly the procedure that was followed in this case, as it is clear, that at the very least, the air brakes were not retracted until 700 feet ASL if not 1,000 feet ASL, and it may well be that the gear itself was not selected up until sometime well into the missed approach procedure, with as a consequence, difficulty in controlling the aircraft.

This sequence definitely merited an S/B assessment, as Mr. Kaufman testified that such an assessment was a possibility and was being contemplated, in that he had not yet decided to assess it as an unsatisfactory event, as it was early in the ride and he wanted to see more from the crew before making a final assessment.

As far as Captain Hatfield's actions in this process were concerned in relation to the 7B assessment on his ride report, that is the crew did not work together as a team with little communication and little warning from the other pilot, it seems that he cannot be faulted in this process as he did appear to call the positive rate as required, and carry out the actions requested of him by the PF, that is, selecting the air brakes and eventually the gear on the call of the pilot flying.

In order to properly assess the next issue in question, and that is the failure of Captain West to properly either fly a holding procedure as PF or program a holding procedure as PNF, it is relevant to review the sequence of events that led to this part of the exercise. The scenario planned by Mr. Kaufman seemed to follow the standard scenarios for this sort of ride, that is that with Captain West flying, the aircraft initially took off on a SID departure from Peterborough, proceeded north for some air work including steep turns, during which Captain West has testified that Mr. Kaufman's cell phone had rung three times, a return to Peterborough for an ILS approach on runway 06, this approach being the one where, as far as Mr. Kaufman was concerned, the air brakes and flaps and gear had been left out, the air brakes which had been used during the approach being left out below 500 feet above ground, and then the crew being slow in retracting them on the go-around. A go-around procedure was then initiated due to poor weather, with an associated engine failure (possibly #3 engine), and then the crew proceeded onto runway 13 at Kennedy for a one-engine out ILS landing. The next sequence was a low visibility take-off from Kennedy with RVR at 600 feet, an engine failure below V1, a take-off and then the two-engine inoperative approach, a repeat of that exercise to a satisfactory landing.

Next, apparently, came another take-off with a rejected take-off, and then a successful take-off proceeding to a holding procedure where Captain West had some difficulty in entering the hold, and then the crew proceeding on to a circling approach at Kennedy and landing.

That was the end of the ride as far as Captain West was concerned. After the break, the crew changed seats and Captain Hatfield became the pilot flying in the left seat, and after air work, the aircraft was flown back towards Kennedy where a hydraulic failure was introduced (#2 hydraulic system), and an ILS approach carried out to a landing followed by a take-off from Kennedy, a holding clearance which was entered incorrectly in the FMS, at which time the whole ride was ended.

Reviewing the ride in such a way, that is chronologically, gives us a better perspective of the final event (wrong hold) that culminated with the early termination of the ride as a failure for both pilots. This review also gives us the opportunity to look at some of the events that were noted as S/B in both ride reports.

It is clear from the evidence that the crew showed up appropriately for its briefing about an hour and 15 minutes prior to the scheduled simulator exercise. Both pilots met with Mr. Kaufman who indicated to them his scheduled departure with the associated limousine picking him up after the simulator for return to his home that evening.

It is also clear from the evidence that the briefing that followed, prior to entry into the simulator, was not as thorough as the ACP Manual requires. The crew having spent a substantial amount of the time allotted, that is approximately 30 minutes on a review of aircraft systems, it was only when the simulator operator came in to advise that the simulator was ready for use, that Mr. Kaufman went on to brief the simulator exercise. It is also clear from the evidence that at that time there was no substantial discussion on the aircraft and similar differences that pertained to the upcoming ride.

Upon entering the simulator and the crew settling into their respective seats, it took almost one hour before the engines were started and the flight was ready to depart; numerous exercises had been completed in that time frame, including a full ramp check with a number of system failures during the ramp check and preparation for engine start, including the standby hydraulic lever being left in the ground mode, which would normally be checked as a walk-around item, an APU fire, the failure of the electrical system to come up properly, which apparently was a simulator fault, and finally #2 fuel boost pump failure and the discussions and explanations of Mr. Kaufman and Captain West in relation to that event, as well as the demonstration by Mr. Kaufman of the "H" procedure, which according to him, should be used in starting engines on that aircraft.

By then, the stage was set for what was to follow.

On the one hand we have Inspector Kaufman who is about to administer a PPC ride on two candidates for their renewal, and this without a script or scenario, and who has indicated to the simulator operator that he will brief them on the required exercises and weather, as they go along.

On the other hand, we have the crew who has been rushed through an incomplete pre-flight briefing, has seen Mr. Kaufman intervene and discuss a number of failures during the ramp and pre-start check lists, and who believes that Mr. Kaufman has a flight to catch immediately following their simulator exercise, while they have already expended one hour of simulator time before ever even getting airborne.

For example, in that context, the item 1E at Captain West's ride report relating to the crew failing to notice the boost pump failure during the ramp check and engine start should not have been rated S/B.

The testimony of Mr. Kaufman is that he rated that abnormal as an S/B because the crew failed to notice the light which had not extinguished after they had selected the boost pump on. The testimony of Captain West, and his point of view was expressed during the ride when they discussed that situation with Inspector Kaufman, is that there is no requirement to check the light at that time, and in fact, the requirement of checking the extinguishing of the light only appears as part of the check list on the pre-take-off check.

Mr. Kaufman admitted that in fact the crew did notice the light indicating the failure of the pump at that time, and the failure of the pump was corrected, and the flight continued.

In fact, I am satisfied from both the testimony of Captains West and Hatfield as well as from a review of the exhibits (see R-10 and R-13, page 2), that both the APU and engine #2 can be started without the use of the pump in that aircraft. Therefore, the fact that the crew did not immediately notice that the light had failed to extinguish (indicating a boost pump failure) was of no consequence, as it was permitted by the check list, and this, if anything, constituted a minor deviation only, and therefore justified a satisfactory assessment.[2]

Furthermore, the condescending attitude of Inspector Kaufman, who had intervened during the start procedure, to demonstrate "his way" of doing things with a statement: "all competent Falcon 50 crews do it this way" (testimony of Captain West) had infuriated the pilot who was about to be checked on his ride, before he had even started his flight.

This approach to the carrying out of the check ride by Inspector Kaufman would continue during the next series of events.

Once the exercise where the use of speed brakes without calls by the pilot flying (Captain West) was noted had been accomplished, the crew was set up for a low visibility take-off.

Inspector Kaufman testified that he had set up with the simulator operator a situation where an engine roll-back would occur at V1 - 15 kts. During the take-off roll when this occurred, there was no call for a rejected take-off by the crew, which continued the take-off, and climbed to circuit altitude with one engine inoperative.

Mr. Kaufman testified that at that point, he decided to "salvage" the exercise by using these circumstances to carry out the required two-engine out approach.

Thus he set the weather at CAVU, selected the gear down "to avoid the necessity of the lengthy alternate gear lowering procedure required, following a two-engine failure due to the lack of hydraulics" and told the crew to set itself up for the landing.

Captain West testified that at that time they were quite surprised by the series of events, that he had the airport visually on the left side of the aircraft, that he waited for the visual display of the airport to disappear and took the timing of 15 seconds before turning to a left base while starting to descend and calling for the appropriate check lists.

As is evident from the testimony of Messrs. Kaufman, West and Hatfield, this approach was unsuccessful as the crew was rushed, did not have the time to carry out either the two-engine inoperative approach check list, nor the hydraulic failure check list associated with that, and while the crew was carrying out the approach, which Captain West testified he had decided to do without the use of flaps, and therefore was carrying a high speed (180 knots), and while reducing airspeed and power to land, the simulator crashed. Captain West testified that at that time he checked the radio altimeter and it indicated 180 feet AGL.

In his testimony, Mr. Kaufman indicated that as he felt that he had contributed somewhat to this situation, he permitted the crew to repeat the exercise which they did satisfactorily.

On the question of the roll-back below V1, there was conflicting testimony. Inspector Kaufman indicated, as noted above, that he requested from the simulator operator that this occurrence be set up at V1 - 15 knots, and that is what happened. Captain West's testimony on this question was that the failure occurred at V1. When asked by Mr. Flewelling in cross-examination about the failure of a crew to recognize an engine roll-back below V1 and not carry out a rejected take-off immediately, Captain MacDonald indicated that that would be a situation where an unsatisfactory assessment would have to be given, the issue being how close to V1 the roll-back had occurred.

When I asked Mr. Kaufman, why, if the events were as he described, he had not terminated the ride at that time and assessed a failure to the crew or at least to Captain West, Mr. Kaufman testified that, as far as he was concerned, there was no requirement in such a case for an unsatisfactory assessment. He stated that he had decided to continue the ride because this had occurred early in the ride and he wanted to continue to see the performance of the crew. It is interesting to note in that context that neither of the pilot's test report forms indicate an S/B at section 2B for rejected take-off but shows a satisfactory performance.

So we are left with a choice: either the engine was failed (rolled back) below V1 as requested by Mr. Kaufman from the simulator operator, and the crew not noticing the failure below V1 and not carrying out a rejected take-off, had continued to take-off and taken off successfully. Given this situation, Inspector Kaufman nonetheless decided not to assess a failure rating to that exercise. Alternatively, as the applicants submit, the engine failed at V1, the crew appropriately continued the take-off (which would explain the check pilot ride report at 2B which shows satisfactory assessment for the procedure), but as Inspector Kaufman had not been successful in obtaining the exercise he wanted from the simulator operator, he decided to continue on with the two-engine inoperative approach as described above.

In either case, one can draw the conclusion that at the very least, Inspector Kaufman was using a very liberal interpretation of the ACP Manual and of his duties.

On the question of the rejected take-off, the ACP Manual at sections 10.6.5 and 10.6.6 states:

Rejected Take-Off

10.6.5 For PPCs conducted in a simulator, a rejected take-off shall be completed by each crew member as appropriate to their assigned seat position.

10.6.6 Some common errors that may be observed and affect the assessment of the sequence are:

(a) failure to alert crew with the appropriate call, if applicable, e.g., "Rejecting Take-Off";

[...]

(f) failure to recognise the need to initiate a rejected take-off prior to V1;

[...]

(h) endangering the safety of passengers and crew and/or rescue personnel through improper handling of the emergency condition.

In that context, therefore, under scenario 1, that is the roll-back did occur below V1 as requested of the simulator operator, an unsatisfactory assessment should have been made:

10.2.5 A sequence shall also be rated Unsatisfactory if:

(a) in endangers the aircraft, passengers or crew;

[...]

(e) the aim of the exercise is complete but there is a major deviation from standard procedures or practices or the safety of the aircraft was jeopardised;

[...]

(g) it exceeds aircraft limitations; or

(h) the candidate demonstrates unsatisfactory knowledge of aircraft... procedures.

Alternatively, in the second scenario, that is Mr. Kaufman having not been successful in obtaining the required rejected take-off at the appropriate time, decided to salvage the exercise as he testified, and proceeded as described above to change the weather which had been at minimum (take-off with a visibility of 600 feet RVR), to CAVU, and he then selected the gear down and instructed the crew to carry out a two-engine inoperative approach having failed a second engine. However, the ACP Manual in such a case provides:

8.1 Conduct of Flight Checks in General

8.1.1 ACPs shall refrain from teaching or briefing the candidate on the correct completion of an exercise or from taking any action that will prompt the candidate to take a specific action.

Again, Inspector Kaufman was not abiding by the exact terms of the ACP Manual.

We now come to the events that would terminate the ride, which is the holding procedure at the Canarsie VOR that was given to the crew while Captain Hatfield was PF, and Captain West the PNF.

After the break had taken place, and the crew had switched seats, Captain Hatfield became the PF, and as is usual for this type of ride, the crew boarded an aircraft where there was no necessity to complete a full ramp check, the engines were running and after getting airborne and completing a number of exercises, the aircraft was eventually positioned downwind on three engines, at which point the crew noticed that #3 engine had failed. While completing the engine failure procedure associated and the associated generator fail procedure, it was noted that #2 hydraulic system had also failed. The reason for this failure was that Mr. Kaufman had pre-programmed a failure of the standby hydraulic pump. The role of the standby hydraulic pump, it appears from the evidence, is to supplement or replace the engine-driven hydraulic pump, in this case #3 hydraulic pump, in case of the failure of the engine. However, given the failure of this hydraulic standby pump, the crew was also faced now with a #2 hydraulic system failure.

Throughout all of this, the aircraft was being vectored by Mr. Kaufman to position it for the approach, and Captain West testified that at the time, with the #2 hydraulic failure check list still to be completed, he noticed from the FMS system that the aircraft was being vectored towards the localizer, inside the final approach fix. He advised Captain Hatfield of this and asked him whether he would want some delaying vectors. On this question I am quite satisfied that the version related by the two candidates is an accurate picture of the events as they transpired. Both of their recollections are to the effect that during that approach, while on radar vector towards the localizer, they asked for delaying vectors and were told to continue. At that time they intercepted the localizer above the glide slope and were in the position of having one engine inoperative as well as the #2 hydraulic system inoperative check lists to be carried out, in addition to the lowering of the gear and the identification of the unserviceable systems, but were directed by Mr. Kaufman nonetheless to continue the approach.

Captain Hatfield testified that when Captain West asked him whether he wanted delaying vectors, he answered yes and started a missed approach procedure and it is at that time that Mr. Kaufman intervened and told him to continue the approach. One can easily imagine the situation where the aircraft is in cloud, inside or close to the marker, above the glide slope, with one engine inoperative and a #2 hydraulic system failed. This may be a case where "superior skills came to the assistance of superior judgment" and one could say that it is to the credit of the crew that the aircraft was eventually landed off that approach albeit with some minor deviations from standard. Mr. Kaufman has testified that the crew tried to use air brakes and nose wheel steering during that approach and landing which were not available but it is easy to understand that in such a rushed situation reflex taking over knowledge might have prompted the PF, Captain Hatfield, to attempt the use of the air brakes and upon landing, the use of nose wheel steering although they were not available because of the #2 hydraulic system failure, and the fact that they had not had time to accomplish that check list.

Captain West testified after that exercise, and as they were setting up for the next portion of the exercise, he was by then, "angry, frustrated and confused". The stage was set for what was to transpire during the next exercise which was the holding procedure.

On the next sequence the crew had been cleared while on the ground after this landing, to take off and carry out a VOR DME 04 approach at JFK with a circling to land on runway 31R. I am quite satisfied, as Captain Hatfield has testified, that while on the ground the crew briefed for that approach, set up the radials and got ready for take-off.

It is also clear from the evidence that shortly after take-off, at somewhere around 400 feet above ground, they were given a clearance by air traffic control (Mr. Kaufman) "left turn direct to Canarsie VOR, standby for clearance to hold" (testimony of Mr. Hatfield). This clearance was immediately followed by the holding clearance which was: "hold west off the Canarsie VOR, inbound on the 090° radial, maintain 2,000 feet, expect further clearance 21:30."

Although there is conflicting testimony on this crucial question, as Mr. Kaufman testified that the holding clearance was not to hold on a 090° "radial" but in fact to hold on a 090° "heading", I am satisfied that the version of this event given by both Captains West and Hatfield should be retained.

In effect, their testimony on this was consistent and was not shaken under cross-examination. Furthermore, it is consistent with the notes taken during the course of their ride (R-12) which shows exactly that clearance being copied down. Furthermore, the testimony of the two applicants is more in line with what could be expected as a clearance, as one is never cleared to hold on a VOR, on a heading or track (which would apply to an NDB hold) but cleared to hold on a radial. Finally, Inspector Kaufman, under cross-examination, was not so sure about the clearance and admitted that he might have said "track" instead of "heading". It is also clear from the evidence of the parties, that for a number of reasons, Captain West was unable to set up that VOR hold procedure in the FMS:

1) He had difficulty in accessing the hold page, as the FMS system used in the simulator differs slightly from the FMS used in the aircraft he is used to flying, and given the rushed state of events, he found it difficult to attain that page; and

2) When he eventually got the page up, the FMS would not accept the holding clearance as had been given and copied, that is hold in the west quadrant on the 090° radial and was rejecting with an "invalid" message, the requested hold, because the wrong information was being inserted.

The evidence is clear that by then, the crew attempted through the use of raw data, to carry out the hold, that the aircraft was being flown on the autopilot and it automatically initiated a turn in an attempt to enter a hold which eventually, in this rushed and confused state, Captain West had incorrectly entered, when he was unable to correctly input the reciprocal of the 090° radial into the computer and mistakenly entered a north hold.

It is also interesting to note that, when asked in cross-examination by Mr. Hatfield the distance between the Canarsie VOR and the airport, Mr. Kaufman indicated that it was around 20 miles, when in fact it is more like six miles from the airport. Given the distance, we fall way short of section 10.8.5 of the ACP Manual which states: "The ACP must ensure that the hold is established in accordance with the ATC clearance. Speed and timing shall be in accordance with established procedures." In this case, Transport Canada's Aeronautical Information Manual (AIM)[3] states:

10.2 Holding Clearance

A holding clearance issued by ATC includes at least

(a) a clearance to the holding fix;

(b) the direction to hold from the holding fix;

(c) a specified radial, course, or inbound track;

[...]

It may be that by then Inspector Kaufman was also himself "confused, angry and frustrated". In any event that is when he decided to end the ride.

CONCLUSION

Looking at these events in this light, it is clear that none of the participants in this exercise performed to the best of their abilities and met a completely satisfactory standard as per the ACP Manual.

The purpose of this review is to determine whether the assessment of failure to both Captains West and Hatfield was justified. To do this, one must consider the overall performance of all the participants in this exercise, that is Inspector Kaufman, and the applicants Captains West and Hatfield.

I am satisfied, given the evidence, that had Inspector Kaufman been himself on an evaluation for a renewal of his authority as check pilot during the course of this exercise, he would not have met the required standard for his re-qualification that day:

  • His briefing, as discussed above, was inadequate;
  • He intervened, interrupted and got involved with the candidates in a way that was not appropriate to the conduct of such a ride;
  • He failed to set-up a suitable environment for the exercises; and
  • On the critical event that ended the ride (the holding procedure off the Canarsie VOR), he gave an inappropriate clearance to the crew which precipitated their fatal error.

On the other hand, Captain West's ride was far from perfect and he admitted to that:

1) The question of the #2 boost pump failure during the ramp check, and his failure to observe the non-extinguished light, and the discussions that ensued, and may well have set the stage for what was to follow, should not have taken the importance that it did in this ride. The evidence on this issue is contradictory. Captain West's testimony is to the effect that there is no requirement to check that light until the before take-off check, and that seems to be corroborated by R-13, the Falcon 50 normal pilot check list. However, Mr. Kaufman's evidence is to the contrary, and in support of that, Mr. Flewelling proposes M-7 which is an excerpt from the Falcon 50 airplane flight manual, under normal procedures, engine pre-start check, which shows "engine 2 boost pump switch on, fuel 2 light out";

2) On the question of the use of air foil anti-icing systems, the evidence shows that on this aircraft (M-14 and M-15) the use of air foil anti-ice is required when the aircraft is in cloud, but the evidence was to the effect that Captain West had turned the anti-ice on after he recognized that he was in cloud, a couple of minutes after take-off. Given the circumstances of a simulator ride, the situation should probably have been a non-event and have been rated as satisfactory;

3) The question of the failure of the crew to know the reasons for the standby hydraulic pump being on during the ramp check is the type of question that should probably have been examined if not during briefing (as it relates to an element that should be seen during the walk-around portion of the pre-flight check of the aircraft), at least should only have been discussed during the debriefing after the ride, and again would not have contributed to setting the stage for the atmosphere that obviously prevailed throughout this simulator ride;

4) On the question of the air brake use during the approach, and the failure of the PF to advise the PNF of their use, there appears to be no such requirement in the SOPs, as discussed above;

5) The missed approach procedure, which was rated as unsatisfactory, should have had a rating of satisfactory with briefing. Although the procedure was definitely not "as per the book", it was more a question of timing, that is the delaying of the retraction of the gear and speed brakes, that was at issue; Mr. Kaufman testified that, under the circumstances, Captain West had certainly done a good job of maintaining control of the aircraft. This is further corroborated by the fact that the ride was permitted to continue and that it was only in retrospect, after the failure had been assessed on the holding procedure during the ride of Captain Hatfield, that an assessment of failure was given to this portion of the exercise; and

6) As far as the two-engine out approach is concerned, it has been discussed at length above; suffice to say, it was obvious that this was a rushed exercise, that no time was given to the crew for set-up and that they were actually left to their own devices. As experienced pilots will know, there is nothing worse for a crew than trying to second guess what the instructor (or check pilot) wants. Under the circumstances, it is not surprising that the aircraft ended up being fast on approach. In any event, once again, at the time, the assessment was not a failure, the ride not terminated at that time and this exercise was repeated successfully.

From the point of view of Captain Hatfield the wrong failure assessment is even clearer:

1) The unsatisfactory evaluation for handling of the #2 hydraulic failure with an associated engine failure (a case of multiple unrelated failures) has been discussed, and it is clear that the candidates should never have been put in this situation (radar vectoring close to or inside the final approach fix with hydraulic failure and associated engine failure), and this exercise should not have been rated at all, and at worse given an S/B; and

2) As far as the holding procedure was concerned for both Captains West and Hatfield given the wrong clearance issued, the time compression where the clearance was given airborne immediately after take-off when the aircraft radios had been set up for a different type of approach (the VOR 04 L at Kennedy with circling for 31 R) and a clearance issued right after take-off at 400 feet for a holding clearance to a holding fix which was barely six miles away, the difficulty the crew had in establishing a proper hold is quite understandable.

Finally, on the question of the failure to communicate for both pilots, that failure is hard to assess, but given the circumstances of the ride as it has been reviewed above, the difficulties encountered are easier to understand.

The ACP Manual provides the standards and procedures that must be abided by all check pilots, and promotes and requires the establishment of a working environment during check rides that will help the candidates to demonstrate their competence to the best of their abilities. The check pilot is charged with setting up such a professional atmosphere and that starts right at the outset, at briefing time. Mr. Kaufman was obliged to set a competent and professional, and should I say, "neutral" atmosphere which would enable the candidates to perform to the best of their abilities.

That is why the ACP Manual mandates a pre-flight briefing which is thorough (the manual mentions at least 12 items) which will permit the setting up of this professional atmosphere and appropriate communication between the candidates and check pilot. That is why the candidates should be briefed on the weather conditions expected (as well as icing condition possibilities), the idea being to simulate as much as possible:

(a) To use Mr. Flewelling's term a "real life" scenario. That is why the manual mandates that the briefing should include for example "that if the runway environment is seen at DH... then the crew should land";

(b) That the crew should treat all malfunctions as real... that normal crew coordination is expected... and that an emergency situation caused by an incorrect or an inappropriate action or response on the part of the candidate will not be corrected by the ACP;

(c) That multiple unrelated failures will not be required; and

(d) That if the crew requires more time to complete check lists or briefings that they should ask for a hold or delaying vectors in that the ACP will make every effort to accommodate the request.

Captain West certainly deserved some S/Bs on this ride but section 9.1.4 of the ACP Manual states: "[a] PPC for which all sequences have been assessed as "S" or "SB" must receive a General Assessment of "Pass", regardless of how many sequences have received "SBs".

Captain Hatfield can be faulted even less here.

The failed points are for:

1) confirming and attempting to fly an incorrect hold procedure;

2) the lack of communication; and

3) the failure to handle properly a #2 hydraulic failure.

Reviewed in the context of the evidence and discussion above, there is no doubt in my mind that, at worst:

1) the failure to communicate (7D); and

2) the handling of #2 hydraulic failure in conjunction with a #3 engine failure, given the circumstances described above, merit at worst an S/B.

As far as the hold procedure is concerned, the crew should never have been put in that situation, and the exercise should at least have been repeated.

As far as the two SBs are concerned:

  • initiating a turn at 800 feet, the evidence is that the turn was of less than 10°, and when appropriately called by the PNF, he corrected immediately. That is the idea behind the "crew concept" and it should have been rated satisfactorily.
  • As far as the handling of the #2 hydraulic system failure and his attempted use of systems that were unavailable is concerned, his performance is understandable given the rushed state of events and at worst merited an S/B assessment, as discussed above.

DETERMINATION

For all of the above reasons, this file should be referred back to the Minister for review of its decision to refuse to renew the PPC/IRT of both Captain West and Captain Hatfield.

I thank the parties for an exceptionally well-prepared presentation of their respective cases.

April 27, 2006

Pierre J. Beauchamp
Member
Transportation Appeal Tribunal of Canada


[1] Approved Check Pilot Manual forward (Exhibit R-6).

[2] See ACP Manual, section 10.2.1.

[3] The A.I.P. is to the same effect at the same section.