TATC File No. O-3093-60
MoT File No. 303451
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
First Officer Kelly Lee Shaw, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C., c. A-2, ss 7.1(1)(b)
Quick Reference Handbook (QRH), pilot flying (PF), Engine Indicating and Crew Alerting System (EICAS), company check pilot (CCP), Canadian aviation document(CAD)
John D. Issenman
Decision: April 25, 2006
I do not confirm the company check pilot's decision and the resulting Minister's Notice of Suspension and refer the matter back to the Minister for reconsideration.
A review hearing on these matters was held Thursday, April 28, 2005 at 10:00 hours, at the Federal Court of Canada, in Toronto, Ontario.
A review hearing was requested by Captain Warren Richard Young and First Officer (FO) Kelly Lee Shaw following a suspension of a Canadian aviation document by the Minister of Transport who alleged that Captain Young and FO Shaw unsuccessfully completed a pilot proficiency check (PPC), pursuant to paragraph 7.1(1)(b) of the Aeronautics Act.
Captain Young and FO Shaw were the two pilots undergoing their PPC in the flight simulator during which the alleged unsuccessful ride took place. It was for that reason the files were heard together.
The facts, evidence and testimony presented for both cases are identical.
This hearing officer believes that all of the witnesses who testified presented an honest and accurate account of the facts as they believed them to be at the time. Notwithstanding this, many of the facts themselves present such a wide gap from both an interpretation and continuity perspective that, on a balance of probabilities, it is impossible to support the Minister's allegation.
The reasons for this determination are identical for both the Shaw and Young cases.
Both pilots were in simulator number 5 at the Air Canada training facility in Toronto on December 16, 2004 after being briefed by company check pilot (CCP) Captain Hilts (with TC Inspector Clark present) that their PPC ride was to be conducted in accordance with Transport Canada's approved script C-1 which determined the activities to be undertaken during that ride (Exhibit M-1).
Captain Hilts and Inspector Clark were then in the simulator along with Captain Young and FO Shaw.
The alleged unsuccessful ride resulted from the crew's response, or lack thereof, to the introduction of a malfunction in the simulator where an indication of "CARGO OVERHEAT" became evident on the Engine Indicating and Crew Alerting System (EICAS) immediately following the crew's successful recovery from an engine failure. Captain Young was the pilot flying (PF) at the time and FO Shaw was the pilot not flying (PNF):
PNF: 'pilot not flying', which, in a multi-crew aircraft, is the pilot, part of the crew, who does not manipulate the flight controls; his/her function is to support the PF (pilot flying) in the execution of the tasks and functions required of the two-pilot crew.
At no time during the PPC ride did CCP Hilts advise either pilot that they had failed. On the contrary, following the crew's response to the cargo overheat indication, CCP Hilts, in both his testimony and hand-written notes taken during the ride (Exhibit M-7), advises the crew that the simulator equipment itself may have experienced a malfunction related to the cargo overheat indication. TC Inspector Clark however, did, during the flight (according to both hers and CCP Hilts' testimony), inquire of the latter his thoughts on the crew's handling of the situation involving the cargo overheat indication.
Immediately following an uneventful landing after the cargo overheat situation, the crew was left alone and took a break. It was during this break that CCP Hilts and TC Inspector Clark discussed the alleged unsuccessful ride prior to the pilots returning from their break.
Prior to a detailed review of the alleged actions or inactions by the crew, it is important to note that both Captain Young and FO Shaw were notified of their failed ride for the first time in a discussion that followed a coffee break after their ride.
Formal notification of the failed PPC came in the form of letters, placed in the respective mail slots of the pilots at their Air Canada facilities in Toronto and Richmond, B.C.
Paragraph 7.1(1)(b) of the Aeronautics Act states:
7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that
(b) the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfill the conditions subject to which the document was issued, or
the Minister shall, by personal service or by registered or certified mail sent to the holder or the owner or operator of the aircraft, airport or facility, as the case may be, at their latest known address, notify that person of the Minister's decision.
Clearly the insertion of a letter in the mail slot of an employee at their place of work does not appear to meet the requirement of the paragraph noted above.
No evidence was ever given by TC Inspector Clark indicating that CCP Hilts had failed to inform the crew of their unsuccessful PPC in a timely manner (when the alleged failure occurred, effectively terminating the ride), nor was evidence ever presented that CCP Hilts had done anything incorrect. This is not to say that CCP Hilts did anything incorrect.
It is simply pointing out the fact that if nothing the crew did was serious enough to stop the ride resulting from their response to the cargo overheat warning, and nothing was done to the CCP who allowed the ride to continue, and given the CCP's comments to the crew that the malfunction may have been in the simulator equipment itself, it is hardly worth noting after a prolonged absence from the simulator that the crew's response resulted in a failed ride.
In Exhibit D-1, the EICAS section describes the warning in question as an advisory that requires action when time is available. Clearly this appears to be within the exclusive purview of the crew, who are tasked with prioritizing what to deal with and when. Notwithstanding this lowest of warning levels of the three that could possibly occur as a result of this type of situation, the CCP advised the crew that the fault may in fact be the equipment in the simulator itself, and not an indication of a system problem in the aircraft (simulated).
In his testimony as well as in his notes entered as Exhibit D-2 at page 1, third to last and second to last bullets, CCP Hilts refers to the Quick Reference Handbook (QRH) and the steps to be taken when the crew becomes aware of the cargo overheat warning. The first of those two bullets is the QRH call for one action "Cargo Heat Switch (if not required) - OFF". The next bullet is self-explanatory, and demonstrated the FO checking twice to see if, in fact, the event was worse than the lowest priority advisory for that situation. It appears as though the FO monitored the next possible escalation of the situation by looking for the warning "Cargo Fire Indication" that would illuminate if things got worse.
The same bullet indicates that "no decision was made". Given the fact that the crew had just experienced and successfully recovered from an engine failure on take-off and was being vectored (directed by air traffic control) to an immediate landing, and the combined facts that it was only 2 degrees outside (Exhibit M-1 — page 4 of 30) and the "Cargo Heat Switch (if not required) - OFF" is an option, when time is available (and the fault itself was explained by the CCP as a possible (non-aircraft) system malfunction, it appears that the FO did in fact make a number of decisions that even in hindsight contributed to the safe landing of the aircraft.
The Air Canada B767 Sim document (Exhibit M-1) referred to throughout the testimony given by the parties includes inconsistencies (page 3 of 30) and elsewhere that still use the terms: S = satisfactory, SB = satisfactory with briefing, and U = unsatisfactory despite the fact that the PPC forms used by TC and Air Canada (Exhibit M-10) no longer have any of those definitions, columns or entries printed on them. They now use a numerical (1-4) system.
In the weeks and months that followed the subject PPC ride, numerous e-mails between the CCP and technical support personnel were exchanged to try and get a clearer understanding of what actually happens when the subject advisory regarding cargo overheat is given (Exhibit M-9).
The lack of specificity and clarity with respect to the possible scenarios that could cause/result in the type of advisory experienced on the subject PPC ride, highlight the reason(s) why the CCP himself may have believed there existed a system fault in the simulator resulting in his comments to the crew.
The burden of proof is on the Minister to substantiate the alleged unsuccessful PPC ride, and, after considerations of fairness and natural justice, and a thorough review of the relevance, reliability and weight of the evidence and testimony, on the balance of probabilities, I do not confirm the CCP's decision and the resulting Minister's Notice of Suspension and refer the matter back to the Minister for reconsideration.
April 25, 2006
John D. Issenman
Transportation Appeal Tribunal of Canada
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