Decisions

TATC File No. O-3150-59
MoT File No. 5802-344179

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Russell Callan, Applicant

- and -

Minister of Transport, Respondent

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


Review Determination
William H. Fellows


Decision: November 7, 2005

The suspension of Russell Callan's Class IV instructor rating on May 19, 2005 is upheld in accordance with paragraph 7.1(1)(b) of the Aeronautics Act.

A review hearing on this matter was held Tuesday, September 27, 2005 at 10:30 hours, at the JPR Arbitration Centre, Toronto, Ontario.

BACKGROUND

Pursuant to paragraph 7.1(1)(b) of the Aeronautics Act, the Minister issued a Notice of Suspension of Mr. Callan's Class IV instructor rating.

Mr. Callan's suspension became effective May 19, 2005 and was ordered to remain in effect until adequate proficiency was demonstrated in a subsequent flight test.

This is a compliance issue, in that Mr. Callan's Class IV instructor rating was suspended based on his failure to meet departmental standards for technical and proficiency requirements during a re-certification flight test conducted by a Designated Flight Test Examiner (DFTE), Mr. Paul Spiers, at Buttonville Airport on May 19, 2005.

THE LAW

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

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
[...]

Subparagraphs 401.06(1)(b)(iii and v) of the Canadian Aviation Regulations (CARs) states:

Subject to section 6.71 of the Act, the Minister shall, on receipt of an application submitted in the form and manner specified in the personnel licensing standards, issue a flight crew permit or licence to the applicant or endorse the applicant's flight crew permit or licence with a rating if the applicant provides documentation to the Minister that establishes

[...]
(b) that the applicant meets the applicable requirements set out in the personnel licensing standards in respect of
[...]
(iii) knowledge,
[...]
(v) skill.

Subsection 401.17(1) of the CARs states:

Where, during a flight test, the holder of a rating fails to meet the requirements specified in the personnel licensing standards for the lowest class of that rating, the Minister shall suspend the rating.

Section 405.14 of the CARs states:

Flight training that is conducted using an aeroplane or helicopter shall be conducted in accordance with the applicable flight instructor guide and flight training manual or equivalent document and the applicable training manual on human factors.

PRELIMINARY ISSUES

The Minister's Case Presenting Officer, Mr. Duncan Chalmers, requested that the Minister's two witnesses, Mr. Paul Spiers and Ms. Maureen Weber, be qualified as expert witnesses. When questioned, Mr. Chalmers confirmed they would also be providing witness testimony with respect to details of the matter before the Tribunal.

Given these two witnesses were also providing testimony as to specific observations and details of this matter, I was required to exclude one or the other from the hearing until the Minister's first witness had completed testimony. After being sworn in, the witnesses spoke to their credentials, as follows:

  • Mr. Spiers is a Civil Aviation Safety Inspector with Transport Canada, based at Buttonville Transport Canada Centre (TCC) office. He holds an Airline Transport Pilot (ATP) licence, a Class I instructor rating, has conducted over 500 flight tests as a DFTE, and has approximately 10,000 hours flight experience on a wide variety of aircraft types.
  • Ms. Weber is Superintendent, Safety Oversight Operations at the TCC Office at Buttonville. She holds an ATP licence, a Class I instructor rating, has conducted several thousand flight tests during her career with Transport Canada, and has extensive experience on a wide variety of aircraft types.

The applicant did not dispute either Mr. Spiers' or Ms. Weber's qualifications. I allowed them as expert witnesses.

THE MINISTER'S CASE

Mr. Chalmers presented photocopied excerpts from the Aeronautics Act; CARs; Transport Canada Flight Test Guides (Instructor Rating and Commercial Pilot); and a Transport Canada information publication for use by pilots preparing for flight instructor ratings.

These documents cannot be considered as evidence as they are public knowledge. They provide information regarding rules and standards applicable to the matter but do not speak directly to circumstances in the Minister's allegations. Certain excerpts from these documents were referred to during these proceedings.

Minister's First Witness

Mr. Chalmers called Mr. Paul Spiers, the DFTE for Transport Canada, who conducted the re-certification flight test for Mr. Callan, and who issued the Notice of Suspension of Mr. Callan's Class IV instructor rating.

Mr. Chalmers asked Mr. Spiers to comment on Mr. Callan's Flight Test Report.

I allowed a photocopy of this report as Exhibit M-1. Mr. Chalmers had the original of this document at this hearing for verification of authenticity.

Mr. Spiers reviewed departmental standards, policies, and procedures used by Transport Canada examiners for instructor flight tests, as follows:

The examiner begins with a ground briefing with the candidate. Terms of reference are given regarding conduct of the test, and the examiner identifies a specific lesson from the Student Pilot Training curriculum. This lesson is then conducted by the candidate and assessed by the examiner. This flight test requires about four hours, and is comprised of three phases, as follows:

  1. Pre-Flight. The candidate must demonstrate ability to properly plan and organize the lesson, do the appropriate ground instruction, and conduct a pre-flight briefing with a student.
  2. In-Flight. The candidate is required to demonstrate flight proficiency in performing air exercises for the specified lesson. The candidate must satisfactorily demonstrate ability to teach these air exercises to a student.
  3. Post-Flight Debriefing. The candidate is required to conduct an acceptable review of student performance.

There are several exercises within each phase of a lesson. Each exercise is graded either "Pass" or "Fail".

"Pass" is further graded as Level 1, 2, or 3; 1 being the highest achievement and 3 being the lowest.

Standards of performance for in-flight exercises performed by the candidate are the same as those in the Flight Test Guide – Commercial Pilot.

The lesson chosen for Mr. Callan's flight test was Lesson Plan No. 5, from the Transport Canada Private Pilot Training Syllabus, required for use by instructors. This lesson, among other things, teaches proper flight technique to achieve precise aircraft control during slow flight, to recognize the onset of slow flight and avoid an inadvertent stall. Certain other in-flight techniques are also demonstrated, such as approach and landing over a 50-foot obstacle.

Mr. Spiers spoke to evaluations listed on Mr. Callan's Flight Test Report, Exhibit M-1.

Mr. Callan's evaluation in Phase 1, the Pre-Flight component, was graded as "Pass" for the three exercises therein. All three exercises were graded a Level 3 achievement.

Mr. Callan's evaluation in Phase 2, the In-Flight component, was also comprised of three exercises, as follows:

  • Exercise (a), Flight Proficiency, was graded "Fail", with the following remarks: "Touched down 75' short of specified. Tires skidded when brakes were applied. Due to excessive landing speed."
  • Exercise (b), Teaching Proficiency, was graded "Fail", with the following remarks: "Did not review range & endurance prior to teaching slow flight, ineffective demonstration of slow flight. Used power reduction to enter from endurance."
  • The final phase of the test was not performed nor graded, as Mr. Callan failed two previous exercises, and this was deemed sufficient to assess the entire test as "Fail". Mr. Callan's Notice of Suspension as a Class IV instructor was issued at the conclusion.

Mr. Chalmers presented photocopies of Mr. Spiers' handwritten notes on Mr. Callan's flight test.

I allowed these photocopies as Exhibit M-2 and confirmed originals were available at this hearing for verification of authenticity.

When questioned regarding his notes, Mr. Spiers stated these were his observations on how Mr. Callan performed the flight test exercises. These were made as the flight test progressed. Mr. Chalmers requested further explanation of these notes as applied to the two exercises assessed as "Fail".

  • In his demonstration of transition from endurance to slow flight, Mr. Callan did this by first reducing power. The approved technique is to first raise the aircraft nose to reduce airspeed, then add power to maintain level flight and altitude. Techniques for entering slow flight are shown in Flight Test Guide – Commercial Pilot Licence, Aeroplane, page 14, and in the Transport Canada Flight Training Manual – Exercise 11.
  • In demonstrating an approach and short field landing over a 50-foot obstacle, Mr. Callan landed 75 feet short of a touchdown point previously agreed upon during the pre-flight phase of this flight test.

Mr. Callan had been instructed to touch down on the first hash marks 100 feet past the numbers, on Runway 15. However, during the approach, Mr. Spiers issued further instructions to exit taxiway Alpha, approximately 1,300 feet from the runway threshold, as there was an aircraft holding on the next taxiway B-1. Mr. Callan landed just past the numbers, 75 feet short of the designated touchdown point. Mr. Callan applied the brakes aggressively so as to lock up wheels and skid. Distance tolerances in this exercise are shown in the Flight Test Guide – Commercial Pilot Licence, Aeroplane, pages 20 and 21, (+ 100 feet/ – 50 feet), thus the result exceeded the allowed tolerance. Mr. Spiers stated the approach speed of 60 knots was also a contributing factor and was excessive.

Mr. Chalmers asked to have a photocopy of Mr. Callan's Notice of Suspension entered as evidence.

I allowed this photocopy as Exhibit M-3 and confirmed the original was available at this hearing for verification of authenticity.

Cross-Examination

Mr. Callan questioned Mr. Spiers' definition of proper technique to enter slow flight from endurance. Mr. Callan expressed concern that raising the nose would cause excessive climb, and asked if a power increase would cause the aircraft to climb beyond tolerances. Mr. Spiers agreed, if raising the nose was done quickly while power was added, this would happen. Mr. Callan stated the reason he reduced power in his demonstration was to avoid excessive climb, and maintain altitude.

Mr. Callan stated he had been told by another Transport Canada Safety Inspector that there were two schools of thought on the technique of entering slow flight. This discussion had allegedly occurred in a previous re-certification test for Mr. Callan, sometime in the past.

Mr. Callan questioned Mr. Spiers about his comments on the approach and landing techniques he had used during the test.

Mr. Callan challenged the allegation that an approach speed of 60 knots was excessive, stating that it was specified in the Pilot's Operating Handbook (POH) for short field landing over a 50-foot obstacle. Mr. Spiers maintained the POH advisory was a guideline, and the proper formula for determining approach speed should be used. Mr. Callan noted the skid on touchdown resulted from his attempting to slow the aircraft to exit an assigned taxiway safely. Mr. Spiers agreed the aircraft was in control during the landing rollout, and the skid did not create any control problems.

Mr. Callan maintained that he had originally been directed to touch down on the first hash marks past the numbers, but Mr. Spiers substantially changed this directive on final by instructing Mr. Callan to exit at taxiway Alpha. Given what he felt was reduced distance available, Mr. Callan as pilot-in-command (PIC) made a decision to land short in order to slow the aircraft and exit safely.

Mr. Spiers agreed that he issued those instructions on final approach, but stated there was adequate landing and rollout distance from the original touchdown point to taxiway Alpha if proper technique was used. The landing distance available was estimated at 1,300 feet. This is within the published capabilities of the C-172 aircraft used during the test.

Mr. Callan questioned two crossed-out areas on page 8 of Mr. Spiers' notes. Mr. Spiers responded that he did not recall what he had crossed out, nor why he had done so.

Redirect

Mr. Chalmers asked Mr. Spiers to provide a detailed explanation for both rationale and proper techniques for performing the maximum endurance and slow flight exercises. Mr. Spiers' presentation was consistent with his earlier testimony regarding these exercises.

Mr. Chalmers questioned Mr. Spiers about an approach speed of 60 knots being excessive during this landing exercise. Mr. Spiers responded that 60 knots was higher than a properly calculated speed, but would allow a safe landing, given distance available to exit taxiway Alpha from the originally specified touchdown point.

Mr. Chalmers asked at what point during the test had Mr. Spiers crossed out two areas in his notes, and Mr. Spiers responded that he had done so while in flight.

Minister's Second Witness

Mr. Chalmers called Ms. Maureen Weber, Superintendent, Safety Oversight Operations, at the Buttonville TCC.

Mr. Chalmers presented a photocopy of a two-page letter from Mr. Callan to Ms. Weber dated May 27, 2005. I allowed this as Exhibit M-4, and confirmed the original was available at this hearing for verification of authenticity.

Mr. Chalmers asked Ms. Weber to explain circumstances regarding this letter, with particular attention to handwritten notes in its margins. Ms. Weber stated that following receipt of the letter, she arranged a meeting with Mr. Callan, Mr. Spiers and herself. The purpose of this meeting was to review complaints regarding his suspension, which were listed in Mr. Callan's letter. The handwritten notes were those made by Ms. Weber during the meeting.

Mr. Callan's complaints involved a variety of issues summarized as follows:

(a) Concerns about staff behaviour and unfriendly atmosphere at the Buttonville TCC;

(b) Conduct of his rating renewal flight test by Mr. Spiers; and

(c) Comments made on his Flight Test Report.

Based on Ms. Weber's account of this meeting, I am satisfied that Mr. Callan's concerns about item (a) were addressed and explained to Mr. Callan satisfactorily. However, it was evident that Mr. Callan's concerns in items (b) and (c) were not resolved to his satisfaction.

Ms. Weber explained that she was not able, for Transport Canada policy reasons, to re-assess Mr. Callan's flight test, and informed him that he had two options; namely, to schedule another flight test, or appeal the results of his May 19, 2005 test with the Transportation Appeal Tribunal of Canada (TATC).

Cross-Examination

Mr. Callan stated that his understanding of the meeting with Ms. Weber was off the record because she had used the term "without prejudice" at the outset. He restated the purpose of his letter was to make Ms. Weber aware of his discomfort with certain actions by staff at the TCC. Interruptions in his pre-test briefing, background noise, close quarters in the briefing room, etc. were issues that he felt had negatively affected his flight test performance.

Redirect

Ms. Weber confirmed approximately 300 flight tests had been done at Buttonville Airport during her tenure as Superintendent there.

THE APPLICANT'S CASE

Mr. Callan, representing himself, spoke to his actions and Mr. Spiers' performance evaluation during his flight test.

He suggested incremental reduction in power from cruise to endurance compromises safety. The HASEL check is done prior to commencing the exercise. By taking too much time going through increments of power reduction, the aircraft travels beyond the area where the HASEL check occurred.

Mr. Callan then discussed remarks on his Flight Test Report about excessive approach speed or 60 knots during his landing exercise. He stated that not only does the POH for the aircraft used – Cessna 172 – shows 60 knots as a recommended speed, but the landing performance examples in the Ground Up training manual also confirm this speed as acceptable. Mr. Callan then explained why he decided to land on the numbers instead of the hash marks 100 feet past the numbers. He stated that the touchdown point had been designated initially as 100 feet past the numbers during the pre-flight briefing for this test. However, on final approach, he was directed by Mr. Spiers to exit the runway at taxiway Alpha. Mr. Callan understood this to mean that a revised instruction was issued which reduced landing distance, thus he made a PIC decision to land short, ensuring the aircraft had adequate rollout distance to clear at the designated taxiway.

Cross-Examination

Mr. Chalmers asked Mr. Callan how endurance speed is attained. Mr. Callan's response was that power be reduced in 100 rpm increments from a starting point of approximately 1,800 rpm until the aircraft can no longer maintain straight and level flight, then increase power slightly to maintain level flight.

Mr. Chalmers challenged Mr. Callan's concerns about HASEL checks becoming invalid if power reduction to endurance speed takes too long. Mr. Callan stated that it was advisable to do the exercise as close as possible to where the HASEL check occurred.

Mr. Chalmers asked Mr. Callan to explain the importance of slow flight training. Mr. Callan's response did not include every reason listed in the Transport Canada Flight Training Manual, but he did explain a very important issue in that it teaches the student to recognize the aircraft is nearing a stalled condition.

Mr. Chalmers challenged Mr. Callan's explanation on why he had approached at 60 knots instead of choosing a more appropriate or slower speed using a formula considering aircraft weight, density altitude, and other existing conditions. Mr. Callan repeated his contention that the POH recommendation was adequate for this exercise.

Mr. Chalmers concluded his cross-examination by asking Mr. Callan how he felt existing conditions (weather, aircraft weight, runway, etc.) are taken into consideration during a flight test. Mr. Callan used as an example how approach speeds should be adjusted for gusty wind conditions. Mr. Callan continued by stating his decision to land short was because conditions had changed when he was asked to clear at Alpha and would not have been able to clear there if he had landed further down the runway.

Redirect

Mr. Callan re-emphasized that his approach to land was within guidelines, done safely, and he had made a PIC decision and landed short to allow a safe rollout distance for exiting at the taxiway as instructed.

CLOSING ARGUMENTS

Mr. Chalmers submitted that reasons for the suspension of Mr. Callan's Class IV instructor rating were valid, proven, and the exercises in question did not meet departmental standards.

Mr. Callan chose not to present any final arguments.

ISSUES

Was the Minister justified in suspending Mr. Callan's Class IV instructor rating based on the evaluation and results of his flight test?

Was Mr. Callan's flight test conducted fairly and professionally, in an objective and unbiased manner, and were there any extenuating circumstances not taken into consideration by the examiner?

DISCUSSION

There is no dispute in testimony by either side that two failed exercises noted by the examiner during Mr. Callan's flight test occurred as alleged.

In one instance, Mr. Callan's demonstrated procedure for the transition from endurance to slow flight did not correspond with departmental standards. Mr. Callan reduced power to enter slow flight, and did not first raise the nose of the aircraft to reduce air speed. Mr. Callan stated he felt raising the nose would cause the aircraft to climb above altitude tolerances for the manoeuver, and reducing power would prevent this. Mr. Callan further confirmed his rationale on slow flight entry in his complaint letter to Ms. Weber, Exhibit M-4, wherein he stated: "How else can you confirm a power setting for maximum endurance for the conditions without reducing power and entering slow flight?" Given that Mr. Callan may indeed feel that the slow flight procedure he is expected to teach may be wrong; where the published expectations speak, they speak with authority.

I believe Mr. Callan should have performed the slow flight procedure as directed according to published standards, knowing that a "Pass" evaluation on this procedure could be jeopardized if he did not do so. I also question why he did not express his concerns at the pre-flight briefing. Clearly, the Minister's assessment of "Fail" on the slow flight entry procedure was appropriate.

Neither party disputes that Mr. Callan's demonstration of an approach and short field landing over a 50-foot obstacle resulted in a touchdown point 75 feet short of the spot designated by his examiner. This result was beyond an acceptable tolerance of plus 100 feet or minus 50 feet, as defined in the Flight Test Guide – Commercial Pilot Licence, Aeroplane, pages 20 and 21.

During the pre-test briefing for this exercise, the examiner specified a touchdown point 100 feet past the numbers, on the first set of hash marks. I believe this was clearly understood by Mr. Callan at that time.

Later, during the approach to landing for this exercise, the examiner introduced a further instruction that Mr. Callan exit at taxiway Alpha, because of another aircraft holding short on the next taxiway B-1. Mr. Callan stated in testimony and in Exhibit M-4 that he misunderstood and assumed this instruction to be a change from the original. Based on his assumption, and the fact that he was PIC during the test, he decided to land on the numbers, thus allowing sufficient landing roll to clear safely at taxiway Alpha.

There may indeed have been a misunderstanding by Mr. Callan which may have led him to interpret runway exit instructions as ambiguous. However, this brings about the question as to why Mr. Callan did not immediately ask his examiner for clarification.

The Buttonville Aerodrome chart shows landing distance available to Mr. Callan was approximately 1,300 feet. As an instructor on C-172 aircraft, Mr. Callan should know whether or not available landing distance is sufficient, and express any concerns if he felt it was inadequate. Furthermore, the Flight Test Guide – Commercial Pilot Licence, Aeroplane, page 20, allows an overshoot for a second attempt if the candidate realizes a short field landing may not be achieved using the intended touchdown point.

Mr. Callan had two viable options during this exercise which he should have considered but did not. His failure to act on either option and proceed with the exercise improperly, resulted in a "Fail" assessment by his examiner. Therefore, I agree the Minister's decision was appropriate in this instance.

I do not, however, agree with the examiner's remarks in Exhibit M-1 regarding Mr. Callan's landing performance. A 60-knot approach speed should not be regarded as excessive when the POH for the aircraft suggests it; a wheel lock-up and skid is allowed in the Flight Test Guide "provided it is not excessive".

Regardless, having considered results of Mr. Callan's performance of the two flight test exercises assessed as "Fail", I concur with the examiner. Standards of performance for both exercises are well known and established practices. On one hand, Mr. Callan may have opinions on how he feels they should be performed, but a Transport Canada flight test is not the time nor is it the place to execute his opinions. If, on the other hand, Mr. Callan felt his landing instruction was ambiguous, he should have attempted to clear this up, rather than interpreting it as he did.

The question then becomes, in context of all of the exercises performed throughout the entire re-certification process — Were the two instances assessed as "Fail" sufficient to warrant suspension of Mr. Callan's Class IV instructor rating?

To answer this question, on examination of Exhibit M-1, specifically grades of "Level 3" assessed on all remaining test elements, it is evident that Mr. Callan's overall performance for all other elements was, at best, marginally acceptable.

Furthermore, on examination of Exhibit M-2, it is evident the examiner's notes validate those grades awarded on Mr. Callan's Flight Test Report.

In my opinion, in the context of the overall assessment, the two failed exercises were therefore sufficient to warrant the examiner taking the action he did, namely suspension of Mr. Callan's Class IV instructor rating.

DETERMINATION

I find the suspension of Russell Callan's Class IV instructor rating on May 19, 2005 is upheld in accordance with paragraph 7.1(1)(b) of the Aeronautics Act. The Minister has proven that Russell Callan failed to meet departmental standards for technical and proficiency requirements during a re-certification flight test conducted at Buttonville Airport on May 19, 2005.

Mr. Callan's suspension shall remain in effect until adequate proficiency is demonstrated in a subsequent flight test.

November 7, 2005

William H. Fellows
Member
Transportation Appeal Tribunal of Canada