TATC File No. O-3285-27
MoT File No. 5802-811784
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Philip Gregory Childerhose, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, S.C., c. A-2, subsection 6.71(1)
flight test, fairness and natural justice, errors, class 4 instructor rating, Canadian aviation document (CAD)
John D. Issenman
Decision: December 5, 2006
 A review hearing in the above matter was held Friday, September 29, 2006, at 9:50 a.m. at the Sheraton Gateway Hotel, in Toronto, Ontario.
 A review hearing was requested by Philip G. Childerhose following the refusal to issue a Canadian aviation document by the Minister of Transport who alleged that Mr. Childerhose unsuccessfully completed a flight test, pursuant to subsection 6.71(1) of the Aeronautics Act. Mr. Childerhose was undergoing his flight test for a class 4 instructor rating during which the unsuccessful ride took place.
 I am of the view that the witnesses who testified presented an honest and accurate account of the facts as they believed them to be at the time. Different views of the subject flight were expressed in evidence, as well as conflicting interpretations of the notes taken by the inspector during the flight test.
 Despite the fact that some of the documents submitted by the Minister were not the most recent versions available, the same or more stringent standards relating to the flight limits allegedly exceeded by the applicant were in effect at the time of the flight test. On a balance of probabilities and given the fact that limits were exceeded, the Minister's assessment is supported.
 While attempting to obtain a class 4 instructor rating by taking a flight test conducted by Inspector Duncan Chalmers on July 11, 2006, the applicant failed to meet the assessment standard set out at page 5 of the Flight Test Guide, Flight Instructor Rating, Aeroplane, Helicopter, Aerobatic (exhibit M-4) according to the flight test report (exhibit M-2). During the test, the inspector noted several occasions on which the applicant exceeded the maximum allowable error for a number of manoeuvres (exhibit M-3).
 According to the applicant's assessment/interpretation (exhibit D-1) of the inspector's notes (exhibit M-3) and as noted in his presentation, his flight test was successfully passed as a result of only having exceeded the altitude maximum allowable error. He further stated that the number of major errors necessary for a flight test to be considered a failure was greater than one, given the plural use of the word "errors" on page 5 of the Flight Test Guide (exhibit M-4). The inspector determined that sufficient failures to meet the standards resulted in the failed flight test as evidenced in the flight test report.
 The repeated failure by the applicant to remain within the 100-foot allowable error during the manoeuvres appears to meet the criteria established for the plural use of the word "errors". In addition, the notation in the inspector's notes (exhibit M-3) regarding excessive roll-out beyond the allowed 10 degrees further substantiates the inspector's assessment that the errors committed during the flight test exceeded the maximum allowable from both the quantitative and qualitative perspectives.
 It appears clear from the entries in the inspector's notes taken during the subject flight test that a number of errors were made, sufficient in number and severity to warrant the failed result.
 While the notes may have been clearer and more definitive and the exercises listed in the flight test report more detailed, the standard of flight manoeuvres expected to be successfully demonstrated by an instructor appears to have not been met.
 The applicant admits that the altitude error limit was exceeded on several attempts for one manoeuvre. The inspector demonstrated the proper skills required to successfully complete another. These alone or in combination led the inspector to the conclusion that the applicant did not meet the standard for the issue of a class 4 instructor rating.
 The ride might have been terminated earlier for cause, but the inspector chose to allow the applicant to continue the test, including demonstrations by the inspector of the standard to be met for the sought after rating.
 The evidence presented raises issues regarding the manner in which the flight test inspector's notes were written, the lack of full conveyance of the test results from the notes to the flight test report, and the lack of clarity in the flight test guides provided by the Minister in determining the quantity and extent of errors permissible for certain types of tests.
 Notwithstanding the above, testimony given by both witnesses substantiate the fact that limits were exceeded, despite several attempts to complete specific manoeuvres, and that the standard expected of a class 4 instructor was not met. These would justify a failed flight test.
 The burden of proof is always on the Minister to substantiate the alleged failed flight test for the applicant's class 4 instructor rating and subsequent refusal to issue.
 After consideration of fairness and natural justice and a thorough review of the relevance, reliability and weight of the evidence, on the balance of probabilities, I confirm the inspector's decision to fail the applicant's flight test and the resulting Minister's refusal to issue a class 4 instructor rating.
December 5, 2006
John D. Issenman
Transportation Appeal Tribunal of Canada
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