TATC File No. O-3315-60
MoT File No. 5802-082107
TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Eamon Michael Lang, Applicant
- and -
Minister of Transport, Respondent
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.1(1)(b)
Suspension, Pilot not flying (PNF), Pilot proficiency check (PPC)
Richard F. Willems
Decision: August 14, 2007
Citation: Lang v. Canada (Minister of Transport), 2007 TATCE 21 (review)
Heard at Toronto, Ontario, on May 1, 2007
Held: The Minister's decision to suspend Captain Eamon Michael Lang's pilot proficiency check (PPC) is referred back to the Minister for reconsideration.
 On October 3, 2006, the Minister of Transport issued a notice of suspension of Captain Eamon Michael Lang's PPC following a check ride in the A330 simulator on August 26, 2006. Captain Norman Bindon was acting as the first officer, and Captain Guy Bouchard conducted the ride as the check pilot.
 These check rides are normally done in two sessions allowing the check pilot to observe the candidate acting both as pilot flying (PF) and as pilot not flying (PNF). The first portion of the check ride seemed to have progressed fairly normally, other than some alleged problems with the simulator, which interfered with the CAT III approach portion of the check ride. The second half of the check ride is where Captain Lang's performance seemed to diminish. The check flight was unsuccessful in that the PPC was assessed as Below Standard (1). The reason for the failure is found at emergency no. 26 "pax evac" and the comments given are "shutdown both engs prior to checklist call for pax evac". A second comment not assigned to any particular exercise states "too much prompting req'd from F/O" (exhibit M-5).
A. Captain Norman Bindon
 Captain Bindon was qualified as an expert witness for the Minister. Under direct examination, he related the ride as he remembered it. He had done the training leading up to Captain Lang's check ride and his observations were that the first session of the ride with Captain Lang as PF was going much as he had expected; he did not recall anything specific that was negative.
 The second session of the ride seemed not to have gone as well. In Captain Bindon's words, "Captain Lang appeared to me to be somewhat agitated and rattled a couple of times" (transcript at 6).
 Under cross-examination by Captain Lang, Captain Bindon agreed that Captain Bouchard did interrupt the check ride twice to instruct and correct the way Captain Lang was doing the In Range checklist (exhibit A-1). He also agreed that the procedure insisted on by Captain Bouchard was not in accordance with standard operating procedures (SOPs), and that this was where the tension increased and the quality of Captain Lang's check ride took a turn for the worse.
 Captain Bindon testified as follows with respect to the second half of the check ride which was assessed as Below Standard (1). After stopping the aircraft, Captain Lang shut down both engines and then asked for the passenger evacuation checklist. Once the decision has been made that a passenger evacuation is necessary, the SOP requires that the passenger evacuation checklist be followed. It leads the crew through the proper sequence of events which allow them without any delay to observe the cabin pressure allowing the cabin doors to be opened. Next, both engines are to be shut down to ensure that they are no longer operating once the evacuation is in progress.
 Shutting down the engines out of sequence causes the loss of power to the screen which normally displays the delta-P information. However, according to Captain Bindon, delta-P information can be displayed by an alternate method. Hence, by shutting down the engines early in the sequence, safety had not been compromised because in his words, "the single most significant item in there prior to the evacuation is that the engines are shut down so that the passengers aren't evacuating in front or behind engines that are operating" (transcript at 38-39).
 When asked by Captain Lang if he thought the evacuation would have been successful, even though the sequence of the check had been altered, Captain Bindon agreed that it would have been.
B. Captain Guy Bouchard
 Captain Bouchard's recollection of this check ride is somewhat different. He testified about Captain Bindon prompting a "little too much" and that during the ride he had advised Captain Bindon that it was being done on Captain Lang, not on himself (transcript at 45). He also explained the basics of the passenger evacuation checklist as it was done out of sequence. His decision to fail this ride was based on a combination of the passenger evacuation checklist not being done in accordance with the SOPs and the excessive prompting by Captain Bindon.
 He was unable to recall the other events of this check ride which seem to be pivotal to the outcome of this ride as far as Captains Lang and Bindon are concerned. He did not recall simulator malfunctions and the In Range check scenario or that there was allegedly a very tense atmosphere in the second half of the ride. When challenged under cross-examination about having given Captain Lang a completed flight test report, Captain Bouchard was unsure that it was given to Captain Lang at the debriefing.
C. Captain Eamon Michael Lang
 First of all, Captain Lang indicated in his testimony that he was upset that the check pilot, Captain Bouchard, was late for the briefing. He felt it set a "mood of tension" (transcript at 73). He also felt that there were differences of opinion and friction between Captains Bindon and Bouchard which added to the uncomfortable atmosphere in the simulator.
 Shortly after the ride started, the simulator was lowered to repair a fault, which took about an hour. The same fault occurred once the check ride was continued, which in Captain Lang's words " further frustrat[ed] check pilot Bouchard which could be felt due to the nature of his anxiety, his anger and attitude which added confusion and soured the environment for the ride" (transcript at 73). At this point, Captain Bouchard indicated that the ride would continue, but would be downgraded to a CAT II approach. Captain Lang at this time believed that his licence renewal required a CAT III approach to be successful. This misunderstanding added more stress to the ride.
 Captain Lang testified about the In Range checklist event. He was then the PNF completing the In Range checklist for the approach and landing which were to be done by Captain Bindon. While performing the check, he was told by Captain Bouchard that he was doing it wrong and to do it again. After having redone the checklist, the simulator was frozen and Captain Bouchard demonstrated how he wanted the checklist done. This sequence being different from what Captain Lang had been trained to do and the uncertainty created by this event interfered with his performance for the remainder of the ride, and thus the incorrect procedures on the subsequent emergency landing and passenger evacuation.
 In Captain Lang's description of the debriefing, he indicated not to have seen the report and that the debriefing did not include Captain Bindon.
 Section 7.1(1) of the Aeronautics Act, R.S.C. 1985, c. A-2, as amended by R.S., c. A-3, reads as follows:
7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that
(a) the holder of the document is incompetent,
(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
(c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the holder of the document or of any principal of the holder, as defined in regulations made under paragraph 6.71(3)(a), warrant it,
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.
 With respect to the assessment of the failed exercise, no one argues the fact that it was done out of SOP sequence. Captain Bindon indicated that in his opinion the passenger evacuation in a real life situation would have been successful. According to him, the most important item on that checklist was to shut down the engines to ensure that they were not operating once the evacuation was in progress. He did agree that, although out of sequence, the checklist was completed. According to the Approved Check Pilot Manual (ACP Manual), 8th ed., February 2006 (TP 6533), it fits the Basic Standard (2) assessment. I find that safety was not compromised, even though this portion of the flight was poorly managed in the fact that the passenger evacuation checklist was done out of SOP sequence. Deviations did occur, but as a crew, all items for the passenger evacuation checklist were completed so as not to endanger anyone during the evacuation.
 The ACP Manual provides the following:
9.1.6 A procedure or sequence that would normally rate a "2 - basic standard" may be repeated at the discretion of the ACP provided that the procedure or sequence does not clearly come under the definition of "1 - below standard"
10.3.4 Basic Standard (2)
(a) Deviations from the qualification standards occur, which may include momentary excursions beyond prescribed limits but these are recognized and corrected in a timely manner.
(b) A sequence shall be rated Basic Standard (2) where
(i) performance includes deviations that detract from the overall performance, but are recognized and corrected within an acceptable time frame,
(ii) aircraft handling is performed with limited proficiency and/or includes momentary deviations from specified limits,
(iii) technical skills and knowledge reveal limited technical proficiency and/or depth of knowledge,
(iv) behaviour indicates lapses in situational awareness that are identified and corrected by the crew,
(v) flight management skills are effective, but slightly below standard. Some items are only addressed when challenged or prompted by other crew members,
(vi) safety of flight is not compromised. Risk is poorly mitigated.
 With respect to the issue of the prompting by Captain Bindon acting as first officer, Captain Bouchard's comments in the flight test report are basically that there was "too much prompting req'd from F/O" (exhibit M-5). He testified that part way through the ride, he warned Captain Bindon and reminded him that this was Captain Lang's ride, not his. When Captain Bouchard was asked under direct examination for specific times that Captain Bindon was too helpful, he could not remember specifics.
 When challenged by Captain Lang under cross-examination about the prompting, Captain Bouchard agreed that the crew members need to work together, as defined by crew resource management, and inferred that Captain Bindon was a good first officer.
 Since Captain Bouchard could not provide any specific information, I do not see any direct evidence given by him as to the "too much prompting" statement.
21] Captain Lang indicated, and Captain Bindon agreed, that his performance started to deteriorate when Captain Bouchard interrupted the ride to show him how he wanted the In Range check done, and that the procedure demonstrated was in fact not in accordance with the SOPs. Captain Bouchard again could not recall interrupting the ride with regard to the In Range check, or that the level of tension had increased.
 As we see below, this is in direct contravention to the ACP Manual:
9.1.1 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.
9.1.4 Flight checks may induce tension and feelings of apprehension in even the most experienced pilots. The ACP shall attempt to reduce apprehension and create an environment in which a true demonstration of ability can be established.
 I find it hard to believe that of all the check rides Captain Bouchard did over the three years, this being only the second failure he had issued, that he could not remember more details of this ride. In fact at one point, he indicated "I don't remember a whole bunch of this ride" (transcript at 56). As a result, I find Captains Lang's and Bindon's versions of the events more compelling and complete.
 Captain Lang spoke at length about not seeing the flight test report (exhibit M-5) until he received the notice of suspension from Transport Canada dated October 3, 2006. When challenged, Captain Bouchard was not sure that a copy of the report had been given at the debriefing.
 In this regard, the ACP Manual provides that:
9.10.1 An ACP shall carry out the following administrative procedures after failure of a PPC by:
(b) ensuring that grades and evaluation of the failed flight check are recorded in the individual's training and flight check records. A PPC report shall be completed for each flight check, including any terminated during pre-flight preparation, or before all air exercises are completed, and the candidate is to be offered a copy of the report;
9.11.3 In accordance with section 8(2)(a) of the Privacy Act, a copy of the flight test report shall be given to the candidate for a flight test and a copy shall be retained by the examiner who conducted the flight test. A copy may also be given to the individual responsible for the quality of flight training for the operator. Specific information about the results of a flight test will not be given by Transport Canada to anyone but the individuals named on the flight test report except in accordance with the Privacy Act.
 In summary, the facts as presented to me do not warrant a Below Standard (1) assessment. This check ride was not conducted in accordance with the guidelines set out in the ACP Manual as far as not teaching or demonstrating during the ride, and the atmosphere was allowed to deteriorate during the ride to a level not acceptable for a crew to work in. Finally, I find that Captain Bouchard did not follow the proper administrative procedures after a failure of a PPC, as set out in the ACP Manual.
 For these reasons, the Minister's decision to suspend Captain Lang's PPC is referred back to the Minister for reconsideration.
August 14, 2007
Richard F. Willems
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