Decisions

CAT File No. P-1862-60
MoT File No. 075008

CIVIL AVIATION TRIBUNAL

BETWEEN:

Captain Patrick Simmonds, Applicant

- and -

Minister of Transport, Respondent

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

Prohibitions, Procedure, PPC, Pilot proficiency check, Limitations, Approved check pilot


Review Determination
Allister W. Ogilvie


Decision: May 3, 2000

I confirm the Minister's decision to assess Captain Simmonds's pilot proficiency check on July 16, 1999 as unsatisfactory.

A Review Hearing on the above entitled matter was held March 29 and 30, 2000 at 10:00 hours at Vancouver, British Columbia.

BACKGROUND

Captain P. Simmonds is employed as a pilot with Canada 3000 Airlines. On July 16, 1999, he was undergoing a recurrent pilot proficiency check (PPC) on an A320 Airbus simulator. The check was assessed as unsatisfactory. Captain Simmonds disagreed with that conclusion and asked the Civil Aviation Tribunal to review that assessment, which brought about the hearing of March 29 and 30, 2000 in Vancouver, British Columbia.

EVIDENCE

The Minister's case was presented by Mr. F. Pratt, who called as a witness Captain Mark Stokes, the check pilot who had conducted the PPC. Ms. S. Atkinson, counsel for Airline Pilots Association, International represented Captain Simmonds. Captain Simmonds and Mr. K. Melanson, the first officer (FO) during the PPC, gave testimony on Captain Simmonds's behalf.

Captain Mark Stokes is a Canada 3000 pilot who on July 16, 1999 was a Transport Canada designated check pilot. On that day he conducted a PPC on Captain Simmonds in an A320 simulator. Two areas of Captain Simmonds's performance were assessed as being unsatisfactory. On the flight test report form (0249) (Exhibit M-1) sequence 5E, Landing from Instrument Approach, was unsatisfactory. In the accompanying remarks Captain Stokes commented that in that sequence an aircraft limitation was exceeded as maximum reverse thrust was applied until the aircraft came to a stop on an engine out landing. The last landing of the check ride was flown by the FO. Maximum reverse thrust was utilized down to aircraft stop and the captain set the park brake before the thrust was cancelled.

Also assessed as unsatisfactory was sequence 7D, Automation & Technology. Captain Stokes noted that excessive time was required to program a Localizer Back Course (LOC (BC)) approach due to lack of familiarity with Flight Management System (FMS) procedure; unable to program missed approach routing for LOC (BC); flight plan inadvertently erased due to lack of knowledge; unable to effectively program Navaids for LOC (BC) to cross check position of the Initial Fix (IF) and Final Approach Fix (FAF); not aware of reason for lack of predictions when engine out.

The engine limitation in Exhibit D-4 is an excerpt from the Canada 3000 Flight Crew Operating Manual (FCOM), 3.01.70 page 2. It is entitled "Operating Limitations, Power Plant." It provides that:

  • Selecting of reverse thrust in flight is prohibited.
  • Backing of the aircraft with reverse thrust is not permitted.
  • Maximum reverse should not be used below 70 knots. (Idle reverse is allowed down to aircraft stop).

Captain Stokes testified that at Canada 3000 it was their interpretation that maximum reverse thrust should not be used below 70 knots as that figure was a limitation. The usage of the term "should" as compared to a stronger term such as prohibited was utilized to allow a crew member to use maximum thrust below 70 knots in certain circumstances such as to prevent a runway over run. He stated that during the PPC no such unusual circumstances arose that would have permitted its use.

He was of the view that this position was also illustrated in the FCOM at 3.03.22, page 5, Landing (Exhibit M-4) where it is stated that 70 knots is the minimum recommended speed with full reverse thrust. Under that statement is a "Caution" that states: "Avoid using high levels of reverse thrust at low airspeed, because gases re-entering the compressor can cause engine stalls that may result in excessive EGT."

Captain Stokes first observed the thrust limit exceeded on the captain's engine out landing but he said that it was not then an unsatisfactory sequence, as he wanted to see more. The last landing of the PPC, which was flown by the FO was also an engine out approach. The aircraft came to a halt and the captain set the parking brake before the cancellation of maximum reverse thrust. This convinced him that Captain Simmonds did not understand the limitation and accordingly an unsatisfactory assessment was made.

Regarding the Automation & Technology sequence Captain Stokes testified that the time that it took to program the FMS, about 20 minutes, was about what one would expect from a first time student, not from a competent line pilot. He went on to testify that he observed a lack of understanding of the FMS, an inadvertent clearing of data with a scramble to reinsert it, an inability to program a Navaid and a failure to comprehend why certain predictions did not appear when the crew members expected them to. These observations lead him to assess the technology sequence as unsatisfactory.

Captain Simmonds related his considerable experience. He has flown numerous types of large transport aircraft during his career, accumulating in excess of 22,000 hours. The last twelve years have been with Canada 3000. At the time of his PPC he had about 410 hours on a combination of the A320 and A330 Airbus aircraft, about 27 of which were in the five months prior to the ride.

He submitted that during the pre-ride briefing the crew members were told to take the time they required and not to rush. Lacking in the briefing was that the simulator had only one Automatic Direction Finder (ADF) rather than the two that is standard on Canada 3000's aircraft.

Although the ride was assessed as a failure, the check pilot did not stop the ride to assess him of the fact but rather, that was done in the debriefing.

Captain Simmonds did not dispute that he had applied maximum thrust reverse down to a stop on the first occurrence but explained why. He testified that with an engine failure, with suspected damage he wanted to get the aircraft to stop as quickly as possible. He stated that emergency vehicles would have been positioned at the approach and at mid-field and it was at mid-field he wanted to stop the aircraft so he could communicate with them, as to the extent of damage or fire on his aircraft.

He contended that using the maximum thrust down to stop did not violate any limitation. He submitted that if a limitation were invoked it would state the action was prohibited or words to that effect. The words shall or should only revealed a recommendation in his view.

Regarding the second occurrence, Captain Simmonds stated that the approach was flown by the FO. It was a single engine landing, as the other engine had suffered a fire. The sequence also involved an Auxiliary Power Unit (APU) fire. He contended that, since the APU was on fire, it was important to come to a stop as quickly as possible so he used all the braking available and maximum reverse thrust. He stated that the park brake was set while the engine was still in maximum reverse to prevent the aircraft from rolling backward.

As to the Automation & Technology sequence Captain Simmonds stated the LOC (BC) was difficult to program and that he had little practice with it. In the briefing they had been told to take their time and he did, and had programmed it without error. He disputed Captain Stokes's findings on the sequence. He successfully flew the missed approach on raw data, and had confirmation of Distance Measuring Equipment (DME) for the required fixes through the selection on the FO's flight instruments. He acknowledged that using the FO's DME fix in that situation was contrary to the Standard Operating Procedure (SOP). He conceded that he said he had no clue as to the lack of predictions as he thought that in that stage of flight they should have been available. The erasure of the flight plan had been an inadvertent error on the FO's behalf. He just flew the aircraft and requested the FO to put it back in the FMS.

Mr. K. Melanson, the FO on the PPC also testified. He too stated that no limitation had been exceeded as there was no report to maintenance required if one did use maximum thrust below 70 knots. He also conceded that the use of ILS information on his flight instruments, for a DME fix during a LOC (BC) approach, was not according to standards.

THE LAW

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

7.1 (1) Where the Minister decides

[...]

(b) to suspend or cancel a Canadian aviation document on the grounds that the holder of the document is incompetent or the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to have the qualifications necessary for the issuance of the document or to meet or comply with the conditions subject to which the document was issued, or

[...]

the Minister shall, by personal service or by registered mail sent to the holder or to the owner or operator of the aircraft, airport or facility, as the case may be, at the latest known address of the holder, owner or operator, notify the holder, owner or operator of the Minister's decision.

ARGUMENT

Minister

Mr. Pratt asserts that there is no issue as to the facts. He argued that there was no evidence that any of the circumstances that would allow the use of maximum thrust below 70 knots were present, nor was the length of runway remaining a factor. The direct testimony of Captain Stokes provided the limitation. As to the technology sequence Captain Stokes's assessment of the inadequacy was clear. As well it was up to him as check pilot to decide when the ride was unsatisfactory.

Document Holder

Ms. Atkinson argued that the Minister had not proven a limitation had been exceeded. Regarding the 5E sequence if a limit had been exceeded, a failure should result and the check pilot was obliged to stop the ride, but that did not happen. It was Captain Stokes's testimony that there was no failure until coupled with the last approach and landing, but that was flown by Mr. Melanson.

As to the predictions it was argued that the crew members were in the approach phase, where predictions should have been available so their query regarding lack of them was legitimate.

In summary Transport Canada had not proven its case and the PPC should not be viewed as a failure.

DISCUSSION

The issue to be resolved is whether Captain Simmonds's performance on his PPC of July 16, 1999 warranted an unsatisfactory rating. A second issue arises as to the appropriate application of check pilot procedures from the Approved Check Pilot (ACP) Manual.

I find the unsatisfactory rating of the 5E sequence was proper as the evidence that I have accepted shows that a limitation was exceeded.

The language of the FCOM regarding the usage of maximum thrust seems to be open to more then one interpretation. The FCOM addresses Operating Limitations, Power Plant, 3.01.70 page 2 (D-4). It states that reverse thrust selection in flight is prohibited whereas backing the aircraft with reverse thrust is not permitted. That is compared to maximum reverse should not be used below 70 knots that is in issue here. The wording seems to indicate a decreasing order, from outright prohibition to should not. This gives rise to Captain Simmonds's argument that it is not a limitation, but a recommendation.

However Captain Stokes maintains that the wording is a limitation, but that it can be exceeded in certain circumstances whereby the use of maximum reverse thrust would prevent a more serious happening such as a runway overrun or in certain other circumstances found in the FCOM none of which pertain in this instance. That is why it is not worded as an absolute prohibition. It was his testimony that, at Canada 3000, the company interprets this to be a limitation.

I prefer the evidence of Captain Stokes in this matter. At the time of the PPC he was entrusted by the company to carry out check pilot duties and was the delegate of Transport Canada for the same purpose. He was to check the performance of the crew members against the standard. That explicitly infers a knowledge of the standards and he testified as to the company's interpretation of that standard. I also note that the FCOM page is from the power plant, limitations section.

I also find that the unsatisfactory assessment of the Automation & Technology section 7D is appropriate. Captain Stokes testified that the time taken to program the LOC (BC) was not consistent with the time a competent line pilot would take. It was argued that in the briefing the crew members were advised to take their time, not to hurry. Although that may be appropriate guidance, it cannot be taken as licence to take an inordinately long time to accomplish a task that is part of the normal procedure. Captain Stokes's evidence was that the programming took too long, whereas no evidence was provided by Captain Simmonds on how long it should take, but only argument to the effect that he should take his time.

The evidence shows that other points in this sequence were not accomplished to the required standard. Captain Simmonds flew a successful approach and go around utilizing raw data but the procedure being tested required the use of the FMS. The IF and FAF were not entered in the required manner. Both the captain and FO conceded that the DME information utilized was provided by a method not recognized by SOP.

The discrepancy over whether the predictions should have been shown when the crew members anticipated them or whether they were still in a stage of flight whereby they were inhibited must be resolved in favour of Captain Stokes's interpretation. I do not impugn the honesty or integrity of the crew members in their evidence regarding the stage of flight in which they queried the lack or predictions. I prefer Captain Stokes's evidence as he had the luxury of a detached observation with notebook in hand rather than the taxing task of flying an aircraft with various malfunctions with a check pilot looking over his shoulder.

Both crew members testified that the pre-check briefing did not address the fact that the simulator had only one ADF whereas the company aircraft would have had two. That point is irrelevant to the 5E sequence which was assessed as unsatisfactory. It has no effect on the assessment of the Automation & Technology sequence. The evidence shows that a company aircraft could be dispatched with one ADF unserviceable which would have the effect of making it the same as the simulator. In any case, other portions of the sequence that did not relate to usage of the primary Navaids, such as time to program the FMS, were also found to be unsatisfactory.

The secondary issue is whether the procedure used in the check ride was in accordance with the criteria set out in the ACP Manual. Ms. Atkinson drew my attention to the Civil Aviation Tribunal case of Melanson v. Minister of Transport[1] another PPC case where the member referred the matter back to the Minister as the PPC was not done in accordance with the ACP Manual. In this instance it was argued that if a limitation was violated resulting in an unsatisfactory assessment the ride should have been terminated immediately and the time remaining used for further training.

Section 6.8.6 of the ACP Manual (Exhibit D-5) was relied upon for that proposition. It states:

When an ACP decides that a pilot has failed during the course of a check, the check shall be terminated. The time remaining in the session may be used as training, provided that:

[...]

Section 6.8.3 states:

In order for a checkride to receive a General Assessment of "Failed", at least one sequence 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".

If at least one sequence must be assessed as a "U" then more than one sequence can be assessed as a "U". How can that be if the check is to be terminated after the first assessment of unsatisfactory? Section 6.8.6 does say that the check shall be terminated when the ACP decides that a pilot has failed, not when a sequence is assessed as a "U".

It was Captain Stokes's testimony that he had not decided that the pilot had failed until he had observed the FO's landing sequence where the captain set the park brake before maximum reverse was cancelled. That action then convinced him that the captain did not understand the limitation. Only then did he decide to assess the check as a failure.

The interpretation of section 6.8.6 provided the basis for the argument that the check should have terminated earlier. However Chapter 6 is entitled "General Guidelines for PPCs". The heading of section 6.8 is "Assessment Guidelines, General". The methodology in Captain Stokes's assessment of the ride was done within the guidelines provided in the ACP Manual.

CONCLUSION

I confirm the Minister's decision to assess Captain Simmonds's PPC on July 16, 1999 as unsatisfactory.

Allister Ogilvie
Vice-Chairperson
Civil Aviation Tribunal


[1] CAT File No. P-1863-60.