Decisions

CAT File No. P-1938-59
MoT File No. 5802-421049

CIVIL AVIATION TRIBUNAL

BETWEEN:

Nathan Demyen, Applicant

- and -

Minister of Transport, Respondent

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

Pilot proficiency check (PPC), Signing authority of inspector, Inappropriate administration of PPC, Notice of Suspension, Inadequate training, Expert witness, Hearsay, Evidence, Approved check pilot (ACP), Alterations of Notice of Suspension


Review Determination
Sandra Lloyd


Decision: April 4, 2000

I find I must confirm the Minister's decision to suspend the Applicant's instrument rating.

A Review Hearing on the above matter was held Tuesday, February 29, 2000 at 10:00 hours at the Federal Court of Canada in Edmonton, Alberta.

BACKGROUND

This hearing concerned a review of a suspension of the Applicant Nathan Demyen's instrument rating. This arose from a pilot proficiency check (PPC) conducted on Mr. Demyen in Vancouver on November 6, 1999, while Mr. Demyen was an employee of West-Ex Airlines. The PPC had been conducted by a Mr. Jeffrey, chief pilot for West-Ex and an Approved Check Pilot (ACP) candidate. Mr. Jeffrey was being monitored at the time by Transport Canada Inspector Mark Evans.

Successful completion of the PPC would have meant that Mr. Demyen would have been upgraded to captain status on SW4 aircraft with West-Ex. However, the PPC was terminated after a series of instrument procedure questions were asked in the briefing room before the candidate ever got to the aeroplane. The PPC was assessed as a failure, and the instrument rating suspended, on the basis that Mr. Demyen 1) incorrectly answered questions on IFR operations and 2) calculated the aircraft weight and balance incorrectly.

Mr. Demyen was aware that he had failed the PPC when it was terminated. His employment was also terminated as a result. However, he was not immediately made aware that his instrument rating was suspended, and his licence was not annotated to that effect. Mr. Demyen left Vancouver for his home in Calgary on November 8, 1999. Mr. Evans subsequently notified Mr. Demyen by telephone that his instrument rating would be suspended as a consequence of the PPC failure. Still later, Mr. Evans advised Mr. Demyen by telephone that he should surrender his licence to Transport Canada in Calgary for annotation, which Mr. Demyen did. Mr. Demyen also received a written Notice of Suspension of his instrument rating from Mr. Evans on November 12, 1999.

Mr. Demyen wrote a letter dated November 14, 1999 to the Civil Aviation Tribunal requesting a review of the suspension of his instrument rating.

Mr. Demyen regained his instrument rating by the method outlined in the Notice of Suspension, that is by successfully completing an instrument flight test, on November 18, 1999. However, he seeks an order that the Minister reconsider the decision to suspend his instrument rating with the goal of having all documents relating to the suspension removed from his file.

GROUNDS FOR REVIEW

The grounds, as expressed in the Applicant's letters to this Tribunal, and by the Applicant's representative Mr. Parsonage at the hearing of this matter, may be summarized as follows:

  1. The written Notice of Suspension is invalid because certain dates on it had been altered.
  2. Mr. Jeffrey's name should have been on the PPC flight test report instead of Mr. Evans's, because it was Mr. Jeffrey who conducted the PPC.
  3. The Minister did not do his duty in adjudication of Mr. Demyen's PPC because:

    1. the PPC was not conducted in accordance with the Approved Check Pilot Manual; and:.
    2. the PPC was tainted and designed to fail.
  4. The Applicant did not have a real opportunity to pass the PPC ride because his employer, West-Ex, did not provide adequate training.

THE LAW

Aeronautics Act, section 7.1:

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 ... 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 or certified mail sent to the holder ... notify the holder, ... of the Minister's decision.

(2) A notice under subsection (1) shall be in such form as the Governor in Council may by regulation prescribe and shall, in addition to any other information that may be so prescribed,

(a) indicate, as the case requires,

[...]

(ii) the nature of the incompetence of the holder of the Canadian aviation document that the Minister believes exists, the qualifications necessary for the issuance of the document that the Minister believes the holder of the document ... ceases to have or the conditions subject to which the document was issued that the Minister believes are no longer being met or complied with, or

[...] and

(b) state the date, being thirty days after the notice is served or sent, on or before which and the address at which a request for a review of the decision of the Minister is to be filed in the event the holder of the document ... wishes to have the decision reviewed.

Canadian Aviation Regulations (CARs), subsection 103.06(3):

(3) A notice issued by the Minister pursuant to subsections 7.1(1) and (2) of the Act shall include

(a) where the Minister has decided to suspend or cancel a Canadian aviation document, a statement of the effective date of the suspension or cancellation;

(b) where the Minister has decided to suspend the Canadian aviation document, a statement of the duration of the suspension or the conditions under which the suspension is terminated...

Personnel Licensing and Training Standards respecting Flight Crew Permits, Licences and Ratings, subsection 421.17(2):

(2) When the holder of a currently valid rating fails any exercise during a flight test for a rating, the examiner shall draw a line through the rating on the licence and add the following notation:

" (name of rating) Rating, suspended"

followed by the examiner's signature and the date.

and subsection 421.46(2):

DIVISION XIV – INSTRUMENT RATINGS

421.46 Requirements

[...]

(2) ...

[...]

(c) Skill

An applicant shall successfully complete:

(i) a flight test in accordance with the Flight Test Standards – Instrument Rating; or

(ii) a Pilot Proficiency Check (PPC) for operations under IFR...

Commercial Air Service Standards (CASS), section 723.88:

723.88 Flight Crew Member Qualifications

(1) Pilot Proficiency Check

(a) The pilot proficiency check in an aeroplane shall be conducted in accordance with Schedule I of this subsection.

(b) A pilot proficiency check shall be conducted in a manner that enables the pilot to demonstrate the knowledge and skill respecting:

(i) the aeroplane, its systems and components;

[...]

(iii) departure, enroute and arrival instrument procedures...; and

(iv) adherence to approved procedures

[...]

(g) A PPC must include a demonstration of instrument flight (IF) proficiency if:

(i) the candidate possesses a valid Instrument Rating; and

(ii) the candidate conducts commercial IFR operations on the aeroplane in which the PPC is conducted.

Where a pilot successfully completes the full pilot proficiency check, the pilot successfully completes the requirements for the renewal of the applicable instrument rating.

SCHEDULE I - Pilot Proficiency Check (PPC)

(1) Pre-flight phase

(a) Flight Planning and Equipment Examination

(i) Flight planning shall include a practical examination on the pilot's knowledge of standard operating procedures and the Aeroplane Flight Manual including...weight and balance...

723.107 Aircraft Standard Operating Procedures (SOP)

[...]

The SOP shall contain the following as applicable to the operation:

[...]

(2) Normal Procedures

[...]

(e) take-off and climb;

[...]

(h) approaches IFR, visual, VFR and circling;

[...]

723.98 Training Programs

(1) Training Standard General

(a) Manuals, if applicable, shall be provided during training to each trainee on the subject matter to be taught.

[...]

(5) Company Indoctrination Training

This training is required upon employment for all persons assigned to an operational control function including...pilots... Company indoctrination training shall include as applicable:

[...]

(d) flight planning and operating procedures;

[...]

(h) use and status of Company Operations Manual...

[...]

(q) weight and balance system procedures.

[...]

(15) Upgrade Training and Checking

(a) Upgrade training and checking for pilots who are qualified as second-in-command on that aeroplane type shall include the following:

(i) successfully complete training as a pilot-in-command in all areas of aeroplane handling and operation as outlined in the air operator's approved initial course;

(ii) command and decision making;

(iii) successfully complete specialized operations qualification training (e.g. lower take-off limits etc.); and

(iv) successfully complete on that type of aeroplane the initial pilot proficiency check...

MOTIONS

Mr. Walker on behalf of the Respondent asked that Mr. Evans be accepted by the Tribunal as an expert witness for this hearing. This motion was denied for two reasons. First, in my view it was not necessary nor appropriate to have an expert witness for the purpose of interpreting legislation in this matter. Although it is desirable for the parties to provide the Tribunal with copies of legislation on which it intends to rely, and to make submissions or arguments as to legislative interpretation and the application of the legislation to the facts at hand, legislation and its interpretation are not normally "evidence" for witnesses to give. Second, Mr. Evans was the only witness presented by the Respondent. It was matters relating to his conduct that were largely under review at this hearing. My view is that it would not be appropriate in this case to have him give an expert opinion upon his own evidence or his own conduct.

Mr. Walker presented as part of his evidence a letter dated February 19, 2000 addressed to "Whom it may Concern" and signed by Mr. Jeffrey. Mr. Parsonage objected to this letter, because it was not attested to in any way and because its validity could not be tested because its writer was not available for cross-examination. I did not accept the letter into evidence in part because I agreed with Mr. Parsonage's view of the unreliability of this letter as evidence. Also, I thought the letter unnecessary because Mr. Evans was available to give direct evidence upon the matters for which Mr. Walker said he was introducing the letter.

DOCUMENTARY EVIDENCE AND WITNESSES

The Minister provided documentary evidence in the form of excerpts from the following publications: the ACP Manual[1], the Flight Test Standards Instrument Rating[2], and International Standards and Recommended Practices for Personnel Licensing[3]. The Minister also provided an excerpt from the Canada Air Pilot, the "Altitude Correction Chart"; an excerpt from the A.I.P. Canada regarding circling procedures; and a blank copy of West-Ex Airlines SA227 Load Manifest (weight and balance form). All of the foregoing documents were in a package of material marked as Exhibit M-l. That package also included some "law": excerpts from the Aeronautics Act, CARs and CASS. Exhibit M-2 consisted of a copy of the November 6 PPC report completed by Mr. Evans, a copy of the Notice of Suspension, a letter from Mr. Demyen to Transport Canada, his letter to this Tribunal requesting a review of the suspension, and an undated letter from Mr. Evans to Mr. Demyen.

Three documents were entered by the document holder: two were copies of first officer PPC reports on Mr. Demyen, and the third was a copy of the Flight Test Report Instrument Rating regarding Mr. Demyen's successful instrument flight test on November 18, 1999.

The document holder also provided me with a copy of the Civil Aviation Tribunal determination Marc Sissler v. Minister of Transport[4].

The Minister called one witness, Inspector Mark Evans. The document holder called two witnesses, Nathan Demyen and his wife Jolene Demyen. Although there were some differences in the witnesses' recollection of details, in general I found the witnesses to be credible and for the most part forthright in their answers to questions.

The following are excerpts from the ACP Manual that I found particularly relevant to the issues raised at the hearing.

Approved Check Pilot Manual:

6.1.2 The PPC and PPC(VFR) will be conducted in accordance with the standards described in this chapter and CASS...723...as applicable.

6.8.2 ...Check pilots must use knowledge and experience in conjunction with the rating definitions to arrive at their assessments.

6.8.3 ...when any individual sequence has been assessed as a "U", the PPC must receive a General Assessment of "Failed".

6.8.5 During a PPC, any failure of an instrument rating related flight sequence constitutes a failure of the instrument rating...

6.8.6 When an ACP decides that a pilot has failed during the course of a check, the check shall be terminated.

6.8.8 Instrument rating monitoring during a PPC:

[...]

As the instrument rating is valid for a period of 2 years, the competency of each pilot to fly instrument procedures will be monitored during each PPC done during the validity period of the Instrument Rating. Should a pilot fail to demonstrate an adequate level of competency in those sequences mandatory for instrument flying competence, that pilot's Instrument Rating shall be suspended by the ACP conducting that PPC.

6.10 Pilot Proficiency Check

Pre-Flight Phase

6.10.1 Flight Planning

The crew must demonstrate adequate knowledge of the company's SOPs...

6.12 Administrative Procedures — following an unsuccessful checkride

6.12.1 ...action to be taken when acceptable standards have not been met by a Company pilot...

[...]

d) suspension of an instrument rating when the pilot fails to demonstrate an adequate level of competency in those sequences which form the Standards for the instrument rating. The ACP will draw a line through the English and French endorsements on the license and will inscribe the notation: "Instrument Rating Suspended"...

DISCUSSION

1) Is the written Notice of Suspension invalid because certain dates on it were altered?

The Notice of Suspension provides that if the Applicant wishes to request a review of the suspension by the Civil Aviation Tribunal, such request must be received by the Tribunal on or before December 6, 1999. The Notice of Suspension is signed by Mark Evans and is dated November 6, 1999. However, in both the aforementioned dates Mr. Evans first wrote "8"s, then overwrote them with "6"s. Mr. Parsonage argued that this altered document is legally invalid because the errors mean that the Applicant was not given 30 days notice to apply for a review of the suspension.

Mr. Evans testified that he made the decision to suspend on November 6, a Saturday. He also testified that he completed the Notice on November 8 but after consulting the legislation, decided he should backdate the last two dates on the Notice to reflect the date of his decision. In the upper part of the form, the Notice states that the suspension is effective "immediately". I infer that Mr. Evans thought that the date on the bottom of the form would be used to interpret the meaning of the word "immediate", and since he had decided to suspend the instrument rating on November 6, he thought that should be the date on the form.

My view is that the second-to-last date on the form should be that date which is 30 days "after the Notice is served or sent", to meet the requirements of paragraph 7.1(2)(b) of the Aeronautics Act. Since Mr. Evans sent the Notice on November 10, he should have written December 10 instead of December 6, 1999 in the penultimate date space. It follows that to be precise, he should have signed and dated the form on the same date that it was sent, November 10.

The Applicant also gave evidence that he received the written notice by regular mail, not by personal service or registered mail as required by the legislation.

Despite these errors in completing and sending the Notice of Suspension, I find in the circumstances they do not render the Notice of Suspension invalid. The errors did not prejudice the Applicant. By the time he received the written Notice of Suspension, the Applicant had already received verbal notice of the suspension and had surrendered his licence for annotation. The Applicant's letter dated November 14, 1999 to this Tribunal requesting a review of the suspension of his instrument rating is clear evidence that he had sufficient notice to protect his rights by filing for a review of the suspension in a timely manner.

2) Should Mr. Jeffrey's name have been on the PPC flight test report instead of Mr. Evans's, because it was Mr. Jeffrey who conducted the PPC?

Mr. Evans testified that in order for Mr. Jeffrey to become an ACP, he was required to conduct some checkrides under monitoring by Transport Canada pilots. Thus, although Mr. Jeffrey conducted Mr. Demyen's PPC, Mr. Evans's task was to monitor Mr. Jeffrey and to bear ultimate responsibility for the conduct of the PPC and the pass or fail decision.

Since Mr. Evans had the ultimate authority to either pass or fail Mr. Demyen, it was appropriate that Mr. Evans be shown as the responsible check pilot on Mr. Demyen's PPC report.

3) Did the Minister do his duty in the adjudication of Mr. Demyen's PPC? That is:

(a) Was the PPC conducted in accordance with Transport Canada's Approved Check Pilot (ACP) Manual?

Mr. Parsonage argued that the instrument rating suspension was invalid because the PPC was not conducted in accordance with the standard procedures defined in the ACP Manual. However, Mr. Parsonage did not provide any evidence of the ACP Manual. The Minister entered some sections of the ACP Manual as evidence. I have reviewed the evidence as to Mr. Evans's conduct of the PPC with those sections of the manual in mind, as well as the relevant sections of the CARs and CASS.

(i) pre-flight briefing

Mr. Parsonage alleged that Mr. Demyen did not receive an appropriate PPC briefing in accordance with the standard procedures defined in the ACP Manual.

Mr. Evans testified that when he, Mr. Jeffrey, Mr. Demyen, and another PPC candidate all met on the morning of the PPC they discussed the flight tests: who was going to be first, who was going to be second, what the requirements were and how they would be worked in. Mr. Evans said he was satisfied that Mr. Demyen received a proper briefing prior to the PPC.

Mr. Demyen said, however, that no briefing was given as to where they were going or what they were doing.

Mr. Demyen said that he had needed to be briefed about where they were going in order to complete the weight and balance form. However, Mr. Demyen also testified that he completed the weight and balance form on the assumption that 2½ hours fuel would be required, and informed Mr. Jeffrey and Mr. Evans as such. Mr. Evans did not criticize the weight and balance on the basis that the fuel figure was incorrect. I conclude therefore that Mr. Evans's assessment of Mr. Demyen's completion and knowledge of the weight and balance form did not depend on a briefing about where the PPC would be flown or what they would be doing.

Mr. Demyen also testified that Mr. Jeffrey asked him 8-10 IFR questions. Mr. Evans testified that during the IFR questioning, Mr. Demyen gave incorrect answers to questions about cold weather altitude corrections on approach, alternate minima, specified visibility for takeoff, and obstacle clearance when circling. I find that the answers to the IFR questions that Mr. Demyen had been asked would not be dependant on whether or not he received an appropriate pre-flight briefing.

No sections of the ACP Manual dealing with pre-flight briefing requirements were put into evidence. Mr. Evans's and Mr. Demyen's evidence conflicted as to whether an appropriate pre-flight briefing was given. I find I cannot, on the evidence, make a determination as to whether the Minister failed in its duty to give a briefing that followed the guidelines in Chapter 6 of the ACP Manual. However, I also find I do not need to make such a determination because the errors that Mr. Demyen made on his PPC that caused the failure and the consequent instrument rating suspension were unrelated to whether or not he had a pre-flight briefing.

(ii) opportunity to complete weight and balance

Mr. Demyen testified that after they all discussed the weather, he left the room while the other PPC candidate was being given the ground portion of his PPC. Mr. Demyen said that at one point Mr. Jeffrey came out of the room and asked Mr. Demyen to prepare a "quick" weight and balance for the other candidate, who had forgotten to prepare one. Mr. Demyen said he told him "it didn't need to be pretty". Mr. Demyen needed to get the empty weight index information from the Aircraft Flight Manual (AFM) in order to complete the weight and balance. He said, however, he was unable to get the AFM at that point since the aeroplane had been taken out of the hangar for fuelling. Indeed, Mr. Evans had recalled that the manual was in the briefing room, confirming that Mr. Demyen did not have access to the AFM at the point when Mr. Jeffrey asked him to do the weight and balance. Since Mr. Demyen did not have access to it, he simply asked another pilot what the index was, and relied on that information to complete the weight and balance. Mr. Evans said that during Mr. Demyen's PPC, Mr. Jeffrey asked Mr. Demyen how he found the operational index for the weight and balance form he had completed, and Mr. Demyen's answer was not clear.

Mr. Demyen said it was later, after his own test was stopped, that Mr. Evans asked him further questions about the weight and balance he had completed. Mr. Evans testified that from the responses and information that Mr. Demyen gave him with respect to the weight and balance, he was not satisfied that Mr. Demyen was able to calculate a weight and balance for the PPC aircraft. Mr. Demyen admitted that he did not point out to Mr. Evans that he had not had access to the AFM to calculate the index. Mr. Demyen also said that he was not familiar with West-Ex's weight and balance form, that he had not received weight and balance training from West-Ex, nor had he asked any questions at West-Ex about weight and balance in the 1½ to 2 weeks he had been at West-Ex prior to the PPC.

Mr. Jeffrey's instructions to Mr. Demyen regarding the weight and balance were inappropriate and misleading. However, I conclude from the evidence of both Mr. Evans and Mr. Demyen that even if Mr. Jeffrey had given Mr. Demyen an appropriate opportunity to complete a West-Ex weight and balance during the ground portion of the PPC, Mr. Demyen did not have the necessary knowledge of the West-Ex weight and balance to complete it properly.

(iii) annotation of licence — decision to suspend

The CARs and the ACP Manual direct that the check pilot draw a line through the pilot's instrument rating endorsement on his licence when his instrument rating is suspended. Mr. Evans did not do this on November 6.

Considerable evidence was led that raised the issue of when the decision was made to suspend Mr. Demyen's instrument rating. Mr. Evans's and Mr. Demyen's testimony conflicts as to the exact sequence of events which occurred following the termination of the flight test. However, I am able to conclude, from both witnesses' evidence, that because of the comings and goings of various parties in and out of offices during the minutes following the termination of the flight test and the immediate concern about Mr. Demyen losing his job, an awkward and confusing situation existed that would have made it difficult for Mr. Evans to obtain and annotate Mr. Demyen's licence with respect to a suspension of his instrument rating unless he did it immediately upon the PPC being stopped.

Mr. Demyen said that following the PPC, he spent some 30-40 minutes in the operations manager's office. Mr. Evans said that he spent some time in discussions with the owner in his office following the PPC, but that before he left the building he looked for Mr. Demyen. Mr. Evans said he had wanted to annotate Mr. Demyen's licence at that time. He said he was told Mr. Demyen had left. Mr. Evans then left the offices to go to the aeroplane to continue the other flight test. He assumed Mr. Demyen would be near at hand and lived in the area.

Mr. Evans tried to contact Mr. Demyen by telephone one or two days after the PPC, because he wanted to arrange a personal meeting with him. It turned out that the number Mr. Evans had been given for Mr. Demyen was a relative's where he had been staying, and Mr. Demyen's home was actually in Calgary. Mr. Evans left a message for Mr. Demyen to call him. When Mr. Demyen arrived home in the early hours of Tuesday morning, he received the message and called Mr. Evans.

Mr. Demyen said that in the initial phone call he and Mr. Evans talked about West-Ex training procedures. He said Mr. Evans expressed concern about West-Ex's training and told him he would be monitoring West-Ex's training program. Mr. Evans told Mr. Demyen that he was regretfully suspending Mr. Demyen's instrument rating. When Mr. Demyen objected, Mr. Evans told Mr. Demyen he said he would see what he would do and would call him back. The two men spoke again the next day and Mr. Demyen said that Mr. Evans said he was sorry but his management was making him pull Mr. Demyen's instrument rating. One day later, Mr. Evans called Mr. Demyen to tell him to take his licence to Transport Canada in Calgary for annotation, which Mr. Demyen did. The following day, Mr. Demyen received the written Notice of Suspension of his instrument rating.

Mr. Evans said that he discussed the matter of Mr. Demyen's instrument rating suspension with his manager because Mr. Demyen had left the region and had his licence, and Mr. Evans was wondering if he should proceed with a Notice of Suspension. Mr. Evans's evidence was that the discussion with his manager was not for the purpose of determining the outcome of the test, but more to determine administrative handling of the subsequent situation. Mr. Evans said he knew he had to suspend Mr. Demyen's instrument rating, but he needed to talk to his manager because Mr. Demyen was not in the region.

In reexamination Mr. Evans reiterated that he had made the decision to suspend Mr. Demyen's instrument rating on November 6. What was left to be done was to sit down with Mr. Demyen and to properly annotate his licence.

I find that, based on the evidence, Mr. Evans did make the decision to suspend Mr. Demyen's instrument rating while he was still at West-Ex offices on November 6. Once having made that decision, he was unable to obtain Mr. Demyen's licence for annotating on that day, and made arrangements for such annotation to be made as soon as reasonably possible.

The CARs and the ACP Manual require that the check pilot draw a line through the pilot's instrument rating. It does not say this must be done immediately upon the conclusion of a flight test. I do not think it would be reasonable to require that a check pilot do that immediately in order for a suspension to be valid. In the circumstances, I would not disturb the Minister's decision to suspend on the basis that the annotation was not done on November 6.

(b) Was the PPC tainted and designed to fail?

In his closing arguments at the hearing, Mr. Parsonage alleged that Mr. Demyen's PPC was "tainted and designed to fail". I have reviewed all the evidence presented at the hearing with this issue in mind.

The evidence shows that on October 26, 1999, Mr. Evans had conducted Mr. Demyen's first attempt at a West-Ex captain PPC. Mr. Evans was being observed by Mr. Jeffrey at that time. That PPC was also terminated during the pre-flight phase. Mr. Evans had asked Mr. Demyen five questions then asked him to leave the room. Mr. Jeffrey and Mr. Evans were not happy with the knowledge demonstrated by Mr. Demyen at that time. Mr. Evans was not convinced on October 26 that Mr. Demyen had received all the training necessary for the PPC and discussed the matter with West-Ex. West-Ex advised Mr. Evans that day that they had accepted Mr. Demyen's training from a previous company. Mr. Jeffrey told Mr. Evans that Mr. Demyen would now be given further training. Mr. Demyen was also told on October 26 that no licensing action would be taken at that time, that he would be given further training, and that he would be given a second ride. That second PPC was the one that took place on November 6, 1999.

Mr. Evans did not record the PPC of October 26, 1999 as a checkride.

After the next failed PPC of November 6, 1999, Mr. Evans told West-Ex he would not do another checkride until he monitored their training. Since the company had recommended Mr. Demyen for his ride, he thought the company needed to prove they were doing their training job. However, when he monitored their training program he found they met the required standard.

I infer from all the foregoing that Mr. Evans was concerned that Mr. Demyen had not obtained a failed PPC unnecessarily and was concerned that he would have, and did have, a real opportunity to pass the second PPC. This does not accord with the view that Mr. Evans would conduct a PPC that was tainted or designed to fail.

As set out above, the November 6 PPC was terminated after the Applicant answered a number of IFR questions, incorrectly. In Mr. Evans's view, the questions were simple. He thought the questions were direct and germane to the operation and routes Mr. Demyen would be flying as a captain with West-Ex, such as Whitehorse and Terrace. Mr. Demyen thought that he answered three general IFR questions wrong and that he corrected himself on one of those. However, since he said he was asked 8-10 questions, he may not have remembered all the questions and may not have realized he answered some of them incorrectly.

I accept Mr. Evans's evidence as to the questions asked and answers given and I find that Mr. Jeffrey was authorized to ask the questions that he did by virtue of Schedule I to CASS 723.88 and the CASS 723.107 description of standard operating procedures. The ACP Manual 6.8.2 provides that check pilots must use knowledge and experience in conjunction with rating definitions to arrive at their assessments, and I find that Mr. Evans did so.

Mr. Demyen's evidence indicates that Mr. Evans, after speaking with him on the telephone, said he would talk to his manager to see if he could change his decision to suspend. Again, in my view this evidence does not accord with the view that Mr. Evans would knowingly be involved with a PPC that was tainted or designed to fail.

As discussed above, I am concerned, however, that Mr. Demyen did not have a proper opportunity to complete the weight and balance for the PPC. Mr. Jeffrey's instructions to Mr. Demyen regarding the weight and balance could be fairly characterized as tainting the checkride. However, I have found that even if Mr. Demyen had been given a proper opportunity to do the weight and balance, he would not have passed the PPC anyway. His own evidence was that he did not know how to complete the West-Ex weight and balance. Also, he received an unsatisfactory assessment on the instrument procedure questions.

In sum, I am unable to find on the evidence that the November 6 PPC failure and consequent instrument rating suspension occurred for the reason that the PPC was tainted and designed to fail.

I find on all the evidence that the Minister did its duty in the adjudication of Mr. Demyen's PPC. Mr. Evans based his decision to suspend on relevant considerations. Where Mr. Jeffrey was remiss in his conduct of the PPC, it was not known to Mr. Evans and in any case was not the ultimate cause of the PPC failure.

4) Is the instrument rating suspension invalid on the basis that Mr. Demyen did not have an opportunity to pass the checkride because the Applicant's employer, West-Ex, did not provide adequate training?

Mr. Evans testified that he reviewed Mr. Demyen's training record before the PPC began. He said that West-Ex has an approved ground school and flight training program and it was indicated to him that Mr. Demyen had received the entire training program. He checked Mr. Demyen's licence before the PPC. He also said that West-Ex presented the correct documents to him prior to the PPC. The company had recommended Mr. Demyen for the ride. Mr. Evans said he monitored West-Ex's training program after the failed PPC of November 6 and found that it met the standard. In cross-examination, he admitted that West-Ex could have changed its training program after November 6, but he did not know if they did. He also pointed out that West-Ex have recommended other pilots for PPCs in the past and they have passed.

In cross-examination, Mr. Evans said that captain training for a PPC would include training in the company's operations manual, company routes, and the duties and responsibilities of a captain. In re-examination, he said that the company's operations manual mimics the CASS, and requires a PPC candidate to be trained as per that standard.

Mr. Evans avoided answering questions regarding his view of West-Ex as an organization other than to say the company met the minimum standard as to training personnel.

As mentioned above, Mr. Demyen testified that in a November 9 telephone conversation with Mr. Evans, they talked about West-Ex training procedures. He said Mr. Evans expressed concern about West-Ex's training and said he was monitoring their training.

Mr. Demyen said that the ground school training he was given for his captain PPC of November 6 covered aircraft systems only. He said he received no ground school training in the company's operations manual, on company routes, or on West-Ex weight and balance forms. Aircraft performance charts were not reviewed in the ground portion. No training was given on flight envelope matters such as speed limits. Training on company routes, and procedures on those routes, was given in the aircraft. He received about 14-16 hours of ground school training, 5 hours training on the 227 on a Whitehorse trip and 5 hours training on the 226 on a Kamloops trip. Emergencies were covered orally in the air. He did no air work on the 226 because of the weather. He received no training on the division of responsibilities between a captain and first officer or CRM training.

Based on the evidence presented at the hearing, I find that Mr. Demyen had not been given the required training, pursuant to CASS 723.98 Training Programs, prior to the PPC of November 6, 1999.

However, I also find on the evidence that this was not known to Mr. Evans prior to administering the PPC ride. Mr. Evans had fulfilled his duty in this regard by checking the required documents and Mr. Demyen's training record prior to the PPC. The evidence shows that prior to the commencement of the PPC, Mr. Evans believed that Mr. Demyen had received the required training. I cannot fault Mr. Evans for administering the PPC in these circumstances.

In cross-examination Mr. Demyen admitted that he had not brought his lack of preparation for the test to Transport Canada's or the company's attention. He felt he had to do the test; if not he would be let go. In his own words, "I was doomed if I did, and doomed if I didn't".

This evidence shows that Mr. Demyen chose to submit himself to the ride, knowing he did not have the appropriate training. By doing so, he was also putting his instrument rating on the line.

CONCLUSION

I find on the evidence presented at the hearing that the ACP candidate who conducted the checkride under Mr. Evans's supervision did, without Mr. Evans's knowledge, administer the test inappropriately with respect to the weight and balance portion of the test. However, I also find on the evidence that Mr. Evans did fairly determine that Mr. Demyen did not in any case have the required knowledge of the West-Ex weight and balance on November 6, 1999.

The evidence presented at the hearing also leads me to conclude that the company who recommended Mr. Demyen for his PPC on November 6, 1999 was remiss in doing so because they had not trained Mr. Demyen according to the CASS. However, with knowledge of his incomplete training, Mr. Demyen chose to submit to the PPC and by doing so put his instrument rating on the line. He failed a portion of the test that directly related to his knowledge of instrument procedures.

I find that the Minister did its duty in deciding to proceed with and in adjudicating the PPC.

In these circumstances, I find I must confirm the Minister's decision to suspend the Applicant's instrument rating.

Sandra Lloyd
Member
Civil Aviation Tribunal


[1] Approved Check Pilot Manual (ACP), 6th Edition/Revision 1, June 1998, TP 6533E.

[2] Fifth Edition, July 1998, TP 9939E.

[3] International Civil Aviation Organization (ICAO), 8th Edition, July 1988.

[4] CAT File No. Q-0430-02.