Decisions

CAT File No. P-2502-60
MoT File No. 5802-256217

CIVIL AVIATION TRIBUNAL

BETWEEN:

Peter Fraser, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, S.C., c. A-2, ss. 7.1(1)
Canadian Aviation Regulations, ss. 703.88(1) (c)

PPC, Pilot Proficiency Check, Failure


Review Determination
Philip D. Jardim


Decision: April 25, 2003

There was nothing amiss in the conduct of the pilot proficiency check performed on Mr. Peter Fraser by Mr. Stephen Creagh on May 27, 2002. I agree with the assessment of the check pilot to fail Mr. Fraser.

A review hearing on the above matter was held Thursday, April 3, 2003 at 10:00 hours at Robson Square, in the city of Vancouver, British Columbia.

BACKGROUND

On May 27, 2002, Peter Fraser underwent a pilot proficiency check (PPC) for the renewal of his endorsement to fly a Bell helicopter 206B. During this PPC, the examiner/check pilot assessed that Mr. Fraser had exhibited a marginal overall performance, but he specifically failed him, and terminated the check ride when he assessed that Mr. Fraser had failed to demonstrate that he knew the correct sequence for correcting a "hydraulic hardover."

Mr. Fraser contested the decision of Mr. Creagh, the check pilot, to fail him. He appealed the matter to the Tribunal, hence this hearing in Vancouver today, April 3, 2003.

THE LAW

Subsection 7.1(1) of the Aeronautics Act states:

7.1 (1) Where the Minister decides

(a) to suspend, cancel or refuse to renew a Canadian aviation document on medical grounds,

(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

(c) to suspend or cancel a Canadian aviation document because the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the holder of the Canadian aviation document or of any principal of the holder, as defined in regulations made under subsection 6.71(2), warrant it,

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.

Under this section of the Act, the Tribunal may confirm the Minister's decision to suspend, or may refer the matter back to the Minister for reconsideration, with a request that he reconsiders the decision of the check pilot to fail the candidate. The Tribunal does not have the power to override the decision of the check pilot.

EVIDENCE

The Minister brought two witnesses to the hearing. The first witness was Mr. Stephen Creagh, Transport Canada flight inspector and check pilot, who had examined Mr. Fraser. Mr. Creagh was articulate and highly credible in the presentation of his evidence. He advised that while a "hydraulic hardover" is not described in the aircraft flight manual, it is a well-known fault with this aircraft, and has been the subject of training programs for pilots on the Bell 206 Jet Ranger "since the mid eighties."

I expressed dismay that the manufacturer in the emergency procedures section of the aircraft flight manual does not address such a failure, which can have fatal consequences.

The sequence of events that led to the failure of Mr. Fraser was as follows:

  1. Mr. Creagh held the cyclic control while the aircraft was in a right turn, to simulate a hardover.
  2. After an unacceptably long period, in Mr. Creagh's opinion, Mr. Fraser identified a problem with the hydraulic system.
  3. Mr. Fraser said: "We need to turn off the hydraulic solenoid switch."
  4. As Mr. Fraser had both hands full at the time, Mr. Creagh offered to turn off the switch for him. Fraser agreed and Creagh turned it off.
  5. Mr. Fraser then reached up and pulled the hydraulic circuit breakers. This had the effect of reintroducing the problem.

At this stage, Mr. Creagh deduced that Mr. Fraser did not fully appreciate what had happened and how the hydraulic system really functioned, and he terminated the ride.

I questioned Mr. Creagh as to whether he had introduced a problem, which the candidate could not control by switching off the hydraulic solenoid. He replied: "No."

Mr. Terry Churcott was called to the stand. Mr. Hector sought to have him qualified as an expert witness. Mr. Jenner, who apparently knows Mr. Churcott as a very experienced helicopter pilot and training captain, immediately endorsed Mr. Churcott as an expert. After hearing Mr. Churcott's credentials, I had no hesitation in accepting him as an expert on the Bell 206, and helicopter operation in general.

Mr. Churcott confirmed that the Bell Jet Ranger flight manual does not indeed bear any reference to a "hydraulic hardover." However, the malfunction is well recognized by the helicopter pilot fraternity, and it is dealt with in training. This, he said, in answer to Mr. Jenner, has been known since at least the mid 1980's. He confirmed that the procedure for dealing with the problem is just as Mr. Creagh had described.

I asked Mr. Churcott if he was concerned that this malfunction is not dealt with in the Bell flight manual. He answered that he is, but the industry is dealing with it through training and dissemination of knowledge. There was some suggestion that the manufacturer had product liability concerns, and litigation.

I asked Mr. Churcott whether this malfunction was a normally acceptable fault to include in a PPC. He said that it was, since it was a well-known malfunction. Exhibits M-2, M-3A and M-3B highlight the symptoms of this fault and its wide occurrence. Mr. Jenner said that he had some substantial helicopter experience on this type, but that he was not current. He had never heard of this hardover situation when he was flying, some 15 years ago. Mr. Churcott said that he had learned about it through experience over the years. Initially, it was not taught, but has been since the mid 1980's.

Mr. Churcott went on to explain why pulling the circuit breakers after turning off the hydraulic solenoid switch was the wrong thing to do. He said that pulling the circuit breakers reintroduces power to the system, negating the action of turning off the switch.

At this stage, the Minister indicated that his case was closed. I invited Mr. Jenner to proceed. He replied that he was going to give a summary, and that he would not be calling any witnesses, or presenting any evidence, other than Exhibit D-1, which he had already presented earlier during his cross-examination of Mr. Churcott. D-1 is an extract from the Bell 206 flight manual.

I advised Mr. Jenner that it was in his interest to present his side of the issue. I enquired whether the purpose of Mr. Fraser having requested this hearing was to prove either that the reasons for his failure were unjust, or that events did not happen the way the Minister had presented. I advised him that under subsection 7.1(1) of the Act, I could either agree with Transport Canada, or ask them to reconsider the decision to fail Mr. Fraser. I said that in order to do this I must have clear reasons why he and Mr. Fraser feel I should take this latter course.

Mr. Jenner said that there were well-thought-out reasons why they had decided not to call any witnesses, or present any evidence. Mr. Hector then summed up his case for the Minister articulately, presenting jurisprudence, etc.

Mr. Jenner said that Mr. Fraser is a 10,000-hour pilot. He would not be drawn into refuting the evidence of the Minister. He depended instead on interpreting the regulations, and standards as contained in Exhibits M-6, M-7, M-8 and M-9. He highlighted the fact that the procedure for correcting this hydraulic hardover malfunction is NOT covered in the Bell flight manual. Mr. Jenner highlighted extracts from the regulations and standards contained in extracts from the exhibits presented by the Minister. His contention is that Mr. Fraser cannot be deemed to be incompetent because of a standard that does not exist, namely the absence of a procedure to deal with this problem in the aircraft flight manual.

DISCUSSION

While I agree that the exclusion of this critical emergency from the Bell Jet Ranger flight manual is unacceptable and should be remedied, this in itself does not relieve Mr. Fraser, or anyone else, from not knowing the aircraft and a dangerous malfunction, which can have fatal consequences. There is an all-inclusive requirement in subparagraph 723.88(1)(b)(ii) of the Commercial Air Service Standards, which concludes: "...and any other information relating to the helicopter type". This means any information available on the aircraft type, which is not available in the flight manual, operations manual, etc. Clear and credible evidence has been adduced that this fault is widely known, and the helicopter pilot and training fraternity has developed a procedure to deal with it.

Pilots are required to be knowledgeable on the critical limitations of their aircraft, especially those malfunctions which can be fatal. Evidence has been led that this hydraulic hardover is a well-known malfunction in the Bell 206 helicopter. It has been known, and steps have been taken to train pilots by training establishments since the mid 1980's.

Mr. Jenner says that Mr. Fraser has 10,000 hours. One would expect that a pilot with this experience would be completely familiar with this problem and the procedure for dealing with it. Because Mr. Fraser chose not to testify at his own hearing (this is his right), I have not been able to hear his side of the PPC. Mr. Creagh articulately described the conduct of the flight. It shows a marginal performance, with two "Satisfactory with briefing" passes, culminating with a failure on the hydraulic hardover sequence. As a result, I have no hesitation in endorsing the check pilot's decision to fail Mr. Fraser.

RECOMMENDATION

I strongly recommend that Transport Canada prevail upon Bell Helicopter to write into the emergency procedures section of the Jet Ranger flight manual a proper sequence for dealing with hydraulic hardover.

DETERMINATION

At the conclusion of this review hearing, I have determined that there was nothing amiss in the conduct of the PPC performed on Mr. Peter Fraser by Mr. Stephen Creagh on May 27, 2002. I agree with the assessment of the check pilot to fail Mr. Fraser.

Philip D. Jardim
Member
Civil Aviation Tribunal


Appeal decision
Allister W. Ogilvie, Faye H. Smith, Pierre J. Beauchamp


Decision: July 23, 2003

We allow the appeal and refer the matter back to the Minister for reconsideration.

An appeal hearing on the above matter was held before a three-person panel of the Tribunal Monday, June 30, 2003 at 10:00 hours at the Standard Life Building, in Ottawa, Ontario.

BACKGROUND

On May 27, 2002, Peter Fraser underwent a pilot proficiency check (PPC) for the renewal of his endorsement to fly a Bell 206 B helicopter. During this PPC, the examiner/check pilot assessed Mr. Fraser as having failed the check ride because he failed to demonstrate the correct sequence for correcting a particular fault which the examiner termed a "hydraulic hard over."

Mr. Fraser did not agree with that assessment. He applied to the Tribunal for a review hearing of the decision. It was held before a single member, Mr. Philip Jardim, in Vancouver on April 3, 2003. Mr. Jardim determined that there was nothing amiss in the conduct of the PPC. He therefore agreed with the assessment of the Minister's representative that Mr. Fraser had failed the check ride.

Mr. Fraser was not satisfied with that determination and hence applied for an appeal hearing.

APPEAL GROUNDS

The Grounds of Appeal were enunciated in the following terms:

...the member erred in law by granting primacy to the procedures established by local instructors and TC examiners over the procedure duly approved by aircraft certification authorities. We therefor[e] request that we be allowed to appeal the said Review Determination....

HELD

We allow the appeal and refer the matter back to the Minister for reconsideration.

Motion to Hear New Evidence

Mr. Jenner, on behalf of Mr. Fraser, filed a written submission requesting permission to call three expert witnesses before the Appeal Panel. Mr. Hector, for the Minister, opposed the motion.

Held. The Appellant's request to allow expert testimony was denied. The Appeal Panel considered subsection 7.2(3) of the Aeronautics Act which states:

An appeal to the Tribunal shall be on the merits based on the record of the proceedings of the member of the Tribunal from whose determination the appeal is taken but the Tribunal shall allow oral argument and, if it deems it necessary for the purposes of the appeal, shall hear evidence not previously available.

In considering that section, reference was made to Tribunal jurisprudence, Kokoska,[1] a case in which new evidence was admitted at appeal.

In that case, the Appellant had made a petition to present new evidence which consisted of photographs that were not available at the time of the review hearing and also the testimony of a passenger on board the aircraft at the time of the alleged infraction.

The Appeal Panel held that:

The evidence of the passenger which the Appellant seeks to introduce was 'previously available' and ought not be introduced at the Appeal level and the Tribunal declined the Appellant's application in this respect.

The Appellant attempted to obtain the photographs for the initial Hearing and was unsuccessful. We have therefore given the wording 'previously available' a liberal interpretation and allowed the introduction of the photographs.

The Panel further stated at page 4:

The section clearly contemplates that the Appeal will be disposed of based on the record of the proceedings before the Hearing Officer including the transcript. This section uses the words 'evidence not previously available'.

In our case, we note from the decision and transcript that the Member urged the Applicant to tender evidence on several occasions. However a conscious choice was made not to do so.

The Panel in Kokoska went on to say:

This section of the Act prevents both Document Holders and the Minister alike from using the Initial Hearing as a 'testing ground' for their case and then later correcting their deficiencies at the Appeal level by introducing additional new evidence. All evidence which is 'available' must be introduced at the Initial Hearing and if parties fail to do so, they do so at their peril.

We found that expert witness testimony is of the nature of being "previously available" in this circumstance. On the basis of subsection 7.2(3) of the Aeronautics Act and our perusal of jurisprudence, we rejected the motion to tender new evidence.

SUBMISSIONS

The appeal was framed solely as a question of law. The Appellant contested the interpretation that the Member gave to subsection 703.88(1) of the CARs and particularly subparagraph 723.88(1)(b)(ii) of the Commercial Air Service Standards (Standards) as they applied to the agreed facts of this case.

The Minister, for his part, submitted that the Member's interpretation of the law was correct as it was founded on the evidence of two credible witnesses and was within the context of the purpose of the Aeronautics Act.

THE LAW

703.88 (1) Subject to subsections (6) and (7), no air operator shall permit a person to act and no person shall act as a flight crew member in an aircraft unless the person:

[...]

(c) has su[c]cessfully completed a pilot proficiency check or competency check for that type of aircraft, the validity period of which has not expired, in accordance with the Commercial Air Service Standards [...]

723.88 Flight Crew Member Qualification

(1) Pilot Proficiency Check

(a) The Pilot Proficiency Check in a helicopter shall be conducted in accordance with the Pilot Proficiency Check - Helicopter Schedule 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 helicopter, its systems and components;

(ii) proper control of airspeed, direction, altitude, attitude and configuration of the helicopter, in accordance with the procedures and limitations set out in the helicopter operating manual where applicable, the Helicopter Flight Manual, the air operator's Company Operations Manual, the air operator's Standard Operating Procedures, the check list, and any other information relating to the operation of the helicopter type; and [our emphasis]

[...]

(e) A Transport Canada inspector or an approved check pilot shall determine whether a person has demonstrated the knowledge and the skill in accordance with the following factors:

(i) the pilot's adherence to approved procedures; and

(ii) the pilot's qualities of airmanship in selecting a course of action.

(f) During the pilot proficiency check, the person conducting the check may request any manoeuvre or procedure, from the Schedule to this subsection, required to determine the proficiency of the candidate.

[...]

SCHEDULE - Pilot Proficiency Check - Helicopter

[...]

(2) Flight Phase

[...]

(e)[...]

(i) Emergency and Malfunctions

The pilot shall demonstrate or, where demonstration is impractical, show knowledge of, proper procedures for as many of the emergency situations and malfunctions listed below as necessary to determine adequate knowledge and ability:

[...]

(E) hydraulic and electrical system failures and malfunctions;

[...]

DISCUSSION

Section 703.88 of the CARs provides that no person shall act as a flight crew member in an aircraft unless the person has successfully completed a pilot proficiency check in accordance with the Commercial Air Service Standards.

The Standards pertinent to this case are found in section 723.88 noted above.

In this case Mr. Fraser was assessed as having failed a PPC ride. The flight test report, Exhibit M-1, shows an unsatisfactory assessment in section 6 under hydraulic failure. The reason for the failure was that he did not demonstrate the correct sequence for a hydraulic hardover.

Mr. Fraser's representative asserts that one cannot be deemed to be incompetent because of the failure to meet a standard that does not exist. He submitted that the procedure to deal with the problem used by the examiner is not found in the flight manual.

The Member acknowledged that this type of hydraulic failure which he termed a "critical emergency" was excluded from the flight manual but found that this did not relieve one from knowing about it. To arrive at this conclusion, he relied upon the Standard found at 723.88 and stated:

There is an all-inclusive requirement in subparagraph 723.88(1)(b)(ii) of the Commercial Air Service Standards, which concludes: '...and any other information relating to the operation of the helicopter type'. This means any information available on the aircraft type, which is not available in the flight manual, operations manual, etc.

The Member went on to state that the fault was widely known and the helicopter fraternity had developed a procedure to deal with it.

ISSUE

The issue before us is the interpretation of the Standard found at section 723.88. We find that the Member erred in law in his interpretation of the Standard by finding "any other information" in subparagraph (1)(b)(ii) to mean any information available which was not in flight manuals, operation manuals, etc. The Member interpreted the terms"any other information" to be the body of knowledge, within the helicopter fraternity, including an understanding of the problem and the procedure to deal with it.

We find that interpretation to be erroneous. The tenet of statutory interpretation which supports our conclusion is often described as the "ejusdem generis" rule or the limited class rule. Black's Law Dictionary Sixth Edition puts it in the following terms: "...where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated."

The treatise on statutory construction, Driedger on the Construction of Statutes,[2] cautions that for the rule to apply, certain conditions must be met.

1) There must be an identifiable class to which all the specific items set out in the provision belong. In our case, section 723.88 of the Standards states at paragraph (1)(b):

A pilot proficiency check shall be conducted in a manner that enables the pilot to demonstrate the knowledge and skill [...] in accordance with the procedures and limitations set out in the helicopter operating manual where applicable, the Helicopter Flight Manual, the air operator's Company Operations Manual, the air operator's Standard Operating Procedures, the check list, and any other information relating to the operation of the helicopter type; and [our emphasis]"

Therefore, the items specified are:

  1. the helicopter operating manual
  2. the Helicopter Flight Manual
  3. the air operator's company operations manual
  4. the air operator's standard operating procedures
  5. the check list

Each of these five items is an official source of information containing specific procedures and limitations which are approved by an authority and are published and disseminated. The Helicopter Flight Manual, Exhibit D-1, bears the approval of the Canadian Department of Transport. A company operations manual must be submitted to Transport Canada for approval (703.104, 703.105). The standard operating procedures and check list are parts of those established manuals either emanating from the operator and approved by Transport Canada or published by the manufacturer and approved by the Canadian type certification.

All of these items are in the same class as each is "official" in that each one has been approved by the licensing authority, Transport Canada.

2) The limited class rule does not apply unless the class inferred from the list of specific items is narrower in scope than the general words that follow the list.

That is the case in this instance as the list enunciates certain approved publications whereas the general words that follow refer to "any other information relating to the operation of the helicopter type".

3) The general words must have something to apply to. The limited class rule cannot be invoked if the class inferred from the list of specific items has nothing apart from those items to apply to. The "any other information" can apply, for example, to such things as updates or revisions which are made to procedures but which have not yet found their way into the approved manuals. This type of information is illustrated in the Tribunal case of Leslie v. MoT.[3]

In that case, Captain Leslie was assessed as having failed a PPC on an A320 Airbus as he had utilized the autopilot in an emergency situation when such a procedure was not allowed. At the time of the check ride the prohibition against using the autopilot had not yet found its way into the pilot's Quick Reference Handbook, the A320 Flight Crew Operation Manual, nor was it displayed on the Electronic Central Aircraft Monitoring (ECAM). However, Airbus had issued Technical Bulletin #368 which specifically prohibited the use of the autopilot in that particular circumstance, but the Captain had not familiarized himself with it. The Tribunal found that Air Canada's Flight Operations Manual obliged the pilots to review and be conversant with all Technical Bulletins and since Captain Leslie had omitted to do so, the failure assessment should stand.

It is to that sort of information, published by an authority and designed to be contained in an approved manual, to which the "other information" is meant to apply.

In our case, the Member found the "any other information" to be a body of knowledge widely known in the helicopter pilot and training fraternity. Nowhere in the evidence do we see where such information is approved, published or disseminated. The problem in accepting such information is readily apparent as the procedure described by the witness/examiner in the evidence is contrary to the procedure regarding hydraulic failure provided in the approved flight manual. (D-1 section 2, page 2-14)

We are dealing with a section contained within the Commercial Air Service Standards. The Foreword to Standard 723 states: "This Commercial Air Service Standard outlines the requirements for complying with Subpart 703 of the Canadian Aviation Regulations."

Section 723.01 of the Standards states: "The standards under this Subpart apply to every air operator engaged in commercial air services under Subpart 703 of the Canadian Aviation Regulations."

Thus every air operator, from coast to coast, must be able to ascertain the appropriate standard to be able to comply with the Regulations. The word Standards implies conformity to an established norm.

There was no proof on the record that this procedure was such an established norm. On the contrary, the expert witness on training, Mr. Churcott, submitted at the hearing that although he taught this procedure at his own organization, and knew of one other operator who did the same, he had no idea as to who else used or taught this procedure.

THE CHAIRMAN: Do you know of the practice in other operators?

A: Yes. Other operators are doing it. Maybe not all, I have no idea. But definitely it's out there. [emphasis is ours][4]

As the Minister is responsible for the promulgation of the Standards, the standard that serves as the basis for the assessment of the candidate during a PPC must be based on material which has been approved by the Minister. That is then in keeping with the interpretation that "any other information" in subparagraph 723.88(1)(b)(ii) of the Standards refers to approved material rather than to some substrata of knowledge held by a particular branch of the aviation community. To hold that some substrata of knowledge is a standard would be to establish the antithesis of a standard.

CONCLUSION

We allow the appeal and refer the matter back to the Minister for reconsideration.

Reasons for Appeal Decision by:

Allister Ogilvie, Vice-Chairperson

Concurred:

Faye Smith, Chairperson
Pierre Beauchamp, Member


[1] Kerry Michael Kokoska v. Minister of Transport, CAT File No. P-0053-33.

[2] R. Sullivan, Driedger on the Construction of Statutes, 3d ed. (Toronto and Vancouver: Butterworths, 1994) at 204-206. See also P.-A. Côté, Interprétation des lois, 3e éd., Montréal, Les Éditions Thémis, 1999 aux pp. 395-403.

[3] Harold George Leslie v. Minister of Transport, CAT File No. O-1640-60.

[4] See Transcript of proceedings, p. 84.