Decisions

TATC File No. P-3258-27
MoT File No. 256283

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Thomas Craig Houston, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.71(1)(b)


Review Determination
Sandra Lloyd


Decision: December 29, 2006

The evidence does not prove on a balance of probabilities that the applicant failed to meet the required standard in accordance with the Approved Check Pilot Manual and as alleged in the Notice of Refusal to Issue or Amend a Canadian Aviation Document. Accordingly, I refer the matter back to the Minister for reconsideration.

[1]     A review hearing on this matter was held on Tuesday, October 3, 2006 at 10:00 a.m. at the Coast Bastion Inn, in Nanaimo, British Columbia.

I. BACKGROUND

[2]     The applicant, Thomas Craig Houston, a helicopter pilot, was given a pilot proficiency check (PPC) by Transport Canada Inspector Stephen Creagh at Campbell River, British Columbia, on February 16, 2006. The inspector assessed the PPC as a fail during the pre-flight portion and stopped the process. Consequently, the Minister issued to the applicant a Notice of Refusal to Issue or Amend a Canadian Aviation Document, dated February 21, 2006. The notice states the following grounds for the Minister's decision to refuse to issue the applicant's PPC:

Qualifications or conditions necessary for issuance or amendment not met or fulfilled . . . .

. . .

Candidate failed to demonstrate adequate knowledge of radio procedures required or minimum altitudes required to overfly blasting areas as outlined in the Canada Flight Supplement.

[3]     The applicant requested that the Tribunal review the Minister's decision to refuse to issue his PPC.

II. EVIDENCE

[4]     The inspector and the applicant gave evidence at the hearing about weather chart decoding, aerodrome traffic frequency operating procedures, and minimum required visibilities. This evidence is not discussed in this determination since none of those subject areas were mentioned in the notice as grounds for the Minister's decision.

A. Stephen Creagh

[5]     The inspector testified that he briefed the applicant, collected his licence information, and gave him an oral examination. He asked the applicant what frequency he should be on when he was flying below 1 000 feet above ground level (AGL) on the west coast. The applicant said "I think it's 126.7, but most of us are on 123.2", or words to that effect.

[6]     The inspector identified a photocopied page from the Canada Flight Supplement (CFS) entitled "Change in Notam Procedure Regarding Logging Activities Pacific Region" (CFS Procedure) (exhibit M-5). That item provides in part that "[w]hen operating VFR over forested areas of BC, pilots should . . . [i]f operating below 1000' AGL monitor 123.2 mhz for imminent blasting notification".

[7]     The inspector also identified a Transport Canada aeronautical information circular 10/04 (AIC) dated September 30, 2004 (exhibit M-6), predating the CFS Procedure. The AIC also provides that "[w]hen operating VFR over forested areas of British Columbia, pilots should . . . [m]onitor 123.2 MHz for imminent blasting notification if operating below 1 000 ft AGL". The inspector said that the AIC was a precursor to the CFS Procedure.

[8]     The inspector indicated that there were numerous deficiencies in the applicant's oral examination, but conceded that the applicant had just come in from a flight and may have had other things on his mind.

[9]     The inspector said that he failed the applicant on the basis of the oral examination. He put a "1" on the PPC Report form for "Flight Planning", for the reasons stated in the "Comments-General Assessment" section. The inspector's opinion was that the applicant did not know procedures sufficiently well to safely plan a flight. He said he followed the standard set in the ACP Manual and filled out the PPC Report form 10 minutes after stopping the PPC.

[10]     The PPC Report has a checkmark under the words "Ground Training/Flight Training/ Exams", indicating that those three items had been completed.

[11]     It also shows an assessment of (3) for "Technical Knowledge" and an assessment of (1) for "Flight Planning".

[12]     Under "Comments-General Assessment", it is stated that the "[c]andidate failed to know radio procedures for low level blasting areas or minimum altitudes for blasting areas overflight".

[13]     Specifically, in assessing the failure, the inspector relied on section 10.3.5(b)(iii) of the ACP Manual. He said that the candidate displayed an unacceptable level of technical knowledge and failed to meet the standard. He concluded that the applicant did not meet the qualifications.

[14]     The inspector said he wondered how the applicant's employer conducted its recurrent training. He said that often companies do aircraft training but little ground training, which puts a lot of pressure on the pilots. He said he wished training was done better, but the pilot is responsible.

[15]     Under cross-examination, the inspector admitted that he had little experience on some of the helicopters he was qualified on. He agreed that a pilot must complete a number of written examinations before he can do a PPC, that the written examinations are open book, and that they could take quite a while to do. He thought that the oral examination that he gave the applicant probably lasted about 45 minutes.

[16]     The inspector also agreed that 123.2 is used by helicopter pilots all up and down the coast, and that blasters are allowed to use that frequency to announce imminent blasting. He denied that he asked the question "What is the blasting frequency?", but said he had asked "What is the correct frequency to be on below 1 000' AGL over the forested portions of B.C.?"

[17]     The inspector said that the applicant, when shown a visual flight rules (VFR) navigation chart, recognized a charted blasting area, but was unable to correctly answer a question as to the required minimum altitude to fly over that area. The inspector indicated that the required altitude was 3 000 feet.

[18]     When re-examined, the inspector admitted that for examination purposes he uses charts that are out of date as "generic props" to test candidates' knowledge.

B. Geoff Graham

[19]     The applicant called Geoff Graham as an expert witness. Mr. Graham is a civil aviation inspector for Transport Canada and has been an airspace specialist for eight years. He explained that prior to the development of the current recommended procedures for operating in possible blasting areas in British Columbia, there existed hundreds of blasting NOTAMs. Pilots could not possibly keep up with them. The NOTAMs were often inaccurate, so pilots ignored them. To address safety concerns, meetings were held between Transport Canada, air operators, and the logging industry. Those meetings were part of a non-regulatory process and resulted in the issuance of the current CFS Procedure, which is a recommended (not a required) procedure. The CFS Procedure was first published in its permanent location in the CFS in July 2005.

[20]     Mr. Graham stated that the 123.2 frequency was not chosen as a "blasting frequency", but was chosen by the aviation community because they already use it.

[21]     Mr. Graham also said that logging companies continue to fax notices about blasting to aviation operators in their area and to Nav Canada, which uses that information to create NOTAMs. Sometimes the information is inaccurate, in particular the information about the height of blasting debris. Mr. Graham follows up on this information in an attempt to ensure that any blasting NOTAMs are either accurate or are eliminated. One example of when he does this is when a NOTAM says that blasting debris will be 1 000 feet or higher. Mr. Graham's evidence was that it is far-fetched to think that debris would go that high, and pilots would likely ignore such a NOTAM. In such a case he would call the logging company, who would likely say that it was 500 feet or less.

[22]     Mr. Graham agreed that if a pilot were to follow all the NOTAMs between Campbell River and Courtenay, it would be impossible to fly that route.

[23]     Mr. Graham also said that blasting areas shown on VFR navigation charts are mostly not logging areas, but are mines, which are more long-lasting operations. However, he said, "We don't really know what is going on with those". There is no inventory of these charted areas and the information is not up-to-date. For example, there is a charted coal mine at Campbell River which is marked as a blasting area when in fact it has not been one for years.

[24]     Under cross-examination, Mr. Graham indicated that he is the author of the CFS Procedure. He also said that a representative of the applicant's employer was present at the meetings leading to the issuance of the CFS Procedure. The purpose of the CFS Procedure was to reduce the number of blasting NOTAMs and to ensure that the ones that are published are accurate. He agreed that the CFS Procedure and blasting NOTAMs are relevant to VFR flight planning.

C. Thomas Craig Houston

[25]     The applicant, Mr. Houston, testified that the inspector had asked him questions during the PPC for about one and a half hours. He said that when he thought he was just about done, the inspector asked him what the blasting frequency was. The applicant asked whether the inspector meant the FM frequency to which the inspector answered in the negative; he meant the aircraft radio frequency. Mr. Houston then replied that he had "never heard that before, but we're always on 123.2".

[26]     Mr. Houston testified that when the inspector showed him a marked blasting area on a VFR navigation chart, he knew that it was a blasting area, but admitted that he did not know the required height to fly over it. He said that any altitude listed would be a recommendation only, and that the required altitude varies with each site.

[27]     Mr. Houston added that he knows that he should be on the 123.2 frequency because he is always on it, but that nowhere is it called a blasting frequency.

[28]     Mr. Houston also discussed blasting incidents with Transport Canada and found that there had been only two. One was in Norman Wells, Northwest Territories, where the blasting crew knew that an aircraft was in the area but was too impatient. The other had to do with a miscommunication between a pilot and blasters, which resulted in rock damage to a helicopter.

III. SUBMISSIONS

[29]     Stephen Hewitt for the Minister of Transport noted that Canada has a high standard of aviation safety and that PPCs help Transport Canada ensure that the high standard is maintained. He said that the PPC process serves two purposes: to evaluate whether the pilot is able to operate his aircraft safely and competently; and to evaluate the effectiveness of the aircraft operator's training program.

[30]     Mr. Hewitt noted that in this case the oral examination was not done quickly. The candidate had plenty of time to demonstrate his knowledge. He submitted that the inspector exhibited a high degree of respect and professionalism.

[31]     Mr. Hewitt further submitted that the ability to refer to flight planning publications is important. He requested that the Tribunal uphold the Minister's decision to assess Mr. Houston's PPC as a fail.

[32]     Mr. Houston submitted that he does know about blasting and that he cannot accept a failure for something he knows about. He submitted that the inspector did not know what he was asking, that blasting is not a real safety issue and that the Minister should be working on something that is a real hazard. He questioned the relevance of the questions that the inspector asked him and noted that trick questions are easy to ask.

[33]     Mr. Houston's view is that his PPC ride amounted to an abuse of power. He is concerned that if the Minister persists in conducting such rides, pilot careers could be stopped unjustifiably.

IV. LAW

[34]     Section 6.71(1)(b) of the Aeronautics Act, R.S.C. 1985, c. A-2, as amended by R.S., c. A-3, reads as follows:

6.71 (1) The Minister may refuse to issue or amend a Canadian aviation document on the grounds that

. . .

(b) the applicant or any aircraft, aerodrome, airport or other facility in respect of which the application is made does not meet the qualifications or fulfil the conditions necessary for the issuance or amendment of the document . . . .

[35]     Sections 6.72(1) and (4) of the Aeronautics Act read as follows:

6.72 (1) Subject to any regulations made under paragraph 6.71(3)(b), an applicant, owner or operator ... who wishes to have the Minister's decision reviewed shall, on or before the date specified in the notice or within any further time that the Tribunal on application may allow, file a written request for a review of the decision with the Tribunal at the address set out in the notice.

. . .

(4) The member of the Tribunal who conducts the review may determine the matter by confirming the Minister's decision or by referring the matter back to the Minister for reconsideration.

[36]     Section 15(5) of the Transportation Appeal Tribunal of Canada Act, S.C. 2001, c. 29, reads as follows:

(5) In any proceeding before the Tribunal, a party that has the burden of proof discharges it by proof on the balance of probabilities.

V. ACP MANUAL EXCERPTS

[37]     Following are excerpts from chapter 10, "Assessment Standards" of the ACP Manual.

10.1 General

. . .

10.1.2 Each sequence of the flight check shall be graded according to the following rating definitions and assessment standards. The appropriate rating for each exercise must be recorded on the flight check form and any sequence graded (2) or (1) requires a narrative in the comments section of the form.

Most sections in this Chapter include a list of common errors that may affect the rating of a sequence. ACPs shall use the wording of the appropriate common error where applicable.

. . .

10.3 Description of the (1) to (4) Marking Scale

10.3.1 When applying the 4-point scale, award the mark that best describes the weakest element(s) applicable to the candidate's performance. Remarks to support mark awards of (1) or (2) must link to a safety issue, a competency standard, or an approved technique or procedure.

. . .

10.3.5 Below Standard (1)

. . .

(b) A sequence shall be rated Below Standard (1) where

. . .

(iii) technical skills and knowledge reveal unacceptable levels of technical proficiency and/or depth of knowledge,

. . .

10.4 Elements of the 4-Point Scale

10.4.1 The following six elements are evaluated with the 4-point scale:

. . .

(c) Technical Skills and Knowledge

. . .

10.4.4 Technical Skills and Knowledge:

(a) General

(i) practical use and understanding of aircraft systems and automation, data, charts, weather and physiological factors

(ii) knowing what to do, how to do it and understanding why

(b) Expected level of competency

(i) appropriate to the requirements of the qualifications sought

(ii) competency that would get the job done safely and efficiently

(iii) above average, average, or below average

10.29 Technical Knowledge

. . .

10.29.2 The ACP may administer an oral examination to confirm the candidate's knowledge in conjunction with the pre-flight briefing required by section 9.5, 9.6 or 9.7.

. . .

10.30 Flight Planning (FLP)

10.30.1 Flight planning begins when the pilot or crew have been given a task for the helicopter and start to make use of flight planning information sources; and ends when the pilot or crew arrive at the aircraft for the purpose of the planned flight.

10.30.2 The pilot or crew must demonstrate adequate knowledge of the company's COM, SOPs, and AFM, including helicopter performance charts, limitations, applicable AFM supplements, and weight and balance procedures.

10.30.3 The pilot or crew must demonstrate the ability to obtain and understand adequate weather and NOTAM information, and the ability to use VFR . . . charts and other documents to effectively plan a flight.

VI. DISCUSSION

[38]     Previous Tribunal determinations have held that in a PPC review, the onus is on the Minister to prove on a balance of probabilities that a PPC candidate failed to meet the required standard. Further, the standard expected of both the candidate and the check pilot conducting the PPC ride is to be adjudged according to the standards promulgated in the ACP Manual (see section 15(5) of the Transportation Appeal Tribunal of Canada Act, and West v. Canada (Minister of Transport), [2006], review determination, TATC file no. O-3075-60, [2006] C.T.A.T.D. no. 17 (QL)).

[39]     The inspector's testimony was that there were "numerous deficiencies" in the applicant's oral examination. He also said that he failed the candidate "on the basis of the oral exam". However, the section of the ACP Manual that allows for an oral examination is section 10.29.2 under "Technical Knowledge". On the PPC Report form, the inspector gave the candidate a (3) for "Technical Knowledge", which means that he met the standard.

[40]     Under "Flight Planning" on the PPC Report form, the inspector gave the applicant a (1), which means that the candidate failed to meet the standard required for flight planning. Specifically, the narrative comments indicate that the "[c]andidate failed to know radio procedures for low level blasting areas or minimum altitudes for blasting areas overflight". Section 10.1.2 stipulates that any sequence graded (2) or (1) requires a narrative in the comments section of the form.

[41]     The ACP Manual and the PPC Report form draw a clear distinction between the "Technical Knowledge" and the "Flight Planning" portions of the PPC pre-flight process. The "Technical Knowledge" portion allows for an "oral examination" of the candidate. The PPC Report shows that the applicant passed this portion of the PPC ride.

[42]     According to section 10.30.1 of the ACP Manual, the flight planning portion of the PPC ride "begins when the pilot or crew have been given a task for the helicopter and start to make use of flight planning information sources". The section states that flight planning ends when the pilot arrives at the aircraft "for the purpose of the planned flight". I infer that "task" means a proposed flight for which the candidate is to plan.

[43]     The flight planning sections 10.30.2 and 10.30.3 use the words "must demonstrate". The "Technical Knowledge" section 10.29 does not use those words, but instead refers to an oral examination.

[44]     I infer from the difference in wording between the "Technical Knowledge" and the "Flight Planning" sections that the intent is that the "Flight Planning" portion of the PPC process is qualitatively different from the "Technical Knowledge" section. Demonstrating the practical ability to plan a flight is in my opinion something quite different from being asked a series of hypothetical or technical questions.

[45]     There is no evidence that the pilot in this case was given a task for the helicopter, that is, a particular proposed flight that would require him to start making use of flight planning information sources.

[46]     Further, in my view, the evidence does not show that the applicant "failed to know radio procedures for low level blasting areas", as indicated in the PPC Report (exhibit M-7), or "failed to demonstrate adequate knowledge of radio procedures required to overfly blasting areas", as set out in the notice. While the evidence is that the candidate did not specifically refer to the CFS Procedure, the applicant did say that "we're always on 123.2", or words to that effect. That is, in fact, the CFS recommended frequency for operating below 1 000 feet AGL when operating VFR over the forested areas of British Columbia.

[47]     The evidence does show that the applicant did not know minimum altitudes required for blasting areas overflight, that is, as they relate to charted blasting areas on VFR navigation charts. However, the expert evidence of Mr. Graham was that the charted information about those areas is often out of date and inaccurate and that it is far-fetched to think that blasting debris would go even as high as 1 000 feet. It is therefore not surprising that an experienced pilot would not concern himself with what altitudes he was supposed to fly over those areas.

[48]     Section 10.3.5(b)(iii) of the ACP Manual, upon which the inspector said he relied in reaching his failure assessment, requires that a sequence be graded (1) where "technical skills and knowledge reveal unacceptable levels of technical proficiency and/or depth of knowledge".

[49]     Section 10.4.4(a)(i) provides that a candidate will be evaluated on "practical use and understanding of [among other things] charts". The expected level of competency is that which "would get the job done safely and efficiently", as set out in section 10.4.4(b)(ii).

[50]     In my view, in the circumstance where the published information is known to be unreliable, the question about charted blasting areas overflight cannot be considered to reasonably form part of an evaluation of a pilot's practical use and understanding of charts. It is not reasonable that an incorrect answer to such a question would result in a failure assessment.

[51]     With respect to the question about required minimum altitudes for blasting areas overflight, I find that the evidence fails to show that the applicant does not have a practical understanding or lacks the competency that would get the job done safely and efficiently.

VII. CONCLUSION

[52]     The basis for the Minister's refusal to issue, according to the notice, was the applicant's lack of knowledge of radio procedures required or minimum altitudes required to overfly blasting areas as outlined in the CFS.

[53]     The evidence does not show that the applicant failed to know radio procedures for blasting areas as alleged in the PPC Report or the notice. Further, the question that the applicant was asked about minimum altitudes required to overfly blasting areas does not reasonably form part of a practical flight planning task as contemplated by the ACP Manual, since the published information about those areas is known to be unreliable.

VIII. DETERMINATION

[54]     The evidence does not prove on a balance of probabilities that the applicant failed to meet the required standard in accordance with the ACP Manual and as alleged in the notice. Accordingly, I refer the matter back to the Minister for reconsideration.

December 29, 2006

Sandra K. Lloyd
Member
Transportation Appeal Tribunal of Canada