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Transport Canada Gets Deference on Pilot Proficiency Check
Published in the June 2010 issue of Transportation Notes - View Article
The Federal Court of Canada recently released a decision that examines the procedure Transport Canada should follow when it reconsiders the results of a Pilot Proficiency Check (“PPC”) on a particular aircraft. In short, it held that the panel set up by Transport Canada to reconsider PPCs is not bound by the conclusions of the Transportation Appeal Tribunal of Canada (“TATC”).
In this case, the applicant pilot, Turner, was offered a position with a company as pilot-in-command (“PIC”) of a King Air C-90/BE-90 passenger aircraft (“the aircraft”).
After a ground exam and some flight training with an instructor, Turner’s instructor recommended that he checked out on the aircraft.
The flight test was conducted by a freelance approved check pilot (“FACP”) who sat in the first seat behind the cockpit. During the test, Turner acted as PIC with his instructor sitting in the right seat acting as co-pilot.
The FACP could not connect his headphones into the aircraft and thus could only communicate his instructions to the applicant through the co-pilot instructor, acting as intermediary.
During the flight test and while the aircraft was circling, the FACP requested that Turner be given the control during a certain manoeuvre even though this was allegedly contrary to the company’s standard operating procedure (“SOPs”).
Turner was also asked to conduct a single engine landing. After he landed, he reversed both engines and applied the brakes at maximum power which caused the aircraft to stop within a short distance, resulting in a failing mark on this portion of the test.
The failing mark would normally end the test but the FACP was uncertain as to whether the pilot had chosen to do a quick stop procedure at the request of air traffic control or because of a situation that he could not appreciate from where he sat without headphones.
Accordingly, the FACP decided to complete the PPC with a short oral test on checklists for a Rejected Take Off (“RTO”).
The applicant failed his RTO oral test by reversing the order of two items on the list of measures to be taken in a situation involving an “engine fire on ground”. Turner later admitted to providing an incorrect answer to the RTO and that, despite being given three opportunities to correct himself, he did not do so because he was afraid that he would fail and that the instructor would believe he had not mastered the checklists.
The results were discussed in the company office after the test during a debriefing but Turner was not advised that he failed his PPC until two days later. Following the failure of his test, Turner was terminated.
He then filed a request for a review of the FACP’s decision with the Transportation Appeal Tribunal of Canada (“TATC”).
The TATC set aside the FAPC’s decision and sent it back for reconsideration. The respondent, Minister of Transportation, initiated the reconsideration process by following the procedure set out in a civil aviation directive by appointing the Director, Standards for Civil Aviation Directorate (“the Director”) who then appointed three people to form a reconsideration panel (“the Panel”).
All three members were experienced pilots who worked for Transport Canada. The Panel heard evidence including the applicant’s submission that he had passed a PPC on J-32 aircraft and that, accordingly, he was competent to fly the King Air C-90/ BE-90.
The Panel reviewed all the material before it and, while it accepted that the lack of communication between the FACP and the applicant could have had an influence on his landing performance therefore warranting a higher mark, it was satisfied that the RTO mark be upheld and that the applicant did not avail himself of the opportunities to correct himself.
Finally, the Panel indicated that it did not agree with the TATC view that the FACP did not follow the Approved Check Pilot Manual’s (“ACP”) recommendations and failed to create the professional and/or neutral environment for the test.
The Panel recommended that the FAPC’s decision to award a failing grade on Turner’s PPC be upheld. This conclusion was accepted by the Director.
Turner sought judicial review of the Panel’s decision on the grounds that it did not have the appropriate expertise to make the finding that it made and, further, that it breached procedural fairness or exceeded its jurisdiction by reviewing the evidence and issuing recommendations that were contrary to the TATC’s decision.
In deciding the judicial review, the Federal Court rejected the argument that the Panel did not have the appropriate expertise. The Federal Court held that there was no evidence that one must be a pilot on the C-90 aircraft to be able to assess the matters put before the TATC and the Panel, and it accepted the Director’s uncontradicted evidence on the Panel’s necessary technical expertise.
The Federal Court also rejected the procedural fairness argument. It noted that the practice of the TATC is to denounce and bring to the attention of the Minister all matters that may have an impact on the decision to issue, renew, suspend or cancel a licence as well as any deviation from practices that are of interest to the Minister who may take whatever steps he thinks appropriate in such respect.
Therefore, any negative comments made by the TATC about the debriefing that would not be in accordance with the ACP manual or any negative comments about failure to follow SOPs, would not have an impact on the actual performance of the applicant and the assessment of his competency.
Negative comments about the PPC could simply indicate steps to be taken to improve the manner in which the ACP manual is applied by the instructor or to signal SOPs that are deficient even if it has nothing to do with the actual performance of a pilot on the PPC.
In order words, the TATC is permitted to make negative comments about the pilot test without any bearing on the actual performance on the test, in keeping with its practice and the expert Panel is not bound by the TATC comments when reviewing the decision on the PPC.
The Federal Court held that a review of the evidence supported the conclusion that the Panel and the Minister did precisely what was required to determine whether the applicant was entitled to obtain a passing mark on this PPC.
Turner’s application for judicial review was dismissed — meaning that the FAPC’s original failing mark was upheld.
Turner v. Minister of Transportation (Canada),
2010 FC 613.