Letter to Jean Francois Mathieu TC Chief enforcement officer

[Gilles Hudicourt]

The regulations are simple

Flight Crew Member Qualifications
702.65 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
(a) holds the licence and ratings required by Part IV or, where the air operator is the holder of an air operator certificate issued in accordance with the North American Free Trade Agreement, the equivalent foreign licence and ratings;

Flight Crew Member Qualifications

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
(amended 2000/02/01; previous version)

(a) holds the licence and ratings required by Part IV;

Flight Crew Member Qualifications

704.108 (1) Subject to subsection (6), 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

(a) holds the licence and ratings required by Part IV;

Pilot Qualifications

705.106 (1) Subject to subsection (3), no air operator shall permit a person to act and no person shall act as the pilot-in-command, second-in-command or cruise relief pilot of an aircraft unless the person

(a) holds the licence, ratings and endorsements required by Part IV;

A Foreign Licence Validation Certificate is NOT a licence issued under Part IV.

This is why a Transport Canada inspector with balls wrote to me:

"You are right on, I have been in TC for many,many, many years and I think you will find some "clerks" issued these way back because inspectors don't do that work anymore. I know our region looked at that way back and the answer was not allowed as you say. You have seen some of their answers back to you or at least the attempted one. I think they are trying to figure out what to do to save themselves."

This is why these Transport Canada documents state what they State: to fly commercially in Canada, you need a Canadian Licence.

Those who wrote these statements did not make them up from thin air. They are based on the above CARs

http://www.tc.gc.ca/eng/civilaviation/s ... e-2283.htm

"A foreign pilot wishing to fly Canadian registered aircraft for remuneration or reward in Canada must be in possession of a valid Canadian Commercial Pilot Licence or Airline Transport Pilot Licence."

http://www.tc.gc.ca/eng/civilaviation/o ... ary-94.htm

"3.4.1.14 Except for specifically identified cases as indicated in the CARs, foreign licences are not validated for the purpose of allowing an applicant to operate on a commercial air service in Canada. "

The "specifically identified cases as indicated in the CARs" that are mentionned above are not those listed in 421.07 (2). They are in parts 702, 703, 704, 705, because something that is prohibited in Part VII cannot be counter-authorized by Part IV unless a Part VII clause also authorizes it.

For example:

CAR 705.106 (6) states

(3) An air operator may permit a person to act and a person may act as the pilot-in-command or second-in-command of an aircraft where the person does not meet the requirements of subsection (1), if

(a) the aircraft is operated on a training, ferry or positioning flight;

So pilots with FLVC can ferry an aircraft under Part 705.

CASS 421.07 (2) (c) also echoes that authorization

421.07 Validation of Foreign Licences

(2) Purposes For Which Foreign Licence Validation Certificates May Be Issued

(c) for ferry of an aircraft registered in Canada to or from a foreign country;

But the authorization to ferry Canadian aircraft under Part 705 does not come from 421.07 (2) (c), it comes from 705.106 (3)

The privileges that are granted to holders of FLVC in 421.07 (2) (c) to ferry Canadian aircraft do not concern Part VII operations at all.

That is why 421.07 (2) (j) does not, and cannot apply to Part VII.

Every reasonable person I have explained this to agreed with me. Those that will not see it just do not want to see it. This will be my last post on the subject.

They can try to sit on it as long as they want, but it's bound to blow from under them, sooner than later.

[RogerCheckCopy]

Let me approach this from a different angle. Should FLVCs be issued for general commercial line flying? Absolutely not. Is it the intent of the CARs to allow TC to issue FLVCs for general commercial line flying? Probably not. Is there anything in the CARs that clearly prohibits it? In my opinion, no. From what you can see, yes. This is not your biggest problem. The fact that a presedent has been set in that this has been going on for years is your biggest problem.

[Gilles Hudicourt]

It has been going on for at least 10 years. There was a Skyservice A320 that taxied off the end of the runway in Windsor in 2003 that had a F/O with a FLVC. His unfamiliarity with operations in uncontrolled airports was a contributing factor in the incident.

He was illegally siting in that seat.

Back then the insurance companies did not know that.

Today they do. There lies the difference.

[RogerCheckCopy]

Insurance companies are always looking for reasons not to pay out so I am not so sure they see unqualified pilots as a negative.

[Gilles Hudicourt]

Insurance companies are always looking for reasons not to pay out so I am not so sure they see unqualified pilots as a negative.

There again you are correct. But there is a Canadian Agency whose primary role is to protect the Canadian public by insuring, among other things, that all Commercial Flights operated in Canada are covered by adequate insurance.

It is called the Canadian Transportation Agency.

[Gilles Hudicourt]

In 1994, Canada signed the North American Free Trade Agreement (NAFTA). One of the provisions of that agreement was to allow the companies of member countries to do "aerial work" in each other's countries. In Canada, aerial work falls under Part 702. The problem is that in Canada, it was prohibited for foreign licensed pilots to fly under Part 702. This prohibition, of course, was not written under Part IV, as some people would like to imagine, but it was written, quite rightfully so, under Part VII regulations. Back then, we still had the ANO and the ARs etc, but the news CARs were being written and the lawmakers, who knew and understood the laws and regulations of this country, were converting the old rules into what we know today, the Canadian Aviation Regulations (CAR).

So when the CARs were written, the prohibition to have foreign licensed pilots to fly under Part VII was obviously not written into Part IV, but under Part VII where it should be. While prohibiting the use of foreign licensed pilots, these Regulations contained some exceptions and conditions which allowed limited and restricted use foreign licensed pilots. This is why each Part had its own Regulation:

702.65 prohibited foreign licensed pilots for aerial work
703.88 prohibited foreign licensed pilots for air taxi
704.108 did the same for commuters
705.106 covered it for airlines.

The purposes for which a Foreign License Validation Certificate (FLVC) may be issued, that are listed in 421.07 (2), can only be allowed for air operations that do not prohibit foreign licensed pilots in the first place. Parts 702, 703, 704 and 705 do not allow foreign licensed pilots, so any operation under these parts cannot possibly be permitted by a clause under Part IV.

To come back to NAFTA, how did the lawmakers allow pilots who were members of NAFTA countries to do aerial work in Canada under Part 702? They could not possibly just insert a clause in 421.07 (2) to allow it because 702.65, which is written just like its siblings under Parts 703, 704 and 705 did not allow it:

Flight Crew Member Qualifications

702.65 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

(a) holds the licence and ratings required by Part IV

Had they just added a clause under 421.07(2) to state that pilots who were members of NAFTA countries could perform aerial work in Canada if they were provided with a FLVC, that clause would have been in direct contradiction to 702.65, so the provision to allow NAFTA member pilots to perform aerial work in Canada was written in the following manner:

Flight Crew Member Qualifications

702.65 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

(a) holds the licence and ratings required by Part IV or, where the air operator is the holder of an air operator certificate issued in accordance with the North American Free Trade Agreement, the equivalent foreign licence and ratings;

The intent of the lawmakers who wrote 702.65 in this manner was to allow only foreign pilots of NAFTA member countries to do aerial work in Canada. But according to the twisted interpretation of the CARs that our current administrators at Transport Canada are making, any foreign licensed pilots with a valid FLVC can fly under Parts 702, 703, 704 and 705, so the exception that is made specifically for NAFTA member pilots in 702.65 is no longer limited to US and Mexican pilots: a Czech, a German, a Belgian or a British can do aerial work in Canada. All he has to do is get a FLVC under 421.07(2)(j).

You all know that this is not what the regulations had intended.

To come back to Part 705, it says:

Pilot Qualifications

705.106 (1) Subject to subsection (3), no air operator shall permit a person to act and no person shall act as the pilot-in-command, second-in-command or cruise relief pilot of an aircraft unless the person

(a) holds the licence, ratings and endorsements required by Part IV;

That means that under 705, no foreign licensed pilots are allowed. Not even Mexicans. Not even Americans. Not even under 421.07(2)(j).

Is anyone working at TC Enforcement or are they all on extended leave, waiting for this problem to go away on its own?

[Jean-Luc Monette]

Brilliant, Gilles!

Goes to show how complicated the CARs are to apply... ANOs were much simpler, they created a monster.

[Gilles Hudicourt]

Some of you may remember that missing chapter 8.5 from the on-line English language version of the TP 4711 - Air Operator Certification Manual, the missing chapter that allowed me to discover the CARs and CASS that forbid the use of Foreign licensed pilots for Part VII operations in Canada ?

It was replaced today.

http://www.tc.gc.ca/eng/civilaviation/p ... 5-4641.htm

8.5 Use of Foreign Personnel on Commercial Air Operations in Canada

The use of foreign qualified air crew on any Canadian aircraft except when acting as training pilots for the introduction of a new type of aircraft is referred to in subsections 725.88(3), 724.108(3) and 725.106(6) of the CASS.

It has a mistake in the English version though. Here is the French version:

L’utilisation de membres d’un équipage étranger qualifié à bord d’un aéronef canadien, sauf à titre de pilote d’entraînement lors de l’introduction d’un nouveau type d’aéronef, est mentionnée aux paragraphes 723.88(3), 724.108(3) et 725.106(6) de la NSAC.

The correct CASS are 723.88(3), 724.108(3) and 725.106(6)

[Gilles Hudicourt]

I have a big problem people. Someone just wrote to me to denounce a situation that involves a new violation of the Canadian Aviation Regulations. It involves dozens of violators.

I don't know what to do with that information. Whom do I report it to if I don't want my report to just end up in the shredder ?

Should I go to the RCMP ? Where else can I go ? Whose job is it to receive my information and act on it ? To protect the public ?

[Prairie Chicken]

I suggest you encourage the someone who wrote to you to take their information directly to a TC Enforcement Office. I suggest they do it for two reasons; first because they (hopefully) have direct knowledge of the alleged violation, and secondly, because your name is now so deeply embroiled in the situation that a new complainant would be viewed in an unbiased light.

I haven't closely examined the legislation in this matter, but it seems from casually following this thread that you need to ascertain if TC consider the FLVC as a CAD. That answer should guide your approach.

[Gilles Hudicourt]

I haven't closely examined the legislation in this matter, but it seems from casually following this thread that you need to ascertain if TC consider the FLVC as a CAD. That answer should guide your approach.

Look at this Transport Canada Webpage, now deleted, but preserved at Library and Archives Canada

http://www.collectionscanada.gc.ca/weba ... FlyFor.htm

Please note that the Foreign Licence Validation Certificate is not a Canadian licence.

Loot at this current Transport Canada Webpage:

http://www.tc.gc.ca/eng/civilaviation/s ... e-2283.htm

A foreign pilot wishing to fly Canadian registered aircraft for remuneration or reward in Canada must be in possession of a valid Canadian Commercial Pilot Licence or Airline Transport Pilot Licence.

[single_swine_herder]

Prairie Chicken .... if I recall our briefing at Cornwall correctly, any piece of information relating to aeronautics was (then) considered to be a CAD. The example given by Manzur H was ..... a nav log scribbled on the back of a cigarette pack constituted a CAD in a proceeding.

The definition may have undergone some "maturation & modification" over the years however ....

[spaner]

It's all very interesting Gilles.
You obviously know the issue inside and out. Easily quoted applicable CARs and such.
Yes, guys could argue semantics here for the fine line interpretations. I don't think that's the point though, so don't get all bogged down into the finer points of TC case law and regulatory interpretation, that few, can barely understand, never mind argue a position intelligently. You're well versed in the topic, better that the naysayers are not. Don't educate them, but use that knowledge to convince the third parties that are of importance to oversight, and regulatory correction.

Take your recent P&P performance. I thought you did quite well. Borderline on the too angry side though; but not. Quick on the draw, and to the point. I enjoyed it. You pretty much buried sunwing under their own filth. Damage control happens fast, when you hit the mark.

You already have this area covered quite well, and those that needed to be advised, were.
What about investigating the problem from a new side, to drum up media interest in the overall topic of TFW in Canada. That seems to be the media tag that Canadian aviation TFW has been brought into the light in the first place.

CBC did an exclusive followup on the RBC TFW issue. Uncovering, the fact that the TFW under I-Gate were not being paid the minimum pay-rate required by Canadian Regulation as it pertains to the TFW stipulations. In fact, it was I-Gate, that was getting the full payment from RBC, the workers, got a small fraction of that while in country. Even less, after they are relocated back to India. Of course, how else do you think the I-Gates of the world could exist, only on the backs of the workers.

So, do we think that Canadian aviation operators are doing the same kind of thing. Could it even be possible that a pilot out of Germany would be getting the same paycheck while working for Sunwing? Would that even meet the minimum regulatory requirement? Perhaps, it is Sunwing that is meeting the requirement, and a third party is kicking the difference as "administrative" costs.
Are these pilots being payed for stat holidays? Are they getting overtime?

Is meeting the regulatory conditions a matter for Sunwing to payout?
OR, for the TFW to receive?

There are many avenues to pursue in this perversion of employment rights in Canadian aviation; not to mention Canadian industry as a whole. Keep the media interested, keep the opposition informed.

Personally, I don't think that any job in Canada should be held by anyone but a Canadian. Everything else said to the contrary is BS; in my opinion, of course...

[Cat Driver]

Should I go to the RCMP ? Where else can I go ? Whose job is it to receive my information and act on it ? To protect the public ?

Gilles these issues you are trying to resolve fall under federal law.

TCCA are supposed to enforce federal law.

However historically they have at times shown a reluctance to do so, due to political reasons running in the background.......remember the industry is driven by power and money.

I had a similar problem with TCCA trying to enforce law as chief pilot with a Canadian Airline in 1975

It is difficult to get the RCMP to intervene in aviation matters because the federal governing body is TCCA.

But it can be done and for sure it changes the mindset of TCCA because the law in the end rules.

If you want you can contact me personally and I will tell you how I did it and what I had to do to force the RCMP to intervene.

It is not easy, believe me.
. ..

[Gilles Hudicourt]

Just has a most interesting and educative phone conversation with the legendary . .. Hearing his story and learning from his experience gives me the resolve to keep at it. In a way, he seems to think that I may have already won. It's just that Transport still hasn't figured out whom to sacrifice in order to come out from the corner into which they've painted themselves.

[jpilot77]

Gilles keep up the good work!

[RogerCheckCopy]

Gilles: Is this an aviation safety issue or a labour and immigration issue?

[Gilles Hudicourt]

Gilles: Is this an aviation safety issue or a labour and immigration issue?

It is all three !

Good Immigration policies but very very poorly administered. No real reciprocity
Terrible Labour policies. Leaving pilots on EI and giving the jobs they should be getting to foreign pilots who pay no taxes.
Foreign pilots with no valid Canadian Licences ?

[Gilles Hudicourt]

Remember the missing chapter I wrote about that suddenly re-appeared ?
I wrote about it a few posts ago here:

https://dl.dropboxusercontent.com/u/105 ... 0regs.docx

Well today I got the full story. It seems that someone sent a Access to Information Request to Transport Canada asking to know who had ordered that chapter removed from that manual and why.

In response, Transport Canada replaced the missing chapter and contacted the person who had made the request to inform him that the chapter had been replaced and asking at the same time if that in itself satisfied him and if they could just forget about the request.

It seems that the person thanked the Access to Information official but said he still wanted to know whom had ordered that chapter removed.

To those who haven't followed, that missing chapter was the main lead that allowed us to find CAR 705.106(1)(a) which prohibits foreign licensed pilots from flying Canadian Part VII aircraft.

I laughed until my head hurt. I can't wait to hear the rest of the story.

Gilles

[ODA]

Remember the missing chapter I wrote about that suddenly re-appeared ?
I wrote about it a few posts ago here:

http://www.avcanada.ca/forums2/viewtopi ... er#p814781

Well today I got the full story. It seems that someone send a Access to Information Request to Transport Canada asking to know who had ordered that chapter removed from that manual and why.

In response, Transport Canada replaced the missing chapter and contacted the person who had made the request to inform him that the chapter had been replaced and asking at the same time if that in itself satisfied him and if they could just forget about the request.

It seems that the person thanked the Access to Information official but said he still wanted to know whom had ordered that chapter removed.

To those who haven't followed, that missing chapter was the main lead that allowed us to find CAR 705.106(1)(a) which prohibits foreign licensed pilots from flying Canadian Part VII aircraft.

I laughed until my head hurt. I can't wait to hear the rest of the story.

Gilles

Amazing. Can't wait for the next twist and turn in this story!!!