Letter to Jean Francois Mathieu TC Chief enforcement officer

[Gilles Hudicourt]

From: Gilles Hudicourt
Sent: 26 février 2013 10:05
To: 'Mathieu, Jean-François'; 'Holbrook, Greg'
Cc: Geoffrey Hare; Dan Adamus ; Ogilvie, Al, Ottawa; TSCMEC; James Cudmore; 'Holbrook, Greg'; Matt Ritter; Neil Collins; Craig Blandford; 'Minister of Transport, Infrastructure and Communities / Ministre des Transports, de l'infrastructure et des Collectivités'; Sean Murphy
Subject: The FLVC issued for all 703, 704 and 705 Ops are illegal,except training, ferry and positioning flights

Jean-François Mathieu
Chief, Enforcement
Transport Canada
Enforcement
330 Sparks Street
Ottawa, Ontario K1A 0N5
Canada
Telephone : 613-990-1188

E-mail : jean-francois.mathieu@tc.gc.ca


Dear Mr Mathieu,

I already wrote to you two times on the above mentioned subject and have not received any reply from your office. As Chief Enforcement officer at Transport Canada, I trust that this time, you will see fit to take action and reply. You are responsible to see that Regulations Violations are addressed.

The object of this email is the following CAR:

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;

Because foreign licenced pilots do not have a licence or rating required by Part IV, they are not allowed to fly commercially for 705 Operators in Canada.

705.106 required a "licence, ratings and endorsements required by Part IV".

A FLVC is neither a permit, nor a licence, nor a rating, nor is it an endorsement.

Which is why 401.03 (1) mentions permits licences and ratings, while the FLVC is listed separately in 401.03 (1.1).

Just looking at the title of 401.03, the FLVC is listed as a separate item from licences and ratings:

"Requirement to Hold a Flight Crew Permit, Licence or Rating or a Foreign Licence Validation Certificate"

You will notice that in 725.106(6) it is specified that

6) Use of a Person not Qualified in Accordance with the Canadian Aviation Regulations to Act as Pilot-in-Command or Second-in-Command (refers to subparagraph 705.106(3)(b)(ii) of the Canadian Aviation Regulations)

Authority may be given for other than an air operator employee pilot to occupy a flight crew seat when training, conducting line indoctrination training, and while the first air operator flight crews are completing consolidation and crew pairing minimum flight time requirements on a new aeroplane type.

The pilot shall:

(a) provide a resume, proof of background on the type of aeroplane, and recent experience appropriate to the training to be given; and

(b) hold the appropriate licence, ratings and endorsements. Where the pilot holds a foreign pilot licence, the licence and (as applicable) the instrument rating shall be validated by Transport Canada - Civil Aviation.

"Where the pilots holds a foreign pilot's licence, the licence and as applicable the instrument rating shall be validated by Transport Canada"

If the Regulations considered that a Foreign licenced pilot with his TC Validation in hand was considered a licenced pilot under Part IV, why on earth would this paragraph be there ? Simple answer ? It wouldn't.

The foreign licenced pilot is not licenced according to Part IV and a FLVC issued by TC is not a licence under Part IV.

So 705.106 (1) applies.

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;

And so do 703.88

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

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

and 704.108

Flight Crew Member Qualifications

Quote:
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;

To conclude, 703.88, 704,108 and 705.106 put together forbid the use of foreign licenced pilots in Canada for Air Taxi, Commuter and Airline Operations. Period.

So 421.07 (2) (j) when invoked to issue a FLVC for a reason not otherwise listed in 421.07 (2) , can never be for 703, 704, or 705 operations because Part IV is general in nature and a Part IV regulation can never trump something that is already prohibited by a Part VII article. If it could be, that would expose part VII operations to all sorts of violations wouldn't it?

CAR 705.106 and CASS 725.106(6) state that the only time that foreign lincenced pilots can fly any aircraft operated under 705 operations is for training, position and ferry flights. CASS 725.106 (6) further authorises foreign licenced pilots to provide line checks when Canadians are not available and when introducing a new type of aircraft. This same Standard clearly states that never can a a foreign licenced pilot ever replace a Canadian pilot on any revenue flights.

There are identical restriction under 703 and 704 operations.

Mr Mathieu, as chief enforcement officer at Transport Canada it is your job to enforce existing regulations. I urge you to do your job and see that that CARs 703.88, 704.108, 705.106 and 401.07 are enforced as of today.

As I write these words, there are hundreds of foreign licenced pilots flying in Canada for Sunwing and Canjet with FLVC that were provided to them by Transport Canada but which in no way allows them to fly as line pilots for these airlines. The CARs and the Standards are most clear on the matter. They are thus flying without a valid licence which is an indictable offence under the Aeronautics Act. You have been informed and so has the aviation industry in Canada.

Knowingly Flying Canadian Commercial aircraft without a valid licence voids any insurance coverage these aircraft carry. It is also illegal to fly commercial aircraft without insurance coverage.

There are no political considerations, nor can there be any outside policies that can expect you to overlook the application of current and valid Canadian Aviation Regulations and the Commercial Air Standards.

Ignoring the application of the CARs after it had been brought to your attention and letting hundreds of foreign pilots fly for Canadian airlines without valid pilots licences is also a violation of the Aeronautics Act and an indictable offence.

I know you are under extreme pressure with this matter but you have, I am afraid, no other option than to do your job. You must apply the Regulations as they are written and immediately ground any pilot that is flying for any 703, 704 or 705 operator in Canada without a valid licence issued under Part IV of the Canadian Aviation Regulations.

I have learned that when some British Thomson pilots came to Canada some years ago to fly for Skyservice Airlines, they were required to obtain a Canadian Airline Transport Pilot's licence. At the time, it seems that the people at Transport Canada knew and applied the regulations properly.
It also seems that some of the British Pilots who previously had been provided with Transport Canada Airline licences are now flying illegally in Canada with a FLVC. In addition to being contrary to CAR 705.106, this is also a violation of 401.07 which states:

401.07 (1) Subject to section 6.71 of the Act, if the holder of a foreign flight crew licence issued by a contracting state other than Canada meets the applicable requirements set out in the personnel licensing standards and does not reside in Canada, the Minister shall, on receipt of an application submitted in the form and manner set out in those standards, issue a foreign licence validation certificate to the holder of the licence.

These pilots having already been issued a Canadian Pilots licence in the past, are not eligible for a FLVC. While you investigate how it is that British pilots who had previously been issued TC licences to fly for Skyservice could now be in possession of a FLVC, also look into how it is they needed TC Airline licences to fly for Skyservice and now seem to think that a FLVC is all that is required to fly for Sunwing.

Regards,


Gilles Hudicourt


CC
The Honourable Denis Lebel, Minister of Transport
Carol Lavoie, President ALPA TSC200
Dan Adamus, President ALPA CANADA BOARD
Craig Brandford, President, Air Canada Pilot's Association
Matt Ritter, Air Canada Pilots Association
Neil Collins, Westjet Pilots Association
Michel Charette, VP-Ops, Air Transat
Greg Holbrook, TC Enforcement Officer
Geoffrey Hare, Chairman, Canadian Transportation Agency
Sean Murphy, Canada representative of Lloyds of London
James Cudmore, CBC reporter

[Chuck Ellsworth]

As they walk further into the quicksands of their own regulations and all the subsections thereof the risk of them sinking out of sight increases squared by the subsections Gilles.

It took me almost three and a half years to prove they were in violation of law not to mention with intent.

Once you nail this part down and if you are successful in proving they are in violation of their own regulations a whole new world will open for any Canadian pilot who has been unemployed due to this situation.

They by default have been denied due process under Canadian law.

That was the determination of my case.

[onspeed]

Have you been CC'ing the media on all your communications or just this one?

[Gilles Hudicourt]

Have you been CC'ing the media on all your communications or just this one?

This is the first time

[Gilles Hudicourt]

I received a message from someone closely associated with Transport Canada enforcement. He informs me that Transport Canada loses close to half of the Enforcement Court Case that they bring against people.

This is a clear indication that Transport Canada is often wrong in their interpretation of the Regulations.

No one should assume that Transport Canada would not make such a huge and flagrant "mistake".

And no one should under-estimate the length to which they will go to avoid having to admit to such a mistake and face the consequences of fixing it.

The trump card here is : are the aircraft that are flown under 705 with foreign licenced pilots at their control covered by insurance, if the insurance companies, after a huge claim, can claim that they think the pilots did not have the required Canadian Aviation documents to perform their duties and were in violation of the Aeronautics Act ?

Will the Canadian Transportation Agency still consider that these airlines are covered by the legally required insurance ?

[onspeed]

Would the insurance company not even look into it until the time a claim is made? I would think they would continue to collect there premiums then try and wiggle out if anything happened later.

Hopefully by CC'ing people it will force a more positive outcome. A good friend of mine CC's all his friends on correspondences with companies that he is having difficulty with. It usually has a better outcome for him then when he was just dealing one on one.

[Canoehead]

Can Adamus, President ALPA CANADA BOARD

Not sure if you sent this already Gilles, but just a minor editorial mistake in Dan's name here.

Great work. I'm impressed by your arguments and diligence on this subject.

[Gilles Hudicourt]

Can Adamus, President ALPA CANADA BOARD

Not sure if you sent this already Gilles, but just a minor editorial mistake in Dan's name here.

Great work. I'm impressed by your arguments and diligence on this subject.

Thanks

[Gilles Hudicourt]

I was intrigued when I was informed that just a few years ago that British pilots who came to Canada to fly under reciprocity for Skyservice were rightfully required by Transport Canada to obtain a bona fide Transport Canada licence to fly for Skyservice.

Now Transport Canada lets these foreign pilots fly for Sunwing and Canjet with a FLVC. What rules changed over the years that might have allowed them to assume this was even allowed ?

I did a little research on the history of CAR 401.03 and this is what I found.

This is just an assumption on my part.

This is the current version of CAR 401.03.

Requirement to Hold a Flight Crew Permit, Licence or Rating or a Foreign Licence Validation Certificate

401.03(1) Subject to subsection (2), no person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless

(a) the person holds the appropriate permit, licence or rating;

(b) the permit, licence or rating is valid;

(c) the person holds the appropriate medical certificate; and

(d) the person can produce the permit, licence or rating, and the certificate, when exercising those privileges.

(1.1) No person shall exercise the privileges of a foreign licence validation certificate unless the person

(a) holds the appropriate foreign licence validation certificate;

(b) has signed the certificate; and

(c) can produce the certificate when exercising those privileges.

It used to be like this:

Requirement to Hold a Flight Crew Permit, Licence or Rating

401.03(1) No person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless

(a) subject to subsection (2) and Sections 401.19 to 401.27, the person is the holder of, and can produce while so acting and while exercising such privileges, the appropriate permit, licence or rating; and

(b) the person is the holder of, and can produce while so acting and while exercising such privileges, a valid and appropriate medical certificate.

As you all can see, CAR 401.03 made no mention whatsoever of Foreign License Validation Certificates. So there was no way to think that 705.106 allowed FLVC to be considered a valid license under Part IV, since CAR 401.03 made no mention of it.

Between 2003 and 2010, this regulation was modified several time and the reference to Foreign License Validation Certificates were included. The modifications were published in the Canada Gazette in the April 23, 2003 Issue.

http://gazette.gc.ca/archives/p2/2003/2 ... 9-eng.html

4. Subsection 401.03(1) of the Regulations is replaced by the following:

401.03 (1) No person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating or a foreign licence validation certificate unless

(a) subject to subsection (2) and sections 401.19 to 401.27, the person is the holder of, and can produce while so acting and while exercising those privileges, the appropriate permit, licence or rating and a valid and appropriate medical certificate; or

(b) the person is the holder of, and can produce while so acting and while exercising those privileges, an appropriate foreign licence validation certificate.

In a subsequent modification, the mention of the FLVC was removed from (b) and moved to its own article (1.1)

But here is what the impact statement notes had to say about the reason for inserting references to the FLVC in CAR 401.03

401 (Flight Crew Permits, Licences and Ratings)

CAR 401.03 (Requirement to Hold a Flight Crew Permit, Licence or Rating)

The text of CAR 401.03 (Requirement to Hold a Flight Crew Permit, Licence or Rating) details the documents which allow a holder to act as a flight crew member or to exercise the privileges of the permit, licence or rating in Canadian registered aircraft. Prior to this amendment, this Regulation did not include Canadian validations of foreign licences among these documents. This was an inadvertent oversight in CAR 401.03. CAR 401.07 (Validation of Foreign Licences) sets forth the conditions under which such validations are issued and the associated standard (421.07) lists the purposes for which such validations of foreign licences may be required. The amendment to CAR 401.03 allows the holder of a valid and appropriate foreign licence validation certificate to act as a flight crew member on a Canadian registered aircraft for the purposes listed under 421.07. As part of the provisions for use of a foreign licence validation certificate, the heading currently preceding 401.03 is revised to include reference to this document.

So as one can see here, they claim that the absence of any reference to the FLVC had been an oversight since at the time CAR 401.07 already allowed the operation of a Canadian aircraft with a foreign licence and a FLVC but for the speciific proposes listed under 421.07 (and commercial flying was not one of the listed purposes).

This modification was not meant to allow foreign licenced pilots to fly the line in 703, 704 and 705 operation which was not permitted at the time and which still are not permitted today. It merely recognized that if foreign licenced pilots were permitted to fly Canadian Aircraft with FLVC and under the conditions and for the purposes listed in 421.07, this had to be included in CAR 401.03. Including the mention of FLVC in 401.03 was never intended to allow foreign licenced pilots to fly commercially for Canadian airlines.

I suspect that some people tried to bend the rules and use the mention of FLVC inside on CAR 401.03 (added in 2003) and combine it with 421.07 (j) to pretend that now the Minister had the authority to allow foreign licensed pilots to fly commercially in Canada using FLVC.

Whomever made this new interpretation and decided to exploit the new version of CAR 401.03 to assume that this opened to door to having foreign licenced pilots fly commercially in Canada was dead wrong.

[Rogerdodger2]

Why wouldn't you CC the union reps for the Sunwing pilots? Shouldn't they be included in the fight or do you simply want to see them out of business. It's funny you include ACPA who has done more to hurt the future of pilots in Canada then Canjet and Sunwing have ever done.

[onspeed]

I dont think Gilles wants to see Sunwing out of business, someone will start up a new airline to compete against transat if sunwing goes away and they will be lower cost than the current sunwing, which could be more damaging than the current sunwing. It's healthy to have competition.

[Gilles Hudicourt]

I dont think Gilles wants to see Sunwing out of business, someone will start up a new airline to compete against transat if sunwing goes away and they will be lower cost than the current sunwing, which could be more damaging than the current sunwing. It's healthy to have competition.

I have friend flying for Sunwing. Canadian friends.

I want to see a level playing field. If Sunwing is denied the use of foreign pilots it will compete with Transat on a more level playing field, each with it distinct advantage over the other.

Sunwing has a fleet better adapted to the winter market so has an edge there.
Transat has a fleet that is disadvantaged in the winter but that it can use year round. It does not have accordion fleets.

If Sunwing could no longer use foreign pilots, it would continue doing what it is doing now, but there would be a smaller difference between the size of the its fleet in the summer and in the winter. It could possibly double, but not triple.

This would force them to hire more Canadian pilots and would reduce the pressure on Transat.

Either Sunwing stops using foreign pilots or Transat will start doing the same to survive.

That is my view.

[onspeed]

I guess we will find out how much transat is against foreign pilots when the have the vote to bring the 737 in house.

[tailgunner]

Rogerdoger2...
Please explain your point about ACPA.

[Canoehead]

It would be interesting to know what happened back in the mid '80s with City Express and the Dash 7/Israeli pilot fiasco. What laws were in place, circumvented or ignored to make that happen? One of those pilots is now a TC air carrier inspector. Not sure what happened to the rest but no doubt career gains made at the expense of Canadians.
It was on a smaller scale but it was a real issue with the pilots at City who sat in the right seat or on smaller aircraft while being 'bypassed' by foreign pilots for 'operational reasons'.

[proper]

Every single Canadian pilot should be against foreign pilots. Let's not be petty and company specific, this weakens safety and canadian aviation. Is it going to take a smoking hole in the ground before Transport acts accordingly and serves justice? Enforcement has been asleep at Transport canada for the past 20 years. Remember the shakeup in BC after several crashes 2004-2007?
An aviation accident can be prevented in this case, let's not wait until that happens or blood will be on our hands.
Gilles I support you and I agree that now is time to get the media involved.

[YHZGOOSE]

Gilles, do you ever stop about Sunwing and CJ? Your slamming of some of their pilots... you know... CANADIAN pilots who have worked hard in the industry for years and who ended up at Sunwing and CJ after losing their jobs at other carriers such as C3, Royal, Skyservice etc. Lets not forget our military service either. You seem to have all the time in the world to come on here with your plan of elimination and attack don't you? Must be nice to be raking in the big fat pay cheque at TS ( one of the highest paid in Canada ) and insult us. Time for you to understand we work at Sunwing and CJ becuase we needed the work and we are CANADIAN! We don't operate the same way as TS does. I'd love to have all Canucks up front, but until the company I work for has year round flying and or more of a permanent fleet that's not going to happen. Enough said.

[YHZGOOSE]

Why wouldn't you CC the union reps for the Sunwing pilots? Shouldn't they be included in the fight or do you simply want to see them out of business. It's funny you include ACPA who has done more to hurt the future of pilots in Canada then Canjet and Sunwing have ever done.

Well said bud!

[YHZGOOSE]

I dont think Gilles wants to see Sunwing out of business, someone will start up a new airline to compete against transat if sunwing goes away and they will be lower cost than the current sunwing, which could be more damaging than the current sunwing. It's healthy to have competition.

I have friend flying for Sunwing. Canadian friends.

I want to see a level playing field. If Sunwing is denied the use of foreign pilots it will compete with Transat on a more level playing field, each with it distinct advantage over the other.

Sunwing has a fleet better adapted to the winter market so has an edge there.
Transat has a fleet that is disadvantaged in the winter but that it can use year round. It does not have accordion fleets.

If Sunwing could no longer use foreign pilots, it would continue doing what it is doing now, but there would be a smaller difference between the size of the its fleet in the summer and in the winter. It could possibly double, but not triple.

This would force them to hire more Canadian pilots and would reduce the pressure on Transat.

Either Sunwing stops using foreign pilots or Transat will start doing the same to survive.

That is my view.[/quo

OR SUNWING puts TS out of business. That's a scary but very real possibility, so why I understand you wanting to allow TS to flourish in the industry I'd worry a bit more about where TS is standing right now. 737's or no 737's. It's an uncertain time for all of us and I don't see the foreign guys being the source of it. It's far greater than that.

[Gilles Hudicourt]

Gilles, do you ever stop about Sunwing and CJ? Your slamming of some of their pilots... you know... CANADIAN pilots who have worked hard in the industry for years and who ended up at Sunwing and CJ after losing their jobs at other carriers such as C3, Royal, Skyservice etc. Lets not forget our military service either. You seem to have all the time in the world to come on here with your plan of elimination and attack don't you? Must be nice to be raking in the big fat pay cheque at TS ( one of the highest paid in Canada ) and insult us. Time for you to understand we work at Sunwing and CJ becuase we needed the work and we are CANADIAN! We don't operate the same way as TS does. I'd love to have all Canucks up front, but until the company I work for has year round flying and or more of a permanent fleet that's not going to happen. Enough said.

I explained it before, but here is goes again. Any airline which needs to have accordion fleets can do it but must do it by the rules. If Sunwing has 10 full time aircraft and sends 4 of them to Europe in the summer on wet-leases, they should be able to bring back 4 European wet leases to Canada in the winter to increase their fleet to 14. I would be fine with that.

If they want to do the CIC reciprocity deal that's also fine with me. If they want to have 10 aircraft in the summer and 20 aircraft in the winter (at 15 pilots per aircraft), they need to have 225 full time Canadian pilots. 150 of those will fly the 10 aircraft in the summer, and 75 will go fly in Europe for the summer, not on wet-leases but for European Airlines, on foreign registered aircraft.
In the winter, they can lease 10 extra aircraft to bring up their fleet to 20, bring back their 75 Canadian pilots and obtain work permits for 75 European pilots to come and work for them, to bring their pilot rosters up to 300 pilots.

That would also be ok with me.

And they should inform the European Airlines that they have to hire as many Canadian in the summer and they expect to send to Canada in the winter. If they say no, than no deal. Period.

But sending 4 aircraft to Europe on wet-leases, having zero Canadian pilots flying European aircraft and in exchange bringing in 19 European aircraft and 250 European pilots to come and fly Canadian registered aircraft is simply ridiculous and unacceptable and IT WILL NOT CONTINUE.

And this B/S about claiming there is a shortage of qualified pilots in Canada as a lame excuse to hire type-rated foreigners instead of us has to stop also.

It may take a while before this nightmare is ended but it will end. You just watch.

And when the foreign pilots stop coming, the Canadian passengers who make these flights possible will still be there and the aircraft will still fly, but there will you and me and our tax paying buddies up front.

You just think this is a lost cause and that we have no other choice than to bend over. I don't.