Letter to CAIRS re: Foreign Licence Validation Certificates

[Gilles Hudicourt]

Transport Canada Civil Aviation Issues Reporting System (CAIRS)
By email at: CAIRS_NCR@tc.gc.ca

Dear Madam/Sir

I am writing to express my concerns about the current manner with which applications for Foreign Licence Validation Certificates (FLVC) for commercial purposes are evaluated and approved by Transport Canada according to Advisory Circular (AC) 400-003, Staff Instruction (SI) 400-005 . I believe that certain FLVC are issued in violation of current Canadian Aviation Regulations and Standards. These two documents were specifically designed as guidance tools to help Transport Canada personnel evaluate and issue Foreign Licence Validation Certificates. I am of the opinion that they, on the contrary make TC personnel err in their evaluation.

The two documents can be found here:

http://www.tc.gc.ca/eng/civilaviation/o ... 03-122.htm
http://www.tc.gc.ca/eng/civilaviation/o ... 05-225.htm

In my humble opinion, these two documents, both dated April 5th 2011, do not conform to the CARs they are meant to enforce. In a way, the April 2011 versions of these two documents are even a step back from the previous versions of the same documents.

Let us begin by looking at the Canadian Aviation Regulations on which the two above-mentioned documents should be based:

Validation of Foreign Licences
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.
(2) The Minister shall, in accordance with the personnel licensing standards, specify in a foreign licence validation certificate the privileges that may be exercised by the holder of the certificate.
421.07 Validation of Foreign Licences
(1) Issue of Foreign Licence Validation Certificate
(a) A Foreign Licence Validation Certificate shall be issued to an applicant who provides the following:
(i) a foreign licence valid under the laws of a contracting state and valid for the privileges requested; and
(ii) a letter requesting issue of the Foreign Licence Validation Certificate and specifying the purpose for which the foreign licence is to be validated.
(b) The Foreign Licence Validation Certificate shall normally be issued for a period of one year from the date of issue. A shorter period may be granted upon the applicant’s request.
(c) If the medical validity period of the licence issued by a contracting state other than Canada is longer than the ICAO standard, the validation shall be limited to Canadian airspace.
(2) Purposes For Which Foreign Licence Validation Certificates May Be Issued
(a) for the holder to undergo a flight test;
(b) for private recreational flying;
(c) for ferry of an aircraft registered in Canada to or from a foreign country;
(d) for the holder to give type rating training on an aircraft registered in Canada to the registered owner, or to Canadian flight crew employed by the registered owner;
(e) for the holder to receive training in a Canadian registered aircraft;
(f) for operation of aircraft registered in a foreign state under the operating certificate of a Canadian carrier provided that the privileges are limited to the type of aircraft being operated;
(g) for operation of Canadian aircraft on Canadian commercial air services in urgent circumstances; such as fire suppression operations, emergency agricultural and forestry aerial application, airlift in relief of domestic natural disasters, and search and rescue operations;
(h) for commercial air services operated entirely within a foreign country where pilots holding a licence from that country may have their licence validated for operation of Canadian registered aircraft in that country;
(i) for the operation of aircraft registered in Canada on lease to foreign carriers;
(j) for reasons other than those mentioned above where approval may be given if, in the opinion of the Minister, it is in the public interest and not likely to affect aviation safety.

On checking the Canada Gazette, Vol. 133, No. 49 — December 4, 1999, we find notes on why CAR 401.07 was modified on that date (http://publications.gc.ca/gazette/archi ... -13349.pdf)

CAR 401.07 (Validation of Foreign Licences)
"The proposed amendment to CAR 401.07 (Validation of Foreign Licences) will prevent an applicant for a foreign licence validation certificate from being a permanent resident of Canada. At present, the holder of a foreign flight crew licence issued by a contracting state (a signatory of the Convention establishing the International Civil Aviation Organization as signed in Chicago in 1944 and amended from time to time), other than Canada, must satisfy only the applicable requirements in the Canadian personnel licensing standards upon applying for a foreign licence validation certificate. This amendment will add the prohibition that the applicant may not permanently reside in Canada. The change will emphasize the transitory nature of the foreign licence validation certificate. Personnel Licensing and Training Standard 421.07 (Validation of Foreign Licences) limits the maximum duration for which such a certificate may be valid to one year from the date of issue. This standard also sets forth the list of purposes for which such a certificate may be issued. While the issuance of the foreign licence validation certificate accepts the standards of training and operations within the original licensing country, these restrictions upon the duration and purposes of such a certificate minimize the exposure of Canadian operators and the Canadian licensing system to potentially less stringent standards."

Advisory Circular (AC) 400-003 states:

"INTRODUCTION

This Advisory Circular (AC) is provided for information and guidance purposes. It may describe an example of an acceptable means, but not the only means, of demonstrating compliance with regulations and standards. This AC on its own does not change, create, amend or permit deviations from regulatory requirements, nor does it establish minimum standards.

The purpose of this AC is to provide information and guidance on obtaining a Foreign Licence Validation Certificate (FLVC) in accordance with the Canadian Aviation Regulations (CARs)."

Although AC 400-003 correctly states in 4.0 (6) that:

"A FLVC is issued for specific purposes, in accordance with subsection 421.07(2) of the STD and is subject to any purpose or restriction specified on the FLVC."

I believe that Transport Canada erred when in the following paragraph of the AC (7), it stated :

"A FLVC will be issued for the time period requested by the applicant, up to a maximum of one year. Upon expiry, TCCA may issue a new FLVC if the applicant continues to meet the requirements of issuance and submits a new application."

In the previous version of the CAR 421.07 (1) (b), the FLVCs could only be issued for a period of 90 days. When lawmakers changed that limitation and extended it to one year, I do not think that they expected that privilege to be renewable on request for this theoretically will allow holders of Foreign licences to permanently fly Canadian registered aircraft with foreign licences and never have to bother with obtaining a bona-fide Canadian Transport-Canada issued pilot’s licence. Reading the excerpt from the Canada Gazette above it is clearly stated that the residency requirement

was included to emphasize the transitory nature of the foreign licence validation certificate, that the standard also sets forth the list of purposes for which such a certificate may be issued and that these restrictions upon the duration and purposes of such a certificate minimize the exposure of Canadian operators and the Canadian licensing system to potentially less stringent standards.

How can one go from there and issue unlimited and renewable FLVCs for foreign pilots to fly 705 Operations for a Canadian carrier as a line pilot ?

When I arrived in this country as an immigrant in 1990, I was the holder of a FAA-issued commercial pilot’s licence and I was required by Transport Canada to apply for, and obtain a real Canadian Licence. Flying Commercially in Canada at the controls of Canadian registered aircraft was not allowed and should not be allowed, except as permitted by the CARs, within the limitations of the CARs. If any foreign pilot can, on a routine business, obtain one year FLVCs from Transport Canada and renew these at will, what is the point of having a Canadian licence at all? There should be restrictions on the issuance of FLVCs to prevent foreign pilots to use it to circumvent the Canadian licensing requirements that I was subjected to in 1990.

4.0 (9) of the AC states :

A FLVC shall not be issued if the applicant:
(a) Does not meet all the requirements of section 401.07 of the CARs and section 421.07 of the STD;

This is the main thrust of this complaint. When a Canadian Airline operating under CAR 705 applies for a FLVC for a foreign pilot, under which of the uses, listed in 421.07 (2) does it justify the application ? The AC and the SI are both mute on the subject. Yet again the Canada Gazette did state that

these restrictions upon the duration and purposes of such a certificate minimize the exposure of Canadian operators and the Canadian licensing system to potentially less stringent standards.

But requiring a purpose as listed in the CARs is not required in either document.

I went through the reasons (a) through (i) and none of these applied to a line pilot flying 705 operations in Canada. The only one which COULD apply (j) which is:

(j) for reasons other than those mentioned above where approval may be given if, in the opinion of the Minister, it is in the public interest and not likely to affect aviation safety.

Did the Minister issue a blanket directive stating that it was in the public interest for foreign pilots to be issued FLVCs year after year to come to Canada and take the jobs of Canadians holding Transport Canada licences? If that is the case, could such a directive be made public, for I think that the public has a right to know of any decision that is made in its best interest. If a such a blanket directive was issued by the Minister, why do clauses (a) through (i) even exist in the CARs, since allowing any application under (j) certainly also cover those listed under (a) to (i)? I think you see my point.

When airlines apply for a FLVC in the name of a foreign licence holder, they should specifically state on the application for which of the reasons listed under 421.07 (2) (a) through (j) they required the foreign pilot and if (j) is invoked, the Ministers’ opinion must be solicited, and if obtained, must be made public. Sub-paragraph (j) cannot and should not be invoked on a routine basis and if FLVCs are issued on a routine and blanket basis under j), than (a) through (i) need no longer exists.
BUT THEY DO! And until the CARs are modified to make away with 421.07 (2) (a) through (j) or reword it, Transport Canada cannot ignore the spirit under which these regulations were written which is to limit the circumstances under which the holders of foreign licences may exercise the privileges of pilot at the controls of Canadian Registered or Operated aircraft.

Paragraph 5.2 (f) of AC 400-003 is nothing but a sham attempt at pretending that the spirit of 421.07 (2) is respected, when in fact it is not. Here is what it states:

5.2 Application for commercial flying.

(2) In addition to the documents required when applying for a FLVC for recreational purposes in section 5.1 of this AC, the Air Operator must provide the following documents when applying for a FLVC for commercial purposes

(f) A brief explanation why the holder of a Canadian flight crew licence cannot be used.

There are no guidelines on what an acceptable explanation may be. The real guidelines are articles (a) through (j) of 421.07 (2) and since these are not respected, this useless paragraph was inserted for show, since there are no CARs on which to evaluate what an Air Operator might list according to 5.2 (2) (f) of AC 400-003. They can essentially insert any reason, and would still get approved. Even a statement such as “Because I like her perfume” could not even be grounds for a refusal.

I have the same comments as above for paragraph 5.2 (2) (e) of the SI 400-005.

In Appendix A of the SI 400-005, some samples of restrictions that are to be imposed on FLVCs are provided. They are the following:

PRIVATE RECREATIONAL PURPOSES ON CANADIAN REGISTERED AIRCRAFT IN ACCORDANCE WITH THE PRIVILEGES OF THE (FOREIGN COUNTRY’S) LICENCE.

The above conforms to CAR 421.07 (2) (b).

FERRYING CANADIAN REGISTERED (individual aircraft type(s) or a blanket type may be entered) AIRCRAFT FROM (COUNTRY) TO (COUNTRY) IN ACCORDANCE WITH THE PRIVILEGES OF THE (FOREIGN COUNTRY’S) LICENCE

The above conforms to CAR 421.07 (2) (c).

CUSTOMER ACCEPTANCE /FERRY FLIGHT IN CANADIAN REGISTERED (individual aircraft type(s) or a blanket type may be entered) IN ACCORDANCE WITH THE PRIVILEGES OF THE (FOREIGN COUNTRY’S) LICENCE.

The above conforms to CAR 421.07 (2) (a) and (c).

PROVIDING FLIGHT TRAINING TO FLIGHT CREW EMPLOYED BY (COMPANY) on Canadian (individual aircraft type(s) or a blanket type may be entered) AIRCRAFT IN ACCORDANCE WITH THE PRIVILEGES OF THE (FOREIGN COUNTRY’S) LICENCE

The above conforms to CAR 421.07 (2) (d)

RECEIVING FLIGHT TRAINING ON CANADIAN REGISTERED (individual aircraft type(s) or a blanket type may be entered) AIRCRAFT OPERATED BY (COMPANY) IN (COUNTRY) IN ACCORDANCE WITH THE PRIVILEGES OF THE (FOREIGN COUNTRY’S) LICENCE.

The above conforms to CAR 421.07 (2) (e)

And then the document lists this one.

PILOTING CANADIAN REGISTERED (individual aircraft type(s) or a blanket type may be entered) AIRCRAFT OPERATED BY (COMPANY) TO (COUNTRY-optional) IN ACCORDANCE WITH THE PRIVILEGES OF THE (FOREIGN COUNTRY’S) LICENCE.

It looks like the others, but it has not match under 421.07 (2) unless (j) is used, the catch all clause that could be used for all the others if the Minister has given blanket permission to always approve any application for any foreign pilot for any purpose.

I also found this TC web page which informs the public on the conditions under which a pilot which is the holder of a foreign licence may apply for and obtain a FLVC.

http://www.tc.gc.ca/eng/civilaviation/s ... en-477.htm

Unlike AC 400-003 and SI 400-005, it correctly lists the true conditions as listed in the CARs. Flying 705 operations in Canada is not one of them.

Purposes for which Foreign Licence Validation Certificates may be Issued
• for the holder to undergo a flight test;
• for private recreational flying;
• for ferry of an aircraft registered in Canada to or from a foreign country;
• for the holder to give training on an aircraft registered in Canada to the registered owner or to Canadian flight crew employed by the registered owner;
• for operation of aircraft registered in a foreign state under the operating certificate of a Canadian carrier, provided that the privileges are limited to the type of aircraft being operated;
• for operation of Canadian aircraft on Canadian commercial air services in urgent circumstances such as fire suppression operations, emergency agricultural and forestry aerial application, airlift in relief of domestic natural disasters and search and rescue operations.
• for the holder to receive training in a Canadian registered aircraft.

The same page then states:

Employment Opportunities and Qualifications
Transport Canada has no jurisdiction in the selection of employees by the air industry beyond the regulatory requirements with respect to licensing qualifications.

To conclude, it is correct that the mandate of Transport Canada is not to impose certain employees on certain airlines. But as it did for me when I arrived in Canada in 1990, it can and should tell Canadian Airlines that they need to hire Canadian Licensed pilots, except under the unique and exceptional circumstances allowed for under CAR 421.07 (2) (a) through (j). And when 421.07 (2) (j) is invoked, it better be for serious reasons involving National Interests, National Security, or other matters of great importance, not the just the petty commercial interests of certain companies that need to use Ministerial clout just to gain a commercial advantage over the competition by making use of cheaper foreign labour. And no not forget that "these restrictions upon the duration and purposes of such a certificate minimize the exposure of Canadian operators and the Canadian licensing system to potentially less stringent standards" meaning that it is NOT in the public interest to allow line pilots of 705 operations to be foreign licenced.

I hope that you will consider my complaint and remarks in a timely manner and take the urgent corrective actions that common sense, honesty and logic dictate.

Regards,

Gilles Hudicourt

[loopy]

Holy smokes, Gilles. I think even the bureaucrats and lawyers at TC can't keep up with you on that. that is some in depth research. Reminded me of studying for TC exams. I wanted to fall asleep and needed coffee!

Keep up the good work.

[Gilles Hudicourt]

From the Canada Gazette, Vol. 135, No. 4 — February 14, 2001

CAR 401.07 (Validation of Foreign Licences)

The amendment to CAR 401.07 (Validation of Foreign Licences) prohibits a permanent resident of Canada from applying for a foreign licence validation certificate. This restriction supports the limited duration and use to which such a certificate can be put. The protection of the safety of the Canadian aviation system from the effect of possibly less rigorous standards applied in pilot licensing elsewhere, which could dilute the worth of a Canadian document if foreign licences were validated in Canada without limit or restriction, will be maintained. No significant benefit-cost consequences are expected from this amendment.

[OPEC6-Heavy]

Loopy,

It's called Cut and Paste. With one sentence of personal interpretation.

Gilles,

The amendment to CAR 401.07 (Validation of Foreign Licences) prohibits a permanent resident of Canada from applying for a foreign licence validation certificate.

I doubt there's a single Foreign pilot at SW or CJ that is considered a permanent resident here in Canada, nor do I think they would be interested. Anyways that becomes a much more difficult process.

[loopy]

Hey, I know it's cut and paste. But to read that much legalese and make sense of it? I would have fallen asleep!

[Gilles Hudicourt]

The amendment to CAR 401.07 (Validation of Foreign Licences) prohibits a permanent resident of Canada from applying for a foreign licence validation certificate.

I doubt there's a single Foreign pilot at SW or CJ that is considered a permanent resident here in Canada, nor do I think they would be interested. Anyways that becomes a much more difficult process.

That is besides the point. And I suggest you read and understand my posts before commenting irrelevant stuff. This is not your first time doing this. You may think I'm stupid but your bosses no longer think so. You may think that your irrelevant comments deflect the subject, but they don't, we have smart and intelligent readers here.

As written in the Canada Gazette, the reason for adding the residency requirement in 421.07 was not to make your foreign pilots become residents but is explained below:

The change will emphasize the transitory nature of the foreign licence validation certificate. Personnel Licensing and Training Standard 421.07 (Validation of Foreign Licences) limits the maximum duration for which such a certificate may be valid to one year from the date of issue. This standard also sets forth the list of purposes for which such a certificate may be issued. While the issuance of the foreign licence validation certificate accepts the standards of training and operations within the original licensing country, these restrictions upon the duration and purposes of such a certificate minimize the exposure of Canadian operators and the Canadian licensing system to potentially less stringent standards.

Is that clear, or are you going to once again post some irrelevant reply?

[OPEC6-Heavy]

Gilles,

First of all, I don't care what my Bosses think of you. I really don't. Secondly, I don't think all my points are irrelevant ( It might not be what you like to hear) , thirdly you shouldn't consider counter arguments as "irrelevant comments" if you truly want proper discussion and credibility on this topic. And by the sound of your tone I think this is starting to take a toll on your nerves. Your not the only one...And as long as there's a discussion on this topic, myself and others will also comment no matter how Irrelevant they may seem. By the the way I don't think your stupid, you have lots of very good points and facts, some just need to be validated that's all.

Loppy,

Your right. It's a lot and it's dry.

[Gilles Hudicourt]

Again from the Canada Gazette Vol. 133, No. 49 — December 4, 1999

http://gazette.gc.ca/archives/p1/1999/1 ... 1-eng.html

CAR 401.07 (Validation of Foreign Licences)

The proposed amendment to CAR 401.07 (Validation of Foreign Licences) will prohibit a permanent resident of Canada from applying for a foreign licence validation certificate. This restriction will support the limited duration and use to which such a certificate can be put. The protection of the safety of the Canadian aviation system from the effect of possibly less rigorous standards applied in pilot licensing elsewhere, which could dilute the worth of a Canadian document if foreign licences were validated in Canada without limit or restriction, will be maintained. No significant benefit-cost consequences are expected from this proposed amendment.

[TeePeeCreeper]

Gilles,

I have supported your fight against unjust hiring practices ever since you went public with your concerns.
Until you started this thread you had my full support.

Having flown and obtained ICAO licence validations (in addition to the required work permits) in several countries...

My concerns are as follows:

An ICAO licence holder should be able to validate his/her licence in ANY country which recognises/member of ICAO standards REGARDLESS of work/visa permits//right to work in country.

The visa/work permit required to work in any country which is part/recognises ICAO standarts IS a seperatate requirement to lawfully work in said host country.

Unless I misunderstood your original post in this thread I sincerely belive that you are targeting the wrong issue in regards to foreign crews flying in Canada (again, work visas Vs. foreign licence validations under ICAO Annex rules/treates)

Other than this (I believe) misguided attempt to shed further light on your (and by "your" I also mean mine and other aviation colleagues) you have my full support.

Keep up the good work,
TPC

[Gilles Hudicourt]

My concerns are as follows:

An ICAO licence holder should be able to validate his/her licence in ANY country which recognises/member of ICAO standards REGARDLESS of work/visa permits//right to work in country.

The visa/work permit required to work in any country which is part/recognises ICAO standarts IS a seperatate requirement to lawfully work in said host country.

Unless I misunderstood your original post in this thread I sincerely belive that you are targeting the wrong issue in regards to foreign crews flying in Canada (again, work visas Vs. foreign licence validations under ICAO Annex rules/treates)

Other than this (I believe) misguided attempt to shed further light on your (and by "your" I also mean mine and other aviation colleagues) you have my full support.

Keep up the good work,
TPC

TPC,

I do not make the rules in Canada. Ever since I decided to tackle this issue, my fight has been to try to have the government apply EXISTING rules which in my opinion, were being bent in all sorts of directions to accommodate what was being done.

Reciprocity was being invoked but not respected. Remember that ?

LMOs claiming there was a genuine pilot shortage in Canada on the basis that to be qualified to work at certain airlines in winter, you had to be type-rated on the 737, as though a pilot type-rated on the 737 was a pilot high-tech specialty, equivalent of a heart surgeon in medicine (and not the 5 week course that it really is). Remember that ?

The same LMO rules require that before a foreigner could be hired instead of a Canadian, the employer had to accept to hire and train Canadians. That regulation was and still is conveniently overlooked by all involved. LMOs were issued year after year. The Oct 2011 Sunwing LMO application stated that although no training program was in place, they expected that the hired foreign pilots would pass along their knowledge of the 737 to the Canadian staff. I've never seen a more deceitful and fraudulent statement, but HRSDC buys it and issues the LMO anyway.

Then I looked at wet-leases, since many of Sunwing's foreign pilots come through that route. In the past 12 months, they wet leased 6 aircraft and a seventh was due to arrive in December. Canadian regulations require that when one applies for wet-leases, one must provide a Reason for why a wet-lease is necessary. I got copies of their applications. In most, no reason was provided at all. They got CTA approval anyways. When I asked the CTA how they could grant approval when some information from the application , information that was required by Canadian Regulation, was missing from the application, they replied that they had the prerogative, if they wanted, to approve any application whose file was incomplete. So Sunwing wet-leases foreign aircraft on a routine basis, without stating why they need do so, and its OK with the CTA.

Then last month, a 20 year + pilot of Air Transat who had been working in management the last few years and not flying, quit and decided to go work overseas as a pilot. As part of his severance package, Air Transat was to renew his PPC which was no longer valid. Transport Canada refused, invoking some Canadian Aviation Regulations requiring a pilot to be an EMPLOYEE of an airline to be able to receive a PPC and line training. Invoking those same regulations, I asked Transport Canada how employees of Czech Travel Service or Thomson Airways in the UK could also be considered employees of Sunwing Airlines at the same time. I am still waiting for an answer. They will need a lot of smoke and mirrors to come up with a reply to that one. Unlike wet-lease pilots, dry-lease pilots require a work permit precisely because the regulations require the pilots to become temporary employees of the airline. They do not become temporary employees.

When I got into the no tax paying thing, it was to demonstrate that they are not employees and do not even pretend to be. In Canada, the law requires employers to take deductions from all employees, employees who must have a SIN. I don't care what EU laws about the same are. We are in Canada and subject to the laws and Regs of this country. The few people who commented here against these arguments talked about "paying taxes" to deflect the main thrust of my argument, but paying taxes is not what this is about. The employers must pay into the Canada pension plan, the Health Insurance, un-employment insurance etc. But they don't! Not a single one of them. Yet they claim EMPLOYEE status for their foreign pilots, and all is fine and dandy. But my ex Air Transat colleague was turned down flat by TC from renewing his PPC for those same EMPLOYEE clauses in the Regs. In his case the Regulation is set in concrete. For the foreign pilots, its a flexible law.

In late Oct and early Nov, Sunwing wet-leased 3 aircraft from Travel Service. Two of them were from the Czech Republic, one was from Slovakia. According to CARs, to wet-lease a foreign aircraft in Canada, the foreign airline must hold a Canadian Foreign Airline Operators Certificate. I found that the Slovak one had none. For some reason the CTA, which approved the Wet-Lease, overlooked that. I wrote to Transport to question the issue and posted it here. The very next day, the Slovak aircraft stopped flying and 3 days later it was ferried back to Slovakia. Because they were clearly being slack with Sunwing, I decided to look into the Wet-Lease / Dry-Lease issue. In the US, it is frowned upon to dry-lease an aircraft from one source, and then hire the pilots to fly them from the same source. They call it a sham dry-lease. It is sometimes approved, but on a case by case basis. At the present time, Sunwing is wet-leasing 3 aircraft from Travel Service. They are also dry-leasing 6 aircraft from the same company. And at the same time, they contracted with the same Travel Service to supply pilots to fly the Dry-Leases. So the wet-leases, the dry-leases and the pilots to fly the dry-leases are all contracted out from the same source, Travel Service. Who flies what aircraft ? Who needs a PPC and a FLVC and who doesn't ? Which pilots needs a work permit and who doesn't ? Who maintains which aircraft ? Who signs what ? Who provides the parts ? Where are they sourced ? Who is responsible for what ?
I cant even understand how Transport Canada and the CTA willingly and knowingly put themselves in such a situation where there is so much potential for regulatory promiscuity. They must put a lot of trust into Sunwing for respecting all rules on their own.

Now the current issue, the licences. The foreign pilots who come to fly Canadian Registered aircraft in Canada for a Canadian Airline must have a FLVC from Transport Canada, and these must be issued according to Canadian laws and regulations. Not EU laws. Not UAE laws. Not US laws. Canadian laws. In Canada these are called the Canadian Aviation Regulations. They are not complicated. They are not long as to how they pertain the foreign pilot licencing. You and I may not agree with them but this is what we have for the time being as far as Regulations and we must abide by these regulations until such time that we change them. And here they are. Read them and tell me according to which one you think Czech and British pilots are acting as line pilots of Sunwing Aircraft today ?

421.07 Validation of Foreign Licences

(1) Issue of Foreign Licence Validation Certificate

(a) A Foreign Licence Validation Certificate shall be issued to an applicant who provides the following:

(i) a foreign licence valid under the laws of a contracting state and valid for the privileges requested; and

(ii) a letter requesting issue of the Foreign Licence Validation Certificate and specifying the purpose for which the foreign licence is to be validated.

(b) The Foreign Licence Validation Certificate shall normally be issued for a period of one year from the date of issue. A shorter period may be granted upon the applicant’s request.

(c) If the medical validity period of the licence issued by a contracting state other than Canada is longer than the ICAO standard, the validation shall be limited to Canadian airspace.

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

(a) for the holder to undergo a flight test;

(b) for private recreational flying;

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

(d) for the holder to give type rating training on an aircraft registered in Canada to the registered owner, or to Canadian flight crew employed by the registered owner;

(e) for the holder to receive training in a Canadian registered aircraft;

(f) for operation of aircraft registered in a foreign state under the operating certificate of a Canadian carrier provided that the privileges are limited to the type of aircraft being operated;

(g) for operation of Canadian aircraft on Canadian commercial air services in urgent circumstances; such as fire suppression operations, emergency agricultural and forestry aerial application, airlift in relief of domestic natural disasters, and search and rescue operations;

(h) for commercial air services operated entirely within a foreign country where pilots holding a licence from that country may have their licence validated for operation of Canadian registered aircraft in that country;

(i) for the operation of aircraft registered in Canada on lease to foreign carriers;

(j) for reasons other than those mentioned above where approval may be given if, in the opinion of the Minister, it is in the public interest and not likely to affect aviation safety.

As the Canada Gazette comments I highlighted confirm, these FLVC are meant to be of transitory nature and the restrictions upon the duration and purposes of such a certificate minimize the exposure of Canadian operators and the Canadian licensing system to potentially less stringent standards.

In other words, if you need to fly Canadian Aircraft for longer that these laws allow, or for other purposes than these laws allow, get a Canadian Licence.

Which brings another matter to mind. Do you know how insurance companies are ? They are always there to take your money to insure anything you want to insure, but when you have a claim to make, and it's their turn to pay you, they will exploit any avenue they can find in an attempt to avoid paying the claim. Are the foreign pilots flying Canadian Registered Aircraft legally licensed to do so according to the laws and regulations of Canada ?

Someone, somewhere, just took note.

[mbav8r]

Gilles, please don't stop the fight, maybe after you win, you should look into a law degree as you seem to have the aptitude for it.
That being said, have you looked into whether Canadian pilots would have a case for a class action lawsuit? I think damages can be argued each way, maybe a judge should decide whether Sunwing's, CTA's, imigration's, T.C's or anyone else complicit caused the layoffs at AT and whether or not their actions will cause future harm , to other Canadian pilots also. I would sign up for this and maybe it will just make some more lawyers rich, but who knows.
Have you approached ALPA about launching a suit, like the BC miners?

[Gilles Hudicourt]

I actually hate this job and can't wait for it to end so I can return to my regular life.

As for ALPA attempting a lawsuit for the work permits being issued to the foreign pilots on the basis of saving the airlines money, I think they would have a good case but it's not for me to decide or even to suggest it to them. They know about the miner's lawsuit in BC and am certain they are following that closely. That is all I know.

[Gino Under]

Excuse me?
An ICAO licence holder should be able to validate his/her licence in ANY country which recognises/member of ICAO standards REGARDLESS of work/visa permits//right to work in country.

I too have had my CDN licence AND type ratings validated by a foreign land where I once worked and I can assure you IT MATTERS whether or not you have the work/visa permits/right to work in the country. For without it, you won't see an LVC or the opposite side of the Immigration counter when you arrive.

We have laws in this country that (fortunately) superscede the laws of other countries and having a pilot licence doesn't make or give any of us any "special" ICAO Backstage pass because of it.

Since our legislators and law makers discuss, debate, read and re-read these proposed laws and regulations before they're written into law, I'd like to see them enforced no matter which Canadian pilot wanders off to fly in a foreign land.

Besides, this is about a pilot shortage in Canada, WHICH WE DON'T HAVE at the moment!
And deceiving non-aviation type bureacrats by telling them we have, is lying in its simplest form.

Gino Under

[Gilles Hudicourt]

Part of an email exchange I had this week with someone at Transport Canada:

When lawmakers insert a specific line, word or paragraph into a regulation, there is a specific reason it was worded that way and those who are in charge of enforcing the regulations should not be allowed to ignore, overlook, or in the case of your reply, give a liberal or loose interpretation of a regulation as you did in your December 11th letter to me. Please allow me to explain.

When the lawmakers who wrote CAR 203 included CAR 203.03(1)(d) which states:

"No person who is not the registered owner of an aircraft shall operate the aircraft as part of a leasing operation without an authorization issued pursuant to subsection (2) unless (d) the crew members of the aircraft are employed by the lessee"

you must wonder what they had in mind and why they included such a condition in the regulation. Sometimes the Canada Gazette provides an insight into the reason. I did some research into it and found no explanation there. I looked further, and here is why I think this condition is there.

When lawmakers included the “employed” condition in CAR 203 it was specifically to avoid situations of having dry-leases confused with wet-leases, or even worse, having wet-leases disguised as dry-leases.
Wet leases in Canada are governed by the “Air Transportation Regulations”, specifically by article 8.2 of those regulations:

PROVISION OF AIRCRAFT WITH FLIGHT CREW
• 8.2 (1) For the purposes of section 60 of the Act and subject to section 8.3, approval of the Agency is required before a person may provide all or part of an aircraft, with a flight crew, to a licensee for the purpose of providing an air service pursuant to the licensee’s licence and before a licensee may provide an air service using all or part of an aircraft, with flight crew, provided by another person.

“Provision of aircraft with flight crew” is the wording that is used. The ATRs consider that a wet-lease exists when the aircraft and crew are provided at the same source. When a foreign company leases an aircraft to a Canadian Operator and that same foreign company provides the flight crew to fly the same aircraft, they are providing “aircraft with flight crew”.
The FARs in the United States define a wet-lease as an aircraft provided with at least one crew member, whereas a dry-lease is an aircraft provided without ANY crew members. The FAA frowns upon any dry-leases where the crews are related in any manner whatsoever with the lessor.

I firmly believe that CAR 203.03(1)(d) was written specifically to insure that the crew members were employed by the lessee, meaning the Canadian carrier. When pilots who are in fact employed by the lessor of the aircraft are at the same time considered de-facto employees of the lessee by TC, as you state in your letter, your are employing a very liberal interpretation and even perverse definition of the term "employed" to circumvent the very purpose of the regulation.

Last year, Sunwing Airlines “dry-leased” five B-737s from Thomson Airways under CAR 203, meaning that these aircraft remained UK registered to Thomson Airways. At the same time, Sunwing Airlines contracted with the same Thomson Airways to provide Sunwing Airlines with British pilots to fly the Thomson Airways aircraft in Canada. The Thomson Airways pilots were full time employees of Thomson Airways, the lessor of the aircraft. When Transport Canada, in a twisted interpretation of the regulations, determines, as you state in your letter, that these same pilots were in fact employed by the lessee in order to circumvent the reason and purpose of CAR 203.03(1)(d), you put the Canadian Public at risk by muddying the waters between what is actually a wet-lease, which can only be approved by the CTA, and a dry-lease which falls strictly under Transport Canada.

In the case of Canjet, they have for several years been leasing European aircraft under CAR 203 and contracting pilots in Europe to fly these European aircraft. The Canjet European pilots are not employees of Canjet in any form or manner, especially when these same pilots may turn out to be full time employees of the lessor of the aircraft that Canjet is operating.

Under the Immigration and Refugee Protection regulations, wet-lease pilots can enter Canada without any work permit under R-186(s). However, dry-lease pilots are required to enter Canada with a valid work permit under R-203 or R-205(b) of the IRPR. The very reason that a work permit is required by these regulation is specifically because these pilots are required to be employed by the Canadian airline. I am in possession of a copy of the work contract between Canjet Airlines and the 32 foreign pilots (obtained under the Access to Information Act) they hired this year, contract that specifically states that they are not employees of Canjet Airlines but of a European employer. If they work for and are paid by a European employer, why would they need a work permit from CIC since they do not work in Canada, receive no pay in Canada, pay no taxes in Canada ? The Immigration rules were written to accommodate the regulations as they existed but that Transport Canada does not enforce.

As for the FLVC that you mention in your letter, I have submitted a separate CAIRS to TC to address that very issue. Here is my reasoning:

Even if there are CIC and HRSDC programs that allow foreign pilots to fly in Canada under work permits, there are no CARs that allow foreign licensed pilots to fly in Canada as line pilots of airlines flying under CAR 705.

421.07 Validation of Foreign Licences
(2) Purposes For Which Foreign Licence Validation Certificates May Be Issued
(a) for the holder to undergo a flight test;
(b) for private recreational flying;
(c) for ferry of an aircraft registered in Canada to or from a foreign country;
(d) for the holder to give type rating training on an aircraft registered in Canada to the registered owner, or to Canadian flight crew employed by the registered owner;
(e) for the holder to receive training in a Canadian registered aircraft;
(f) for operation of aircraft registered in a foreign state under the operating certificate of a Canadian carrier provided that the privileges are limited to the type of aircraft being operated;
(g) for operation of Canadian aircraft on Canadian commercial air services in urgent circumstances; such as fire suppression operations, emergency agricultural and forestry aerial application, airlift in relief of domestic natural disasters, and search and rescue operations;
(h) for commercial air services operated entirely within a foreign country where pilots holding a licence from that country may have their licence validated for operation of Canadian registered aircraft in that country;
(i) for the operation of aircraft registered in Canada on lease to foreign carriers;
(j) for reasons other than those mentioned above where approval may be given if, in the opinion of the Minister, it is in the public interest and not likely to affect aviation safety.

Please read through these regulations, and find which of the above listed “purpose” allows foreign pilots with FLVC to fly as line pilots under CAR 705. There is none.
I believe that they use paragraph (j), which requires Ministerial approval, if it is in the public interest and not likely to affect aviation safety. You will get a better insight of this rule by looking at the French version:

j) lorsqu'une demande a la prétention de servir l'intérêt public canadien pour des raisons non pas visées par les circonstances pressantes énumérées ci-dessus, le ministre peut accorder une approbation dans les cas exceptionnels.

The French version states that in « exceptional cases » the Minister may deliver FLVC in a case not covered in cases (a) through (i), if in the public interest.

Unlike for CAR 203.03(1)(d) I did find insight on CAR 401.07 (Validation of Foreign Licences) in the Canada Gazette and it’s very eloquent about the intended limited purpose and duration of foreign licence validation certificates.

http://gazette.gc.ca/archives/p2/2001/2 ... 9-eng.html

CAR 401.07 (Validation of Foreign Licences)
The amendment to CAR 401.07 (Validation of Foreign Licences) prevents an applicant for a foreign licence validation certificate from being a permanent resident of Canada. Under existing regulations, the holder of a foreign flight crew licence issued by a contracting state(see footnote 2), other than Canada, must satisfy only the applicable requirements in the Canadian personnel licensing standards upon applying for a foreign licence validation certificate. This amendment adds the prohibition that the applicant may not permanently reside in Canada. The change emphasizes the transitory nature of the foreign licence validation certificate. Personnel Licensing and Training Standard 421.07 (Validation of Foreign Licences) limits the maximum duration for which such a certificate may be valid to one year from the date of issue. This Standard also sets forth the list of purposes for which such a certificate may be issued. While the issuance of the foreign licence validation certificate accepts the standards of training and operations within the original licensing country, these restrictions upon the duration and purposes of such a certificate minimize the potential exposure of Canadian operators and the Canadian licensing system to possibly less stringent standards.

In light of this, I hardly see how Transport Canada, under 401.07 as it is presently written, and why it was intended, can deliver, year after year, FLVC to the same foreign pilots who come every winter to fly as line pilots for 705 carriers when the CARs were clearly not meant to allow such a long term and repetitive practice. When Transport Canada allows every year hundreds of foreign pilots to come to Canada and fly as line pilots for 705 carriers under FLVCs while invoking 721.07(2)(j), not only can this no longer be considered “transitory in nature” but it certainly increases the potential exposure of Canadian Operators and the Canadian aviation industry in general, to possibly less stringent standards of the original licensing country.

It is thus not in the “public interest” and in clear violation of 721.07(2)(j).

So we have CAR 203 that requires that the crew members be employed by the lessee, and not the lessor, as has often been the case. One cannot be considered employed by both at the same time just to accommodate certain airlines and circumvent regulations that were written to specifically avoid the situation that these airlines found themselves in where the aircraft and crew were provided by the same foreign operator under CAR 203 but were not in possession of a permit provided by the CTA.

Then we have CAR 401.07, which in my opinion is violated, to again allow these same airlines to use foreign licensed pilots to fly as line pilots of aircraft being flown under CAR 705 when CAR 401.07 was clearly never intended to be used to allow foreign licensed pilots to fly these aircraft six months out of the year over the course of several years, instead of obtaining a Canadian pilot certificate. The foreign pilots should only be issued FLVCs under 421.07(2) for the specific purposes stated in (a) to (i) and clause (j) should only be allowed by the Minister on a case by case basis, under exceptional circumstances, when it is in the public interest. In all cases, the transitory nature of these licences should be kept in mind.