Email to the President of Lloyd's Canada

[Gilles Hudicourt]

From: Gilles Hudicourt
Sent: February 27, 2013 10:53 AM
To: Murphy, Sean
Subject: Illegal pilot licenses in Canada

Sean Murphy
President, Lloyd's Canada
Attorney In Fact in Canada, Lloyd's Underwriters
Royal Bank Plaza South Tower
200 Bay Street, Suite 2930
PO Box 51 Toronto, Ontario
M5J 2J2
416 360 1512


Dear Mr Murphy,

I copied you without any warning on some correspondence these last 2 days( http://www.avcanada.ca/forums2/viewtopi ... 13#p806213) . I do not even really know if you are concerned. I added you to the CC contact list after someone suggested I inform those insurance companies that insure the concerned airlines in Canada. I had no idea which insurance companies those were. Then someone suggested that if I informed Lloyd's, the word would make it to the appropriate insurer. I really do not know how true that may be, but that is the simple history for the emails to which you were copied.

Now a little history on the subject of the email.

For several years, some airlines in Canada and in Europe have been swapping aircraft and pilots. The reason is that the high season for narrow body aircraft in Europe and Canada are inversed: they are in high demand in Europe in the Summer and in low demand in Canada, while in winter, they are in high demand in Canada and in low demand in Europe.

For several years, some European airlines have been leasing their extra aircraft and crews to Canadian airlines in the winter, and the reverse occurs in the summer.

This swapping had always been done on a small scale though, a few aircraft and a small group of pilots, 40, 60, or something like that.

Some airlines began using a Citizenship and Immigration Canada (CIC) program to allow the European pilots to secure work permits in Canada, a program called the Reciprocal program. It's allowed under R205(b) of the Immigration and Refugee Protection Regulations of Canada. In essence, this program allows X number of foreign workers to get work permits in Canada if that same Canadian company is allowed to send an equal number of workers overseas. So Canadians airlines would send 50 pilots to Europe and receive fifty pilots from Europe and so forth. Skyservice Airlines was doing this with some British Airlines.

However, once these foreign pilots arrive in Canada with their Canadian work permits, they still need credentials to fly a Canadian registered aircraft for a Canadian airline. The Canadian Aviation Regulations required that these foreign pilots write the exams and pass a flight test to obtain a Canadian Airline Licence, which in the past they did.

In recent years, some airlines in Canada suddenly began importing much more European pilots than in the past. In the past two years, they imported over 500 foreign pilots in the winter, from the UK, Belgium, Germany, the Czech Republic. At first they tried to claim "reciprocity", but we found out they were only sending 50 or so Canadian pilots to Europe in the summer and importing 200 foreign pilots in exchange. We complained to CIC who last winter took action and limited the number of work permits issued under reciprocity.

These airlines then turned around and imported more than 100 foreign pilots using the Temporary Foreign Worker Program under HRSDC, in addition to the 100 CIC had already authorized. Then they wet leased another 4 aircraft from a European airline which came with another 50 pilots (pilots of aircraft that are wet-leased from overseas need no work permit to fly in Canada since they fly an aircraft registered in their home country).

Anyway, not too long ago, it seems that someone somewhere decided it was no longer convenient for all these foreign pilots to have to write the exams and pass the tests to obtain a bona-fide Canadian Airline Licence to fly Canadian Registered aircraft in Canada for Canadian Airlines.

So without changing the Canadian legislation one bit, they decided to become creative in the interpretation of the existing Canadian regulations. There is a regulation that allows for foreign pilots to fly Canadian aircraft with a foreign licence, as long as they get their foreign licence "validated" by Transport Canada. Its 401.07 and 421.07 of the Canadian Aviation Regulations. However that rule was never meant to allow foreign licence pilots to do commercial flying in Canada

The rule is located here:

http://www.tc.gc.ca/eng/civilaviation/r ... htm#421_07

(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.

Clauses (a) to (i) list the purposes for which a FLVC may be issued. None of them are commercial flying. What they began doing is using clause (J) above, a catch all clause that gives the Minister some latitude in issuing such a validation for reasons not listed above.

The 500 plus foreign pilots that have been flying in Canada in the past 2 years were issued validations of their foreign licences to fly commercially in Canada instead of being required to obtain a real Canadian Licence as was the case before.

The problem with that the regulation in the section of the CAR that deals with commercial airline (Part VII) flying was never changed and it is still there.

Its rule 705.106

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;

(part IV being the 400 series of the Canadian Aviation Regulations that deal with pilot licencing)

Some people at Transport Canada are under the impression that the 421.07 (2) (j) clause, which falls under a general rule that applies to all kinds of operations from private recreational flying to airline flying, can trump 705.106 (1) (a) which is an airline-specific rule and which prohibits commercial flying by pilots who do not hold a licence issued under Part IV. They decided to interpret the rule in this manner:

because the 421.07 (2) (j) clause is listed under Part IV, that a FLVC issued under that rule represents a licence under Part IV. The problem with that, is that Transport Canada never calls a FLVC a "licence", it is called a "certificate" and 705.106 (1) (a) requires a "licence, rating and endorsement" issued under Part IV.

I'm afraid that this new interpretation of the CARs to allow foreign pilots to fly commercially in Canada would not hold water in a court of law not be accepted by a judge should it would ever be submitted for a Court's ruling.

In fact, the Canada Gazette, where all Canadian Laws and Regulations are published, often comments all laws and regulations when these are modified or created. They thus commented on 421.07 above when it was modified a few years ago (401.07 is the Regulation and 421.07 is it's associated Standard. They work hand in hand)

The Canada Gazette number is here:

http://gazette.gc.ca/archives/p2/2001/2 ... 9-eng.html and this is what it has to say about 401.07 and 421.07

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.
These comments were published in the Canada Gazette by those who make and modify the Regulations. They state that the FLVC are transitory in nature and that the limitation on the duration and purpose of the FLVC are there to "minimize the potential exposure of Canadian operators and the Canadian licensing system to possibly less stringent standards" found in other countries.

And despite all this overwhelming evidence, these past few years, Transport Canada has been allowing hundred of foreign pilots to act as pilots at the controls of Canadian Commercial aircraft using a FLVC which was never mean to be used for such purposes. Some of these foreign licenced pilots have been coming to Canada every year for several years to fly commercially for Canadian airlines using FLVC. This is not transitory nor does it protect the Canadian public from the possibly less stringent standards of other countries.

If I am correct, the more than 200 pilots who are now flying for these airlines in Canada are doing so without the legally required Canadian Licence, which would, as far as I know, void any insurance coverage they may have.

I thus decided to make my concerns public.

Regards,

Gilles Hudicourt

[Gilles Hudicourt]

And his reply:

From: Murphy, Sean [mailto:Sean.Murphy@lloyds.com]
Sent: 27 février 2013 15:06
To: Gilles Hudicourt
Subject: RE: Illegal pilot licenses in Canada

Thank you for your email. I will forward it to the appropriate underwriters responsible for Canadian aviation business at Lloyd's.

Best regards,
Sean Murphy
President, Lloyd's Canada
Attorney In Fact in Canada, Lloyd's Underwriters
Royal Bank Plaza South Tower
200 Bay Street, Suite 2930
PO Box 51 Toronto, Ontario
M5J 2J2
416 360 1512

[Gilles Hudicourt]

https://www.otc-cta.gc.ca/eng/air-industry

The Agency's Role in Canada's Air Transportation System

The Agency is an independent, quasi-judicial, federal administrative tribunal. Its mandate is set out in the Canada Transportation Act. Its duties include:

Administering a licensing regime designed to ensure that publicly-available air services operating within Canada are Canadian-owned, and that all publicly-available air services operating within or to and from Canada have appropriate liability insurance. This system also ensures that applicants are financially fit when they start operations and have a reasonable chance of success. The requirements help minimize disruptions in service and protect consumers;

http://laws-lois.justice.gc.ca/eng/acts ... lText.html

Prohibition re operation

57. No person shall operate an air service unless, in respect of that service, the person
(a) holds a licence issued under this Part;
(b) holds a Canadian aviation document; and
(c) has the prescribed liability insurance coverage.

Licence for Scheduled International Service

Marginal note:Issue of licence

69. (1) On application to the Agency and on payment of the specified fee, the Agency shall issue a licence to operate a scheduled international service to the applicant if
(a) the applicant establishes in the application to the satisfaction of the Agency that the applicant
(i) is, pursuant to subsection (2) or (3), eligible to hold the licence,
(ii) holds a Canadian aviation document in respect of the service to be provided under the licence,
(iii) has the prescribed liability insurance coverage in respect of the service to be provided under the licence, and
(iv) where the applicant is a Canadian, meets the prescribed financial requirements; and
(b) the Agency is satisfied that the applicant has not contravened section 59 in respect of the service to be provided under the licence within the preceding twelve months.

Exemption

80. (1) The Agency may, by order, on such terms and conditions as it deems appropriate, exempt a person from the application of any of the provisions of this Part or of a regulation or order made under this Part where the Agency is of the opinion that
(a) the person has substantially complied with the provision;
(b) an action taken by the person is as effective as actual compliance with the provision; or
(c) compliance with the provision by the person is unnecessary, undesirable or impractical.
Marginal note:Exemption not to provide certain relief

(2) No exemption shall be granted under subsection (1) that has the effect of relieving a person from any provision of this Part that requires a person to be a Canadian and to have a Canadian aviation document and prescribed liability insurance coverage in respect of an air service.

Licensee to provide notification

82. Every licensee shall notify the Agency without delay, in writing, if
(a) the liability insurance coverage in respect of the air service for which the licence is issued is cancelled or is altered in a manner that results in the failure by the licensee to have the prescribed liability insurance coverage for that service;
(b) the licensee’s operations change in a manner that results in the failure by the licensee to have the prescribed liability insurance coverage for that service; or
(c) any change occurs that affects, or is likely to affect, the licensee’s status as a Canadian.

Exclusion not to provide certain relief

(2) No regulation shall be made under paragraph (1)(l) that has the effect of relieving a person from any provision of this Part that requires a person to be a Canadian and to have a Canadian aviation document and prescribed liability insurance coverage in respect of an air service.

[CanadianEh]

Smart thinking Gilles, I really hope this sets off alarm bells at Lloyd's. If the regulators won't do their job then hopefully the unfailing GREED of the insurance companies will actually lead to something positive for a change.

[photofly]

Smart thinking Gilles, I really hope this sets off alarm bells at Lloyd's. If the regulators won't do their job then hopefully the unfailing GREED of the insurance companies will actually lead to something positive for a change.

I can't help but think you could be a bit less ... scathing, about a sector of the aviation industry that you've just enjoined to help the fight.

[YHZGOOSE]

Have you heard of aviation lawyers? I am certain that aviation lawyers were consulted on all accounts regarding foreign pilots.

[mbav8r]

Well good then, guess you have nothing to worry about.

[Gilles Hudicourt]

Have you heard of aviation lawyers? I am certain that aviation lawyers were consulted on all accounts regarding foreign pilots.

Actually if you happen to know a really good aviation lawyer I would really like to talk to one. I have not found any yet.

Gilles

[Gilles Hudicourt]

Smart thinking Gilles, I really hope this sets off alarm bells at Lloyd's. If the regulators won't do their job then hopefully the unfailing GREED of the insurance companies will actually lead to something positive for a change.

Well in reality, the Insurance Companies make their money by collecting premiums. For the time being they are still happily collecting, so see no need to take action. That will only happen when the time for a large claim involving a Foreign licenced pilot occurs.

However, it is the Responsibility of the Canadian Transportation Agency to see to it that all Canadian Airlines flying in Canada are not only "Canadian" but are also covered by adequate liability insurance.

I fail to see how any foreign pilots with no legally required licence issued under Part IV of the Canadian Aviation Regulations can ever be covered by any insurance.

And again, here is the licence requirement 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;

A Foreign Licence Validation Certificate is not and never has been a "licence, rating or and endorsement required by Part IV" for Part VII operations

[AFIRS]

Hear! Hear!

[Gino Under]

YHZGOOSE

Sunwing DOES NOT have corporate lawyers. CH made that statement in a magazine article. So I doubt he had the legalities of what he's doing vetted by any lawyer.

Gino Under

[RogerCheckCopy]

A Foreign Licence Validation Certificate is not and never has been a "licence, rating or and endorsement required by Part IV" for Part VII operations

You are right. The Certificate, usually in the form of a letter from TC, gives you the right to exercise the privileges of a Canadian CPL or ATPL in Canada and/or on a Canadian registered Aircraft based on a License and privileges issued by another ICAO member State, within the restrictions outlined in the FLVC. I am guessing the FLVCs in question are type and company specific, and valid for somewhere between 6 months and a year?

[Rogerdodger2]

It's ignorant to think CH doesn't have the best of lawyers at his disposal. They may not be working for SW but a man like that has lawyers. Second to that an airline has to have access to lawyers. Just because they're not in house doesn't mean the program wasn't vetted by multiple lawyers.

[Gilles Hudicourt]

Sunwing makes use of the best law firms money can buy, each in their own specialty. All Sunwing applications and correspondence to CIC, to HRSDC, to the CTA and to TC is sent by law firms on behalf of Sunwing and they are from several different law firms. They now have also hired lobbyists to lobby Ottawa politicians on different matters including foreign aircrews. They have not quite realized that are beating a dead horse. They made money by using these foreign crews but that horse has run its last race.

The Sunwing management, the law firms and their lobbyist are going to have to come up with fresh ideas. They are already implementing one very bright idea. They are in the process of hiring Canadian pilots.

Warning to Sunwing: Hire a lot of them. They will soon be the only ones you will have.

[monkey]

why is that?

[trey kule]

They have not quite realized that are beating a dead horse.

That seems to be a common challange nowadays for many.

[Gilles Hudicourt]

How can I get Trey Kule to commit to eating his underpants in public and keeping his word if I manage to block foreign pilots ?

[photofly]

Edit: oh well, it was supposed to be humorous. Sorry for any offence.

[trey kule]

What a nice thing to say..

Real classy.

Even if all the government departments, unions, and various others you have managed to offend should suddenly see the light that you have focused on them with your strict and impartial interpretation of the various bits of legislature and regulations, did it ever occur to you, even for a moment, that they can simply change the rules?
They make the rules..If they are wrong they can change them..They dont have to play by your rules at all.

And before you stand at the front of the parade and take all the credit there are more than a few other people addressing this issue though they do not post daily of their exploits on AvCanada...they just dont think that inciting mob mentality and posting everyone's response is the best way to deal with this....but hey...they should not get any of the credit, as you have implied by your post, that this is a one man success story .....pure self promotional poppycock

[7thirtyseven]

What a nice thing to say..

Real classy.

Even if all the government departments, unions, and various others you have managed to offend should suddenly see the light that you have focused on them with your strict and impartial interpretation of the various bits of legislature and regulations, did it ever occur to you, even for a moment, that they can simply change the rules?
They make the rules..If they are wrong they can change them..They dont have to play by your rules at all.

And before you stand at the front of the parade and take all the credit there are more than a few other people addressing this issue though they do not post daily of their exploits on AvCanada...they just dont think that inciting mob mentality and posting everyone's response is the best way to deal with this....but hey...they should not get any of the credit, as you have implied by your post, that this is a one man success story .....pure self promotional poppycock

Trey, I think that last batch of meds was primarily derived from horsemeat... Time to move yourself along. I have found Gilles' journey interesting cjallenging and admirable. Its usually one person with the bit between their mouths that leads to any meaningful change. A "mob mentality" ?????

[RogerCheckCopy]

How can I get Trey Kule to commit to eating his underpants in public and keeping his word if I manage to block foreign pilots ?

I was under the impression that reciprocity was your goal?

[EPR]

I'm all for Gilles , and I'm not even looking to fly an airliner....ever.....Trey Kule..may you go forth and multiply! (in other words...go @#$! yourself!)

[Gilles Hudicourt]

I was under the impression that reciprocity was your goal?

It was. The real reciprocity as called for in the CIC regulations and procedures not the travesty that had been practised and tolerated by CIC.

Rather than have that program serve as an excuse for the sham that has been going on, I'd rather see reciprocity done away with.

[OPEC6-Heavy]

Gilles,
you will never block the use of Foreign pilots, keep dreaming. It will become a matter of equal numbers not an all out ban.

I'd rather see reciprocity done away with.

, be careful what you wish for.

You would rather see it done away with?? Who are you the Pope?

[Gilles Hudicourt]

Gilles,
you will never block the use of Foreign pilots, keep dreaming. It will become a matter of equal numbers not an all out ban.

be careful what you wish for.

You would rather see it done away with?? Who are you the Pope?

You could not have stated it better. Here the only kind of reciprocity that can work for Sunwing:

Sunwing sends X aircraft to Europe on WET-LEASE this summer for 6 months, and in exchange, the CTA allows Sunwing to WET-LEASE X European Aircraft and crews for six months.
No extra pilots.
No LMOs for type rated foreigners (That includes Canjet)
No B/S reciprocity under CIC that Sunwing never respected.

Just sit back and watch me. The best is yet to come.........