Dear Mr Guindon,
My Nov 21 2011 email was a CAIRS complaint where I questioned the legality of providing foreign licensed pilots with Foreign licence validation certificates. Despite my numerous emails requesting it, that complaint was never acted upon, and was never issued a CAIRS file number and was ignored and swept under the rug. It shows how much credibility the CAIRS system has.
I was surprised to read about HRSDC and CIC policies in your email. Those policies do not fall under your responsibilities. Your responsibilities, as far as I know, are upholding the Canadian Aviation Regulations and the Standards, not accommodating foreign pilots to whom CIC and HRSDC provides work permits to work in this country.
To come back to the CARs and to the Standards, which was the subject of my CAIRS complaint and of all my emails to you:
401.07 allows the Minister to issue FLVC to foreign licensed pilots according the Standards, if the applicants do not live in Canada.
421.07 (1) States that FLVC shall be issued for a period of one year. It does not say that they can be issued for one year and renewed every year, year after year for eternity as the SI-400.005 states in error.
421.07 (1) States that a FLVC applicant must provide a letter stating the reason he needs a FLVC.
421.07 (2) provides the list of valid reasons that TC may issue FLVC.
Flying the line for 705 operations does not figure in the listed reasons.
421.07(2)(j) provides some latitude to the Minister for issuing FLVC for reasons not listed in (a) to (i) of 421.07 (2) but states 3 conditions:
2 of them are in the English version and a third is in the French version. Because 421.07(2)(j) in English and in French are not exact translations of each other, both versions must be considered:
421.07 (2) (j) states that the Minister may issue a FLVC for reasons not listed in (a) to (i) if:
1) It is in the Public Interest
2) Not likely to affect public Safety
3) In exceptional circumstances
It is in the Public Interest for the Minister to issue every year, hundreds of FLVC to hundreds of foreign pilots we know nothing about ?
First we must decide what the public interest stands for. Is it providing cheap airfares to Cuba for the Canadian families ?
Not as far as Transport Canada is concerned.
THE LEGAL ANALYSIS INVOLVED IN MAKING THE DETERMINATION OF “PUBLIC INTEREST” UNDER THE ACT
What is the meaning of the term “Public Interest” in the Aeronautics Act?
There is no statutory definition for “public interest”.
Instead, the Minister has been delegated the authority by Parliament to use his discretion to make an opinion on what constitutes public interest.
How does the Minister exercise his discretion?
He must have regard to all of the relevant facts and law.
He must not be swayed by irrelevant considerations.
He must have regard to the letter and purpose of the legislation that gives him the power to act.
He must consider each case on its merits. Policy is relevant, but only insofar as applied to the facts.
How does the Minister determine what are relevant considerations?
He must make his examination of the facts and law in terms of the letter and spirit of the Act.
He must make this determination in relation to the policies found in the Act.
What are the Policies Found in the Aeronautics Act?
Section 4.2 provides the clearest policy.
“The Minister is responsible for the development and regulation of aeronautics, and the supervision (enforcement) of all matters connected with aeronautics.”
Section 4.9
a) The primary objective of regulation under the Act is to maintain an acceptable level of safety.
b) The primary objective of supervision under the Act is to ensure compliance with regulatory standards.
Caselaw
a) The Minister has a heavy responsibility towards the general public to ensure safety of air carrier operations.
b) The Minister has a duty of care towards the general public to enforce legislative and regulatory requirements in the interest of public safety.
c) The Minister has a very broad discretion to consider any factor when interpreting public interest, so long as it relates to the matter at hand.
What is the Primary Public Interest under the Aeronautics Act?
The safety of air travel by strict compliance with the rules of safety.
Responsibilities of the Minister
The Minister must make his determination with the following policies in mind:
a) The Minister is responsible to the public for the regulation and supervision of aviation activities so as to promote safety.
b) The Act enables a detailed regime of regulation intended to promote an acceptable level of aviation safety.
c) Pilots, air carriers and other participants in the aviation industry are expected to comply with those regulations, and thereby achieve an acceptable level of aviation safety.
Within What Context is the Determination of public interest to be made?
In accordance with the circumstances of each individual case.
Within the jurisdictional limitations of the Aeronautics Act.
With regard to the impact of the decision on the applicant, the general public, other members of the aviation industry, and the proper regulatory enforcement and supervision of aeronautics.
As regards exemptions under subsection 5.9(2) of the Act, what specific interpretation does “public interest” have?
The interpretation must relate to the following:
a) Accommodation of alternative practices;
b) Fostering of a competitive aviation industry; and
c) Reference to something other than safety - that it is in the interest of the public (and not just the air carrier) that the exemption be granted.
Then there were Federal Court cases that ruled on what "Public Interest" meant for the Minister of Transport:
http://www.tatc.gc.ca/decision/decision ... dc_id=1248
The public interest as asserted by the Minister is a societal interest that relates to the protection and safety of the public and the users of the system as part of its policy regarding the development, regulation and supervision of all matters connected with aeronautics, and the maintenance of an acceptable level of safety.
To to come back to 421.07(2) (j):
Is it in the public interest to provide every year to over 200 foreign licensed pilots over 200 FLVC to German, British, French, Belgian and Czech 737 pilots on which Transport Canada knows nothing about their level of experience, the training they received, on how they obtained their licences, their accident and violation history and so forth. Most reasonable people would say no.
In recent years, we have seen headlines about foreign pilots faking their logbooks, purchasing the licenses, receiving under par training and such things are not limited to third world countries. The recent Air France 477 accident was a prime example. The pilot flying with 2900 hours total time, after having a blocked pitot tube in cruise flight, did not apply the adequate procedure, ignored the stall warnings, stalled the aircraft, never recognised that he had stalled, and kept through his control inputs, the aircraft in a deep stall until it made contact with the surface of the ocean, killing all aboard. This pilot, fresh out of flight school, had been hired by Air France in put into the right seat of a fly-by-wire A-320. He had then moved on to A-340 and A-330. He was probably a brilliant autopilot operator, but did not have any basic flying skills. This is what Transport Canada is exposing the Canadian public to when they issue all these FLVC to hundreds of foreign pilots we know nothing about.
This is what the Canada Gazatte, published about 401.07 in 2001:
http://www.gazette.gc.ca/archives/p2/20 ... 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.
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.
As one can read here, the authors of this regulation state that the FLVC is meant to be transitory in nature. They also listed the limited purposes for which a FLVC could be issued, stating that these restrictions imposed on the FLVC in time and purpose protect the Canadian Aviation licensing system from potentially less rigorous licensing systems elsewhere and that the worth of the Canadian document would be diluted if the FLVC were to be issued without limits or restrictions, such as Transport Canada is doing now when they issue hundreds of FLVC to hundreds of foreign pilots, without limit in time or purpose.
The Minister of Transport is expected to "make his examination of the facts and law in terms of the letter and spirit of the Act."
As is written black on white in the Canada Gazette, the FLVC were meant to be transitory in nature and were purposely limited in time and purpose to those specific purposes listed in 421.07 (2). When 421.07(2) (j) is invoked by the Minister, it must be with the Public interest in mind, when safety is not likely to be affected and in exceptional circumstances.
If those three conditions are not met, then the Minister cannot invoke 421.07 (2) (j)
As far as 705.106 and 725.106 (6), to claim, as you did in your email, that this regulation only restricts the use of foreign licensed pilots when airlines are introducing new aircraft types is wrong. What 705.106 and its standard state, is that the only time that foreign pilots can be used by an air carrier, is when it is introducing an new aircraft type and no Canadian licensed pilots are available.
To claim that foreign licensed pilots can be used at will by airlines except in the case of check pilots when there is a new aircraft type is an insult to anyone's intelligence.
I take note that you went out on a limb to attempt to dismiss my complaint. I feel that my arguments are strong and valid and have not had a single person outside of Transport Canada find them in error. I hope that you will reconsider.
Regards,
Gilles Hudicourt
He has the honesty of identifying himself clearly and fighting for what he thinks is right. I believe he never spoke in the name of Air Transat, the company has spokesmen/Spokeswomen for that!
