Letter to Jean Francois Mathieu TC Chief enforcement officer

[YHZGOOSE]

There are 200 foreign pilots flying B-737s full of passengers illegally in Canada and probably without insurance coverage and no one is doing anything.

Come on now Gilles, stating the above is really going a bit too far. There is NO WAY CJ or SWG would dare risk not having the aircraft or pilots insured. So please don't perpetuate fear monger rumours.

Stick to your guns of trying to get to the bottom of it and untangling the red tape. You are making progress!

[Gilles Hudicourt]

Come on now Gilles, stating the above is really going a bit too far. There is NO WAY CJ or SWG would dare risk not having the aircraft or pilots insured. So please don't perpetuate fear monger rumours.

This is not about CJ or SWG. It's Transport Canada. It may well be that CJ and SWG used to think that the FLVC issued to their foreign pilots were Kosher and acted in good faith in allowing them to fly their aircraft.

Transport Canada began this practice of illegally issuing FLVC to foreign licenced pilots to fly for Part VII operators several years ago and this illegal practice perpetuated year after year to the point that younger Transport Canada may well be under the impression that this is all legal. It had been done like this for years. But it does not make it legal.

I understand that people who read these lines are surprised. TC insiders are shocked. I have a retired TC inspector who contacted me to tell me he agreed with my interpretation. And every day that passes, I keep finding more and more evidence that back my claims.

Someone must now have the guts to admit that they have had it wrong for several years and make it right. If they don't, the Insurance companies will do it for them as soon as there is a large insurance claim involving a foreign pilots.


Gilles

[YHZGOOSE]

Define '' large insurance claim against foreign pilots''? Geez, will it be a similar threat of class action caused when the media said TS was using L-1011 part on 330's? Is that the sort of suit you mean?

[Gilles Hudicourt]

Define '' large insurance claim against foreign pilots''? Geez, will it be a similar threat of class action caused when the media said TS was using L-1011 part on 330's? Is that the sort of suit you mean?

You define it. I never wrote such a thing. I mean something like this but on a grander scale.

http://www.tsb.gc.ca/eng/rapports-repor ... 3o0034.pdf

The first officer was an employee of My Travel Airways Ltd., United Kingdom (UK) and was flying for Skyservice Airlines for the winter season as part of a crew sharing arrangement between Skyservice and My Travel. He held a valid UK, Civil Aviation Authority (CAA), ATPL. This licence had been appropriately attached to a Transport Canada, foreign licence validation certificate and was being properly exercised in accordance with the privileges of his UK licence.

The first officer was unfamiliar with operations at uncontrolled aerodromes, including ARCAL lighting procedures, which resulted in the captain attempting to assist the first officer with his PNF
duties. He directed the first officer to contact London Radio and inform the flight service specialist that they did not observe any snow removal activity and to advise him that nobody was responding to either the tower or ground frequency.
The first officer attempted to contact London Radio several times before the flight service specialist asked Flight 0045 to please standby. Shortly after, the flight service specialist contacted the flight crew to relay the IFR departure clearance. It took over three minutes for the first officer to receive the clearance and read it back correctly. The captain then mistakenly broadcast a traffic advisory on 126.7 MHz announcing that the aircraft was positioning onto the runway.

[YHZGOOSE]

So in other words you mean a fatality? And I rest my case about perpetuation. It's fear mongering at it's worse.

[RogerCheckCopy]

Gilles:
You are assuming that your personal interpretation of the regulations is the same interpretation lawyers or a judge would use in a court. A bold stance. I sincerely hope you are successful in your fight for reciprocity, but also hope you are not relying on TC not issuing FLVCs on your quest to achieve it.

.... and for the record, not only do I think reciprocity is a must, I believe there should be a max ratio of foreign to Canadian pilots an operator can use as well. Hard to achieve reciprocity when you have more foreign pilots than Canadians flying for you.

[RogerCheckCopy]

SI 400-005 also says this:

To act as a flight crew member in a Canadian registered aircraft, a foreign licence holder shall be in possession of an appropriate Canadian Pilot Licence, Permit or FLVC.

..... and this:

The holder of a FLVC issued for commercial purposes, in addition to exercising the specific purpose annotated on the FLVC, may also exercise the privileges of the foreign pilot licence for recreational flying.

None of it matters though as only offense creating provisions of the CARs are enforceable.

[Gilles Hudicourt]

Your first example could for example be for private recreational flights as allowed by 421.07 (2) (b).

The second example is for commercial flights permitted by the CARs but not line flying in 703, 704 or 705 operations which is never allowed.

What 421.07 (2) (g) allows is commercial flying.

Hiring a foreign pilot to ferry a Sunwing aircraft is an allowed commercial flight by 421.07 (2) (c) and 705.106.

Hiring a foreign pilot to line check Air Canada pilots on the Boeing 787 is also permitted not only by 421.07 (2) (d) but also by 725.106 (6). That is also commercial flying.

However what Canjet and Sunwing are now doing with foreign licenced pilots is not allowed by the CARs.

[watermeth]

I'm not against your fight, but I may have some doubts about the way we -pilots- sometimes read what we wanna read.
I went through all your references cited few posts above and I 'm afraid your reading is a selection of what you wanna justify.
this is not a critic, we all tend to do this, but in that case, for each one of your ref, there is another paragraphe stating the contrary.
i.e. 4.4.1.14

Except for specifically identified cases as indicated in the CARs, foreign licences are not validated etc...

CARs says you can operate a canadian registered aircraft provided you meet 401.4, and 401.07.
421.07 i) and j) are 2 open statements allowing anything. i know you talked about it before, but it's here.

in SI400-005, in 3.0 - 1), 2), and 3), conditions to issue a FLVC are clearly stated, knowing that 1 doesn't invalidate 2 or 3:

3.0 BACKGROUND

1) To act as a flight crew member in a Canadian registered aircraft, a foreign licence holder shall be in possession of an appropriate Canadian Pilot Licence, Permit or FLVC.
2) Flight crew licences issued by a contracting state of ICAO may be validated for use in Canadian registered aircraft by obtaining a Canadian FLVC in accordance with sections 401.07 of the CARs and 421.07 of the STD.
3) It is recommended that prior to acting as a flight crew member in a Canadian registered aircraft outside of Canadian airspace, the foreign licence holder should verify with the local Civil Aviation Authority on whether a Canadian FLVC is required for the flight in their country’s airspace.

I read 8.5 in TP4711 and it hasn't been deleted in the french version, here it is translated by google :

The use of foreign crew members of a qualified crew of a Canadian aircraft, except as a pilot training when introducing a new aircraft type is referred to in subsection 723.88 (3) 724.108 (3) and 725.106 (6) of the CASS.

None of them is "Commercial".
Why ? Because 703.88, 704.108 and 705.106 say it's not allowed.

those articles say that it's not allowed for a foreign training pilot to act as a crew member during a revenue flight. but for as long as you have a FLVC you're good to go. As I understand it, a FLVC is by itself a waiver to those restrictions sated in 8.5 of TP4711.
725.106-6) is specifically concerning foreign training or check pilots as stated at the very beginning of the article

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.

against a good lawyer you can't do much against 421.07 i-j, IS400-005 3.0

[YHZGOOSE]

Gilles:
.... and for the record, not only do I think reciprocity is a must, I believe there should be a max ratio of foreign to Canadian pilots an operator can use as well. Hard to achieve reciprocity when you have more foreign pilots than Canadians flying for you.

Agreed on max ratio of foreign to Canadian pilots!

[Gilles Hudicourt]

i.e. 4.4.1.14

Except for specifically identified cases as indicated in the CARs, foreign licences are not validated etc...

CARs says you can operate a canadian registered aircraft provided you meet 401.4, and 401.07.
421.07 i) and j) are 2 open statements allowing anything. i know you talked about it before, but it's here.

Except for specifically identified cases as indicated in the CARs:

You consider "Other" that is listed in 421.07 (2) (j) to be a "specifically listed case as indicated in the CAR" ? That rule has several conditions attached to it.
1) It must be authorized by the Minister
2) It must be in the public interest (not have any effect on public safety)
3) It can only be used in exceptional cases (the French version say that).
So I wouldn't consider that (j) can be considered one of the "specifically listed case as indicated in the CARs", and when used, the conditions allowing its use must be met.

You misinterpret 421.07 (2) (i). This could be used for example if Air Canada was to temporarily dry-lease one of its Boeing 777 to British Airways and the aircraft kept on a the Canadian registry because the lease was only for a short period. A FLVC would be issued to the BA pilots to fly the Canadian registered 777 for BA.

The specifically identified cases that are referred to here are listed elsewhere in CARs and are confirmed by 421.07 (2). For example 705.106 that says that pilots not qualified under Part IV can do ferry, positioning and training flights. Each one of those cases that are specifically allowed under CAR 706.106 is confirmed by identical matches under 421.07 (2). Gee what a coincidence!

Then if you move on the to CASS 725.106 (6), the pilots not qualified under Part IV can further do line checks if a Canadian pilot is not available. That is a specifically allowed case. This authorization is again matched and confirmed by 421.07 (2). Wow! Another huge coincidence!

in SI400-005, in 3.0 - 1), 2), and 3), conditions to issue a FLVC are clearly stated, knowing that 1 doesn't invalidate 2 or 3:

3.0 BACKGROUND

1) To act as a flight crew member in a Canadian registered aircraft, a foreign licence holder shall be in possession of an appropriate Canadian Pilot Licence, Permit or FLVC.
2) Flight crew licences issued by a contracting state of ICAO may be validated for use in Canadian registered aircraft by obtaining a Canadian FLVC in accordance with sections 401.07 of the CARs and 421.07 of the STD.
3) It is recommended that prior to acting as a flight crew member in a Canadian registered aircraft outside of Canadian airspace, the foreign licence holder should verify with the local Civil Aviation Authority on whether a Canadian FLVC is required for the flight in their country’s airspace.

Yes, there are cases when a FLVC can be used as stated to fly Canadian registered aircraft. When the CARs say they can in the specifically listed cases. Everyone is under the impression that 421.07 (2) (j) is an open licence to do anything one wants. If it was, there would be no need to have (a) to (i) since 421.07 (2) (j) would covers all of of the items already listed in (a) through (j).
This article is not an open licence to use FLVC for any damn reason Transport wants.

I read 8.5 in TP4711 and it hasn't been deleted in the french version, here it is translated by google :

The use of foreign crew members of a qualified crew of a Canadian aircraft, except as a pilot training when introducing a new aircraft type is referred to in subsection 723.88 (3) 724.108 (3) and 725.106 (6) of the CASS.

None of them is "Commercial".
Why ? Because 703.88, 704.108 and 705.106 say it's not allowed.

those articles say that it's not allowed for a foreign training pilot to act as a crew member during a revenue flight. but for as long as you have a FLVC you're good to go. As I understand it, a FLVC is by itself a waiver to those restrictions sated in 8.5 of TP4711.

You may have missed a little detail.

725.106 (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)

The pilot shall:

(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.

726.106 (6) (b) states that an additional condition and restriction is that the pilot have his licence validated. This would again match of the specific case listed in 421.07 (2) (d). The CARs are full of un-intended coincidences aren't they ?
If the foreign pilots with FLVC were qualified under Part IV, why would they even be mentioned in 725.106 (6) since they would not be concerned with this ? ..........

725.106-6) is specifically concerning foreign training or check pilots as stated at the very beginning of the article

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.

False. If you need to know what a CAR article concerns, you don't read inside the article, you must read its TITLE. And the title to 725.106 (6) is:

(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)

against a good lawyer you can't do much against 421.07 i-j, IS400-005 3.0

Against a good lawyer, 421.07 (2) (j) will not find a foot to stand on. Evrything supports my position. 421.07 (2) (j) by itself and taken out of context will not stand a chance.

421.07 (2) (j) was meant to be used by a Ukrainian stunt pilot wishing to fly a Canadian registered Antonov 2 used for hire to film stunts in a Canadian action movie filmed in Inuvik.
That case would fill all the conditions, not be listed in (a) to (I) and not be contrary to part 703, 704 and 705.

It is being abused by TC this must stop NOW.

[RogerCheckCopy]

Against a good lawyer, 421.07 (2) (j) will not find a foot to stand on. Evrything supports my position. 421.07 (2) (j) by itself and taken out of context will not stand a chance.

I don't think context, purpose or intent means anything in a court. Only the legal interpretation of the wording of the regulation in question matters.

[Rogerdodger2]

Gilles,
What if your interpretation is found to be incorrect by TC, Judges, lawyers etc.

[loopy]

Gilles, those particular CAR's that you quoted are very clear. Quite correct. However, others may not be, and they are being interpreted by some, in industry as well as at the regulator, as being more permissive. I read those regs and see black and white. Others are arguing for shades of grey.

[RogerCheckCopy]

Gilles:

I think you are also failing to consider this part of the aeronautics act:

(2) The Minister or an officer of the Department of Transport authorized by the Minister for the purpose of this subsection may, on any terms and conditions that the Minister or officer, as the case may be, considers necessary, exempt any person, aeronautical product, aerodrome, facility or service, or any class of persons, aeronautical products, aerodromes, facilities or services, from the application of any regulation, order or security measure made under this Part if the exemption, in the opinion of the Minister or officer, as the case may be, is in the public interest and is not likely to adversely affect aviation safety or security.

[watermeth]

okay I read your answer gilles, and I wish I would be there to see it

421.07 (2) (j) was meant to be used by a Ukrainian stunt pilot wishing to fly a Canadian registered Antonov 2 used for hire to film stunts in a Canadian action movie filmed in Inuvik.

but I'm afraid your reading of the reg is made under the influence of what you wanna prove, and it makes a huge diff, as your opponent will do the same. may be you could ask raymond hall what he thinks about all that. He'll tell you there's a million way to interpret the law and in the end the judge decides.
in this reading, you're the lawyer and the judge, hence my original post.
it's up to you to sue TC for violating their own reg, or sunwing, it should be easier, may be long.

Gilles, those particular CAR's that you quoted are very clear. Quite correct. However, others may not be, and they are being interpreted by some, in industry as well as at the regulator, as being more permissive. I read those regs and see black and white. Others are arguing for shades of grey.

what kind of grey are you refering to ?
good / bad
white / black
With / against
yes / no
A / B
1 /2
there is more than 2 dimensions only in words and law articles, that's what makes the difference between drivers and lawyers.
keep your emotions low, it impairs judgment.

[Gilles Hudicourt]

I am beginning to receive leaks from the inside. This email came in a few days ago. A big thank you to this very brave TC inspector.


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

[Mr Willa]

Finally, we see some sunlight (atleast TC inspectors are inerested in your work). Thank you very much for helping out Canadian Pilots!

[Chuck Ellsworth]

This email came in a few days ago.

I got mine in big brown envelopes, no idea who sent them but they were stamped " Protected ".

Beyond all doubt they were genuine because the Director General personally tried to deny they were genuine documents...fortunately for me they were genuine.

There are a lot of T.C. employees who detest the corruption at the top as much as we do and they can be your best way to crack the shield that those at the top hide under.

[Gilles Hudicourt]

Once again for clarity. Some people still think that CASS 421.07(2)(j) gives the Minister the right to do as he pleases. Nothing can be further from the truth.

For example CASS 421.07 (2) (c) states:

Purposes For Which Foreign Licence Validation Certificates May Be Issued
(c) for ferry of an aircraft registered in Canada to or from a foreign country;

So one would think that pilots with a valid FLVC could always ferry Canadian Registered aircraft ? FALSE!

Why ? Because 705.106 (1) (a) says no FLVC pilots can fly Canadian aircraft under 705.

Then 705.106 (3) provides 3 exceptions. They can ferry; they can position: and they can train.

So the real permission for FLVC pilots to ferry aircraft under 705 does not come from 421.07(2) (c) but from 705.106(3).

So if 705.106(3) did not allow FLVC pilots to ferry aircraft under Part 705, even though 421.07 (2) (c)
allows it, it would perhaps be allowed under other Parts of the CARs that do not prohibit it, but it would still not be allowed under Part 705. Was that clear ?

What is prohibited under 705.106 (1) (a) cannot be allowed under 421.07 (2) (j) unless a Part 705 regulation allowed it first.

This is why using 421.07 (2) (j) as an excuse to fly the line under Part VII is a indictable offence under the Aeronautics Act.

Flying the line with FLVC is prohibited under 705.106 (1) (a) PERIOD.

[Gilles Hudicourt]

Gilles:

I think you are also failing to consider this part of the aeronautics act:

(2) The Minister or an officer of the Department of Transport authorized by the Minister for the purpose of this subsection may, on any terms and conditions that the Minister or officer, as the case may be, considers necessary, exempt any person, aeronautical product, aerodrome, facility or service, or any class of persons, aeronautical products, aerodromes, facilities or services, from the application of any regulation, order or security measure made under this Part if the exemption, in the opinion of the Minister or officer, as the case may be, is in the public interest and is not likely to adversely affect aviation safety or security.

If in the public interest. Let me quote you another part of the same Act:

http://laws-lois.justice.gc.ca/eng/acts ... ge-24.html

Prohibitions, Offences and Punishment

7.3 (1) No person shall
(f) wilfully do any act or thing in respect of which a Canadian aviation document is required except under and in accordance with the required document;

(2) Every person who contravenes subsection (1) is guilty of
(a) an indictable offence; or
(b) an offence punishable on summary conviction.

[RogerCheckCopy]

First of all, you might as well forget about "public interest" as it has yet to be legally defined. The problem is that someone could easily argue that nowhere does the CARs state that a pilot CAN NOT fly commercially with an FLVC. Yes, the CARs lists what FLVC can be issued for but does not clearly exclude line flying. Only my opinion of course. Because a presedent has been set in that this has been going on for several years, I think it would be hard for TC to turn down an exemption application and how are you planning to fight that? Again, only my opinion of course. What I don't understand is why we are giving out work permits when there is clearly no reciprocity? Is this an aviation safety issue or is it a labour and immigration issue?

[ea306]

I agree RogerCheckCopy
Reciprocity is what needs to be corrected. That should be the focus as it will equate to more Canadian Pilot jobs over all. IMHO.

I realize that having an accordion fleet size may not be popular for some within and for some outside of Sunwing for various reasons and for various self interests however, this is the nature of the vacation market that we serve operating an aircraft that is not a one size fits all type that is profitable serving Canada all year round. If there had been a reasonable balance of Canadians and European numbers in the last few years and a balanced reciprocity overall had been attained, then this political agitation might not of escalated to where it is today.

As an employee I am like anyone else... I want to see my company be profitable and provide a long fruitful career and I want to see our profession here in Canada prosper for all of us. I think everyone one is on that page no matter where they are employed.

[Gilles Hudicourt]

First of all, you might as well forget about "public interest" as it has yet to be legally defined. The problem is that someone could easily argue that nowhere does the CARs state that a pilot CAN NOT fly commercially with an FLVC. Yes, the CARs lists what FLVC can be issued for but does not clearly exclude line flying. Only my opinion of course. Because a presedent has been set in that this has been going on for several years, I think it would be hard for TC to turn down an exemption application and how are you planning to fight that? Again, only my opinion of course. What I don't understand is why we are giving out work permits when there is clearly no reciprocity? Is this an aviation safety issue or is it a labour and immigration issue?

I've come to realize that you do not read my replies to your posts. So I will no longer waste my time. Believe what you will it's of no consequence to what will invariably soon happen.

[Gilles Hudicourt]

I agree RogerCheckCopy
Reciprocity is what needs to be corrected. That should be the focus as it will equate to more Canadian Pilot jobs over all. IMHO.

I realize that having an accordion fleet size may not be popular for some within and for some outside of Sunwing for various reasons and for various self interests however, this is the nature of the vacation market that we serve operating an aircraft that is not a one size fits all type that is profitable serving Canada all year round. If there had been a reasonable balance of Canadians and European numbers in the last few years and a balanced reciprocity overall had been attained, then this political agitation might not of escalated to where it is today.

As an employee I am like anyone else... I want to see my company be profitable and provide a long fruitful career and I want to see our profession here in Canada prosper for all of us. I think everyone one is on that page no matter where they are employed.

The accordion fleet is a brilliant strategy.
But even you will have to agree that a company that had 10 full time aircraft and that sent 4 of these to Europe for 6 months, could not and should not in return expect to import 22 aircraft from Europe and over 200 foreign pilots in return.

1 Travel Service Wet-Lease that arrived on Feb 2012
2 Euro Atlantic B-767 Wet-Leases that spent six month flying for Sunwing in the summer of 2012.
15 European short term dry-lease that came with an equal proportion of European pilots supplied by the same airlines that supplied the aircraft
4 wet-leases from Travel Service that arrived in Nov and DEc 2012.

Stop stating you want reciprocity. These numbers prove that this is nothing but a smokescreen that Sunwing want to cover the truth up with.

You guys are like the goons of a dictator that abuse the rights of the people while claiming that the human rights abuses are just temporary and that the dictator's ultimate goal is to implement a democracy that respects human rights.