The legality of foreign licence validation certificates (FLVC) to conduct commercial flights in Canada on aircraft operated under Part VII of the Canadian Aviation Regulations (CARs)

October 1, 2014

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ContentsThe legality of foreign licence validation certificates (FLVC) to conduct commercial flights in Canada on aircraft operated under Part VII of the Canadian Aviation Regulations (CARs)...........................................1

Introduction.............................................................................................................................................3

Definitions...............................................................................................................................................4

List of CARs’ regulations dealing with Foreign Licence Validation Certificate (FLVC)...............................4

Foreign Licence Validation Certificate and Part IV of the Canadian Aviation Regulations.......................4

The FLVC issued to foreign pilots employed by Sunwing and Canjet are based under CARs 421.07(2)(j).........................................................................................................................................................4

Is it in the public interest to issue FLVCs under clause 421.07(2)(j)?...................................................7

The Regulatory Impact Analysis Statement (RIAS) and CAR 401.07 Foreign licence validation...........8

Is it safe to place holders of FLVCs, in control of Canadian commercial aircraft operated under Part VII of the CARs?.................................................................................................................................11

Foreign license validation certificates and Part VII of the Canadian Aviation Regulations....................12

The laws and regulations and the question of ‘’nationality’’ for the pilot licence.................................15

The genesis of 421.07(2)(j)....................................................................................................................16

Conclusion.............................................................................................................................................19

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Introduction

We are a group of aviation professionals and we wish to submit that it is our opinion, that the federal government misinterprets the Canadian Aviation Regulations (CARs) by allowing foreign pilots who do not hold Canadian licences to be employed as flight crew members of Canadian aircraft for commercial purposes by way of Foreign Licence Validation Certificates (FLVC).

Transport Canada is currently of the opinion that in accordance with the CARs, a FLVC is the equivalent of a Canadian licence. We believe, rather, that a FLVC is a document or a certificate, as defined under section 401.07 of the CARs, which recognizes the validity of the foreign licence of its holder, but it is not a Canadian licence as defined by the legislation. On this subject, the following was published in the Canada Gazette with regards to section 401.07 Foreign Licence Validation certificate

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.

This prohibition supports the limited duration and use to which such a certificate can be put. This measure ensures the protection of the Canadian aviation system from the effect of possibly less rigorous standards applied in pilot licensing elsewhere, which would dilute the worth of a Canadian document if foreign licenses were validated in Canada without limit or restriction.

In light of this text, we submit that it was never in the mind of the regulator to allow hundreds of pilots with foreign licenses to fly, year after year, Canadian aircraft with FLVCs. We also share the concerns expressed in the above text that the validation, on a routine basis, of foreign licenses without regards to the delivery and operating standards of issuing countries might constitute a security threat to the Canadian travelling public.

Transport Canada relies on the ground (j) of section 421.07(2) of the CARS to issue FLVCs for commercial purposes. The English wording of section 421.07(2) (j) stipulates that this provision can only be invoked when in the public interest. The French version of (j) includes an additional restriction specifying that a FLVC can only be issued in exceptional circumstances. Transport Canada relies on this provision to issue every year hundreds of FLVCs to foreign pilots, and allows them to conduct commercial flights in Canada. Statistics clearly show that the exceptional nature of provision (j) is not respected since the majority of the FLVCs are issued under this particular ground.

We detail, in this document, that in accordance with the Canadian Aviation Regulations, Transport Canada should not issue, every year, hundreds of FLVCs to foreign licenced pilots in order to conduct commercial flights in Canada in lieu of Canadian pilots.

The committee on foreign pilots.

Gilles Hudicourt, Richard Gagnon, Martin Gauthier, Michel Perreault

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Definitions

Section 400.01(1) of Part IV qualifies an FLVC as ‘’document’’. A ‘’document’’ is not a license.

“foreign licence validation certificate” means a certificate issued by the Minister pursuant to subsection 401.07(1); (certificat de validation de licence étrangère)

Section 400.01(2) of Part IV makes a distinction between a permit, a license, a qualification, and an FLVC, which indicates that an FLVC is not a permit, a license or a qualification. It therefore does not meet the requirement of Section 705.106(1)(a).

400.01(2) Any reference in this Part to a permit, licence, rating or foreign licence validation certificate is a reference to a valid Canadian permit, licence, rating or foreign licence validation certificate.

List of CARs’ regulations dealing with Foreign Licence Validation Certificate (FLVC)

400.01(1)

400.01(2)

401.03

401.07, 421.07

702.65

703.88, 723.88(3)

704.108, 724.108(2)

705.106, 725.106(6)

Foreign Licence Validation Certificate and Part IV of the Canadian Aviation Regulations

The FLVC issued to foreign pilots employed by Sunwing and Canjet are based under CARs 421.07(2)(j).

The Foreign Licence Validation Certificates (FLVC) issued by Transport Canada (TC) to foreign pilots for Sunwing and Canjet are in issued according with section 421.07(2)(j) of Part IV standards of the Canadian Aviation Regulations (CARs) ‘’PERSONNEL LICENSING AND TRAINING’’.

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This was confirmed by Mr. Martin Eley, Director of Civil Aviation, during a meeting with the Canadian council of the Canadian Airline Pilot Association (ALPA Canada) in Ottawa, on October 10, 2013, in response to a question asked by Captain Martin Gauthier (Air Transat ALPA), namely under which of the 10 grounds listed in sub-section a) to j) of section 421.07(2) of the CARs were FLVCs allowed to be issued to Sunwing and Canjet.

Mr. Eley answered clearly and unequivocally that it was under sub-section j) as listed hereunder.

Section 421.07(2) lists 9 pressing and specific reasons where TC is allowed to issue FLVCs. A tenth reason is also shown, a reason that authorizes the Minister to issue FLVCs when they cannot be issued under any of the nine other pressing reasons, when it is in the public interest to do so, but only in exceptional cases.

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.

and in the French version of the CARs

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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.

To resume:

421.07(2) a) authorizes flight tests.421.07(2) b) authorizes private or recreational flights.421.07(2) c) authorizes ferry flights.421.07(2) d) authorizes to give training on a Canadian aircraft.421.07(2) e) authorizes to receive training on a Canadian aircraft.421.07(2) f) authorizes flying a foreign registered aircraft under a Canadian Operating Certificate.421.07(2) g) authorizes flying a Canadian aircraft in case of emergency or natural disaster.421.07(2) h) authorizes flying a Canadian aircraft entirely in a foreign country.421.07(2) i) authorizes flying a Canadian registered aircraft but under a foreign Operating Certificate.421.07(2) j) authorizes TC to issue a FLVC to a foreign licensed pilot for a reason other than those listed above, but under three conditions:

1. When it is in the public interest to authorize (does not affect aviation safety).2. For reasons other than those pressing reasons mentioned above.3. In exceptional case (as written in the French version of the CARs).

If we review Transport Canada statistics regarding the number of FLVCs issued and the purposes provided to issue the FLVCs over the last several years, we note that Transport Canada avoids any references to CARs 421.07(2) in these statistics, but rather evoke the names associated with the purposes therein: ‘’recreational’’, ‘’ferry’’, ‘’training’’. On the other hand, one of the purposes that surfaces in FLVC statistics from TC, but which does not show up in any of the clauses of 421.07(2) is the purpose ‘’commercial’’.

In fact, according to the same statistics, the great majority of FLVCs issued by TC are described as being for the purpose ‘’commercial’’. This purpose does not exist in the CARs. All the FLVCs described as ‘’commercial’’ are actually FLVCs issued under section 421.07(2)(j), which is used by TC as a ‘’catch all’’ purpose e and seems to be flouted around as an excuse to issue commercial FLVCs on a routine basis when the CARS does not allow such a use for the FLVCs.

In 2011, Canjet and Sunwing benefited of 218 FLVCs under clause 421.07(2)(j) and again 139 more in 2012.

We have also recently received from Transport Canada some statistics on the total number of FLVCs issued in Canada over a period of three months, from October 2013 to December 2013 for all the purposes combined. TC issued 233 FLVCs during this three month period. Of these 233 FLVCs:

28 FLVCs were issued for private or recreational flying, therefore in accordance with clause 421.07(2)(b).

26 FLVCs were issued for ferry flights, therefore in accordance with 421.07(2) 3 FLVCs were issued for flight training, therefore in accordance with 421.02(2)(d) or 421.07(2)

(e).

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176 FLVCs were issued for ‘’commercial’’ flying, therefore in accordance with 421.(2)(j)

In light of these figures, we stipulates that the 176 FLVCs issued by TC over a total of 233 FLVCs were not ‘’exceptional’’ cases, issued in accordance with 421.07(2) (j). The cases deemed ‘’exceptional’’ represents over 75% of the FLVCs issued during that period.

Is it in the public interest to issue FLVCs under clause 421.07(2)(j)?

Clause 421.07(2) (j) specifies that it can only be invoked for the issuance of a FLVC, if it is in the public interest to do so. We must now begin to rule on the meaning and definition of public interest when it comes to the CARs.

The text below was taken from a document ‘’Civil Aviation Directive (CAD) No. REG-003 -Exemptions from Regulatory Requirements’’ which is available for consultation at the following website:

https://www.tc.gc.ca/eng/civilaviation/opssvs/managementservices-referencecentre-documents-reg-reg-003-1019.htm#appendixe

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?

1. He must have regard to all of the relevant facts and law.2. He must not be swayed by irrelevant considerations.3. He must have regard to the letter and purpose of the legislation that gives him the power

to act.4. 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?

1. He must make his examination of the facts and law in terms of the letter and spirit of the Act.

2. He must make this determination in relation to the policies found in the Act.

What are the Policies Found in the Aeronautics Act?

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1. 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.”

2. Section 4.9a) 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.

3. Case lawa) 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.

4. 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 MinisterThe 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 aviationactivities 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?

1) In accordance with the circumstances of each individual case.2) Within the jurisdictional limitations of the Aeronautics Act.3) 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.

In light of these definitions of public interest, when determining, in accordance with clause 421.07 (2) (j) of the CARs, if it is in the public interest to issue FLVCs to pilots holding foreign licences, the Minister must first of all consider if it will provide an acceptable level of aviation safety.

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The Regulatory Impact Analysis Statement (RIAS) and CAR 401.07 Foreign licence validation

There is a document, on the Transport Canada website, which explains how the clauses of the Canadian Aviation Regulations are created or modified. It may be accessed and consulted here:

www.tc.gc.ca/eng/civilaviation/publications/tp185-4-07-regulations-745.htm

It states that:

If the risk assessment team determines that an issue should be corrected by modifying the CARs, two courses of action will be initiated simultaneously. On one hand, a Notice of Proposed Amendment (NPA) is drafted by the appropriate functional area for presentation and discussion at a meeting of one of the Canadian Aviation Regulation Advisory Council (CARAC) standing Technical Committees, which is attended by industry stakeholders and Civil Aviation. On the other hand, the Regulatory Affairs Division prepares a triage questionnaire that will determine the scope of the Regulatory Impact Analysis Statement (RIAS), which must accompany new regulation to Canada Gazette, Part I.

CARs 401.07 (Foreign licence validation) indicates how FLVCs must be issued. It has been modified twice over the last few years, and on each of these modifications, the legislation required that the modifications not only be published in the Canada Gazette, but they also had to be the subject of a Regulatory Impact statement Analysis (RISA) which addressed CAR 401.07. These RISA which were prepared by the specialists from Regulatory Affairs of Transport Canada are as follows:

Canada Gazette, Vol 133, No 49, December 4 1999

CAR 401.07 (Validation of Foreign Licences)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.

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,

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will be maintained. No significant benefit-cost consequences are expected from this proposed amendment.

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) 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 state1, 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.

In both cases, the RISA places great emphasis on the transient nature of a FLVC and shows that the limits imposed on the reasons upon which FLVCs may be issued exist precisely to ‘’ guarantee 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’’.

It is therefore clear that the RISA indicates that it is not in the public interest to issue FLVCs without limits as to the duration and reasons and that all FLVCs issued by TC should not only be of a transitory nature, but should be limited to the pressing purposes outlined in the CARs, except in exceptional cases and only in when the public interest (and here we talk about aviation safety and nothing else).

According to this definition of public interest, we believe that Transport Canada is taking the opposite approach to regulation with respect to FLVCs. The Minister has issued hundreds of FLVCs in the last

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several years and often to the same individuals, for the purpose of commercial flights by using CAR 421.07(2)(j). Because these FLVCs are issued for a period of one year, these foreign pilots can be in possession of a valid FLVC for several consecutive years with which they fly, year after year, Canadian registered aircraft under Part VII. The FLVCs issued to these pilots are therefore not of a transitory nature, are not issued for the pressing purposes listed in CARs 421.07(2) a) to i) but rather under clause j) which states that this clause can only be issued when it is in the public interest, and then only in exceptional cases.

The Minister must also ‘’make his examination of the facts and law in terms of the letter and spirit of the Act". Section 421.07 is restrictive and limiting and clause j) which was added to the CARs in 1998

should also be restrictive and limiting.

Furthermore, Part VII of the CARs does not allow the conduct of commercial flights with an FLVCs, as it is detailed below.

Is it safe to place holders of FLVCs, in control of Canadian commercial aircraft operated under Part VII of the CARs?

In our opinion, it is not safe and therefore not in the public interest to allow pilots from whom the Minister knows nothing about their past, their training history, their accident and incident history, their medical and psychological history, their history of failed written simulators or flight tests and to allow these pilots to operate Canadian commercial flights under Part VII of the CARs. We only know about them that these pilots are the holder of a pilot licence issued by their country of origin, that they have a valid medical, that they have received a short training period in Canada of only of few days and that they have successfully completed an in ‘’flight’’ test by way of a simulator. In our opinion, this approach is contrary to the spirit of the Regulatory Impact statement Analysis (RISA) written by the experts at Transport Canada when they published in the Canada Gazette, precisely with regards to section 401.07 and 421.07 of the CARs:

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.

We submit that very often, in Europe and elsewhere, pilots are hired not on the basis of their background and experience, but on the basis that they are willing to pay for their flight deck seat. A 250 hour pilot, fresh out of school, can give a large sum to an airline to buy not only a type rating, but a co-pilot seat on one of the company's aircraft, which guarantees a certain amount of flying time. In some instances, this pilot receives ridiculous wages during that time, but the total amount of salary earned by this first officer during his ‘’training’’ is often by far inferior to what he had to pay to this airline to occupy the position. This pilot is therefore not a company employee but a ‘’client’’. This practice exists in Europe notably with Travel Service, the Czechoslovakian company conducting flights for Sunwing. We have learned that new pilots with Travel Services must pay to be hired, and receives a salary of 660 Euros per month ($980 Canadian) during the first 18 months of employment, before going up to 1200

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Euros per month ($1700 Canadian). This is clearly inferior to the earning of a Canadian first officer with Sunwing and is contrary to Employment and Social Development Canada (ESDC) regulations.

We have also learned that several young first officers who had come to work in Canada for Canjet over the last few years were also pilots who had paid for their own initial training on the B737NG.

It is therefore not in the public interest to import this type of pilot into Canada and to issue FLVCs to them in order to conduct commercial flights under Part VII in Canada.

Foreign license validation certificates and Part VII of the Canadian Aviation Regulations

It is published on the first paragraph of this Transport Canada webpage:

www.tc.gc.ca/eng/civilaviation/opssvs/general-personnel-fore-1812.htm

A foreign pilot wishing to fly Canadian registered aircraft for remuneration or reward in Canada must be in possession of a valid Canadian Commercial Pilot Licence or Airline Transport Pilot Licence.

In paragraph 5.2 of a document entitled ‘’Staff Instruction (SI) No. 400-005 – Foreign licence Validation Certificate’’ (http://www.tc.gc.ca/eng/civilaviation/opssvs/managementservices-referencecentre-documents-400_series-400-005-225.htm), which is used to guide Transport Canada staff on the issuance of FLVC, it is indicated:

5.2 Documents Required for a Commercial ApplicationA brief explanation why the holder of a Canadian flight crew licence cannot be used

In paragraph 5.2 of the document entitled ‘’Advisory Circular (AC) 400-003 – Foreign Licence Validation Certificate’’ ‘(www.tc.gc.ca/eng/civilaviation/opssvs/managementservices-referencecentre-acs-400-400-003-122.htm), it is indicated:

5.2 Application for Commercial Flying: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.

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An old publication from Transport Canada, TP2943E, Procedure Manual for the issuance of personnel licensing (PMIPL), now archived, also indicated the following:

Foreign licences shall not be validated for the purpose of providing commercial air service unless there is a demonstrable need and it can be shown that Canadian licensed personnel are neither available nor employable

In addition to CARs 401.07 and 421.07 of Part IV that legislate pilots with foreign licences, there are other clauses that further regulate FLVC and these are found in Part VII of the CARs, since the texts just listed above specifically make reference to commercial flights.

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 VII of the CARs and the Standards allow exceptions to article 705.106(1).

705.106 (3) An air operator may permit a person to act and a person may act as the pilot-in-command or second-in command of an aircraft where the person does not meet the requirements of subsection (1), if(a) the aircraft is operated on a training, ferry or positioning flight; or(b) the air operator(i) is authorized to do so in its air operator certificate,and(ii) complies with the Commercial Air Service Standards

725.106(6) states that if the pilot does not comply with 705.106(1) because in this case, the pilot has a foreign licence, he can still act as pilot if it is for ferry, training or positioning flight, and then only if the Operators Operating Certificate allows it. The above exceptions listed in Sub-Part 705, that is training, ferry and positioning flights are also allowed under the purposes of Part IV, in 421.07(2)(c), (d) and (e). But one also has to comply with the Commercial Air Service Standards. .

725.106 Pilot Qualifications(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 title of 725.106(6) above refers to people who do not qualify with 705.106(1), for example Foreign licenced pilots. 705.106(6) continues as follows:

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.

This paragraph in which a reference is made to «non employees» refers, in fact to the same people already mentioned in Sub-Part 705, meaning people who do not qualify under 705.106(1). Never could

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a foreign licensed pilot be considered an employee of a Canadian Airline Operated in Canada under Part VII. Paragraph 725.106(6) continues with:

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.The pilot may be authorized to conduct pilot checks provided the requirements of the Company Check Pilot Manual (TP6533) are met with the exception of the minimum employment time with the air operator.A foreign licensed pilot may be granted authority for training and checking only when a Canadian licensed pilot is not available.During revenue flights foreign licensed pilots shall not replace Canadian licensed pilots. They can act as qualified pilot in replacement of a training pilot where the training pilot is authorized to occupy the jump seat for the purpose of crew pairing requirements (section 725.108) or transition line indoctrination (subsection 725.124(33)).

It is stated here that where the pilot holds a foreign licence, the foreign licence must be validated by TC (under 401.07 and 421.07). The rest of the article states that foreign pilots can never replace Canadian pilots but further specifies that the training, as authorized by 705.106(3) and 421.07(2)(d), may include line checks, line indoctrination and crew pairing requirements (consolidation) when Canadian pilots are not available for those tasks. It's all clear, and was well thought out by those who wrote it.

So it is prohibited to allow foreign pilots to fly commercial aircraft under Part VII, except for training, when a Canadian pilot is not available and in this case, an FLVC is issued in accordance with 421.07(2)(d):

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;

All of these paragraphs are to allow certain persons, who do not meet the requirements of the CARs and CASS, such as pilot from other airlines and even foreign pilots with foreign licences, to provide flight training in a Canadian airline operation when pilots from the said Canadian airline are not qualified or available to conduct such training.

Therefore, 705.106(1) indicates, among other things, that we must have a licence issued under Part IV of the CARs in order to qualify as a pilot under Sub Part VII. A FLVC is not a licence but a certificate.

Section 400.01 of part IV qualifies an FLVC as a ‘’document’’ or a "certificate". A document is not a licence.

“foreign licence validation certificate” means a certificate issued by the Minister pursuant to subsection 401.07(1);

Section 400.01(2) of Part IV, makes a distinction between a permit, a licence, a rating and an FLVC. Since an FLVC is not a permit, a licence or a rating, it does not meet the requirements of section 705.106(1)(a).

400.01(2) Any reference in this Part to a permit, licence, rating or foreign licence validation certificate is a reference to a valid Canadian permit, licence, rating or foreign licence validation certificate.

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The title of section 401.03 of the CARs makes a distinction between permits, licences, rating and foreign licence validation certificate.

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

In the body of Section 401.03(1) of the CARs, there is also a clear distinction between licences and FLVCs which are mentioned as part of sus-paragraph 1.1.

401.03 (1) Subject to subsection (2), no person shall act as a flight crew member or exercise the privileges of a flight crew permit, licence or rating unless(a) the person holds the appropriate permit, licence or rating;(b) the permit, licence or rating is valid;(c) the person holds the appropriate medical certificate; and(d) the person can produce the permit, licence or rating, and the certificate, when exercising those privileges.(1.1) No person shall exercise the privileges of a foreign licence validation certificate unless the person(a) holds the appropriate foreign licence validation certificate;(b) has signed the certificate; and(c) can produce the certificate when exercising those privileges.

CAR 705.106(3) specifies that a person who does not meet the requirements of subsection (1), may conduct training flights, ferry or positioning flight. Each of these reasons very well confirmed by a paragraph in Part IV, where 421.07(2) of the CARs, are listed all of the purposes for which FLVCs can be issued. The training, ferry and a positioning flight are indeed allowed by 421.07(2).

The laws and regulations and the question of ‘’nationality’’ for the pilot licence.

Transport Canada, in addition to aviation, also has a mandate to control and regulate maritime and rail transport.

To be an officer on a Canadian ship, you must be a Canadian citizen or a permanent resident according to the Canada Shipping Act, 2001. (http://lois-laws.justice.gc.ca/eng/acts/C-10.15/page-28.html), here is an excerpt:

Positions on board Canadian vessels

87. Every person who is employed on board a Canadian vessel in a position in respect of which a certificate is required under this Part shall hold the certificate and comply with its terms and conditions.(Note: Canadian citizen and permanent resident)

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88. (1) Only a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act may hold a certificate of competency that is issued under this Part.

To be a ship pilot on our Canadian waters, you must be a Canadian citizen in accordance with the Pilotage Act of Canada. (http://laws-lois.justice.gc.ca/eng/acts/P-14/page-7.html) which states that:

Issue of licence or pilotage certificate22(2) No licence or pilotage certificate shall be issued to an applicant therefor unless the applicant is(a) a Canadian citizen; or(b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act who has not been ordinarily resident in Canada for six years or who has been ordinarily resident in Canada for six years or more and is shown, to the satisfaction of the Authority, not to have become a Canadian citizen as a result of circumstances beyond the control of the applicant.

We have also learned after the Lac Mégantic accident, that to be an engineer (conductor) on a train in Canada, you must be Canadian citizen or permanent resident. There are no specific or Acts or Regulations that applies to railway legislation that state it, but the railway industry’s position is based on the Immigration and Refugee Protection Act which requires that Canadian workers be legally allowed to work in Canada. The railway engineer’s union assured us that these provisions of the legislation is applied to the letter of the law. In fact, we learned that it was specifically to change from an American engineer to a Canadian engineer, or vice-versa, that trains stopped in Lac Mégantic, because the law required it.

So whether by ship or by train, the crew members in Canada must be Canadian citizens or permanent residents, and must be licensed or certified in Canada.

The same regulations exist also for aviation, as we have described above, but they are interpreted in a way that is now unenforceable. We wish that Transport Canada use in aviation the same approach that it uses for the railway and maritime domains.

The genesis of 421.07(2)(j)

In February 1997, a Canadian Aviation Regulation Advisory Council (CARAC) Committee initiated a seemingly minor and inconsequential Notice of Proposed Amendment (NPA), titled 97-095, which brought about changes to the Commercial Air Service Standards (CASS) which in turn resulted in major and lasting prejudice to the pilot profession in Canada. This prejudice, was not disclosed by the CARAC Committee which initiated the change, but was rather hidden in order to bring about the change in a stealthy manner, change which was no doubt contrary to the letter and the spirit of the Canadian Aviation Regulations (CARs) and the CASS.

Canadian Law requires that when a NPA introduces a modification to a Regulation, the NPA must be published in the Canada Gazette I, where stakeholders read it. They are then granted a period of time

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to comment on the NPA. The CARAC Committee then reviews, and if required, modifies the NPA in light of the comments, before the final version of the Regulation is published in the Canada Gazette II, at which time it comes in force. When the NPA concerns a just a CASS, a Standard, rather than a CAR, a Regulation, no such disclosure is required and nothing is printed in the Canada Gazette. This is what occurred in the case of NPA 97-095.

CASS 421.07(2) lists and limits the purposes for which a Foreign Licence Validation Certificate (FLVC) can be issued. An FLVC is a document that Transport Canada (TC) issues to a foreign licensed pilot in order to operate a Canadian registered aircraft. Until NPA 97-095, in 1998, CASS 421.07(2) read like this:

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 training on an aircraft registered in Canada to the registered owner, or to Canadian flight crew employed by the registered owner;(e) 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(f) 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. Such validations require the approval of the Director Aviation Licensing at Headquarters.(g) for the holder to receive training in a Canadian registered aircraft.

Foreign licensed pilots could not operate Canadian Registered aircraft commercially, unless it was for a flight test (a), a ferry or positioning flight (c), to give or receive flight training, (d) or (g), or finally, as stated in (f), in case of “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”.

On March 23, 1998, the NPA 97-095 introduced 421.07(2)(j), which read as follows:

“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”.

After having restricted FLVCs to purposes that were so restrictive that they only allowed them for commercial flying in times of natural disasters, of emergencies, of fires and for search and rescue operations, this CARAC Committee introduced an open ended “Other” purpose.

How did they justify this change? With the following purposely misleading statement:

“Rationale: previously included in the Personnel Licensing Procedures Manual, Chapter 16. Inadvertently omitted in CARs”

I was unable to find any trace of any such regulatory inclusion in any version of the Personnel Licensing Procedures Manual that I was able to find, nor was I able to find any such practices in the old Air Regulations or Air Navigation Orders. Furthermore, a Transport Canada Manual can never be used as a

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rationale for modifying a Regulation or a Standard. If such a Manual were ever to contradict a CAR or a CASS, the Regulation or Standard would prevail.

After this modification to the CASS, the now defunct airline SkyService, began importing European Licenced pilots with FLVCs issued under the new clause, CASS 421.07(2)(j), to allow them to fly Canadian registered aircraft under Part 705, and the practice has continued since. From 1998 to this year, probably upwards of 1500 Foreign licensed pilots have benefitted from this CASS in order to take jobs away from Canadian pilots in flagrant violation of CAR 705.106(1):

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;

Today, TC claims that an FLVC is a licence issued under Part IV.

This winter alone, there were about 120 Temporary Foreign Worker (TFW) pilots flying in Canada under Part 705 for Sunwing Airlines, with FLVCs issued under 421.07(2)(j) of the CASS, a Standard which was created from scratch under a false rationale, to accommodate the airline industry at the expense of the Canadian pilots. Today, the majority of the FLVCs issued for commercial purposes by TC are issued under 421.07(2)(j).

The document in TP2943E Procedure Manual for the issuance of personnel licensing (PMIPL), which was used as justification for NPA 97-095 no longer exist. It was eliminated around 2006 or 2007. You can however consult the document from this website:

www.dropbox.com/s/7vepcub81nrthrh/Personnel%20Licensing%20Procedures%20Manual.pdf?dl=0

Here is an extract:

Chapter 12 – 2 Validation CriteriaForeign licences shall not be validated for the purpose of providing commercial air service unless there is a demonstrable need and it can be shown that Canadian licensed personnel are neither available nor employable

This manual in fact, corroborates all the points listed with CARs 725.106(6) which states that:

A foreign licensed pilot may be granted authority for training and checking only when a Canadian licensed pilot is not available.

During revenue flights foreign licensed pilots shall not replace Canadian licensed pilots. They can act as qualified pilot in replacement of a training pilot where the training pilot is authorized to occupy the jump seat for the purpose of crew pairing requirements (section 725.108) or transition line indoctrination (subsection 725.124(33)).

And it also matches on all points with CARs 421.07(2)(d)

(2) Purposes For Which Foreign Licence Validation Certificates May Be Issued(d) for the holder to give type rating training on an aircraft registered in Canada to the

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registered owner, or to Canadian flight crew employed by the registered owner;

We have also noticed in NPA 97-095 that the first English draft of 421.07(2) (j) contained the restriction ‘’only exceptional circumstances’’, restriction which later disappeared from the English version of the CARs without any explanation or justification in the working file of NPA 97-095 that we have in our possession.

for reason other than the circumstances mentioned above where application for validation purports to be in the public interest or is made for economic reasons, it will be approved only in exceptional circumstances and after consideration by the Minister. Such Validations require the approval of the Director, General Aviation headquarters.

At the time of publication of the CAR 421.07(2)(j), the phrase ‘’only in exceptional circumstances’’ had disappeared from the English version, and we were unable to find the least justification or reason in our working file NPA 97-095. However, this restriction has remained, as is, in the French version. It is therefore enforceable today.

Conclusion

The Minister has taken, in 1997, the decision to allow certain foreign pilots who were provided with FLVCs to work as flight crew members of Canadian aircraft for the purpose to allow reciprocity and the exchange of pilots between Canada and Europe. At that time, it would appear that the company, SkyService, would have been the first to benefit from the opportunity when clause (b) of 421.07(1) had just been modified to allow FLVCs for a period of one year while clause (j) of 421.07(2) had just been invented.Even if it was desirable to promote an equal reciprocity between Canada and other countries in order to allow full time employment of pilots in Canada as well as in those other countries with which our airlines were operating in reciprocity, it would seem that the privilege that Transport Canada wanted to provide to European pilots in Canada was not often granted to Canadian pilots in Europe in reciprocity.

Ever since the start of reciprocity programs, around 1998, the Canadian companies would most often send Canadian aircraft to Europe under Wet-Leases, and would receive, in exchange, European pilots who were authorized by TC to fly Canadian aircraft with FLVCs. It was only between 2006 and 2011, that certain European countries allowed a small number of Canadian pilots to fly European aircraft with their Canadian licenses. Since 2012, with the implementation of the new pan-European rules, it is no longer allowed by the European Aviation Safety Agency (EASA) to fly European registered aircraft with a foreign licence. The Federal Aviation Admiration (FAA) in the United States does not allow aircraft operated under Part 135 (Air Taxi) or 141 (Airlines) to be flown with foreign licenses. EASA does not allow this, the FAA does not allow it. We submit that it is not allowed in these countries because it is not in the public interest to do so.

Several positives changes have been implement to the Canadian regulatory system.

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We have worked with Immigration Canada in order to explain that what Sunwing was doing was not a real reciprocity since Sunwing pilots who were going to Europe were not going to work for European companies, as Canada Immigration were lead to believe, but to fly Sunwing aircraft operating under the Sunwing certificate. During the last few years, Europe has tightened the rules and now even demands European licenses to Canadian companies wishing to operate Wet-Lease in Europe. Partly for this reason, Immigration Canada has recently determined that Sunwing was not conducting real reciprocity and has stopped issuing work permits to these foreign pilots.

Employment and social development Canada (ESDC) has also changed their policy so that Canadian companies can no longer demand a type rating as condition of employment. When Sunwing and Canjet required Boeing 737 type rating for their Canadian applicants as condition of employment, it was only to disqualify Canadians and favor foreign pilots.

The Minister of Transport and the Canadian Transportation Agency have recently ruled that an airline could contract, as foreign Wet-Lease, no more that 20% of their fleet at the time of the application, which limits the number of aircraft and foreign pilots a Canadian airline may employ under a Wet-Lease, which was not the case in the past.

All these developments are welcome. We would like for Transport Canada also cease to allow commercial flight operations in Canada under Part VII with FLVCs.

Sunwing will soon be applying for up to 120 FLVCs for foreign pilots for the 2014-2015 season, based on Labour Market Impact Assessment (LMIA) already obtained from (ESDC) under the old policy ( which is now modified). We would like to see Transport Canada refuse to issue these FLVCs.

Transport Canada has published in the Canada Gazette that it was not in the public interest to allow foreign pilots to fly Canadian aircraft with FLVCs, except for the purposes and duration listed in section 421.07 of the CARs. It is not in the public interest to allow hundreds of foreign pilots with FLVCs to fly commercial aircraft in Canada. These examples allow clarifying our statements.

In 2003, an Airbus 320 from SkyService left the runway while taxiing at night without runway lights since the British first officer, with an FLVC, did not know how to turn on the runway lights, nor how to obtain a clearance from Flight Services, nor how to make mandatory call in a Mandatory Frequency (MF) zone. The Canadian captain was overworked while attempting to assist, and in doing so, left the runway. There was no injuries or deaths, but this incident was the subject of a Transport Safety Board (TSB) report.

In 2010, in 2013 and again in 2014, three Sunwing aircraft, all flown with foreign flight crews, have taken off from Val d’Or, at night, without knowing how to turn on the runway lights.

Last winter, a Canadian airline pilot was a passenger on a ‘’Canadian’’ aircraft flown by foreign pilots. South of Miami, the aircraft conducted an emergency descent from 33,000 feet to 10,000 feet due to a pressurization problem. The captain made no announcements to the crew, and in-flight services continued until they leveled at 10,000 feet. It was the Canadian pilot, who was a passenger that warned the flight attendants that something abnormal was taking place. Upon leveling at 10,000 feet, west of Miami, the foreign captain made an announcement saying that due to a pressurization problem, the flight would continue to Toronto at 10,000 feet. The Canadian pilot, who was a passenger, knew, contrary to the pilot in command, that the B737 did not have enough fuel to go from Miami to Toronto at 10,000 feet. The aircraft still remained at

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10,000 feet up to around Jacksonville before the pilots understood that what they were attempting was not possible and decided to finally turn around to land in Orlando.

During our discussions on this subject, we have learned that foreign pilots could do overtime in Europe during the summer, and thereafter in Canada during the winter, and in the process exceed the maximum 900 hours allowed on an European license, and even exceed the 1200 hours a year allowed by Transport Canada, but that the two regulators were not aware of the flight hours conducted in each jurisdiction.

European First Officers are often Cadet with just a few hundred hours of flight time and holders of a Commercial Pilots licence. Although this is not prohibited by Canadian Regulations, it is almost unheard of in Canada to have such low time and un-experienced pilots at the controls of Transport category aircraft.

We request that Transport Canada modify its policy and interpretations of FLVC Regulations in order to ensure the public interest and in order to allow harmonious interpretation of Canadian regulations.

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