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

Contents
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)..................................................................................................... 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

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.
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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

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 trangre)
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
5

421.07(2)(j) of Part IV standards of the Canadian Aviation Regulations (CARs)

PERSONNEL LICENSING AND TRAINING.
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 subsection 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 applicants 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
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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
j) lorsqu'une demande a la prtention de servir l'intrt public

canadien pour des raisons non pas vises par les circonstances
pressantes numres 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).
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-referencecentredocuments-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?

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 4.9
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.
3. Case law
a) The Minister has a heavy responsibility towards the general
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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 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?
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.

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:
10

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
11

document if foreign licences were validated in Canada without limit

or restriction, will be maintained. No significant benefit-cost
consequences are expected from this proposed amendment.
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
12

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 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:

13

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 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-referencecentredocuments-400_series-400-005-225.htm), which is used to guide Transport Canada
staff on the issuance of FLVC, it is indicated:
14

5.2 Documents Required for a Commercial Application

A 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-acs400-400-003-122.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.

15

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-inCommand (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
16

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 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.
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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.
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) .

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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://loislaws.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)
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://lawslois.justice.gc.ca/eng/acts/P-14/page-7.html) which states that:
Issue of licence or pilotage certificate
22(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 Mgantic 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 industrys position is based on the
Immigration and Refugee Protection Act which requires that Canadian workers be
legally allowed to work in Canada. The railway engineers 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 Mgantic, because the law
required it.
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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 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
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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 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.
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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 Criteria
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
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 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.

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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 panEuropean 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.

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
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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 WetLease, 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 20142015 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 dOr, 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
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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 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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