:
Good afternoon, everyone.
Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 36. Pursuant to the order of reference of Tuesday, November 7, 2006, we have Bill , an act to amend the Aeronautics Act and to make consequential amendments to other acts.
Joining us today, from the Transportation Safety Board of Canada, is Nick Stoss; from the Transportation Appeal Tribunal of Canada, Faye Smith; and from the Union of Canadian Transportation Employees, Michael Wing and Michael Teeter.
Welcome. I'm not sure if you have made any arrangements as to an order of presentation. Is there someone who would like to take it first?
Mr. Stoss, you have seven minutes.
:
Thank you very much, Mr. Chairman.
Good afternoon. On behalf of the Transportation Safety Board of Canada, I'm pleased to have the opportunity to appear before the Standing Committee on Transportation, Infrastructure and Communities as it studies Bill, the proposed legislation to amend the Aeronautics Act.
TSB last appeared before the committee on Tuesday, June 13, 2006. On that occasion, I accompanied our chair, Mrs. Wendy Tadros. In our presentation we highlighted that the Transportation Safety Board, under the CTAISB Act, is mandated to advance marine, pipeline, rail, and air transportation by conducting independent investigations into selected accidents and incidents in order to make the findings as to causes and contributing factors. Also, we identify safety deficiencies and make recommendations designed to eliminate or reduce any such deficiencies. Finally, we report publicly.
We also highlighted the importance of TSB's independence from all other government departments. This independence is key to establishing public trust and confidence in our work.
Because this session of the committee is dedicated to , I offer the following from the TSB's perspective.
Under the provisions of Bill C-6, Transport Canada is the government department directly affected by the changes to the Aeronautics Act. Although the TSB's work is not governed by the Aeronautics Act, during its investigations the TSB does evaluate the circumstances of every occurrence against the provisions of the Aeronautics Act. In this regard, it would make findings as to compliance with the act and related enabled regulations and other documentation where appropriate.
The specific amendments that have a potential to influence how we achieve our mandate are in the following areas.
First, part II of the act now will provide the Department of National Defence with the legislation necessary to conduct investigations in an almost identical manner to the TSB. However, the provisions will only apply to those investigations being conducted by DND and to military accidents and incidents involving civilians.
Second, the provisions in part I will govern the establishment of a voluntary, non-punitive reporting system. This concept of a confidential, non-punitive system should have a positive influence on the reporting of unsafe situations in the aviation transportation sector. Although TSB has a confidential reporting system called SECURITAS, the TSB system does not incorporate a non-punitive element. The TSB currently participates in a working group with Transport Canada and industry to develop this new system.
Thirdly, the provisions of related to the safety management systems are also of interest to the TSB, principally because this new approach has potential to significantly improve the early reporting and early resolution of potential and actual safety deficiencies.
also provides the legislation related to the protection of information collected by the safety management systems. This factor has significant potential to ensure the quality of the information being reported and analyzed.
This concludes my opening remarks. I would be pleased to respond to your questions.
Thank you.
:
Thank you, Mr. Chairman and honourable members.
It's my pleasure to be here today to answer your questions on the Transportation Appeal Tribunal of Canada. I'll give you what I hope is a brief overview of the tribunal.
[Translation]
The Transportation Appeal Tribunal of Canada is a quasi-judicial body established by reason of the Transportation Appeal Tribunal of Canada Act. It replaces the Civil Aviation Tribunal which was established under Part IV of the Aeronautics Act following upon the recommendations of Mr. Justice Charles Dubin in his report into aviation safety.
The Dubin Report, published in 1982, includes three parts. To paraphrase Mr. Justice Dubin, he wanted to elevate the importance of aviation enforcement. His focus became the objective of the program to provide the aviation community with the opportunity to have the enforcement and licensing decisions of the Minister of Transport reviewed by an independent body.
[English]
By setting up a specialized quasi-judicial tribunal, the enforcement procedure was decriminalized, as is appropriate for contraventions relating to regulatory offences that are not totally criminal in nature. In its legislation, the Department of Transport reserves criminal court proceedings for the most serious offences. Hence, enforcement cases were removed from the criminal courts to the tribunal, and administrative monetary penalties ranged from $5,000 for breach of a regulation by an individual to $25,000 for a company. For the more serious enforcement cases, licence suspensions could be imposed by the minister.
I note that Bill increases the maximum monetary penalties assessed against an individual to $50,000, and as against a company the proposed maximum is $250,000.
As mentioned, in addition to enforcement cases, licensing decisions made by the Minister of Transport may also come before the tribunal. These matters relate to qualifications to hold a variety of documents of entitlement, including matters of competence for medical or other reasons.
[Translation]
Prior to the setting up of the Tribunal on June 1, 1986, matters of qualifications to hold a pilot license or an air operator certificate were heard under the Air Regulations of that time.
A request for a review of the decision to suspend such a document was not heard by an independent body. Rather, the review procedure was conducted by someone in the Department of Transport, usually one level up from the person who originally sent the Notice of Suspension. Although there were many safeguards and guidelines built in such a system, the man on the street does not perceive it as a very independent review since it is done by the same Department.
[English]
That was the aim of Mr. Justice Dubin when he said that an independent tribunal composed of impartial members with subject matter expertise should be hearing these matters related to suspension.
The cases referred to above may include imposition of monetary penalties, or suspension, cancellation or refusal to renew, or refusal to issue or amend documents of entitlement on medical or other grounds. The person or corporation affected is referred to as the document holder.
The review and appeal hearings are held expeditiously and informally in accordance with the rules of fairness and natural justice, which involve the right of the individual or company to have a hearing before an unbiased and impartial hearing officer. At the conclusion of a hearing, the tribunal may confirm the minister's decision, substitute its own decision, or refer the matter back to the minister for reconsideration.
[Translation]
The basic principles governing the Tribunal are those of independence and expertise. The sound and competent execution of the Tribunal's mandate determines its effectiveness in dealing with the Canadian transportation community.
[English]
The tribunal's chairperson is also its chief executive officer, and the tribunal is responsible for the direction and supervision of the work necessary to facilitate the functions of the tribunal.
The part-time members are drawn from across Canada and are appointed by order in council on the basis of their knowledge and expertise. The office of the tribunal is located in the national capital region.
In enforcement matters, the hearing will normally be located where the incident took place. In medical cases, the hearings will be at the location that is nearest to the residence of the document holder.
In addition to the full- and part-time members—there are two full-time members—we have eight employees. That's our entire organization. Over the past 20 years, we have worked on an average of 250 to 300 cases per year, and approximately 60 to 80 of those go to a hearing. Many of the cases, obviously, get settled along the way.
Over the years, the practices and procedures of the tribunal were flexible and straightforward, and the tribunal became an example of government's best practices. It worked well over time because the tribunal took pains to keep its process simple and accessible to applicants, thereby providing effective recourse rights regarding certain administrative decisions.
The informal procedure and simplified rules allow the document holder to represent himself or herself without counsel, but representation by counsel is certainly permitted. Each applicant, upon filing a request with the tribunal, receives a copy of the guide to hearings. There are no user fees at the tribunal. We've been fortunate that we've been able to do that so far.
A review of the tribunal's operations reveals two things. The tribunal appears to be successful in disposing of the matters that have come before it in an expeditious fashion. It has certainly been more successful than the previous system, from an aviation perspective. It also appears that the very existence of the tribunal as a forum for review of enforcement and licensing decisions has, in and of itself, created an environment for the resolution of matters between the Department of Transport and those that it regulates—that is to say, we get the parties talking. This, alone, resolves many matters. Those that remain go to a hearing.
I thank you, and I await your questions.
:
Thank you, Mr. Chair and members of the committee, for the opportunity to participate in the deliberations on Bill , amendments to the Aeronautics Act.
As we all know, this bill has been around for quite a while, and Transport Canada has in effect been acting as if the legislation were already in place. If you sense a degree of frustration in my voice, you're probably reading me correctly.
The Union of Canadian Transportation Employees represents the vast majority of inspectors who are responsible for ensuring that Canada's airlines and airports are safe and the rules are obeyed. UCTE members are fulfilling the obligations of the government as embodied in the responsibilities of the Minister of Transport, as clearly articulated in the Aeronautics Act. In section 4.2 of the act, the responsibilities of the minister are clearly laid out in more than a page of dense print. Section 4.2 begins as follows:
The Minister is responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics
There are about 12 specific functions identified following these general obligations, but the two I would like to emphasize are to “investigate, examine and report on the operation and development of commercial air services in, to or from Canada”; and “investigate matters concerning aviation safety”.
So the minister clearly has the responsibility for regulation, supervision, investigation, and reporting of all aviation matters in Canada. UCTE members perform these functions and are accountable to the minister and the government for the discharge of these responsibilities.
The question I would ask, and that you as legislators must carefully consider, is whether the responsibilities of the minister are discharged appropriately and in the public interest through the designation process, through the management system delegation process, and through the disclosure and confidentiality waivers that are the cornerstones of Bill that you are considering here today.
We certainly do not believe that ministerial responsibilities can be exercised through approval of these provisions in Bill . We believe that by approving these amendments the Crown is exposing itself and the public to unsafe aviation and air transportation outcomes. We believe that the minister cannot effectively discharge his or her obligations through the extent of delegation to the carrier community that is sanctioned in this bill.
AIl political parties in the House of Commons supported the Federal Accountability Act. We do not believe that the principles enunciated in the new Federal Accountability Act can be accommodated through the non-disclosure and Access to Information Act exemptions that are proposed to be provided to airlines and their associations through this bill.
How are the Federal Accountability Act principles protected and represented by a bill that permits airlines to keep a serious safety and security breach from being disclosed to the public? How can the public be assured that the minister is discharging his or her obligations when there is no accountability for that disclosure? Does this not fly in the face of the FAA and everything it stands for? Does this not fly in the face of the responsibilities of the minister and the government that are clearly articulated in the foundations of the Aeronautics Act itself?
It is a well-known fact that the whole plan being implemented through this legislation is really about saving the number of government inspectors and presumably saving money for Transport Canada in the process. It is also what we consider to be a substitute for a proper human resource and training plan for the aviation inspectorate, particularly in light of the demographics of the inspectorate community. Obviously, existing and future UCTE members are negatively affected by this approach, and our interests clearly conflict with those espoused in Bill .
At the same time, we are not convinced that aviation and public safety are matters that belong on the government balance sheet, nor can safety be compromised at all, given the clear responsibilities of the government with regard to aviation safety.
We would go so far as to suggest that this approach has become a substitute for proper and judicious management of the inspectorate function. And don't just take my word for it. We would encourage you to seek out the informed views of experts such as retired Alberta Justice Virgil Moshansky, a man who has extensively studied the aviation safety and management system impacts following the 1989 Air Ontario Dryden crash and who has subsequently given public statements, speeches, and interviews since. Justice Moshansky has been widely quoted over the years, but I would direct you to a series of excellent articles in the Toronto Star from June of 2006. In one of those articles, the justice is quoted as follows:
I am skeptical whether 'partner relationships'...are in the best interests of aviation safety. It is possible if they get too cozy, they'll maybe let things slip by.
Justice Moshansky has always said that a healthy and independent inspectorate is essential to aviation safety. We couldn't agree more. UCTE and other organizations representing pilots and other airline workers have presented, and will present further to you on Bill C-6. There will be some consistency of views in these presentations.
Government officials and airlines will present a countervailing perspective. It is up to you, as legislators, to determine what is in the public interest, but I would ask you to consider the following recommendations in light of the public interest. Remember that we are talking about the safety of the public when they fly in airplanes in Canada. Remember that no amount of delegation of system management will replace ministerial and government responsibilities and accountability. The government is responsible and accountable, and that's the end of the story. So we'd ask you, please, to consider these recommendations in this light.
The government process of designating external organizations is being increasingly practised but usually in areas where the implications are not that great and where the entire functions are being transferred to an outside body and where that body has no responsibilities except for those quasi-judicial regulatory functions.
In this instance, however, the government is proposing to designate external organizations to monitor compliance with its own rules and standards when the organization may have conflicting roles and accountabilities. We fail to see how this is consistent and even allowed under the Statutory Instruments Act, but we would also say that it completely contravenes any standards of accountability that are now part of government policy and legislation. We would recommend removal of the “designated organization” sections of Bill C-6.
Accountability and responsibility absolutely require that inspection reports and safety violations be made public. We would recommend the removal of all provisions that permit non-disclosure of inspection reports and self-reported safety violations. This recommendation would apply to all permissive non-disclosure, including sections 5.392, management systems exemption; 5.393, data flight recorder exemption; and 5.395, voluntary reporting exemption.
Thirdly, if safety system management structures are to be encouraged and permitted, there must be a system of continuous improvement built into the entire accountability structure.
It is impossible to have a well-functioning and continuously improving system that does not have effective external checks and balances and redresses for those errors and omissions uncovered by the external checks and balances. In this respect, we would recommend that all inspection and self-reporting disclosures be available to the public and that whistle-blowing protections be introduced into the statute.
Employees of airlines and airports should have the inherent ability to report safety infractions to Transport Canada inspectors without fear of reprisals from their employers or its agents. Additionally, along as SMS structures are encouraged and permitted, there should be more independent safety audits subject to disclosure.
All these recommendations would combine and bring together a process that has a chance to continuously improve.
Finally, the Canada Labour Code provides for a series of important workers' rights that apply to all federally regulated institutions, including airlines. The code provides employee protections for unsafe working conditions and enshrines employees' right to know workplace hazards. For employees who work in the airline world, knowing their work environment is as safe as it can be is an important worker right.
The conflicts between the employee protections articulated in the code and the “designated organization” and “management systems” delegation proposals in Bill are very profound. We already are seeing the erosion of Canada Labour Code rights with SMS structures now in place. We believe that the primacy of the Canada Labour Code should be codified in Bill C-6 and the Aeronautics Act.
I hope that you find our positions and recommendations are in the public interest. That interest is to protect the travelling public in Canada and to exercise the responsibilities and authorities given to the government and the Minister of Transport in a responsible, transparent, and accountable manner. We believe our recommendations are entirely consistent with that principle, Mr. Chair.
Thank you.
:
Thank you, Mr. Chairman.
My first question is for you, Mrs. Smith. You know that Bill C-6 had been prepared by the previous government and that we did not have the time during the previous legislature to have an in-depth debate about it nor to hear any witnesses.
The new government does not seem to understand the whole matter of transportation safety, even though it is very important. The famous Dubin report of 1982 which led to the setting up of the Transportation Safety Tribunal of Canada stated that safety has to be a responsibility of the government. Therefore, full powers were given to Transport Canada, and the government and the department had to take responsibility for safety.
The inspection function was strengthened, new inspectors were hired and so on and, in the end, if some licenses or certificates were suspended or canceled, people could turn to the Transportation Appeal Tribunal of Canada, an independent body, to get a hearing.
Am I mistaken or do I understand correctly the basic idea of the famous Dubin report?
Mrs Faye Smith: Yes, you are right.
Mr. Mario Laframboise: I want to ask you if you have ever felt in your work that the inspection system of Transport Canada was inadequate. Have you ever had that feeling? Do you think the system should be improved or that Transport Canada and its inspectors have carried out their work properly since you've been in your position or since the creation of the Tribunal?
Looking at your report, I see that you deal with 150 to 200 cases per year. You make findings about those cases and, if you think that a decision was not made fairly, you tell the minister.
This is what the Dubin report had contemplated. However, where I see a problem is that some designated organizations—and I am referring here to ALPA, the Airline Pilots Association—have told us that with this Bill the traditional oversight function will be changed. As far as they are concerned, it is clear that the inspectors will not do the same work as in the past because the safety management system will have them work more as auditors than inspectors.
This is a concern to me because of the whole balanced system that had been recommended by Justice Dubin—I am trying to understand why some people are so intent on the changing the inspection system and I can't find any good reasons related to safety. As far as labor relations are concerned, since they are overseen by inspectors, I can understand why airline pilots would not like to be overseen by other pilots who are inspectors. I can see that there is a human relations issue here. However, for matters of safety, I fail to understand why the government wants to change the system.
I have no objection to adding a safety management system as long as we keep an inspection system that is as good as the one we have now, as well as inspectors who have received the same training and who are able to go anywhere to inspect the airlines.
It is difficult for me to accept that the inspection system should change. If that were to happen, would you have any concerns?
Just quickly, I'd like to again correct what Mr. Julian has suggested. Mr. Julian has suggested that there is an ongoing increase in the number of accidents in the rail sector. I believe you're correct, Mr. Stoss, that there had been an increase at the beginning of 2006. My understanding is that over 2006, the rate actually went down.
My concern here is the motive behind opposition to implementing a safety management system. Mr. Wing, I was concerned about one statement you made. You had suggested that whatever legislation was passed, it should respect the primacy of the Canada Labour Code. When we talk about primacy, we're talking about priority of one thing over another. Can you place that comment into context?
I'm concerned about public safety. Ultimately, for me, the most important aspect in everything we do at this table is to ensure the safety of the public, especially with this legislation. Are you suggesting that the primacy of the CLC should take precedence over public safety, or am I misreading that?
:
Thank you, Mr. Chairman.
I am not a regular member of the committee and I am not aware of all the details of the Bill which is more the field of Mrs. Smith and Mr. Stoss. However, I understand matters relating to unions since that is my field of expertise. One always relies on the reports of others. In the present case, I represent an eminent colleague whose work is very serious.
My riding is in the north of Quebec. On a third of the riding, there are no roads. I have to rely on small airlines to go from one village to the next. I am talking about small airlines which, very often, are barely able to cover their expenses.
With Bill C-6, the airlines will inspect their own airplanes, which raises serious concerns for me. In such a situation I wonder if the inspector whose salary, even though very modest, is the only source of income will take the risk to tell his boss that there is a technical problem that has to be resolved before the next takeoff.
Furthermore, we have in our riding a company called Avionnerie Val-d'Or which modifies airplane wings with a technology called the Advanced Wing Technology. That business wasn't profitable and the company succeeded in getting close to 19 million dollars from the British Columbia government. Also, the governments of Canada and Quebec gave it more than 2 million dollars to build airplane wings. A pair of those wings was installed on a Beaver airplane which later crashed in the James Bay area. Fortunately, the two American hunters on board survived but, normally, in such a crash, they would not have survived.
I would like to know who gave a license to this company, Avionnerie Val-d'Or, to build and install those wings. Who granted it a license to modify an airplane which had been built on the basis of particular load specifications? As a user of small airplanes, I wonder if the company will eventually be found guilty and if the verdict will be sent to me posthumously. That is my concern.
:
Once again, I shall answer in English.
[English]
The questions you asked are very interesting questions and very technical questions, as far as the certification of aircraft is concerned. Within the transport sector, the responsibility for certifying an aircraft and the rules under which these aircraft are inspected and certified are the responsibility of Transport Canada, so I can't voice an opinion on those. All I can say is that regulations are in place that guide the modifications to aircraft. The construction of aircraft and the regulations guiding how that is done and how the modifications are approved are totally the responsibility of Transport Canada.
I can say again that we have conducted occurrences investigations and have had findings regarding certain installations or certain modifications, but we have not had any that deal with systemic aspects of how the modifications are done, how Transport Canada approves the modifications. That's the first part of the question.
The second part of the question deals with the technicians at the working level and their capabilities. For each one of the mechanics, the people who work on the aircraft, how they are qualified again is a matter for Transport Canada. They're the ones who establish those rules of conduct. Again, although we have had investigations that have found the maintenance actions being conducted on aircraft have not been done properly, we have not found a problem with the certification process of the individuals in those particular investigations. Occasionally we'll find a training issue has been associated with them. But again, we have not had any where we have made any recommendations.
I have a little problem with this notion that we're trying to debunk myths that the opposition may be trying to create by asking questions. It is the role of the people on this side to ask questions, and if it is seen as creating myths, well, I'm sorry about that, but that is certainly not the intent. The intent is to have facts on the table, and from facts make a judgment on the legislation that is before us.
Indeed the matter of SMS is being proposed as an addition-to and top-up. There are no changes to the regulatory requirements that have been presented so far. I hope we all agree on that. That's how it's been presented. They have been in place, even though the legislation has not. I think everybody acknowledges that too.
Am I correct so far? Would anybody care to say that was not the case, that SMSs are not in place now? All right. They are in place, not in legislation, but they are in place in actuality.
So if indeed the consequence of those, and that's what we need to ascertain, is a reduction in the number of inspectors, is the link there obvious? Are there fewer inspectors? Let's find out. And if so, is it because we have SMSs? And then in that case, there's a judgment call to be made, and that's the purpose of asking these questions, not to debunk myths or create them.
Does anyone care to comment on that?
:
Thank you, Mr. Chairman.
Before 2005, I was a layman about this. When I was elected, in 2004, I had the opportuity to visit some airports and I learned that one could not stay for too long between the fences close to the tarmac. One was asked to leave the place quickly.
In small airports such as the ones at James Bay or in Nunavik, the situation is now somewhat pitiful with luggage around the airplanes and other airplanes landing in the middle of all this. However, that is secondary. I have now learned that there may have been some slackening since 2005 or that fewer inspectors are available.
I have a concern and you may probably be able to put it to rest for me on the basis of your experience. You said a while ago that changes have been made to airplanes and to the building of airplane wings, and so on, and that the licenses are now being issued by Transport Canada. However, a question came to my mind after that. A license has been granted for which there may have been a lack of verification of the plans that were submitted. Maybe someone forgot to do their work.
About this company that is known for building airplane wings, when the time comes to change the wings of an airplane, it is not engineers who are there but laymen. It is people like me who decide to start a company and to change the wings on airplanes with staff that they have trained themselves. And they build wings for other companies. In Trois-Rivières, especially, there is a company that buys wings from them.
When the time comes to put the airplane back in service, is there an inspection? Based on your experience, do you think there should be an inspection before licensing that aircraft to fly again after the changes have been made?