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Standing Committee on Transport, Infrastructure and Communities



Thursday, April 1, 2010

[Recorded by Electronic Apparatus]



    Good morning, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting seven. The orders of the day are pursuant to Standing Order 108(2). We are studying aviation safety and security.
    Before I introduce our guests, I'll just make the committee aware that we've had a request for media to be here taping the meeting. If there is no objection to that, we will proceed.
    Seeing none, that's...
    Mr. Volpe.
    Mr. Chairman, I understand we have a point of privilege, I think, or a motion. Is it the committee's intention to go in camera for that?
    I don't think I....
    You'd prefer?
    An hon. member: Yes.
    The Chair: Okay.
    So we will schedule that for the last...
    Thank you.
    Joining us today from the Canadian Union of Public Employees is Mr. Richard Balnis, senior officer, research.
     From the Canadian Auto Workers we have Leslie Dias, president of local 2002, and Ron Smith, national representative, national office.
    Thank you for being here today. I know it was short notice. I understand we have a prepared statement and also some comments that will follow.
    If you've had agreement, Mr. Balnis, please proceed.
    Good morning. My name is Richard Balnis. I am from the Canadian Union of Public Employees.
     CUPE represents 600,000 workers across Canada, and our airline division represents 8,500 flight attendants at six airlines in Canada. In front of you are my remarks in English and French. I will deliver my remarks in English. In addition, a book of documents accompanies that presentation. Those documents are also entirely in English and French. The first part of tab 1 has the English, while after the green paper you will find the French. That document is entirely bilingual. I would like to go through my remarks now.
     Since they were discussed in 1999, we have been and continue to be critics of safety management systems in aviation. Our submission and accompanying documents address the first point of your specific study into aviation safety, “Transport Canada's Implementation of Safety Management Systems for the Aviation Industry”, and “in particular the delegation of oversight and administration for business aircraft” to the CBAA. We are also prepared to comment on other issues related to flight and duty time for flight attendants, or other issues or questions the committee may have.
    When the CBAA approach first became public in 2001, we said that this was industry self-regulation and it was wrong. The CBAA took over certification of business aircraft in January 2003 as a result of a ministerial exemption. We repeated our concerns about the CBAA approach when we appeared before you on May 2, 2007, during your consideration of Bill C-6, later Bill C-7. On December 28, 2007, we released 337 pages of documents under access to information legislation. We have since learned that at the same time that Bill C-6 was before Parliament, Transport Canada inspectors missed serious issues of regulatory non-compliance with regard to how CBAA was conducting its operations.
    In tab 1 is our detailed analysis of those 337 pages. I have a set of those documents, which I can leave with the committee. They are in English only. I don't intend to create any controversy by tabling English-only documents, but I can leave it with the clerk if you wish to review it to make sure that what we say in tab 1 is accurate.
    We also learned, as you can see in tab 1, that there were serious shortcomings in how CBAA was conducting its operations in other areas as well. Moreover, Transport Canada senior manager Don Sherritt overruled the inspector conducting this audit, who found that the CBAA corrective action plan would be ineffective in addressing these identified deficiencies. To our knowledge, SCOTIC has been told none of this.
     As the Transportation Safety Board of Canada reported on its investigation into the crash of Tim Hortons co-founder Ron Joyce at Fox Harbour on November 11, 2007, “Transport Canada did not document its decision to close off the CBAA assessment even though the CBAA had not submitted an acceptable corrective action plan”. In tab 2 you will find, in English and French, the extracts of that report's conclusions. The TSB further found that it took another review, on March 11, 2009, for Transport Canada to conclude that the assessment it had conducted, which ended on September 21, 2007, had been “fully addressed”, nearly eighteen months later.
    Fortunately, Minister Baird has finally agreed with us nearly a decade later. As he told media on March 16, 2010, “Right now it's self-regulation for corporate jets...”. Referring to the Fox Harbour crash, he said, “We learned from a recent report that it's simply wrong for industry to regulate itself”.
     The CBAA experiment was therefore ended by Minister Baird. It is too bad that it took crashes for this ill-conceived policy to be abandoned. Unfortunately, one could go to the Transport Canada website as late as March 30--Tuesday of this week--and still find a 2009 “Safety Partnership Programs Framework” document, which we've included in English and French in tab 3, which allows similar adventures in delegation to industry and industry self-regulation to continue.
    We ask that you recommend to Minister Baird that he cancel this policy approach as well. Let us learn from the lesson of the CBAA.


    On the issue of government oversight in an era of SMS, which I think is the central focus of your deliberations, we told you on May 2, 2007, that Transport Canada was implementing a new diminished role for itself under its new SMS regime, contrary to established international norms. At that time, we quoted Transport Canada assistant deputy minister Marc Grégoire, who said that there will be a “shifting relationship” between airlines and Transport Canada under its new SMS regime. As he said on April 25, 2006:
There must also be a willingness on the part of the regulator to step back from involvement in the day-to-day activities of the company in favour of allowing organizations to manage their activities and related hazards and risks themselves.
     Despite the claims that things were changing when Transport Canada representatives appeared before you on March 30, 2010--and some of those changes are overdue and welcome--there will be no change in this fundamental approach. If you do not believe us, look at Transport Canada's own documents dealing with SMS and government surveillance, which we've included in our documents.
    On March 22, 2010, less than two weeks ago, Don Sherritt provided participants at a CARAC consultation meeting with the document found in its entirety at tab 4, in English and French. As you can see in the marked passage on page 3 in the English version and on page 1 of the French, SMS and performance-based regulations and standards will permit “each operator to manoeuvre within the designed 'playing field' based upon their targeted risk indices and safety requirements”. In our view, that is an unprecedented level of air operator autonomy from government oversight.
    We were further told at that meeting that government oversight in this environment of operator manoeuvrability would be conducted in accordance with Transport Canada staff instruction SUR-001, entitled “Surveillance Procedures”, which is also reproduced in its entirety in tab 5. There are 66 pages in English and 72 pages in French. The fundamental premise of this approach is that government surveillance is designed to ensure that the operators have procedures in place to comply with regulations, not that inspectors will ensure compliance with regulations.
    As an explanation of what you were told on Tuesday, if there are sufficient resources remaining, there “may” be other government surveillance activities to ensure such government regulatory compliance, such as the inflight or ramp inspections that were mentioned to you. Please, in particular, see section 5.0; that passage has been added in the last two months.
    While this is an important addition to earlier editions of this document, there are still significant problems with SUR-001. First, these supplemental surveillance activities are discretionary and entirely dependent upon resources. Without adequate resources, these supplemental surveillance activities will not be done, although they are there on paper. Second, these surveillance activities are important in themselves. As you will see in tab 6, the Atlantic region of Transport Canada disagreed with the Ottawa head office approach of having only higher-level oversight activities, such as program validation inspections, enhanced monitoring, and assessments, because "they do not address day-to-day oversight of companies and do not include intelligence-gathering activities, which are important in providing data for safety monitoring". That is in tab 6 in its entirety.
    Finally, in tab 7 we have prepared a case study of maintenance violations in 2007 at Southwest Airlines, a major American air operator. As that analysis shows--and if we have time in questioning, we can spend more time on it--it is only through mandatory, no-notice, and hands-on inspections, with effective whistle-blowing protection for front line inspectors who have to go against managers who may have cozy relationships with the operators they oversee, that the public's safety can be assured.
    Thank you for the opportunity to appear before you today. We have other comments as well, including the lack of any flight and duty time limitations for flight attendants, something we have been seeking without success from Transport Canada since 1991.
    We look forward to your questions on anything we've presented and on any other area that you would like to question us on.
    Thank you.


    Thank you very much.
    I understand, Mr. Smith, that you have some comments as well.
    My name is Ron Smith. I'm with the Canadian Auto Workers' union in Canada. The CAW has over 256,000 members. In the aviation field, we have over 14,000. We represent aviation maintenance organizations from coast to coast in Canada. We represent airline transport pilots who fly pretty much strictly at night. We also have air paramedics who, while not considered flight crew, fly throughout Ontario; you're familiar with the orange helicopters and airplanes.
    While SMS is not the best thing out there, we would suggest not throwing out the baby with the bathwater. SMS definitely needs to be improved. We do not disagree with the position of Richard and CUPE on this. There have been a lot of flaws in the implementation of SMS.
    What we hear from our membership, quite simply, is this: they file a report and they don't hear back. They don't hear back about what the issue was, whether it was corrected, or what has happened. We have instances where some of our flight crew members are told they're not allowed to file SMS reports.
    We agree with the move on Transport Canada's part to increase oversight. We agree with CUPE's position that without oversight, and without impromptu and unannounced visits to the airlines and the people you're regulating, what you're getting back may or may not be factual and may or may not be a true representation of what's happening out there in the real world.
    The other part that we see happening, especially in the aviation maintenance organization area, is that the employers do not respect the non-punitive reporting aspects of SMS. If an employee or a member reports something to the employer, it becomes punitive; the employer takes action and the employer takes reprisals.
     This is a fundamental cornerstone of the SMS program. The whistle-blowing capabilities or abilities of our members to report confidentially to the Transportation Safety Board through SECURITAS is greatly diminished by the inability of anybody to fully monitor that system. Transport Canada did at one point look at trying to make a different type of whistle-blower legislation and program, but that has all died by the wayside.
    As far as the CBAA issue is concerned, while we have no membership directly involved with the Canadian Business Aircraft Association's private operating certificate operations, we would have to agree with CUPE's position that it is an experiment gone awry.
    That concludes my remarks. Thank you.
    Thank you very much.
    Mr. Volpe.
    Thank you very much, Mr. Chairman.
    Thank you to our guests for appearing before us. We've seen some of them before.
    I just want to go directly to one issue if I can, Mr. Balnis. Your presentation causes me some concern, on two fronts. Let me go to one of them right off the bat. As I listened to you speak and as you itemized the issues with which you have some concerns, you've essentially said that Transport Canada came very close to misleading this committee yesterday.
    No, sir. I think there are three levels that you have to look at. I was there at the testimony on Tuesday and I heard you say that you were a skeptical MP. I think there are three levels: what a government official says; what a government official has written down; and what the bureaucracy actually does.
    On Tuesday you heard what they said they will do. Today we're bringing you information on what they have written that they've said they'll do. I think your investigation has to go further to see what is happening right at the point of contact, where the rubber hits the road.
    I would suggest to you that when Monsieur Grégoire said, yes, we're going to be increasing inspections, you need to look at tab 5 very carefully to make sure he has the resources to deliver on that promise. I'm hopeful that he will be able to do so. I am believing that he will, but if you look at section 5.0, I don't think they have accepted the philosophy of no notice inspections yet. They are talking about such inspections, but they have not accepted that philosophy, because in section 3.0 on that same page, they're saying that it's hands off.
    So I think that document needs to be reviewed. It's been revised three times. I think this committee can play an important role in making sure that document works and is understood by inspectors. The inspectors I've talked to, say, “Oh God, they've changed it again?” You read those 66 pages and I'm not sure you're going to understand what is expected of an inspector.


    Since you were here on Tuesday--and I saw you--and since you heard me say that I'm a skeptical MP, why wouldn't you have provided us with the documentation you referred to before you came to this committee so that we could have a better understanding of exactly what it was that you were pointing to, and so that my scepticism and, I dare say, the scepticism of others, would have borne some fruit on Tuesday?
    We found out on Monday night at 5:30 that we were going to be before this committee. We learned that Transport Canada was appearing on Tuesday morning. We knew we were scheduled for Thursday. We're fast, but we're not that fast, and we did—
    No, but you are obviously prepared, and you monitor this committee on an ongoing basis. There's no reason why you couldn't have made your information available through the chairman.
     It's not my job to protect the government's position on any part of this issue, but if the point is valid that Transport Canada is either withholding information from committee and committee members or is deliberately leaving out issues that would make their statements much more credible, or less so, then why would you withhold that from us? That's the basis of your entire presentation: that there isn't transparency.
    I have two comments. One is that I am here today providing those documents, and also, I heard the deputy minister very clearly say that once you have collected the testimony of the witnesses, they would be pleased to return, perhaps even in a round table fashion, to answer what you have done—not to come each day to sit and watch, but after you had collected all of the stuff--so we thought we were part of the process.
    We're sorry that we didn't come on Monday night to your office, sir, to say... We didn't know what Mr. Grégoire was going to say.
    No, but you did, actually. I do understand that we are having a little bit of a conversation here. I feel bad if you think I might be harassing witnesses. That's not my style, and you know that, because you monitor every single one of our meetings.
    In terms of my scepticism and my willingness to try to get to something, you've suggested in this, as you have in the past, that Transport Canada needs to be there on the ground with inspectors. You've heard this committee, through some of the members, especially on this side of the table, say that you must have to inspectors on the ground. If Transport Canada was cutting back—and we found that it was cutting back on inspectors—then we needed to know about it.
    When we found out about it, we put pressure on the minister and the department. You heard the department say yesterday they were rehiring 60 inspectors on an urgent basis and were going to fill the full complement of--what was it?--96 inspectors, of which they were short. I don't mean to be antagonistic, but are you suggesting that they're not being entirely truthful?
    On the number of vacancies they're filling, I have no knowledge to disagree with them. All I do remember is that two years ago it was very difficult for this committee to figure out how many inspectors there were from Transport Canada.
    But here we are with Marc Grégoire the other day giving us all of these issues, which you say today are nothing more than statements of intent, rather than statements of performance. Marc Grégoire sat where you're sitting. He has had some very difficult questions pointed in his direction, not the other day, but in the past, and you know that as well. Marc Grégoire comes to this committee and he knows he's not going to get a soft ride.
     Why would we say today that he wasn't being entirely truthful or that he doesn't have the capacity to come up with those numbers and the resources? I think he gave us an indication of the amount of money that we're going to find in the budget bill as we go through it. The government will correct me on this, but I thought it was $10 million.
    Is that insufficient?


    In terms of them being able to implement in the regions their policy from section 5.0 of tab 5, which is their surveillance procedures, I don't know where these new people are going. I have not seen their staffing plans. I don't know if there will be sufficient resources in the regions to do these extra activities that we think are necessary. We don't know that, so I couldn't come to you on Monday to say, “Go tell them”.
    Hon. Joseph Volpe: Okay, Mr. Balnis.
    Mr. Richard Balnis: I'm sure we'll be back at this.
    Monsieur Laframboise.


    Thank you very much, Mr. Chair.
    I do not agree with Mr. Volpe. When the Liberals were in power, they defended everything Transport Canada said. Now, with the Conservative government, they again seem to be questioning what Transport Canada is saying. It is starting to get interesting. We must remember that, under the Liberal government, the safety management systems were shoved down our throats. I have always been critical of safety management systems. In fact, when they were proposed, we felt that it meant industry self-regulation. For business aircraft, it was a disaster. I see that the minister intends to bring some order to the organization, which is good.
    I took the time to read your recommendations, even though we only got them this morning. The fifth paragraph says:
    Where surveillance resources are still available after the annual surveillance planning is completed in accordance with CAD SUR-008, other surveillance activities may be planned, as described in Section 6.0 of SI SUR-009.
    That worries me. Once again, it shows that the speech that Mr. Grégoire gave us is very different from what they say when they meet with the employees. Of course, it is good that you are providing us with this and that the Conservative members understand that, at Transport Canada, even if they do not necessarily have a political message, they are still protecting the same old polemic. I heard Mr. Grégoire brag about Canada being the pioneer of safety management systems. Unfortunately, lives have been lost because of them. It is scary being first, just watching and cutting back the number of inspections.
    That is what happened. We cut back. Of course, the government wants to bring the inspectors back to work and carry out surprise inspections again. That process must continue. The problem is that we raised this question in November.
    Why have the inspectors not been hired? That is my question for you, Mr. Balnis. Has Transport Canada made an effort to hire the inspectors? Or are they trying to uphold the policy, continuing to think that they were right in 2001 and 2003 under the Liberals, although they were wrong? Why have the inspectors not been hired? Do you think that there is a strategy to not hire them? I would like to hear what you have to say, Mr. Balnis.


    I would take Monsieur Grégoire at his word that he's hiring for those positions. I suspect the arrival of the new deputy minister, whom we have not yet met.... We have asked to meet with her, but we have not yet formally been able to meet with her. I suspect that is a factor in ensuring those positions would be filled. I think Director General Martin Eley is also a factor. He has replaced the previous director general. I think they have recognized that these positions be filled...
    So I believe them when they say they are hiring. I think he said that by the end of August we should have all 96 positions filled. I don't know if they're having problems recruiting people. I don't know. I don't represent those people. You should speak to the unions who represent those people, the CFPA or the UCTE. Maybe they can tell you whether there are problems.
    I believe there is an effort to hire. My issue is if they will still have sufficient resources to do in their policies no notice inspections. That is the question I'm putting to you. They said they will do that. I'm putting their policy papers in front of you to say that they say they will do that. The reality is, will they do that on the ground?
     I would ask you to participate. We will assist you as best we can. Obviously we didn't assist you quickly enough, but we will assist you as best we can to ensure that happens, because I think that is an essential component that has been missing in this experiment.
    The ship has changed. I heard the DM on Tuesday very clearly send a new message. She is a former deputy minister from the department that dealt with the listeriosis deaths, so I think she knows that when you have inspectors who are unhappy and when you are not conducting effective surveillance, you need, in her view, to turn things around. I was encouraged.
    In fact, I am struck by her leadership qualities. For her to turn around and create an advisory group of inspectors, so she doesn't listen to Monsieur Grégoire or Monsieur Eley or Monsieur Sherritt, who will say things to her... She is going to go to the front line inspector and say, “Come on, guys, tell me that.” That is unprecedented. I believe she is a deputy minister with a mission to achieve things, and I would ask you to help her achieve those things, because I think it is essential.



    Mr. Balnis, I agree with you. To help her with business aircraft, we must take it away from the Canadian organization. How do we move forward? Do we have to put Transport Canada in charge of the accreditations? What do we have to do to re-establish order in the business aircraft sector?


    On the specific issue of the CBAA, I believe there is a transition period of one year. I understand that Don Sherritt will be leading a consultation process to bring back the old CAR 604 regulations that used to regulate these operators. They hope to do that in a year's time, but I think that is an ambitious timeframe.
    In terms of other organizations, if you remember, during Bill C-7, people were saying airports, helicopters... There is a document we put in here, at tab 3, which is their policy to do new initiatives, to do safety partnerships. I think you should review that policy and, if you feel warranted, ask the minister to look at it and rescind that policy as well, so the CBAA experiment will be ended and the way forward...
    My understanding is that this policy was introduced by Mr. Reinhardt, who worked for Mr. Preuss. Both of those gentlemen have since retired. Perhaps it's time for the new leadership and the minister to review tab 3 and say, “We don't think we need to go there.” I think that would go a long way towards sending a very clear signal on how to deal with things in this industry.
    Merci, monsieur Laframboise.
    Mr. Bevington.
    Thanks, Mr. Chair.
    Thanks to the witnesses for coming here today.
    I must say that I don't have a problem with receiving this information today and receiving it in the format that it is in. I am thankful for it. I am thankful that we have some of the very intrinsic parts of this Transport Canada plan that we can actually look at.
    On Tuesday when I asked a question of the witnesses about surveillance, the answers I received didn't give me the understanding that you've given me with these documents here today. We'll take this into account.
    I feel that the surveillance aspect of this can't be handled in the detail that's shown in this policy. We need to understand fully what that surveillance activity will be. It has to be clearly outlined to us. I think that'll be one of the aspects that I'll be going back to the department on.
    Can you clearly lay out what you expect Transport Canada will provide in surveillance with this change in policy that you've indicated?


    I think the first way there is the question that Mr. Dhaliwal asked on Tuesday. I said then, “There's a good question”. Unfortunately, Monsieur Grégoire did not understand it and he didn't answer it.
    Here's what Mr. Dhaliwal's question was about. We had a situation with an Air Canada flight that was diverted and that did some de-icing procedures. That was reported to you by the CFPA. Mr. Dhaliwal asked what has happened with that and Monsieur Grégoire did not answer.
     Is it because he didn't know or is it because they wouldn't tell you? I would suggest that if you ask that question to him again, if you ask him again to explain how they handled that situation, I believe you will begin to open up the issue of how inspections are done.
    In tab 7, we presented the case study of Southwest Airlines--
    I'm familiar with that. I have a question on that as well and it's slightly different. I'd like to go after that.
    In your “lessons for Canada”, you speak about “the impact of Transport Canada's new policy to not take enforcement action against carriers who 'promise' to correct voluntarily self-disclosed problems under their new Safety Management Systems...”.
    Now that, I suppose, would apply to manufacturers as well, and within the whole organization. What we've seen with the Cougar crash off the coast of Newfoundland, which killed many people, was that there was a failure to deal with a disclosed problem that was clearly identified even by Transport Canada. People were dead on the ground because this voluntary disclosure, with the promise to correct, did not take place in a reasonable fashion. Is that not correct?
    I think that is our precise concern on page 7, tab 7, which was borne out with Southwest and borne out in the case of Cougar. Airlines make mistakes. Airlines are under tremendous cost pressure. The regulator needs to be able to go in there to make sure that things are fine.
    In the case of Southwest, it was an inspector doing a midnight inspection on an aircraft who looked up and saw a crack, even though Southwest's paperwork with his manager was perfectly in order.So the manager thought--the FAA thought--everything was fine. The paperwork was fine; it later turned out he was a little too friendly with Southwest. The inspector got death threats and had to whistle-blow. I think this is an incredible case--
    But with Cougar, if there was enforcement action taken over the nature of the bolts that were holding on the oil cleaning system, the filter...if that enforcement action had been taken by Transport Canada, we may have avoided that crash. Is that not correct?
    I'm not going to venture out because I don't know the details of the Cougar situation exactly and who was inspecting what. Because as I understand it, the manufacturers are not under SMS; they were just under routine surveillance. But from the way you're presenting the information, it sounds to me that if there had been an inspector who would have caught the fact that things weren't being done properly, that aircraft would not have flown that day with those passengers. But I can't say with certainty, yes, sir, those lives would have been saved.
    The next question is out of that. If we're going to go to enforcement action against carriers, if this particular new policy not to take enforcement action... What does it take in manpower and organization to do the work properly, to do enforcement properly, to ensure that the companies are complying? Is this another issue that surrounds the need for more resources with Transport Canada?
    It is absolutely an issue that surrounds the need for extra resources. In terms of us saying that it's x or y number of extra bodies, with respect, I think you should bring forward the unions that represent those inspectors: the CFPA and the UCTE, and I believe there is an engineering PIPSC unit. Perhaps they could sit down with you and explain exactly how their workload is calculated and they can tell you if 96 is enough or not. I can't comment on that, but to have the resources to do it is essential.
    You have one minute.
    Thank you very much.
    What Transport Canada presented to us on Tuesday, is that what the inspectors are saying they are doing on the ground with them? Are they actually listening to the inspectors? Are they actually doing what they said they're pursuing right now?


    They are listening to their inspectors. I have spoken with both inspectors' unions and it is true that these meetings are happening.
    We met with Monsieur Grégoire in December and he promised that he would sit down with us because he feels we are spreading misinformation on SMS. He said that he wanted to convince us within a year's time that Transport Canada SMS is the best thing in the world and CUPE fully supports it. We have yet to meet with him. I think we told him that “SMS”, for our members, means “selling out my safety”.
     He has not met with us since then to convince us, but he has been listening to the inspectors, and I am heartened by the deputy minister's words. She said that she has an advisory committee and she has made her managers go to the front line. I think that is a refreshing approach to making sure you're in touch with the front line. She's only been there eight months and she has a large department to deal with. We wish her the best of luck and we wish Mr. Eley the best of luck to ensure that they deliver on what they said.
    But I'm just saying that in their policy document, in tab 5, there appear to be contradictions. What they say they do and what they have written appears to be in contradiction. As long as we get to the front line correctly...
     I would urge you in the strongest possible terms to focus your attention on those areas in your subsequent deliberations, and when the department returns. As Mr. Volpe says, I'll be sitting in the audience. I'd like to sit with them because Don Sherritt says I don't understand tab 5. Tell me I'm wrong--I can read. I hope I will be back.
    Thank you.
    Mr. Watson.
    Thank you, Mr. Chair.
     I thank our witnesses for appearing here today.
    I have a principles question for the record. You can answer for each of your particular organizations. Does your organization support safety management systems in principle as a means to improve aviation safety, or are you principally opposed to the idea of SMS?
    I think the first line of our submission says that we have been critics of safety management systems in aviation since they were first discussed in 1999, and we continue to be.
    The theory of SMS is fantastic. The reality of SMS in the airline industry for CARs 705 operators--we agree with Ron's observations--is that there are a lot of problems out there. The theory has not been translated into reality, which is where our members work.
    So I'm not going to say in principle yes or no, because there is a great theory, but the reality is not living up to it. I guess where we have the greatest difficulty is with risk management. Where risk management allows...
    With due respect, Mr. Balnis, I think you are venturing a little further than what I asked. Are you principally opposed to SMS or are you simply a critic of the implementation of SMS? That is what I am getting at, Mr. Balnis.
    We are both. The principle is risk management, wherein employee injuries are now seen as acceptable. So in principle, we're opposed to that, and also to the implementation.
    So you're principally opposed to SMS.
    Mr. Smith, are you principally opposed to SMS or are you just critical of the implementation?
    Sir, we're not principally opposed to SMS. We think there are some problems with the implementation, with the way it is running.
    I will give you a good example, sir, of where it has worked well. I come out of the air navigation system. I come from Transport Canada, and then Nav Canada, back when it was commercialized.
     Nav Canada has a safety management system that's fully functioning and takes into account everything I am going to state right now. There has to be oversight. There has to be training down to the working level. There has to be encouragement of the employees and members to file SMS reports. There has to be non-punitive reporting so that you can report something that happened without fear of being sent home without pay.
    Those are the issues. As I said earlier, I don't want to see the baby thrown out with the bathwater.
    Mr. Jeff Watson: Fair enough.
    Mr. Ron Smith: So I'm not opposed to it, sir.
    All right. My point being that I took some umbrage--or no, not umbrage, I guess... I noted particularly that you said that you don't disagree with this position, and yet the two of you actually do. Your unions disagree. Principally they are opposed to SMS. I appreciate Mr. Balnis's consistency for well over a decade on this particular issue.
     You're not principally opposed to it. We're now getting down to the discussion of how we improve the implementation of it.
    We see it, sir, as another level, as an addition.


    In that sense, we agree with the government. Our position has been that SMS should be an additional layer--
    Mr. Ron Smith: But you shouldn't take out--
    Mr. Jeff Watson: --of safety on top of the inspector, then the regulatory system.
    Exactly, and that's where I think it's falling down today.
    I appreciate that. We're getting to a difference of opinion here at the table. This committee, of course, as you well know, took up Bill C-6 some time back. Three parties, certainly, were working to make some of the improvements you were suggesting with respect to whistle-blower protection or that kind of non-punitive reporting.
    I will remind everyone, for the record, and for those who are watching, that of course it was the NDP that scuttled that legislation. I think that's an important consideration, because we were close to something that I think is very important in this particular area.
    Mr. Dennis Bevington: [Inaudible--Editor]...we didn't give up on it.
    Mr. Jeff Watson: Mr. Smith, I have a question. What level of inspection is satisfactory to the union? I'm going to presume that you don't support 100% inspection of all classes of aircraft at all times. Some decision has to be made about the level.
     Are we fighting to restore the additional union jobs that were lost? Is that the level at which you're going to be able to conclude that we have enough safety in the system? There's a decision at some point that has to be made about resource allocation and the appropriate level of safety. What is that appropriate level of safety, in your mind?
     We will start with you, Mr. Smith. Then Mr. Balnis can weigh in on that.
    Well, as has been said, we can't tell you. We're not the experts in saying how many inspectors are enough. That would be the minister's position--and the people working for the minister.
    Last night I listened to the audiotape of the hearing on Tuesday. I am extremely pleased that Transport Canada has taken the position of rehiring those people, bringing those jobs back and increasing the number of inspectors.
    They're the ones who need to decide. Transport Canada needs to decide, along with its unionized workforce, or whoever is doing the inspections, how much is enough. I can't tell you. If I could, I would. I can't pick a number out of my head and say that this is enough.
     But they know, and they should know, how many are enough to perform the inspections. The inspections, again, will depend on the carrier and what the incidents or occurrences have been with that carrier. I think--
    Let me just step in for a second here, because I don't buy that you don't have some sense of it. You're commending the move to hire back the inspectors, so clearly you believe there is an employment level that is going to be satisfactory and at which point we've achieved safety in this country. You have some opinion of it. I don't buy that you have no opinion of it or can't inform.... Because you've both taken the position that at least hiring back those inspectors would be sufficient enough.
    It's a good start, sir. I can't tell you how many they would need. We don't deal with the day-to-day operation of Transport Canada and the inspections group there.
    Let me ask another question here with respect to the capacity for implementing SMS. Is it fair to differentiate in the capacity between an Air Canada aircraft, let's say, and a smaller aircraft, or a small business jet, for that matter, in terms of the capacity to implement safety management systems?
    The capacity and the training required would be a time differential between the size of the business being regulated or using SMS. That's part of where the issue might come into play or does come into play--it's the training requirement.
    Right. It takes time for those with less capacity to be able to....
    Yes, with less capacity, or it actually might impede the operations. But in fact, at some carriers, even, it's that taking people out of the operational line, spending time educating them on this piece, and giving them the encouragement to take on and do what's required in SMS is a detriment to the bottom line of an operator.
    Mr. Volpe.
    If you don't mind, I'd like to pursue that line of questioning a bit further.
    Maybe, Mr. Balnis, you might come back into this.
    It strikes me that the discussion we've had over the last several years on this is all about changing a culture, and a culture that's in a business, that involves trust. You've heard other witnesses who have come forward and have said, well, the SMS system is a great system. They've said that it fits another layer on top of the mandatory inspections and the sufficient number of inspectors. I think everybody was agreeing on that, but nobody can agree as to what the number is.
    Transport Canada actually eliminated some of those inspector positions. They've admitted that they're going to reinstitute them. I had the same problems as Monsieur Laframboise and Monsieur Bevington and others about just where this fits in.
     We've had Transport Canada come before us now, and this is where I'd like your comments. They have said, pursuant to what the minister's observations were a couple of weeks ago, that you have small aircraft, some of it owner-operated, and business aircraft. In this area, his impression was--I'm paraphrasing now, so I hope the government members don't get upset--that the trust factor, i.e., the culture of this self-imposed responsibility, hadn't penetrated sufficiently, and so we need to re-regulate, because on the risk assessment and risk management side, people don't know what's good for them.
     On the commercial carrier side, the question of trust is a little more difficult. Here, the government has not completely walked away from the on-site inspections, the impromptu inspections, unless I'm wrong, Mr. Balnis. So the culture of whistle-blower legislation, which was another fact that we needed to bring in with SMS, that would get people to report what needed to be done, was essentially beginning to penetrate. So we've had fewer incidences of breach of trust, of examples of a broken sense of responsibility, in the larger commercial carrier business.
    Is that a wrong assessment of what's been happening? Ms. Dias or Mr. Smith might want to respond to this, for the mechanics and the maintenance people who actually are supposed to have that first line of defence, and then Mr. Balnis, please.


    On the maintenance side of the house, there is still inspection. The issues, though, centre around the implementation and operation of a safety management system. For example, in one carrier, how many certified engineers can supervise how many non-certified engineers or apprentices? When an SMS report is filed, it goes into a black hole. They don't hear back.
    Mr. Volpe, I don't know if I'm answering your question precisely, but there is still some regulatory oversight.
    What I'm hearing you say--and please correct me--is that from the point of view of those mechanics who are technically responsible for the machinery, there isn't a sense of comfort that their overseers are actually sufficiently responsible to do the right thing, and therefore the regulator's presence will remedy that. That's what I'm hearing.
    That's fairly correct, Mr. Volpe, but it is also that the regulator is not necessarily aware of what SMS reports have been filed. When they send in the report to the company, the company deals with it however it sees fit. It does not necessarily come back and tell the applicable certifying engineer that this issue has been dealt with and how it's been dealt with. They are not aware that Transport Canada itself is aware of the issue.
    We have a situation where there are the unwilling and the unknowing. We're trying to match them up and it's not connecting.
    Yes, and when I ask my leadership people at these companies what they think, they say not to throw out SMS, but we need more oversight. It's exactly what they tell me.
    Or more connection, so that those who don't know, i.e., the auditors and the regulators, have a closer relationship with the unwilling, i.e., your overseers, to report and then communicate back and forth. That's what I'm hearing again.
    That's pretty close to what I'm trying to say, Mr. Volpe.
     Mr. Balnis?
    I'm sorry, Mr. Volpe. Thank you.
    Monsieur Gaudet.


    Thank you, Mr. Chair.
    Good morning, Mr. Smith.
    I am intrigued by the fact that, as part of SMS, the bosses take reprisals against employees who blow the whistle on a safety problem. Could you tell me why bosses act that way? It has serious consequences in the long run. Something is not being done right. An inspection plan for the aircraft should be submitted. A boss who is not happy would simply have to make changes to the aircraft. I am not exactly sure where the problem lies, but there certainly are some flaws in the way things are done.



    Because there is no protection for the individual who reports an issue of an aircraft that has a problem being released for flight, let's say, an aircraft that should not be released but is released under pressure from the employer. The individuals are afraid that they will be sent home without pay or treated in a different fashion, or that they will be disciplined. This is and has been different in different companies, in different areas of Canada.
    If I tell you that I know this aircraft left and wasn't fixed, and I put my name to it, what's going to happen to me? Now, if I submit a report and don't tell you who I am, then it can't be followed up by anybody to find out if what I've said was true and accurate and if it in fact has been corrected prior to the aircraft departing.
    Those are all issues--as even Transport Canada will tell you--that centre around a safety management system. In SMS and under the Canadian air regulations, you can only report something I did and get immunity. If I blow the whistle on somebody else, while they may not punish me today, I might walk around in the hangar with a little target on my back for the rest of my career at that company.


    How are safety problems reported in other countries? Personally, I think safety is very important. And we do not currently have a system in place to protect people who fly. If you find a defect during an inspection but you are not allowed to say so, there really is a big problem. We will have to change our system. People are going to have to get together and talk about it. I am assuming that employees are giving 100%. If an employee says there is a problem, the problem should be solved. Is that not what should be done?


    In the United States they have a program called ASRS, whereby people can confidentially report to an independent company or group.
     I believe it's part of NASA, is it not, Richard?
     They do the investigation. They strip the individual's name off the investigative report. They investigate it. They report back to the individual and to the FAA on the outcome of the investigation.
    Transport Canada started to do this a number of years ago. I was involved in some of the preliminary discussions with Transport Canada. Then the whole thing came off the rails. Why? A large part of it is cost. You need systems and to do it is not cheap. The British do the same sort of thing with a confidential reporting system.
     In Canada we have SECURITAS. It's still part of the TSB, which is overwhelmed and can't cope with it. But it needs to rest somewhere outside of, necessarily, Transport Canada, where someone can look at it, and if the issue or the problem lies with the regulator, that being Transport, or the air carrier or the air carrier operator with them, action can be taken to correct it. We don't have that system here. We started down that road. We stopped. It hasn't been implemented.


    We are talking about people's safety. That is very important to me. A missing bolt or a missing part is as dangerous as a terrorist on board. In both cases, the plane can crash. In one case, the terrorist blows the plane up and in the other case, the plane blows up on its own. We really cannot let those things slide. We take great security measures against terrorism, but we let people get on a plane with defects that might lead to very serious consequences. Whatever the case, we certainly have to do something about it.


    Generally, as we all know, flying is safe. The maintenance people who we represent, the maintenance people in all the airlines, do the best they can with what they have to do their business.
     But again, let's face facts: humans are humans and sometimes there are errors made. Mistakes are made. It's about finding out why the mistake was made and how to make sure that mistake does not happen again so the plane doesn't leave with that screw missing, right?



    Thank you, Mr. Gaudet.
    Mr. Mayes.


    Thank you, Mr. Chair.
    I'd like to direct my question to Mr. Balnis. I appreciated his comments regarding the deputy minister and the leadership she is showing with regard to getting on the ground level and getting some input. I think that's going to be great. This committee is going to work with the department and listen, and then we're going to be making recommendations.
    But ultimately you have to lead the people you represent, when we finally come up with something, and you have to show leadership too. There has to be a buy-in. If there isn't, it's not going to work, and it doesn't matter what we come up with. There's no way that we're going to mitigate all risk to aviation, but I think we really have done a great job in this country as far as mitigating the risk and the record that we have in aviation are concerned.
    When they first came out with SMS, was there a buy-in? Did you support a buy-in to see if this thing would work? Could you give me an idea of just what you did do to see if you could make it work? I know there are problems, and we recognize that, but what did you do to try to support the government in what they were trying to do?
    The SMS concept was first raised in 1999 at a CARAC technical meeting. There was a series of meetings. We proposed amendments to improve the process to have greater involvement from workers. All of those proposals were rejected.
     In fact, in the Canada Gazette, Part I, in 2005, when the CARs 705--the aviation regulations--were gazetted, an amendment that we thought would ensure effective worker involvement in the development of SMS was stripped out at the last minute. So we believe that SMS has been imposed without key amendments to include worker involvement.
    I want to add to what Ron said in response to Mr. Volpe's question about the issue of how employees buy in. Employees are expected to give reports and the employees expect feedback. They now get acknowledgments only that say thank you very much, we've risk-managed it, we've done a risk assessment, we believe that six injuries in a particular jump seat on an aircraft is an acceptable risk, and thank you for your concern. I don't know if I would put in a report again.
    Buy-in from the bargaining agents is one thing. We have participated vigorously throughout the CARAC and Canada Gazette processes, and this process in front of this committee. But when our members on the line put in a report and get an acknowledgement saying thank you, but the injuries will continue, I think that's the problem. That is because there is no worker involvement within the SMS.
    So we tried, sir, but we were rejected in 2001, 2003, and 2005. We tried, sir. Now we think the process is out there, and because of that management-only risk management where they decide, “You're right, we cannot eliminate hazards, but were the bars being set too high?”, our members look at that and say this system is not working for them.
     So it's on the front line that we're having problems with the buy-in, because they're responding by saying thank you, but we're doing nothing. People say they cannot live with that. That's the problem, and we're reflecting it. If SMS had been constructed better, perhaps it would be different for us, but it was not constructed in a way that included worker involvement, as part II of the Canada Labour Code did. We tried to propose amendments to ensure there was worker involvement, but there was not.
    I'll direct my next question to Mr. Smith.
    In my past life, I sat as a board chair that dealt with all the CUPE negotiations. They were good people and good employees—don't get me wrong—but I don't think there was ever a time we dealt with the union that they didn't want more people and more money. When you say you really don't know what levels of staffing are needed, it concerns me, because there has to be a level established to make sure the job is done. But we also have to recognize, once again, that you're not going to mitigate all risk.
    Have you put together any statistics or any information we can look at and say, okay, this is reasonable?


    We don't have access to the statistics from Transport Canada as to how many inspections should be done--how many unannounced inspections or any of that. As Richard said earlier, the Canadian Federal Pilots Association, which represents a large number of the inspectors, the Union of Canadian Transportation Employees, which represents another portion of them, and even PIPSC, which represents some of the technical and engineering people, would have a better idea of that.
    We are, sir, a user of the system, not unlike an airline itself. Our members utilize the system and utilize Transport Canada the same way that Air Canada, Jazz, or any other airline does. We don't have the access to or the intricate knowledge of what it takes to do these inspections. I still have some friends over there because I came from Transport Canada, where I started working in 1979 as a flight service specialist, but I have no idea of the workload, how much it takes, or who does what. Other than looking at government documents as to what they're supposed to do, sir, I could not tell you.
    Thank you.
    Mr. Volpe.
    Mr. Chairman, I'm at a stage where, rather than pursue questioning, I'd like to make a couple of observations, because I think this has been very helpful despite the fact we had a very vigorous first exchange.
    One of the things that appears to have come out of the responses from Mr. Smith and Mr. Balnis right now is that we need to speak with some of the unions that represent the inspectors. That's number one.
    Also, we need to speak again with the officials entrusted with implementing SMS, because I think we need to get a better understanding of how many people are required on the ground for the kinds of operational parameters they operate under.
    Finally, why is it that the observations by employees, or those who report, haven't been dealt with in a fashion that demonstrates a two-way communication system? On that score, I just wondered whether Mr. Balnis would make available to us those recommendations that his union proposed to Transport Canada in 1999 for the implementation of the SMS system.
    Off the top of my head, we made a major submission when the Aeronautics Act was being amended. That is in English only. I think it was a very detailed submission of about 40 pages. We'll dig it up. With respect, I will send it to you for you to translate into French and distribute. We can also get our amendments in from the standards... I can do that, sir. But just so you're aware, it will be in English only because we wrote it in English.
    That's fine. If you just let members know where they can access it, then you don't have to distribute it.
    I'll give it to the chair.
    That's fine. Then he'll be concerned with it.
    Thank you.
    Thank you, Mr. Volpe.
    If you have a website that we can go to and get it, that would be even more convenient. You could submit that through the chair if you have it.
    Yes. I know that those comments are not on our website. We'll arrange with you and the clerk the best way to get it to you electronically. I'm just thinking through in my mind the two documents we need.
    That's wonderful. Thank you.
    Monsieur Laframboise.


    Thank you, Mr. Chair.
    A little earlier, my colleague Mr. Gaudet asked you what happens in other countries. You said that the United States and Great Britain had a system in place and that we tried to use it, but it was too expensive. Could you tell me who it was too expensive for?


    It was too costly for the government. Richard and I both sat on a committee, with Transport Canada, that was dealing with implementation of a confidential reporting system. Over a number of years, we had at least two meetings with Transport Canada on that implementation, but again, the cost of implementing was very great. The Transportation Safety Board said that, with the amount of human resources and the money they had available, they couldn't deal with the volume of confidential reports they were getting through SECURITAS.
    In the United States, it is completely separate. It is part of the National Aeronautics and Space Administration. They deal with confidential reporting from anybody, as far as dealing with aviation goes. They do the investigation, then they file a report, and they also advise the person who reported it. We don't do that here. We still have SECURITAS on the safety board and they still do it, but I believe it is still overwhelmed. You could ask them where they are at with it.
    It did start. Transport Canada was looking at how to do it, at whether to leave it with the Transportation Safety Board and allocate more funds for the hardware, software, and human resources, or to put it into an agency that would be funded and operated separately. But it never happened.



    Are you saying, for example, that in the United States, an employee files a report and an agency automatically receives that report and works on it? So the names are removed and all that—as you explained to us—something is done about it and there is follow-up with either the employee or the company.


    There's a return to the person who made the report, because their name is stripped off. It's the same as what happens with SECURITAS at the Transportation Safety Board.
     They return a report to the individual on the outcome of the investigation. They will advise the interested party, such as Transport Canada and/or the company involved, of the outcome of their investigation, but at no point does the regulator--or even the aircraft operator--know who filed the report. That's total anonymity.


    All right. What is the procedure in Canada? Does the employee make a report to the company? How does it work?


    Under SMS, they can make a report to their company. The best example I can think of where we have something that functions like this is, again, at Nav Canada, which is the air navigation operator, where an individual can file a confidential report. Their name is stripped off the report and then the company does their investigation. We have this in that company. On SMS, that's where I came from with the introduction of safety management systems, and that's what I'm most familiar with, sir.


    And, as you said, Mr. Balnis, the company can simply say “thank you for filing a report” and do nothing about it. Is that right?


    Yes. Our overwhelming example is, “Thank you for your concern, and it is covered by your collective agreement”. There is no response, and people just notice that things aren't fixed and things aren't done. That's why people ask why they should play a one-way game. The sad part is that there are reports of increased employee reports, but we don't know that. We don't see them. We don't sit down with the employer and say, “Oh my goodness, look, there are 50 of these reports exactly the same. so maybe we should look to see if there's something here”.
    It's all for them to look after. It's a safety “management” system; there is no worker involvement. That is our greatest concern. Eventually our members simply ask why they should fill out something that leads to nothing.
     Just to give you some examples, it took five years for our occupational health and safety committee to get a whisk broom, at $1.79, to pick up broken glass that falls in a galley. Because there are injuries when things happen, boom... That was five years of constant struggle by a health and safety committee. It took three years to deal with an injury where a flight attendant was climbing down from a bunk in the dark and stubbed her toe. The employer said they were not interested. We brought in a safety officer. Eventually, a flight attendant stepped down into the next bunk and broke a flight attendant's ribs. It took three years and two directions to do that under part II of the Canada Labour Code.
    Under SMS, we have none of that leverage. It is entirely discretionary. That is the frustrating part.


    Merci, monsieur Laframboise.
    Mr. Bevington.
    Thank you, Mr. Chair.
    In response to questioning from Mr. Watson, yes, the NDP has fought long and hard on the safety issues, and we did fight on Bill C-6--and later on Bill C-7--because it wasn't simply the whistle-blower content of that bill that was offensive to us. I think the record will show that over and over again.
    I'm interested in going back to this policy, because I think the policy is very important here. I'm glad you brought it in front of us. I have some questions. You say that section 5.0 has been added on. When was it added on? In February of 2010?
    If you go to the front of tab 5, you'll see “Staff Instruction” and “Surveillance Procedures”, and then “Effective Date: 2010-02-08”. I believe that's February.
    So this has been in front of us, these new other surveillance activities. How long would it take to actually analyze what those surveillance activities are going to be and the staffing required for it? I'd say that this question of CUPE or the CAW coming up with answers about staffing requirements is still based on a policy that hasn't been fully explained and was only brought out and implemented in February of 2010. I think we're still playing catch-up here.
    Now, when it comes to actually doing the surveillance, does section 5.0 fall under assessment procedures section 7.0?
     No. I believe that if you look at section 5.2, they are additional surveillance activities. As for what's listed on page 10, those activities are additional, dependent on resources. Everything that happens from section 7.0 on is a separate process.
    But on assessment procedures, I imagine that surveillance is an assessment on the ground. Is that not correct?
    No, they're very different. As Monsieur Grégoire explained, in an assessment they come in and do in-depth questioning to see if you have an SMS that works. That's what section 7.0 does. We're saying that's fine, you go ahead and do that, but you also need the section 5.0 activities. We're concerned--
    Within section 7.0, for planned on-site review there's a 10-week prior notice. What would apply to surveillance activities under section 5.0? Would that be no notice, a week's notice, or 10 days' notice? Or does that surveillance activity fall under assessment procedures section 7.0, which is 10 weeks' prior notice for any on-site inspection?
    I hope not, but I can't answer that question. Section 5.0 is just those two pages there.
    Yes. There's no indication of how these very important surveillance activities are going to be conducted. In the absence of that, wouldn't that fall under the general assessment procedures for SMS?
    I would hope not, because then that is watering down of section 5.0. All I can see is on page 10 of 66. It says, “When and as applicable”, but it doesn't go into the detail. So I think you've raised another criticism of this policy: it's too vague. It should actually specify what you should do. That detail would help us have greater comfort with these section 5.0 inspections.
     I thank you. We'll be giving this policy more consideration. Quite clearly, everyone on the committee is very interested in how it actually works out.
     What kinds of enforcement actions has the Department of Transport undertaken in the last year? The only one I've heard about is shutting down an airline because it didn't have a manager for flight attendants--or replacing a manager for flight attendants. What kinds of things shut down an airline under enforcement action these days?


    The whole question of the implementation of the enforcement policy is a matter that I think you should have Transport come in to answer. I feel I've already ventured onto thin ice by just bringing you their own documents. Now I have to explain them...? I think you should ask them to bring in their enforcement policy and explain it, lest I not understand--
    Thank you. I have to end it there. We're over time.
    Mr. Jean.
    Thank you, Mr. Chair.
    Frankly, I wasn't going to ask any questions today, but a couple of things you've said were actually a bit alarming to me, to be very blunt. First, you suggested that you were users of the system. I certainly hope, for my sake as an actual user of the system, that you'd be more partners of the airlines and partners of the other sectors of the airline industry, the aviation sector, in Canada. Because what constitutes a partnership is that you're going to work together to get things done and keep Canadians safe, and I would like to think that you're more partners than users. I just want to tell you that your terminology alarmed me, quite frankly.
    The other thing that bothered me quite a bit was when you were asked by Mr. Watson--and Mr. Mayes, and it was pursued by Mr. Volpe--how many inspectors we needed, you couldn't come up with it. You said it wasn't your job to decide how many inspectors were needed, but at the same time, you were criticizing and saying there weren't enough inspectors. You said you have no input on how many there should be, except that you would be satisfied if the levels were brought up to where they were before, because there are some unfilled positions.
    This is what has come across to me in this discussion. I feel like I'm listening to Chicken Little telling me the sky is falling because he can't get a $2 sweeper broom. Quite frankly, after being here for five years and seeing a lot of evidence before me, that is not what I take from the aviation sector. I think it's a very safe sector, and Transport Canada does a good job, for the most part, in relation to that. They came forward and said there might be some problems with the implementation of SMS in some sectors of the airline industry. I would think you would embrace that after your submissions on SMS in the last few years.
    The final thing that alarmed me was that you suggested--in my mind--that the Labour Code is tossed out the window when it comes to SMS; that the Labour Code takes second priority to the SMS system in relation to somebody stubbing their toe, I think it was, and stepping on somebody else who cracked a rib, or whatever.
     I don't really have a question for the witnesses, but when Chicken Little runs around and around, sooner or later he loses credibility. I just want to be very clear on that. If you have some positive suggestions to make to this committee on the level of inspectors, we would certainly encourage you to come forward with that information--not just to criticize. Those are my comments.
    Thank you, Mr. Chair.
     Be very brief.
    I would like to comment on what was said.
    First, I said we're utilizing Transport Canada. We are partners in safety at the airlines where our members work, but we utilize Transport Canada as a user rather than as a partner. Our members get their licences from Transport Canada. They write tests for Transport Canada. They utilize Transport Canada more as a service or a service provider than as a partnership. But they are definitely in partnership on safety with the companies where they work. That's absolutely 100% there.
    Secondly, I think Mr. Balnis made the comments about the Canada Labour Code as far as safety goes. We have more avenues--and I think this is where he was going--as a bargaining union through the Canada Labour Code under health and safety than under SMS, because the union isn't part of it.
    To be clear, the Labour Code has criminal liability and directors' liability in relation to things done by the directors of those corporations that may be in breach. It makes it sound as if the Labour Code is tossed out, and it's not at all. I just want Canadians to be clear that these laws continue to protect them.
    Sir, that's not what I said. I never said that.
    I understand you didn't, Mr. Smith, but it was said by one of the witnesses, Mr. Balnis.
    On issues of safety, we're there. On SMS, we're not saying to throw it out. On the numbers of inspectors, by doing the additional inspections, I don't know how many people that would take, sir.


    But you're prepared, on one side, to criticize.
     I applauded the minister yesterday for saying they're going to hire more and do more. That's a step in the right direction and we applaud him for that. But I don't know how many, sir.
    Thank you.
    Thank you.
    I have Monsieur Laframboise on a point of order.


    I would like to comment on that question. I would like to say something to the parliamentary secretary, Mr. Jean. If a directive reads as follows: “Where surveillance resources are still available after the annual surveillance planning is completed ..., other surveillance activities may be planned, ...”, I think it should be changed. I understand you do not know how many inspectors there are. If we say that there will be no-notice inspections, when we change the directive, we will be able to figure out, together with the inspectors, whether they have enough staff to enforce the standards. According to the document Transport Canada circulated, where surveillance resources are still available, they will go and carry out no-notice inspections on the premises. I think we have to change the directive.


    With that. I will thank everyone. I thank our guests for being here today.
    Just for the record, a couple of organizations that were mentioned by members were invited for today. Due to the short notice, we are making arrangements to have them appear after the break.
    On a point of order...?
    Are you shutting us down now?
    We have some committee business that has to be dealt with before we break. There may be some discussion involved.
     I think the discussion here has been very important.
    I agree.
    I don't understand.
    This has to do with a motion that's going to be put. There are also some financial things we need to have addressed before we take the recess for Easter.
    Mr. Jean.
     Mr. Bevington, this notice of breach of privilege takes precedence over any other committee business. I wanted to make sure the witnesses were heard today before I went forward with the breach of privilege motion.
    It's not on the floor yet.
     I gave notice to the committee. According to the rules we go by, it takes precedence over any other committee business. But I wanted to make sure, since the witnesses were coming today, that we heard from them first.
     I will thank you again for being here.
    Mr. Volpe.
    Just so none of us feel that anything has been interrupted, and for Mr. Balnis in particular, but also for Mr. Smith and Ms. Dias, we said they would be welcome down the road, because we intend to get to the core of the issues once Transport Canada comes back. I hope that's still the case, Mr. Chairman.
    Absolutely. If there are further questions, we'll be inviting back every witness who comes before this committee.
    I thank you.
    We're going to take a brief recess. If there are questions to be asked of our guests, please move out into the hall so the committee can continue its business. Thank you.



    Thank you.
    We're back to some of the business. Mr. Jean has sent a message to me as chair. I'll defer to Mr. Jean.
    Thank you, Mr. Chair.
    This is in relation to a breach of privilege. I want to get on the record specifically what took place. I have to be careful about what I put on the record because the breach has to do with an in camera meeting this committee had.
     I'm first of all going to give some background. Hopefully, I don't run out of time, but if I do, I know that Mr. Volpe will cut me off--with respect, Mr. Volpe.
     A breach of privilege, according to page 82 of O'Brien and Bosc, is as follows, and I will quote:
Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege”....
    Page 1,077 in O'Brien and Bosc reads, at the bottom, and I will quote:
Divulging any part of the proceedings of an in camera committee meeting has been ruled by the Speaker to constitute a prima facie matter of privilege.
    It goes on to talk about the case in question. In this particular case, it involved the divulging of information by a member of Parliament of the results of a recorded vote held at an in camera meeting, in that case, of the Standing Committee of Aboriginal Affairs and Northern Development.
    It should be noted that, and I quote:
Members should be aware that utterances which are absolutely privileged when made within a parliamentary proceeding may not be when repeated in another context, such as in a press release, a householder mailing, on an Internet site, in a television or radio interview, at a public meeting or in the constituency office.
    I will end that quote from page 96 of O'Brien and Bosc.
    Finally, and I quote again from page 88 of O'Brien and Bosc:
...the individual Member’s rights are subordinate to those of the House as a whole in order to protect the collectivity against any abuses by individual Members.
    First of all, only the House can decide whether or not a breach of parliamentary privilege occurred or there has been contempt, but committees must report this to the House. The role of the chair is to determine whether the matter does in fact touch on privilege.
    In this particular case, I have put together a motion based on what took place. I have the evidence before us. First of all, I would like to pass this out, if I may. I have the minutes of our in camera meeting, in French and English, as well as a letter that was sent by Mr. Kennedy, who was a substitute member of this committee at the time, to colleagues in his own caucus, I understand--that is in French and English as well--and then an attached letter to mayors and to other municipal councillors across the country, in French and English, and a questionnaire that was attached to it.
    This all has to do with a motion that was made in this committee in camera. In fact, if you remember, Mr. Kennedy asked for us to go outside of in camera, and we disagreed. We agreed as a committee that we would remain in camera, because we had dealt with some of Mr. Bevington's motions in camera and thought it was fair to deal with all the motions in camera, especially considering what the motion was.
    Notwithstanding that, Mr. Kennedy wrote this letter, which you will receive copies of as well. What it did was it actually.... That letter designated that he made the motion, first of all.
     I'm sorry, Mr. Laframboise. We'll make sure that gets to you.
     His letter clearly indicated that it was his motion, which of course, it wasn't. It was Mr. Dhaliwal's motion. He indicated in the letter he put forward that it received all-party support, which again is against the rules; he is not allowed to do that.
    Here are the rest of these copies. There is one for each member. They're in both French and English.
    Also, he talked about when the hearings would take place. Again, it is against parliamentary privilege of an in camera meeting to divulge any of that information.
    That is the dilemma we have today. I do believe, prima facie, that there has been--no question--a breach of privilege by Mr. Kennedy of this committee's rights, and certainly of information that was confidential and was not to be shared with anyone else.
    If we remember that meeting, after all of the meeting was conducted in camera, Mr. Kennedy again asked to go out, so he was fully aware that this meeting was to be in camera and he was not to divulge that information. But immediately thereafter, he went and drafted some letters, along with some questionnaires and some additional correspondence to members of Parliament outside of this committee, and to mayors, divulging this information.


    He stated, again... And my understanding is that it's going to every municipality and town in the country, and I'm not sure if it has already been done or not. But he even had the information itself incorrect in relation to its being his motion rather than Mr. Dhaliwal's.
    Now, if we look at it, the motion itself clearly indicates the original motion, and the only thing that he's allowed to divulge from that in camera meeting is this. I'm not quoting. The public minutes did not include whose motion it was—Mr. Dhaliwal's, not Mr. Kennedy's—and that it received all-party support, which could be seen as misleading—
    On a point of order, if we're not divulging information from an in camera session, why are we reading it into the record here?
    Because it has already been put into the public domain by Mr. Kennedy in his letter.
    Well, I'd say that this has to be handled in the correct fashion as well. I'm concerned that we're now reading into the record an in camera meeting. These documents are confidential and should remain so.
    Mr. Brian Jean: I'm certainly--
    I understand the sensitivity of this and I appreciate the point. I do think you have to choose your words very carefully and not infer who said anything. I think you're dealing strictly with the fact that the breach is that the information was released when it was an in camera meeting.
    Certainly, Mr. Chair, I understand.
    I do understand the sensitivity of it.
    I thank you for that, Mr. Bevington.
    On a point of order, I realize that the parliamentary secretary wants to get all the information or as much of it on the table as possible. I'm wondering whether it is in order for him to read from minutes of the proceedings that were in camera.
    The only thing I read was actually what was published.


    In the part you have there, the minutes of the proceedings, you'll see there is no inference as to who made the motions. It's talking about “That the Committee invite...” and “That the Chair request...”. There's no record of anyone's individual comments in this document.
    That's why I would suggest, Mr. Jean, that you not refer to anybody other than Mr. Kennedy.
    I won't, Mr. Chair. I understand that.
    Thank you.
     But the document as a whole is in order?
    The document as a whole is in order because it says “It was agreed, --” and “It was agreed, --”. There is nobody identified in the document as making or even speaking on the motion.
    Mr. Jean.
    Certainly. I have drafted a motion. Based upon what I understand the rules to be, the motion is quite lengthy. I do not have it in French, but I do have it in English. I would like to read the motion, but it is quite lengthy. May I?
    It will be translated.
    The motion is:
That the Standing Committee on Transport, Infrastructure and Communities present a report to the House of Commons regarding a possible breach of privilege and/or action of contempt on the part of the MP for Parkdale-High Park in divulging privileged information from an in camera meeting of the Standing Committee on Transport, Infrastructure and Communities on March 25, 2010, against the will of the committee and with the intention of sharing this information with the public, and that the Committee ask the House to take whatever action it deems necessary.
    Also, this report should include the following: an explanation that the meeting of the Standing Committee on Transport, Infrastructure and Communities on March 25 was an in camera meeting, including a notice of motion put forth by Mr. Dhaliwal--I think that's on the public record--to study the government's deadline. Actually, it's to study certain information; I'm going to have to clarify that, but I don't think I can actually put forward... Can I put forward, Mr. Chair, in relation to that? Okay.
    Also: an explanation that the committee explicitly ruled that this and all other motions of the day be debated in camera, and an explanation that, subsequent to this in camera meeting, Mr. Kennedy sent an e-mail to all members of the Liberal caucus with an attached letter stating that his motion had passed and that it had received all-party support. He also advised in this letter that the committee would be scheduling hearings shortly and suggested in his e-mail to the Liberal caucus that they send it to municipal contacts in their ridings.
     Also: an explanation that the only portion of our meeting on March 25, 2010, that was published in the official minutes was the body of a motion that had the public meetings and did not mention whose motion it was and that it received all-party support, a fact that could be seen as misleading without the context of the debate that occurred on March 25; an explanation that the public minutes did not mention when the committee would be scheduled or hearing testimony, and that, in fact, there was consensus among the members of the Standing Committee on Transport, Infrastructure and Communities that this motion would not take precedence over the other committee business already discussed; and, a statement that this breach of privilege and/or that a contempt may have occurred in this instance, and a request that action be taken by the House.
    That is the context of the motion.
    My point is this: that if we cannot, as a committee, have discussions in camera and not in camera and obviously have the difference be significant, then my privileges as a member are has absolutely no consequence to be in an in camera meeting, and it has no power and authority.
    I'm going to suggest that the motion is in order. I will open the floor to debate.
    Go ahead, Mr. Volpe.
    Mr. Chairman, I don't want to comment on the substance of the motion. It's just that Mr. Kennedy is obviously not here. I'm wondering whether it would be more appropriate for this committee to debate and consider this motion by the parliamentary secretary when Mr. Kennedy is present?
    It is a difficult position since the member is not a sitting member on this committee. He was brought in for that particular meeting. I'll take that under advisement at this moment.
     I have a couple of other people who would like to speak; then I'll make a ruling.
    Go ahead, Monsieur Laframboise.


    Mr. Chair, the only problem I have with the motion introduced today is that first, Mr. Jean is citing O'Brien and Bosc. I am not able to have that checked right now. I have just sent an e-mail to my party whip. I need that piece of information.
    If I second a motion, I have to be convinced that the content of the motion complies with our rules. So I do not want to assume, but I need to have that checked. Is it urgent to move the motion right away? I would like to see because that can influence my vote. It is not that I am against the motion, but I need to be sure that it does comply with our rules, Mr. Chair.
    I am still a bit surprised that we do not have it because you could have sent it to us to have it checked. I would not want to defeat a motion just because we did not receive it in time. I understand your zeal. I also find that cavalier on Mr. Kennedy's part. But I have to make sure I know whether it is against the rules.
    Someone is coming to give me the information.



    Go ahead, Mr. Bevington.
    I have a question first, Mr. Chair. When was the report tabled?
    It was yesterday.
    That would be March 31, right? So the report was tabled on March 31. In that report, there was a mention of our--
    I'm sorry; I actually reported Bill C-310 yesterday. I apologize.
    Then has that not been reported yet?
    Do you mean the in camera meeting?
    I mean the report from the in camera meeting, with the recommendations. Has that been reported to the House of Commons?
    It doesn't have to be reported to the House. It is contained within our minutes of the meeting.
    So it's a public document as of--
    It's a public document. If you look at it, it refers to no individual person--
    I just want to--
    --but the actual document is a public document.
    Was that as soon as we came out of being in camera?
    It is as soon as it's written, which wouldn't be that day. In 24 hours it would have to be written and translated.
    So prior to the in camera meeting, the report that came from the subcommittee was a public document?
    Right. It's a document that comes to the committee as a whole to be voted on, and we voted on that at the Tuesday meeting.
    So the date and the fact that we were looking at doing the review of this particular aspect was public information. Really, the germane issue is the all-party support, I think, as mentioned in the letter.
    That would be a question for Mr. Jean.
    There are three things in particular.
    The first is who supported it, which is obviously not to be divulged. The second is whose motion it was. The third is when the hearings were going to take place--“in the next very short while”.
    Would that information be indicated within the report that was given out?
    No. The report is not published to anybody but the committee members--
    Mr. Brian Jean: Exactly.
    It's not a public document?
    --and you have it now. You can access it within 24 or 30 hours of the meeting.
    I'm just trying to get that particularly straight, because it was actually a point I was interested in.
    If I may, Mr. Chair, I just want to deal with Mr. Laframboise's question—
    I have the floor.
    Go ahead.
    So basically what we're down to, then... On scheduling the hearings shortly, I would say that once the document is released showing the committee is willing to look at this issue--if that's what was released--that statement is not as damning as the statement on all-party support. I'm just trying to see what part of this I can support in terms of a release from an in camera meeting. I want to get down to what is actually part of a motion that I could support. If there are things in it that are on the public record, or should be part of the public record, for a committee member then to be able to indicate—


    Mr. Volpe, on a point of order.
    Mr. Chair, with all due respect to Mr. Bevington, who is beginning to discuss the substance of the matter, I did ask whether it would be more appropriate if this were discussed in the presence of Mr. Kennedy, who is obviously not here. You were going to make a suggestion once there had been some interventions. I believe Mr. Laframboise made a procedural intervention. Now we're going into a substantive intervention.
    Is it your ruling that we will debate this thing substantively or that you will take into consideration my intervention regarding the procedures?
    I thought it was fair for the chair to allow each party to be represented with its comments, and then I would make a decision on that.
    If I can continue, I would ask that the chair rule on each individual item of privilege, rather than simply ruling on the motion.
    Mr. Jean, on a point of order.
    I did mention this. But to be clear, it's not our job, nor is it the chair's, to decide whether there has been a breach of privilege. That's the Speaker's job. We are required to report it if we believe there has been a breach of privilege. It is our job to report that to the House and Speaker. It's for the Speaker to make that determination.
    So you've already suggested, Mr. Bevington, with respect, that there has been a breach, and possibly two others--but at least one. It's our job just to decide that, to pass that on to the Speaker, and let the Speaker decide. Whether the Speaker decides yea or nay is up to him based upon precedent.
    Secondly, on the same point of order, on the timing that Mr. Laframboise was suggesting was short, we are under an obligation as well, in my understanding, from reading O'Brien last night, to report this as soon as possible. That's why I brought it forward as soon as possible.
    Mr. Kennedy is not a consistent member of this committee. Even when he was a member of this committee, he wasn't consistent. So the difficulty is, of course... I'm sure he'll show up if he's either in front of a camera or responding to this breach of privilege accusation, but it's not our job to decide that. It's the Speaker's job. It's simply the chair's job to report it to the House.
    Thank you.
    What I am going to do is this. The motion is on the floor. I'm going to listen to Monsieur Laframboise. I think it's fair that we get translation so the motion can be read and understood by everybody.
    I will also take Mr. Volpe's advice and defer this to our first meeting after we come back from the break. It will be the first order of business, so I will instruct our witnesses that we will take a little bit of time. We will invite them probably a half hour later, so please keep that in mind.
    If you choose to make public some of the discussion, I would ask that you honour and respect the rules that no names be attached to who said what, when, and where. Is that okay?
    Mr. Pacetti.
     I apologize. I'm not a regular member of this committee. I usually sit on the finance committee. All our motions that are debated are usually public, so I think it's just... My understanding is that when most committees' motions are discussed they are usually public. It may have just been a reflex on Mr. Kennedy's part.
     I'm not here to defend him. But I have a couple of questions.
    Mr. Jean, on the issue of who voted, it doesn't say anywhere in Mr. Kennedy's papers who voted. All it says is “as proposed by Sukh Dhaliwal and myself”. That's all it says. Once the motions would be posted on the site, would they not at least say who proposed the motion?
    The document you have actually just says that the committee “agreed”, not--
    No, but afterwards, don't you post the actual wording of the motion? It doesn't get posted on the site at all?
    Our committee posts the motion--
    The motion gets posted, the text gets posted, but is not accredited to that person.
    But not who the proposer is. Okay.
    I have one more question.
    I'll be quick.
     Mr. Kennedy's letter to the mayors says, “The Committee will be scheduling the hearings shortly and we will be pleased to pass along these details”. I don't think that really means anything. I don't see how that could be a problem.
    The other problem that I see, though, is that there's probably a breach of privilege from the Liberal side because I'm not sure if Mr. Jean should be on the receiving end of these e-mails. I think you have another problem there.
    It is not up to me, but I'm not sure how Mr. Jean would have got his hands on an e-mail directed to Liberal members, les deputés, and Liberal assistants.


    Thank you for your input.
    We'll now move on.
    I have a few brief items that we need approval on.
    One is a budget, which you see circulated. It deals with the costs of guests.
    Mr. Laframboise moves the motion. All those in favour?
    (Motion agreed to)
     I would ask the committee members, if you could, over the next short period of time, to submit any other names of witnesses, particularly on the security side, for the future meetings on our study.
    With that, have a nice break back in your constituencies.
    Bonne journée.
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