Bill C-6 (Historical)

An Act to amend the Aeronautics Act and to make consequential amendments to other Acts

This enactment deals with integrated management systems and authorizes the establishment of voluntary reporting programs under which information relating to aviation safety and security may be reported. It also authorizes the designation of industry bodies to certify persons undertaking certain aeronautical activities. Other powers are enhanced or added to improve the proper administration of the Act, in particular powers granted to certain members of the Canadian Forces to investigate aviation accidents involving both civilians and a military aircraft or aeronautical facility.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Would you suggest that if we had a declaration in Bill C-6 that Transport Canada continue with its regulatory oversight it would be sufficient?

[Brian Storseth, Conservative, Westlock—St. Paul, AB]

In terms of these system-wide changes that occurred because of your recommendations, how many of those changes will be affected or changed in the new legislation, Bill C-6?

[Don Bell, Liberal, North Vancouver, BC]

I'm recognizing the difference between size and the ability to have the corporate infrastructure adequate to handle this. Are you concerned, from your understanding of the major carriers, that moving to the self-regulatory system proposed in Bill C-6 will create a problem and increase the risk even with the major carriers, or is that less of a concern to you?

[Ed Fast, Conservative, Abbotsford, BC]

Yes, absolutely.

And I'm suggesting to you that Bill C-6 actually doesn't reduce regulatory oversight. It makes it more efficient and makes it more focused, which is the term you used. I wouldn't necessarily use the word “limited”, but certainly I think we can all agree that the legislation refers to focused audits.

[Ed Fast, Conservative, Abbotsford, BC]

That's correct.

So for us as a committee, and for the government, safety is the paramount consideration here.

I'm just suggesting to you that we've had numerous witnesses who have reviewed the bill very carefully. In fact, we've had two pilots' unions before us for whom, of course, safety for their pilots is critical, as well as the safety of their passengers. They have stated on the record that they actually support Bill C-6 as being a significant step forward in improving public safety.

[Ed Fast, Conservative, Abbotsford, BC]

We actually asked questions of the various witnesses, as to whether they saw Bill C-6 as removing regulatory oversight and accountability from the minister's office to the various airline companies. The large majority of the witnesses said no, and they certainly hoped that wouldn't be the case.

So again—

[Ed Fast, Conservative, Abbotsford, BC]

He was one of the witnesses who actually spoke supportively of Bill C-6.

[Ed Fast, Conservative, Abbotsford, BC]

I'm a little bit puzzled, I will say, because we've had testimony from numerous witnesses, and save and except for witnesses from two of the inspectors' unions, all of the other witnesses were supportive of Bill C-6. They had suggested some fine tuning, and we're looking at--

[Ed Fast, Conservative, Abbotsford, BC]

Thank you, Mr. Chair, and thank you for attending here today.

You have obviously reviewed Bill C-6 and also the Aeronautics Act; you'd be an expert in that area.

[Virgil P. Moshansky, As an Individual]

Thank you, Mr. Chairman.

Mr. Chairman and committee members, it is a distinct privilege to address you on this occasion. My name is Virgil Moshansky. Some of you may know me as the commissioner of the inquiry into the Air Ontario jetliner crash at Dryden, Ontario, in 1989 that killed 24 people. My commission became a full-blown inquiry into aviation safety in Canada that took three years to complete.

I spent a further three years advising Transport Canada on the implementation of my commission's 191 recommendations for regulatory reform. My work has been recognized by many, including Transport Canada itself, which presented me with its Canadian aviation safety award in 1995. I continue to consult internationally on aviation matters.

I will deal primarily with clause 12 of Bill C-6. In order to put things into context, I will begin with a little pre-Dryden crash history.

Transport Canada's regulatory efforts went off the rails in the 1980s because of two inconsistent and mutually incompatible policies introduced in 1985 by the federal government of the day, namely deregulation of the airline industry and the policy of fiscal restraint.

Despite government assurances such as are being heard today that aviation safety would not be allowed to be compromised, Transport Canada upper management ignored urgent requests by managers in the aviation regulatory directorate for funding of the badly undermanned inspectorate force. Airline audits and in-flight monitoring, the twin backbones of aviation safety, ceased almost entirely in the months leading up to the Dryden crash, because of a lack of resources.

A cursory Transport Canada audit of Air Ontario five months before the March 10, 1989, Dryden crash, did not even examine the Air Ontario F28 aircraft implementation program. Lack of regulatory oversight virtually left Air Ontario to its own devices, allowing it to set its own inadequate safety standards and enabling it to get away with unconscionable safety deficiencies in its operations, all of which contributed to the crash.

A January 20, 1989, prophetic warning by the acting chief of air carrier operations that air carrier inspection was “no longer able to assure the Minister of the safety of large air carrier commercial services in Canada” and “that a major accident is inevitable in this country” was rebuffed by Transport Canada senior management as inflammatory. Seven weeks later, at Dryden, Ontario, 24 people paid for this cavalier attitude with their lives.

Today, 18 years after Dryden, history is repeating itself, only worse. Cost-cutting is again in vogue at Transport Canada and has been for some time. Transport Canada management have publicly admitted this. Regulatory oversight is not being merely reduced. Except for limited focused audits, it is being systematically dismantled under Bill C-6. All of this is occurring in the face of a predicted doubling of the size of the aviation industry by 2015, as per Transport Canada's own estimates.

In the years following the release of my final report, Transport Canada did a commendable job of addressing most of the major safety issues and regulatory lapses that were identified by the Dryden Inquiry.

After a period of relative calm, numerous serious aviation safety concerns have now returned to haunt the Canadian aviation system, as documented in a remarkable series of newspaper articles in June of 2006 entitled “Dangerous Skies”, written by three investigative reporters of the Hamilton Spectator, Toronto Star, and Waterloo Record newspapers. I recommend that the committee members read these articles, if they have not already done so.

In my view, any objective observer would have to call their findings disturbing. They simply should not be dismissed out of hand, as some have attempted to do. What stands out is that the current deterioration in the state of aviation safety in Canada, as chronicled by these investigative reporters, is coincidental with Transport Canada's progressive reduction in the number of its aviation inspectors since Dryden and its ongoing withdrawal from regulatory enforcement.

This is an ominous sign for the future of air safety in Canada, particularly if Bill C-6 is allowed to proceed in its present form. Many front-line aviation industry workers, expressing fears for their jobs, spoke out on condition of anonymity, but a number of brave souls allowed their names to be published. A few of the latter drew the wrath of their airline employers. Some were suspended for speaking out, thereby highlighting the urgent need in Canada for meaningful whistle-blower legislation.

I am very surprised and disappointed that unlike the case in the United States, the new Canadian whistle-blower legislation provides no protection whatsoever for airline employees, who are the front-line workers closest to the problems and the violations and therefore most in need of such protection.

Clearly it is in the public interest that they be encouraged to report infractions and therefore that they have such protection. I strongly urge this committee to press for whistle-blower protection similar to that in the United States.

Having examined the recent Pollara survey of aviation inspectors, it seems to me that this committee would benefit greatly by hearing from some of these inspectors. The committee must certainly view with concern the alleged attempt on the part of the regulator to dissuade them from appearing before it.

There are many good features in Bill C-6. I most certainly agree with the requirement that each air carrier have in place a safety management system, or SMS, with safety accountability vested in a top executive. This in fact is exactly what I recommended in MCRs 100 to 103 of my final report, which recommendations probably, unknown to most, represent the genesis of present-day SMS.

However, I must voice major concern with the second objective of the SMS initiative, which is the downloading from Transport Canada onto the air carriers of the responsibility of establishing and carrying out their own safety protocols and oversight of regulatory compliance, including enforcement.

I respectfully submit that if SMS is to succeed, it must be accompanied by an effective, properly financed, and adequately staffed system of oversight and enforcement on the part of the regulator. That is the key factor that is missing from the Transport Canada SMS initiative, and it has the overwhelming potential to be the Achilles heel of SMS, especially in the case of secondary carriers, the charter and air taxi operators.

Historically, this is the area where the bottom line has the greatest impact and where the greatest risk to aviation safety resides. Some are barely economically viable operations and simply do not have the financial ability of the major carriers to maintain a proper SMS. It is extremely naive to think that under SMS a financially strapped operator is, on its own initiative, going to place necessary safety expenditures ahead of economic survival. The historical record hardly inspires faith in the voluntary implementation of safety measures by some such carriers, especially in the absence of strong regulatory oversight.

It is of very great significance that in those few countries that have introduced a form of SMS into their civil aviation systems, not a single one has abandoned regulatory oversight. Think about that.

The SMS concept relies on self-reporting of violations and safety concerns by airline personnel. This is a potential weakness of SMS. Historically, self-reporting and even confidential reporting is a hard sell. Fear of peer recrimination is a serious inhibiting factor that militates against such reporting, as is also the fear for job security. The absence of whistle-blower protection compounds the problem.

Transport Canada refers to the Australian experience with SMS in support of its own SMS initiative. The problem is that Transport Canada is only telling half the story. It leaves out the part about regulatory oversight.

Most significantly, under the Australian SMS regime, a strict regulatory oversight responsibility for monitoring surveillance and enforcement rests with the Australian Civil Aviation Safety Authority, or CASA, Australia's equivalent to Transport Canada. The CASA SMS manual places the obligation on CASA itself to enforce civil aviation laws pursuant to the Civil Aviation Act of 1988.

Excerpts from pertinent sections of the CASA manual state the following. Section 2.2:

The Civil Aviation Act 1988 places responsibility on CASA to conduct the safety regulation of civil air operations...by means that include 'developing effective enforcement strategies to secure compliance with aviation safety standards'.

That appears in CAA 9(1)(d).

The following statement of policy is of particular significance. “The key focus of CASA's enforcement will be to address safety by consistent and appropriate enforcement action.”

The former manager of flight safety at Qantas Airlines and deputy chairman of Airservices Australia, has stated the following:

It seems that what is proposed in the Canadian Bill goes beyond anything I have heard of with an NAA (National Airworthiness Authority) and would seem to abrogate one of its core functions (perhaps even under the Convention itself and possibly Annexe 13 re safety systems.

The translation is that Transport Canada's approach to SMS may well be in violation of international aviation law.

My Australian source goes on to say, and I quote:

...no attempts have been made...

--that is, in Australia--

...to lessen the amount of surveillance - recently CASA changed from conducting two annual audits to one, but would have many more operational surveillance activities and more unannounced surveillance.

It occurs to me that Transport might already have done some benchmarking with Australia, in which case the committee should insist on seeing the results and conclusions.The committee may wish to seriously consider this suggestion.

There is an important difference between the present situation and that at the time of Dryden: Transport Canada policy is now being dissected in public and in advance of legislative enactment. There is still room for positive change.

In the interests of the safety of the Canadian air-travelling public, I urge this committee to reject the proposed dismantling of the aviation regulatory oversight system as implicit under clause 12 of Bill C-6, which is already under way, and to prevail upon the federal government to provide adequate funding to Transport Canada to enable it to carry out its traditional regulatory oversight and enforcement functions parallel to the SMS initiative, and to meet its obligations under the ICAO convention and avoid the slippery slope to another Dryden.

Finally, I pose a question. Has the time perhaps now come for a system-wide inquiry to be held again in Canada to test the aviation system's vital signs? The widespread aviation safety alarms emanating from within the front lines of the aviation industry, as well as serious questions about the Bill C-6 clause 12 initiative, strongly suggest that indeed the time for such an inquiry has arrived. Eighteen years after the disaster at Dryden, now is the time for the federal government to assume a proactive approach to taking the pulse of aviation safety in this country, by establishing an aviation safety inquiry under the Inquiries Act to conduct an in-depth, system-wide check on the current state of commercial aviation's vital signs in Canada before another major air disaster occurs.

I submit, with respect, that this committee should consider recommending such an inquiry, and I thank you.

[The Chair, Conservative, Merv Tweed]

Thank you, and good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 39.

Pursuant to the Order of Reference of Tuesday, November 7, 2006, we are examining Bill C-6, An Act to amend the Aeronautics Act and to make consequential amendments to other Acts.

Joining us today we have Mr. Virgil Moshansky. We welcome you today. Although we are short a couple of members, in order to deal with the time factor, I'd ask you to begin.

[Mauril Bélanger, Liberal, Ottawa—Vanier, ON]

I want to pick up on Mr. Benson's last answer to Monsieur Laframboise.

I'm sorry that I don't have in front of me your testimony, and I look forward to reading all of your testimony. I'm not sure you've addressed it in any specific—You're talking about this box representing the necessity for safety and security, which I don't think anybody disagrees with. Your concern is that this box is not well built, as presented in Bill C-6, yet I think it would be useful if your apprehensions were a little more precise in terms of exactly where you would like to strengthen that box. Unless we have that, then we'll just be left with a vague sense of where you want us to go.

[Fred Jones]

These are addressed in our more detailed written submissions, but the protection that currently exists in Bill C-6 does not extend to proceedings under other acts or access by the courts to the voluntary reports, and there are certain areas where the minister may release the information that may be contained in voluntary reports.

We're concerned that these voluntary and non-punitive reports are at the very heart of the safety management system. They tap safety information that we've been unable to access through any other mechanism historically. The first time this information leaks—who made the voluntary report, what the contents of the report are—or the voluntary reporter is subpoenaed as a witness in the civil courts or for proceedings under another act, then we are concerned that some of the those voluntary reports will dry up and we will lose access to that safety information.

So we don't think the protection that exists in Bill C-6 is adequate currently.

[Jeff Watson, Conservative, Essex, ON]

Thank you, Mr. Chair.

My thanks to the witnesses for appearing.

Boy, listening to the New Democrat member earlier, I almost thought planes were falling out of the sky and the inspectors were getting pink slips.

Bill C-6 is not inventing SMS. I think we can establish that here. It has already been in play or in practice or in development. The bill is codifying it, and I think that allows us to probably assess a few things here.

We keep hearing a number of things. There's almost the suggestion that somehow regulations are going to disappear with SMS. Since we can test that hypothesis against some reality here, have any Transport Canada regulations disappeared yet? Do you know of any that have disappeared?

[Ed Fast, Conservative, Abbotsford, BC]

Mr. Benson, my time is really short. I have probably only a minute left.

I'm not disputing what you're saying. The problem is that Bill C-6 is not addressing occupational health and safety; it is addressing air safety.

I'm getting back to the focus here. Some of your brothers were here at the table earlier, two other unions, and it appeared that they were the only ones who were really opposed to Bill C-6. We've had a raft of witnesses, many of whom have as their sole focus the safety of air travel, and they're all supportive of this bill, subject to some minor amendments that we've heard here as well. The government, I believe, has indicated we're willing to continue dialogue on that.

When we're talking about your organization and the other two unions that were before us, clearly there is an issue of individuals fearing they might lose their jobs because of this, because of what you referred to as self-regulation. It certainly came out from the other witnesses.