Transport Committee on June 4th, 2007

[The Chair, Conservative, Merv Tweed]

Okay, we're going to take a five-minute suspension.

[The Chair, Conservative, Merv Tweed]

Thank you, and welcome back.

I think we have a little more clarity now with regard to Bill C-6 and what the G-3 amendment is.

Before I recognize Mr. Julian, I want to advise the committee that we are still dealing with BQ-16. This document was put forward to give Monsieur Laframboise an opportunity to look at it and see if it meshes with what he's thinking. It's certainly the one document we have that refers to clause 12 on page 15 and gives the details as the best piece of information we've had so far.

Go ahead, Mr. Julian.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

Thank you, Mr. Chair.

I'd like to summarize, because I think we're talking at two different levels.

I certainly support G-3, and I think most people around the table do. G-3 is an important clarification of the clause dealing with the reporting mechanism. Where we might have some disagreement is on whether that protection for employees to report those violations—which is necessary, of course, to get that information—should actually be continued to the company.

We have here the enterprise manager simplified event review process of SMS-related non-compliance events and enforcement liaison. If we look down to the third yellow triangle, that's where I think we run into difficulties. Was the contravention internally reported and documented by the enterprise? If no, then the enterprise manager submits, within 12 months, a detection notice to aviation enforcement. Was the contravention committed intentionally by the enterprise? If yes, then it is the same result. Has the enterprise taken corrective action? If no, then it's the same result.

We certainly heard through rail safety that the problems have been enforcement of SMS. We heard the witnesses talk about the fact that essentially the government has to take railway companies to court to get corrective action.

Here there is a very clear weakness. In a case where you have deliberate company action or negligent company action or companies that have taken no action, essentially, the follow-up to that is to submit, within 12 months, a detection notice to aviation enforcement. We have this within the context of information that cannot be released, aside from court orders or the minister himself or herself choosing to disclose that information. And the information that is disclosed can't be used against the document holders. That's the problem.

I think we all agree that employees need to be protected. I strongly agree, and I think most of the witnesses said essentially the same thing, that we can't give a “get out of jail free” card to companies that may be negligent. It may only be a small proportion of the companies. But I believe that we cannot put the Canadian travelling public in a situation in which, first, they are unaware because of the secrecy around what could be repeat violations of safety standards by a company, and in which, second, essentially the company is protected from the type of regulatory enforcement and sanctions that should necessarily come with them. That's the problem.

I would suggest, in that context, that we should be adopting G-3, of course, but we should also be seriously looking at BQ-16. That eliminates the bad from that clause and reinforces what I think we all agree to, which is protection for employees.

[The Chair, Conservative, Merv Tweed]

We'll have Monsieur Laframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

I appreciate the government's effort to clarify things for the employees. But I have a problem with section 5.392 that deals with protecting the public.

Basically, a safety management system must make sure that there is a follow-up, there must be documentation and employees must be allowed to disclose cases of neglect. In my opinion, when everything is said and done, when the report is tabled, the minister can say that it is confidential pursuant to the act. He will not even be able to publish it, unless he "[...] considers that disclosing the information or making it available is necessary for the purposes of section 7.1". This remains to be seen, because he is liable to be sued, and the government might have some serious problems.

I want to protect the public. In any case, when a report is published pursuant to the Access to Information Act, many things are blacked out. But we at least have access to the information. When the minister receives a report, it is because of some important event, probably an accident or something due to neglect. Small things that remain unnoticed and are not reported on television will not be investigated and there will be no demand for access to information. This will only happen if the accident shows up in the media. Sometimes, it does not have to be big, as we saw regarding railways. It does not have to involve mortality. It can be so big that if we do not see it and try to prevent it, there could be a catastrophe.

Therefore, in the safety management system, all the information would become confidential and inaccessible to the public. I have a problem with that. I agree that we must protect the employees, and we are protecting the employees, but under section 5.392 we are protecting the company and the minister above all. At any time, he can say that it is confidential and that he is not publishing anything at all. That is what will happen.

[The Chair, Conservative, Merv Tweed]

Mr. Julian...or Mr. Jean; I'm sorry.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

No, we've actually adopted him into the family.

[The Chair, Conservative, Merv Tweed]

Before I let Mr. Jean comment, I will advise the committee again that if BQ-16 passes as it stands, then NDP-8.3, NDP-9, and G-3 are not admissible. You're removing clauses that G-3 actually refers to.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

On a point of order, Mr. Chair, I would disagree with the ruling on G-3.

[The Chair, Conservative, Merv Tweed]

While I appreciate your opinion, I will go to Mr. Jean and then to Mr. Volpe.

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

Thank you, Mr. Chair.

I'm glad to hear that the NDP will not be running a candidate in Fort Murray--Athabasca. That will give me another 15 points.

Could the department comment on those two issues, the enterprise management detection and also what Mr. Julian was talking about--a year, and so on? It just seemed, from the expression on your face, that it was not quite believable.

[Franz Reinhardt]

I was a little bit surprised.

I saw that some documents were distributed, Mr. Julian, with respect to enforcement, which will come up later on. So it has nothing to do with the protection provisions under proposed section 5.392 or the universal voluntary reporting.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

We may disagree, but--

[Franz Reinhardt]

Well, it will have something to do with it when enforcement comes into play, but we're not talking about enforcement here.

I see you reading this, and I would like you to read this. I'm trying to explain voluntary and non-punitive reporting and also SMS protection. If I were given the opportunity to explain, you would see how important it is to the gathering of safety information.

Let me explain. There are two systems. Each company governed by SMS will have an internal reporting process where employees are encouraged to report. I'll take you to the page that says “Reporting process”. Proposed section 5.392 is applicable to organizations governed by SMS. It's available to any employees within the organization, to encourage reporting. Employees can even report that they have committed a violation without fear of reprisal. Information is reported to the organization, not to Transport Canada.

There is no report, Monsieur Laframboise, to Transport Canada. It's reported to the organization. The information is used to analyze hazards and take corrective measures. If we don't tell them it's protected and that it's not going to be in a newspaper tomorrow, they will not report. If they have committed a blunder, a breach of one of the standard operating procedures, they need to be protected. The information would not necessarily have been available to the organization before Bill C-6. When there is no protection, they do not report. Bill C-6 will encourage internal reporting by providing protection of the information and the reporting employee.

On the second page, for those who want to follow it with me, the internal information is protected even if it comes into Transport Canada's possession during inspection, audits, and assessments. It's not our intent to go and get that information, but we may from time to time. We need to be there to validate systems. We need to be there to inspect. We need to be there to audit. Transport Canada is saying that if it comes into our possession we will not use this for enforcement purposes. We want employees to report to the employer and we want to guarantee that we will not use it against them.

Also, it is protected from access to information. These days they are not reporting because they don't have protection. They want to report, so this is the guarantee we're giving them.

The information cannot be used for disciplinary purposes against reporting employees, except in accordance with the non-punitive reporting policy under SMS. Each company will have its conditions. They will tell employees that if they do things wilfully, of course they will be punished. If a report is error-based and it is not wilful, they will not punish.

You will see there has been an add-on to the protections with respect to a person reporting about another employee. That is to make sure there will not be reprisals against a person.

The information cannot be released under ATIP if it has been obtained by Transport Canada. If it has been obtained by Transport Canada, the information may be used to advance safety, but only after being de-identified. We want to protect the travelling public. We want to advance safety. We can do this. We don't need the name of the person; we want to use the aggregate safety information.

A court can always obtain information under the power of subpoena. The TSB has that power. This is not usually the type of information the TSB will want, because they will have evidence and other.... But if they wanted that type of information for whatever reason, they have authority to get it.

Also, if the safety of operations is considered to be jeopardized, Transport Canada may use information to substantiate administrative certificate action under proposed section 7.1. The minister can issue a civil aviation document, a CAD. The minister can remove that document if a company no longer meets the conditions of issuance or if it's in the public interest. Sometimes the only way we can prove there is a problem is with the evidence that is there. In that case, the minister could use it. He would not use it for enforcement purposes, because we gave our commitment; however, if there is such an egregious situation in a company that we need to refer to some of those elements, the minister can use it. It is the best of both worlds.

This is one system of reporting under SMS. I'm telling you again: If you don't have those protections, the information will not come flowing in. The companies cannot do their trend analyses. They cannot use their risk assessments. They cannot take corrective measures, because things will simply not be reported. You have the whistle-blower type of protection there, and you also have the protection for access.

The other system is the universal non-punitive reporting process, and this one, you will see, is under proposed section 5.395 of the Aeronautics Act, dealt with in clause 12 of Bill C-6. This is universal, and it's voluntary. Anybody can use this. It is applicable and available to anybody anytime, anywhere to report any type of information relating to aviation safety or security. It could be a flight attendant reporting; it could be a pilot or a co-pilot. It could be a janitor on the floor seeing a safety situation that he or she needs to report.

The program is established and funded by the minister, but it's intended to be administered by an objective and independent third party government agency such as NRC, TSB or another. This is similar to what they have in the United States. It's called the aviation safety reporting system, funded by the FAA but administered by NASA. I have included a website link there, so if people want to get more information, they can get a pretty good idea of what is done with the information. There is lots of feedback and lots of good information coming in, but there's some protection.

Persons may even report, without fear of reprisal, that they have committed the violation. Information is reported to a third party government agency, not Transport Canada. So Transport Canada is not there.

The information is used to gather as much evidence, as much aviation safety data as possible to perform trend analyses, studies, reviews, and examination of hazards and incidents to advance safety, inform others of potential safety and security pitfalls, and prevent recurrence. It is information that would never be reported if no protection were provided to the reporting person. The information reported is de-identified within a very short period of time. Usually—and it's going to be done through regulation—it's between 24 and 48 hours. The person writes in, and there's a strip. The strip is detached and sent back to the person to show it was de-identified. But before doing this, the agency will call and try to get as much information as possible, and then de-identify it.

The information cannot be used for enforcement action or any legal, disciplinary, or other proceedings. The information cannot be released under ATIP until it is de-identified. Of course, when it is de-identified, it's going to be released and used also by the minister and by that agency to advance safety. The aggregate information may be used by the custodian repository government agency and Transport Canada, as I just mentioned, but only after being de-identified.

The protection for the reporting person applies even if proceedings are initiated against the person based on independent evidence obtained outside of the program. Let me give you an example. Someone reports there and says, “It wasn't intentional. I did that”, and they receive a receipt for this that will allow them to oppose this if someone wants to prosecute. Then he can say, “Hey, I did report”, and just as it is in the States, I have that “get out of jail” ticket here, provided that:

(1) the person has reported through the program;

(2) the information doesn't relate to a reportable accident or incident, because TSB requires that those things be reported, so they have no protection there;

(3) the alleged violation was not committed wilfully. Again, if there is evidence and inspectors can prove that things were done wilfully, there will be no protection;

(4) the person is not found by a court or tribunal to have committed a violation of the Aeronautics Act within the previous two years;

(5) the person has not made use of the protection before a court or tribunal within the previous two years;

(6) the person has already—in case they are working for an SMS company—reported the event through the internal SMS reporting process when the person is employed by an organization governed by SMS.

Again, there's lots of good information here. The American website will show you how much good information there is, which you won't get if you don't give the protection. It is of the utmost importance to have the protection in order to get people to report. Otherwise, they won't report.

[The Chair, Conservative, Merv Tweed]

Mr. Volpe.

[Joe Volpe, Liberal, Eglinton—Lawrence, ON]

I appreciate Mr. Reinhardt's elucidation of exactly where we are, and I sincerely thank him for that.

Contrary to what some of the other colleagues around the table might be thinking, I think the last time we actually addressed any of the amendments was when I asked for a clarification on amendment G-3. The government now has an new amended G-3 before us.

On the decision about whether or not we deal with G-3 or the other amendments that come before it, including amendments BQ-16, NDP-8.3, NDP-9, and the original G-3, quite frankly, they're all captured by this. This section deals with issues that have to do with items pertinent to whistle-blowing and the whole function of SMS.

While I appreciated the presentation given by Mr. Reinhardt and the question posed by Mr. Julian, this matter is the one that I would like to deal with. I would like you to call the question on amendment G-3.

[The Chair, Conservative, Merv Tweed]

The amendment that's on the floor right now is actually BQ-16. Amendment G-3 has been offered to try to find a compromise.

Monsieur Lamframboise.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Reinhardt, despite my respect for you, it is quite possible to protect employees who want to make revelations without protecting the information which is in the hands of the minister.

If the minister receives information, it's because there was an investigation. What you are telling me is that if, at the end of an investigation, the information given to the minister does not remain protected, companies will stop providing information, will stop producing reports and will not participate in the SMS. Is that what you're telling me?

[Franz Reinhardt]

Usually the company has that information, and not the minister.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

That's why I don't have a problem with it.

[Franz Reinhardt]

We spoke with employees, unions and companies. They know that when we conduct an evaluation, a verification or an inspection, some of that information may be gathered by the minister and end up in some room within a government organization. If that should happen, they would want the information to remain protected. Otherwise, they will not produce any internal reports. If the information is not protected, you lose. In any case, the Access to Information Act would apply. Contrary to what Mr. Rubin said, our verifications are accessible under the Access to Information Act. We transmit the information and corrective measures. There is no danger on that side. We want to have the guarantee that any special information on-site be protected.

[The Chair, Conservative, Merv Tweed]

Mr. Julian, for one last comment, and then I'm going to call the question.

[Mario Laframboise, Bloc, Argenteuil—Papineau—Mirabel, QC]

Mr. Chairman, in the course of these discussions, you are not allowed to prevent us from speaking. Unless I am mistaken, you do not have the right to interrupt.

[The Chair, Conservative, Merv Tweed]

Mr. Julian, you're on the list. I'll go back to him.

[Peter Julian, NDP, Burnaby—New Westminster, BC]

No, Monsieur Laframboise hasn't completed.