Transport Committee on Feb. 19th, 2007

[The Chair, Conservative, Merv Tweed]

Good afternoon, everyone.

Welcome to the Standing Committee on Transport, Infrastructure and Communities, meeting number 36. Pursuant to the order of reference of Tuesday, November 7, 2006, we have Bill C-6, an act to amend the Aeronautics Act and to make consequential amendments to other acts.

Joining us today, from the Transportation Safety Board of Canada, is Nick Stoss; from the Transportation Appeal Tribunal of Canada, Faye Smith; and from the Union of Canadian Transportation Employees, Michael Wing and Michael Teeter.

Welcome. I'm not sure if you have made any arrangements as to an order of presentation. Is there someone who would like to take it first?

Mr. Stoss, you have seven minutes.

[Nick Stoss, Acting Director General, Investigation Operations, Transportation Safety Board of Canada]

Thank you very much, Mr. Chairman.

Good afternoon. On behalf of the Transportation Safety Board of Canada, I'm pleased to have the opportunity to appear before the Standing Committee on Transportation, Infrastructure and Communities as it studies BillC-6, the proposed legislation to amend the Aeronautics Act.

TSB last appeared before the committee on Tuesday, June 13, 2006. On that occasion, I accompanied our chair, Mrs. Wendy Tadros. In our presentation we highlighted that the Transportation Safety Board, under the CTAISB Act, is mandated to advance marine, pipeline, rail, and air transportation by conducting independent investigations into selected accidents and incidents in order to make the findings as to causes and contributing factors. Also, we identify safety deficiencies and make recommendations designed to eliminate or reduce any such deficiencies. Finally, we report publicly.

We also highlighted the importance of TSB's independence from all other government departments. This independence is key to establishing public trust and confidence in our work.

Because this session of the committee is dedicated to Bill C-6, I offer the following from the TSB's perspective.

Under the provisions of Bill C-6, Transport Canada is the government department directly affected by the changes to the Aeronautics Act. Although the TSB's work is not governed by the Aeronautics Act, during its investigations the TSB does evaluate the circumstances of every occurrence against the provisions of the Aeronautics Act. In this regard, it would make findings as to compliance with the act and related enabled regulations and other documentation where appropriate.

The specific Bill C-6 amendments that have a potential to influence how we achieve our mandate are in the following areas.

First, part II of the act now will provide the Department of National Defence with the legislation necessary to conduct investigations in an almost identical manner to the TSB. However, the provisions will only apply to those investigations being conducted by DND and to military accidents and incidents involving civilians.

Second, the provisions in part I will govern the establishment of a voluntary, non-punitive reporting system. This concept of a confidential, non-punitive system should have a positive influence on the reporting of unsafe situations in the aviation transportation sector. Although TSB has a confidential reporting system called SECURITAS, the TSB system does not incorporate a non-punitive element. The TSB currently participates in a working group with Transport Canada and industry to develop this new system.

Thirdly, the provisions of Bill C-6 related to the safety management systems are also of interest to the TSB, principally because this new approach has potential to significantly improve the early reporting and early resolution of potential and actual safety deficiencies.

Bill C-6 also provides the legislation related to the protection of information collected by the safety management systems. This factor has significant potential to ensure the quality of the information being reported and analyzed.

This concludes my opening remarks. I would be pleased to respond to your questions.

Thank you.

[The Chair, Conservative, Merv Tweed]

Thank you, Mr. Stoss.

Ms. Smith.

[Faye Smith, Chairperson and Chief Executive Officer, Transportation Appeal Tribunal of Canada]

Thank you, Mr. Chairman and honourable members.

It's my pleasure to be here today to answer your questions on the Transportation Appeal Tribunal of Canada. I'll give you what I hope is a brief overview of the tribunal.

The Transportation Appeal Tribunal of Canada is a quasi-judicial body established by reason of the Transportation Appeal Tribunal of Canada Act. It replaces the Civil Aviation Tribunal which was established under Part IV of the Aeronautics Act following upon the recommendations of Mr. Justice Charles Dubin in his report into aviation safety.

The Dubin Report, published in 1982, includes three parts. To paraphrase Mr. Justice Dubin, he wanted to elevate the importance of aviation enforcement. His focus became the objective of the program to provide the aviation community with the opportunity to have the enforcement and licensing decisions of the Minister of Transport reviewed by an independent body.

By setting up a specialized quasi-judicial tribunal, the enforcement procedure was decriminalized, as is appropriate for contraventions relating to regulatory offences that are not totally criminal in nature. In its legislation, the Department of Transport reserves criminal court proceedings for the most serious offences. Hence, enforcement cases were removed from the criminal courts to the tribunal, and administrative monetary penalties ranged from $5,000 for breach of a regulation by an individual to $25,000 for a company. For the more serious enforcement cases, licence suspensions could be imposed by the minister.

I note that Bill C-6increases the maximum monetary penalties assessed against an individual to $50,000, and as against a company the proposed maximum is $250,000.

As mentioned, in addition to enforcement cases, licensing decisions made by the Minister of Transport may also come before the tribunal. These matters relate to qualifications to hold a variety of documents of entitlement, including matters of competence for medical or other reasons.

Prior to the setting up of the Tribunal on June 1, 1986, matters of qualifications to hold a pilot license or an air operator certificate were heard under the Air Regulations of that time.

A request for a review of the decision to suspend such a document was not heard by an independent body. Rather, the review procedure was conducted by someone in the Department of Transport, usually one level up from the person who originally sent the Notice of Suspension. Although there were many safeguards and guidelines built in such a system, the man on the street does not perceive it as a very independent review since it is done by the same Department.

That was the aim of Mr. Justice Dubin when he said that an independent tribunal composed of impartial members with subject matter expertise should be hearing these matters related to suspension.

The cases referred to above may include imposition of monetary penalties, or suspension, cancellation or refusal to renew, or refusal to issue or amend documents of entitlement on medical or other grounds. The person or corporation affected is referred to as the document holder.

The review and appeal hearings are held expeditiously and informally in accordance with the rules of fairness and natural justice, which involve the right of the individual or company to have a hearing before an unbiased and impartial hearing officer. At the conclusion of a hearing, the tribunal may confirm the minister's decision, substitute its own decision, or refer the matter back to the minister for reconsideration.

The basic principles governing the Tribunal are those of independence and expertise. The sound and competent execution of the Tribunal's mandate determines its effectiveness in dealing with the Canadian transportation community.

The tribunal's chairperson is also its chief executive officer, and the tribunal is responsible for the direction and supervision of the work necessary to facilitate the functions of the tribunal.

The part-time members are drawn from across Canada and are appointed by order in council on the basis of their knowledge and expertise. The office of the tribunal is located in the national capital region.

In enforcement matters, the hearing will normally be located where the incident took place. In medical cases, the hearings will be at the location that is nearest to the residence of the document holder.

In addition to the full- and part-time members—there are two full-time members—we have eight employees. That's our entire organization. Over the past 20 years, we have worked on an average of 250 to 300 cases per year, and approximately 60 to 80 of those go to a hearing. Many of the cases, obviously, get settled along the way.

Over the years, the practices and procedures of the tribunal were flexible and straightforward, and the tribunal became an example of government's best practices. It worked well over time because the tribunal took pains to keep its process simple and accessible to applicants, thereby providing effective recourse rights regarding certain administrative decisions.

The informal procedure and simplified rules allow the document holder to represent himself or herself without counsel, but representation by counsel is certainly permitted. Each applicant, upon filing a request with the tribunal, receives a copy of the guide to hearings. There are no user fees at the tribunal. We've been fortunate that we've been able to do that so far.

A review of the tribunal's operations reveals two things. The tribunal appears to be successful in disposing of the matters that have come before it in an expeditious fashion. It has certainly been more successful than the previous system, from an aviation perspective. It also appears that the very existence of the tribunal as a forum for review of enforcement and licensing decisions has, in and of itself, created an environment for the resolution of matters between the Department of Transport and those that it regulates—that is to say, we get the parties talking. This, alone, resolves many matters. Those that remain go to a hearing.

I thank you, and I await your questions.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Mr. Wing, please.

[Michael Wing, National President, Union of Canadian Transportation Employees]

Thank you, Mr. Chair and members of the committee, for the opportunity to participate in the deliberations on Bill C-6, amendments to the Aeronautics Act.

As we all know, this bill has been around for quite a while, and Transport Canada has in effect been acting as if the legislation were already in place. If you sense a degree of frustration in my voice, you're probably reading me correctly.

The Union of Canadian Transportation Employees represents the vast majority of inspectors who are responsible for ensuring that Canada's airlines and airports are safe and the rules are obeyed. UCTE members are fulfilling the obligations of the government as embodied in the responsibilities of the Minister of Transport, as clearly articulated in the Aeronautics Act. In section 4.2 of the act, the responsibilities of the minister are clearly laid out in more than a page of dense print. Section 4.2 begins as follows:

The Minister is responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics

There are about 12 specific functions identified following these general obligations, but the two I would like to emphasize are to “investigate, examine and report on the operation and development of commercial air services in, to or from Canada”; and “investigate matters concerning aviation safety”.

So the minister clearly has the responsibility for regulation, supervision, investigation, and reporting of all aviation matters in Canada. UCTE members perform these functions and are accountable to the minister and the government for the discharge of these responsibilities.

The question I would ask, and that you as legislators must carefully consider, is whether the responsibilities of the minister are discharged appropriately and in the public interest through the designation process, through the management system delegation process, and through the disclosure and confidentiality waivers that are the cornerstones of Bill C-6 that you are considering here today.

We certainly do not believe that ministerial responsibilities can be exercised through approval of these provisions in Bill C-6. We believe that by approving these amendments the Crown is exposing itself and the public to unsafe aviation and air transportation outcomes. We believe that the minister cannot effectively discharge his or her obligations through the extent of delegation to the carrier community that is sanctioned in this bill.

AIl political parties in the House of Commons supported the Federal Accountability Act. We do not believe that the principles enunciated in the new Federal Accountability Act can be accommodated through the non-disclosure and Access to Information Act exemptions that are proposed to be provided to airlines and their associations through this bill.

How are the Federal Accountability Act principles protected and represented by a bill that permits airlines to keep a serious safety and security breach from being disclosed to the public? How can the public be assured that the minister is discharging his or her obligations when there is no accountability for that disclosure? Does this not fly in the face of the FAA and everything it stands for? Does this not fly in the face of the responsibilities of the minister and the government that are clearly articulated in the foundations of the Aeronautics Act itself?

It is a well-known fact that the whole plan being implemented through this legislation is really about saving the number of government inspectors and presumably saving money for Transport Canada in the process. It is also what we consider to be a substitute for a proper human resource and training plan for the aviation inspectorate, particularly in light of the demographics of the inspectorate community. Obviously, existing and future UCTE members are negatively affected by this approach, and our interests clearly conflict with those espoused in Bill C-6.

At the same time, we are not convinced that aviation and public safety are matters that belong on the government balance sheet, nor can safety be compromised at all, given the clear responsibilities of the government with regard to aviation safety.

We would go so far as to suggest that this approach has become a substitute for proper and judicious management of the inspectorate function. And don't just take my word for it. We would encourage you to seek out the informed views of experts such as retired Alberta Justice Virgil Moshansky, a man who has extensively studied the aviation safety and management system impacts following the 1989 Air Ontario Dryden crash and who has subsequently given public statements, speeches, and interviews since. Justice Moshansky has been widely quoted over the years, but I would direct you to a series of excellent articles in the Toronto Star from June of 2006. In one of those articles, the justice is quoted as follows:

I am skeptical whether 'partner relationships'...are in the best interests of aviation safety. It is possible if they get too cozy, they'll maybe let things slip by.

Justice Moshansky has always said that a healthy and independent inspectorate is essential to aviation safety. We couldn't agree more. UCTE and other organizations representing pilots and other airline workers have presented, and will present further to you on Bill C-6. There will be some consistency of views in these presentations.

Government officials and airlines will present a countervailing perspective. It is up to you, as legislators, to determine what is in the public interest, but I would ask you to consider the following recommendations in light of the public interest. Remember that we are talking about the safety of the public when they fly in airplanes in Canada. Remember that no amount of delegation of system management will replace ministerial and government responsibilities and accountability. The government is responsible and accountable, and that's the end of the story. So we'd ask you, please, to consider these recommendations in this light.

The government process of designating external organizations is being increasingly practised but usually in areas where the implications are not that great and where the entire functions are being transferred to an outside body and where that body has no responsibilities except for those quasi-judicial regulatory functions.

In this instance, however, the government is proposing to designate external organizations to monitor compliance with its own rules and standards when the organization may have conflicting roles and accountabilities. We fail to see how this is consistent and even allowed under the Statutory Instruments Act, but we would also say that it completely contravenes any standards of accountability that are now part of government policy and legislation. We would recommend removal of the “designated organization” sections of Bill C-6.

Accountability and responsibility absolutely require that inspection reports and safety violations be made public. We would recommend the removal of all provisions that permit non-disclosure of inspection reports and self-reported safety violations. This recommendation would apply to all permissive non-disclosure, including sections 5.392, management systems exemption; 5.393, data flight recorder exemption; and 5.395, voluntary reporting exemption.

Thirdly, if safety system management structures are to be encouraged and permitted, there must be a system of continuous improvement built into the entire accountability structure.

It is impossible to have a well-functioning and continuously improving system that does not have effective external checks and balances and redresses for those errors and omissions uncovered by the external checks and balances. In this respect, we would recommend that all inspection and self-reporting disclosures be available to the public and that whistle-blowing protections be introduced into the statute.

Employees of airlines and airports should have the inherent ability to report safety infractions to Transport Canada inspectors without fear of reprisals from their employers or its agents. Additionally, along as SMS structures are encouraged and permitted, there should be more independent safety audits subject to disclosure.

All these recommendations would combine and bring together a process that has a chance to continuously improve.

Finally, the Canada Labour Code provides for a series of important workers' rights that apply to all federally regulated institutions, including airlines. The code provides employee protections for unsafe working conditions and enshrines employees' right to know workplace hazards. For employees who work in the airline world, knowing their work environment is as safe as it can be is an important worker right.

The conflicts between the employee protections articulated in the code and the “designated organization” and “management systems” delegation proposals in Bill C-6 are very profound. We already are seeing the erosion of Canada Labour Code rights with SMS structures now in place. We believe that the primacy of the Canada Labour Code should be codified in Bill C-6 and the Aeronautics Act.

I hope that you find our positions and recommendations are in the public interest. That interest is to protect the travelling public in Canada and to exercise the responsibilities and authorities given to the government and the Minister of Transport in a responsible, transparent, and accountable manner. We believe our recommendations are entirely consistent with that principle, Mr. Chair.

Thank you.

[The Chair, Conservative, Merv Tweed]

Monsieur Bélanger.

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

Thank you, Mr. Chairman.

My first question is for Mr. Stoss. In your comments you highlighted the areas that Bill C-6 would cause to be changed. In most of them you indicate clear support—for instance, in the matter of the voluntary non-punitive reporting system and in the matter of the management systems and so forth. But in the first one you highlighted, that the act will provide the Department of National Defence with legislation and so forth, your view is perhaps not as clear.

Would you comment on whether you favour this particular amendment or if you have any reservations on this one?

[Nick Stoss]

Thank you very much for your question.

The current provisions of the CTAISB Act actually have provisions with regard to the Minister of National Defence conducting investigations. These amendments to Bill C-6 will not affect that provision within the CTAISB Act. Again, the concept of part II of the new Bill C-6 is to provide an enhanced capability to conduct investigations into those military accidents and incidents that involve civilians.

Because this particular provision in the act will not have any effect on the TSB's operations and investigations, I don't have an opinion with regard to the viability of the provisions of Bill C-6 in that regard.

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

So it's a neutral perspective. Thank you.

Madam Smith, I have a couple of questions, if I may. My understanding is that currently the act, under which you have authority, allows the tribunal to substitute its own decisions for those of the minister. Bill C-6 would remove that authority. First of all, is my understanding accurate here?

[Faye Smith]

If I understand the bill correctly, Bill C-6 will remove that with respect to section 7, which is a suspension for immediate threat. The one that is being changed is section 7. But there is a refer-back—

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

Yes, but currently under section 7, the tribunal can substitute its own decision to that of the minister?

[Faye Smith]

That's correct.

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

Under Bill C-6, you would lose that authority in that section, correct?

[Faye Smith]

Yes.

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

Is the tribunal okay with that?

[Faye Smith]

The tribunal is fine with that.

We've had maybe one section 7 case in 20 years. Frankly, it isn't one that frequently comes before the tribunal, but putting section 7—the suspension for immediate threat—on the same footing as section 7.1, which is the suspension of a licence for competence or failure to meet qualifications or conditions of issue.... The power of the tribunal in that circumstance is to refer it back to the minister. So it's putting it on the same footing.

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

I'd have to verify: if it's that particular circumstance, you're okay; if it's wider application, would you have some reservations?

[Faye Smith]

It's just putting it in line with 7.1.

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

In your brief you referred to the increase of sanctions, yet didn't comment. In your view, $5,000 to $50,000 and $25,000 to $250,000, are these okay, too much, too little? Do you have an opinion on those?

[Faye Smith]

Currently, the highest penalty that has ever come to the tribunal was probably in the nature of $100,000, and it would have been multiple counts. Those are maximums.

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

So you're okay?

[Faye Smith]

Yes, I have no objection.

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

Thank you.

Mr. Wing, I followed most of your presentation. I look forward to getting a written copy of your testimony. You certainly have some reservations, which are shared, by the way.

The pilots' representatives were in last week, and they also indicated some concerns with the designated organizations. They commented that some of the officials of Transport Canada had indeed said that the intent, as far as the officials were concerned, was that it would only apply to mundane issues and not in more serious matters. That may be so, but it's not reflected in the act or the bill as it's written and proposed. Of course, once something is law, the intent of the legislator has to be extracted from the written text.

Your proposal is that you would remove entirely—correct?—the designated organization reference from the bill.

[Michael Wing]

That's correct.