Transport Committee on Feb. 21st, 2007

[The Chair, Conservative, Merv Tweed]

Good afternoon, everyone. Welcome to the Standing Committee on Transport, Infrastructure and Communities. This is meeting 37.

Pursuant to the order of reference of Tuesday, November 7, 2006, our subject of discussion is Bill C-6, an act to amend the Aeronautics Act and to make consequential amendments to other acts.

Joining us today are Brian Jenner, Greg Holbrook, Brian Boucher, Robert Mather, and Peter Boag.

If you haven't been here before—I'm sure that you have been—we give you each a chance to present for seven minutes, and then we'll do a series of questions around the table.

Whoever would like to start, I would just ask them to please begin.

[Brian Jenner, President and Chief Executive Officer, Helicopter Association of Canada]

Thank you, Mr. Chairman.

As you mentioned, my name is Brian Jenner. I am the president and chief executive officer of the Helicopter Association of Canada, and I'll start with just a few words about the association.

HAC was incorporated in 1994, with the mission of bringing the Canadian helicopter industry together. The association's principal goals are ensuring the viability of the Canadian helicopter industry; educating government and the public about the industry; promoting flight safety; developing expanded utilization of helicopters; and exchanging industry best practices. HAC's roles include identifying problems; searching for solutions; advocating for industry, representing individual operators with regard to those problems and those solutions; and organizing an annual convention and trade show to facilitate communications with and within the industry. That show is now Canada's biggest commercial aviation event.

The Association's membership now includes 70% of Canada's commercial helicopter operators, an astounding achievement for a voluntary membership organization. As a result of its success in attracting operator membership, the Association has also enrolled 90 helicopter industry suppliers as associate members.

The fifteen corporate sponsors providing considerable financial support are: ACROHELIPRO, Westland Helicopter, Bell Helicopter, Textron Canada, Benfield Corporate Risk, Eurocopter Canada, Helicopter's Magazine, Honeywell, Pratt and Whitney Canada, Marsh Canada, NAV Canada, Rolls-Royce, Standard Aero, Turbomeca and Willis Global Aviation Canada.

In addition to being by far Canada's most representative commercial aviation association, HAC nominates one of the members of the Nav Canada advisory committee; is a member of the International Federation of Helicopter Associations; and is on the International Helicopter Safety Team, whose goal is to eliminate helicopter accidents worldwide.

Within the context of IHST, the International Helicopter Safety Team, the association, in conjunction with Transport Canada Civil Aviation, the Canadian Transportation Safety Board, helicopter manufacturers, and the association membership, has taken on a leadership role in establishing the Canadian Joint Helicopter Safety Analysis Team—the JHSAT-CAN—and the Canadian Joint Helicopter Safety Implementation Team—the JHSIT-CAN.

The JHSAT-CAN is mandated to conduct in-depth causal analysis of Canadian helicopter accidents, evaluate potential interventions, develop recommendations for each accident category, propose intervention strategies, and establish evaluation matrices.

The JHSIT-CAN is mandated to develop implementation strategies and action plans for JHSAT recommendations, coordinate implementation strategies with responsible organizations, create performance measures, and much more.

HAC is, as you can see, is at the forefront of modern safety management and accident prevention.

We share the concerns of several other organizations regarding the proposed amendments to the Aerospace Act. However, as representatives of several small and medium-sized aviation companies, we are particularly concerned with what is not in the Act. Therefore, we will limit our comments to the missing link of C-6, which leaves SMEs at the mercy of the public service and with no effective recourse against the threat of destitution by suspension or cancellation of an operating certificate.

The Aeronautics Act provides for several reasons to cancel or suspend a civil aviation document, and the document that concerns air carriers most is their air carrier operations certificate.

Section 6.9 allows Transport Canada Civil Aviation to suspend or cancel that document as punishment for having contravened a regulation or some part of the act. Section 7 of the act allows Transport Canada to cancel or suspend forthwith in cases where there is an immediate threat to safety.

Section 7.1 is the one that is of interest to us. Section 7.1 allows Transport Canada Civil Aviation to cancel or suspend an air operator's certificate because the air operator no longer complies with the conditions of issuance; because the air operator no longer complies with the conditions of maintenance; or because, for some other reason, it is in the public interest to do so.

We're quite happy with that provision. We're quite happy with having people made to toe the line with regard to respecting the rules for getting an operating certificate and maintaining an operating certificate. The problem is that Transport Canada sometimes makes a mistake. As a matter of fact, in our experience, they make a mistake 25% of the time.

In those cases, the air operator finds himself without any practical recourse. In theory, he can go before the Civil Aviation Tribunal and can contest the decision of Transport Canada to cancel or suspend his air operator certificate.

And by the way, cancelling and suspending has lately become one of the primary tools for encouraging compliance with the law. Once again, we don't have a problem with that. We want to see our competitors toeing the line.

But when Transport Canada starts by telling us of the problem they have discovered and handing us a notice of suspension that is to take effect in thirty days, it's a problem if we do not have recourse, and we don't. Within those thirty days, we can apply for a review before the Civil Aviation Tribunal, but the Civil Aviation Tribunal typically takes up to six months to give you a hearing and up to a year to give a decision. So while we're waiting for the Civil Aviation Tribunal to tell us that Transport Canada was wrong and we were right, we're out of business. That should be corrected.

The correction is simple. In subsection 7.1(4), the tribunal is already empowered to stay the decision of the minister after they've heard the case. What we suggest is that the power of the tribunal to stay the decision of the minister be moved forward to the beginning of the process. Based on representation by the minister and the document holder, the tribunal should be allowed to stay the decision while the hearing process goes forward.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Mr. Holbrook.

[Greg Holbrook, National Chair, Canadian Federal Pilots Association]

Good afternoon. Thank you for the opportunity to speak to you this afternoon.

My name is Greg Holbrook. I am the national chair of the Canadian Federal Pilots Association.

The CFPA represents approximately 375 licensed pilots employed by Transport Canada as civil aviation inspectors. CFPA members are professionals who inspect, test, license, monitor, audit, and enforce Canada's aviation safety regulations.

We have serious reservations about Bill C-6 and the safety management systems it authorizes. For years, Transport Canada has achieved acceptable levels of aviation safety with a system of checks and balances and regulatory oversight carried out by inspectors to produce the enviable safety record Canadian travellers now enjoy.

Bill C-6 and SMS set out to switch to affordable levels of safety. That's right, from acceptable to affordable. Driven by forecasted funding cuts and an aviation inspectorate that will shrink by half in the next few years, Bill C-6 will transfer determination of appropriate risk levels to the airlines. With Transport Canada's implementation of SMS, the airlines will decide the safety levels for the travelling public. The airlines' bottom line will now be factored into deciding acceptable risk levels for the public.

The bill will also let airlines monitor their own safety standards and regulatory compliance. Transport Canada has already transferred oversight of the corporate business aviation sector to the Canadian Business Aviation Association. Bill C-6 will give airlines immunity from enforcement for self-reporting of safety violations, a “get out of jail free” card.

Unable to afford its safety responsibilities, Transport Canada is off-loading them. With a number of recent decisions, Transport Canada is already giving up its safety oversight role and is dismantling the system of checks and balances that brought us to the relatively low accident rate we have today.

In spite of some testimony you've heard from Transport Canada officials, SMS is replacing key safety programs that have already been cancelled. Here are a few examples.

In December 2005, Transport Canada issued civil aviation directive number 39, which handed over enforcement and investigation to the airlines themselves. When Transport Canada now receives a report of an occurrence that may require looking into, regardless of the source, the information is to be passed to the airline management, who are requested to handle the situation in accordance with their safety management system. Transport Canada inspectors have been directed not to investigate.

In March 2006, Transport Canada killed the national audit program, which covers the eight largest airlines, the five largest airports, and the three largest aircraft manufacturers in this country. The reason? To allow for regulatory oversight resources and funds to be redirected to the administration of SMS programs. Regional audit programs are being shut down as well.

In October 2006, Transport Canada managers abruptly closed all enforcement investigations into safety violations committed by airlines so long as they had an SMS or were working on one. It was declared no further action was to be taken on all these files.

Pilot proficiency check validity periods have been extended to two years and PPCs will no longer be conducted by Transport Canada inspectors as of December 2007. Airlines have been advised to check their pilots themselves or contract this service, a clear conflict of interest.

Insights from the cockpit provided by PPCs will no longer inform the work of Transport Canada inspectors. I should note that this decision places Canada in violation of international standards. For years, Transport Canada has lacked the resources necessary to adequately inspect and audit Canada's airlines. Rather than increase resources, Transport Canada simply directed staff to comply “with the frequencies to the extent that resources allow”.

To help you understand the different role that inspectors play under SMS, I'd like to give you a then-and-now metaphor.

In the system that has delivered Canada's current high safety rate, inspectors were under the hood of companies they audited and inspected. We flew with the pilots. We were in the maintenance shops. We were in the flight operations centres.

With SMS, we will no longer do regular audits and inspections. We will review SMS documents, SMS reports, and system structures only. Our focus is shifting from actual operations to paper and policy. I invite you to review the publication, which I have included, to see the documents that substantiate my testimony.

Against this backdrop, and with Transport Canada's emphasis on farming out safety oversight, it's no wonder that aviation inspectors are gravely concerned about SMS.

We commissioned Pollara to survey our members about SMS. More than 65% completed the online survey, which was conducted between January 26 and February 2.The most shocking result is that three-quarters of our inspectors believe that a major accident is likely or very likely to occur in the near future, and 60% believe Transport Canada's SMS will actually increase this likelihood.

The survey also found that 80% believe SMS will prevent them from addressing and correcting safety problems before they happen; 67% believe Transport Canada's SMS will result in a higher level of risk in Canada's aviation system because industry cost pressures will result in safety corners being cut; 77% believe that the public confidence in the aviation system would decline with the awareness of SMS; and 80% believe SMS is simply a response to dwindling resources on the part of Transport Canada.

These sobering insights bring me to the recommendations I would table for your consideration:

One, urge the minister to provide Transport Canada Civil Aviation with the resources needed to oversee the industry properly.

Secondly, amend Bill C-6 to require that SMS achieve the highest practical levels of safety and not leave the determination of appropriate risk levels in the hands of the airlines.

Third, rescind subsection 5.31, or at the very least prevent the delegation of regulatory oversight activities to the industry for commercial airlines that operate for profit.

Four, add whistle-blower protection for employees who report safety problems and concerns to the regulator.

On this last recommendation, I am personally aware of the need for whistle-blower protection to achieve the non-punitive reporting environment that Bill C-6 seeks to establish. Last week a senior Transport Canada official called my office after learning that the CFPA was to testify and stated, “It will be a problem” if any TC inspectors appear before your committee to talk about safety concerns.

I don't know if Transport Canada is trying to limit what you hear, but I can't think of a better example of why we need employee protections. What if I succumbed to this pressure and decided not to give you the whole picture as you consider Bill C-6?

The travelling public will take the risk on this gamble by Transport Canada. It is up to you to decide if that is acceptable.

Thank you very much.

[The Chair, Conservative, Merv Tweed]

Thank you.

Mr. Boucher.

[Capt Brian Boucher, Senior Director, Flight Safety, Air Canada Pilots Association]

Thank you, Mr. Chair and honourable members.

Good afternoon. My name is Captain Brian Boucher. I am the senior director of flight safety for the Air Canada Pilots Association and also have been an airline pilot with the company for over 29 years, and over 30 years as a pilot in Canada. We appreciate this opportunity to comment formally on Bill C-6, an act to amend the Aeronautics Act.

ACPA represents the 3,000 pilots who fly Air Canada's mainline fleet of 200 narrow-body and wide-body aircraft, domestically and around the world. We deal daily with the operational implications of air regulations. It's not an exaggeration to say that flight safety is our world, and it's been my personal world for over 25 years, as a member of the Dryden inquiry and working with Justice Moshansky for over two years implementing recommendations.

The Minister of Transport is responsible for regulating and supervising aviation in Canada. We understand that the rationale for the bill is to enhance the safety of Canada's aviation system, and we believe that SMS is an important advance in this area.

In the era of SMS, more responsibility is placed on the individual carrier and its management to maintain an adequate safety standard. The regulations also call for an effective means of involving employees, the front-line employees, and their representatives in the implementation and ongoing development of SMS. Those representatives are all the associations within the company, or the corporation that I work for, Air Canada. This participation is necessary in order that SMS can succeed in delivering greater safety. I like to look at that as the three-legged stool. It's not doing away with Transport Canada regulatory body; it's all of us working together as a three-legged stool--the regulatory, the airline, the corporation and those associations.

A key element of SMS is the promotion of a healthy culture of safety, and that's where we have to focus, on culture. In order to succeed, employees must feel free to report errors, safety deficiencies, and inadvertent regulatory violations without the fear--and that's what we've dealt with in the years past--of legal or disciplinary action or damage to reputation. Full reporting provides the data that is one of the fundamentals of SMS. This will only be forthcoming where the confidentiality of reporting is protected to the greatest degree possible. At Air Canada we've been collecting this data now for over five years, way before SMS came to be.

I'll give you an example. Our pilots have been reporting air safety reports. Five years ago we were collecting on average 300 a year among 3,000 pilots. Today we're collecting almost 5,000. So you can see how the culture among our pilots is changing because they know that they don't have to worry about discipline at the end of the road.

In addition, the regulator must have both the ability to oversee the implementation of SMS on an ongoing basis and the determination to hold an airline and its responsible executives accountable for providing and maintaining such a system. We need to have that accountable executive. The role of the regulator changes under SMS; you've heard that. It does not disappear, and I hope we never see it disappear. The regulator must ensure through oversight and observation that companies are able to maintain the integrity of SMS and all those business climates.

ACPA has some specific concerns about the bill that we would like to flag. We are concerned about the power to delegate its rule-making functions, particularly in the airline environment. The act should not permit the designation of airlines or airline business groups to make their own regulations. In a highly competitive business environment, and we're faced with that, and we've been faced with it for the last ten years, airline management lacks the necessary independence from purely commercial goals.

ACPA would support the delegation of personal licensing authority to self-governing professional bodies of airline pilots, along the lines of the medical and the legal professions that are out there today. This would provide an independent verification of airline flight training programs and operating procedures.

We also have serious concerns about how safety information such as air safety reports and flight data from flight data analysis safety programs is treated under this bill. This data monitors and records every action, even every cockpit control movement. Up to 1,800 flight and system parameters are continuously monitored, all in order to promote flight safety. Such data collection under SMS is highly personal and invasive.

You can imagine this, in the job you do today. Up to 1,800 parameters are being recorded, and it's not only the cockpit voice recorder that you're used to, plus the flight data recorders. This is over and above that. There are 1,800 parameters.

We've managed to convince our pilot group that in the interests of safety we can monitor trends and analysis to enhance the safety we have in this country right now. Our pilots bought into that program. It was a tough sell. It was us, the flight safety people within our organization, who made this program work.

At present such flight data is subject to a detailed agreement between our association and Air Canada. This agreement works very well in promoting flight safety goals. Under the agreement, ACPA safety representatives, not Air Canada management, are the gatekeepers of this data. This protection has fostered a relationship of trust where vital safety analysis is shared without the risk of violating the privacy and security of the pilot.

These protections are removed under the proposed subclause 5.394(1), which states:

The Minister, for the purpose of promoting aviation safety, may enter into an agreement with an operator of aircraft respecting the collection, analysis, use and disclosure of information derived from a flight data recorder.

As well, the public interest clauses of this bill provide wide discretion in the courts on behalf of the minister to access any and all flight safety data being collected under SMS. Such unregulated access will have a highly damaging effect on the SMS safety culture now being encouraged under SMS at my airline and at other airlines across Canada. We strongly object to the absence of protections for safety data in this bill.

ACPA also strongly objects to the exclusion of the association as a party to any such agreement. It is a needless omission that ignores the vital privacy interests of the individual without enhancing flight safety. In Germany, for example, a pilot's flight data is protected under law, and it is also protected under law in Australia.

ACPA appreciates the opportunity to present its perspective on these issues. Our membership has particular insights to offer, and in going forward we are committed to participating in the formulation in an active and positive way. ACPA representatives are always available to meet with you and your officials to provide whatever further information and assistance is required.

Thank you for your time and your attention.

[The Chair, Conservative, Merv Tweed]

Thank you, Mr. Boucher.

Mr. Boag, please.

[Peter Boag, President and Chief Executive Officer, Aerospace Industries Association of Canada]

Thank you, Mr. Chairman.

Mr. Chairman, honourable members, ladies and gentlemen, good afternoon. It's a pleasure to be here.

With me today I have Robert Mather, our vice-president of civil aviation of the association. I think Robert brings a unique perspective to this issue, having served for twenty years within Transport Canada in the aircraft certification branch, and more recently having spent almost ten years at one of our member companies, Pratt & Whitney Canada, as the chief airworthiness engineer.

Thank you for the opportunity to appear today on behalf of our more than 400 member companies located from coast to coast. Aerospace is a critical component of Canada's advanced technology economy. It employs more than 75,000 people across the country who are engaged in the design, development, and manufacture of aircraft, aircraft systems and components, and aviation infrastructure sold to customers around the world. More than 85% of our industry's output is exported, and that's certainly a testament to the high quality and levels of safety and reliability of Canadian aerospace products and services.

We welcome the opportunity to share with you the aerospace sector's view on how Bill C-6 will help strengthen Canada's long and well-established record of achievement as a world leader in aerospace safety. We believe the proposed changes outlined in the bill before you will translate into better outcomes for everyone, outcomes that will contribute to safer skies, safer aircraft, and ultimately, safer travellers, not just here at home but around the world.

The provisions outlined in Bill C-6, in particular those that relate to designated organizations and safety management systems, will help pave the way toward the aerospace industry's assuming greater responsibility for regulating its own behaviour in areas of the law that are widely seen and accepted as low-risk. We see this development as welcome news.

We believe it does nothing more than assert the patently obvious, that Canada's aerospace industry has arrived. We are a mature, safety-driven industry whose mandate is perennially refuelled by a desire to protect and promote safe air and space travel first and foremost. We believe this bill is recognition of that maturity. It builds on proven delegation authorities and systems and is a proud example of Canada's unwavering commitment to the highest standards of civil aviation in the world. We also believe that effective regulatory oversight is critical to maintaining the confidence of the travelling public, not to mention that of our trading partners around the globe.

AIAC member companies have collaborated with Transport Canada officials in developing safety management systems defined in the bill before you, measures which we think will strengthen aviation safety by building a culture of safety, which Captain Boucher has referred to, while achieving a higher level of efficiency and effectiveness for the industry.

The information provided by Transport Canada has equipped these companies with the tools they will require once Bill C-6 is enacted and the ensuing regulations appended to the bill are introduced.

Canada's aerospace industry boasts a good many small and medium-sized companies, some of which expressed the concern that these safety management systems may be difficult or too costly for smaller corporate players to implement. We are reassured by senior officials within Transport Canada that these concerns are in fact being addressed. The government has demonstrated a willingness to make these safety management systems scalable, and is now committed to working with these firms to ensure that safety management systems are put into effect cost-effectively, with safety effectiveness, and without delay.

Promoting a regulatory regime in aviation safety that promotes the responsible use of voluntary reporting, when and where it makes sense to do so, is an important step in the aerospace industry's evolution as a responsible corporate citizen. We fully expect the government, for its part, to assume the full weight of responsibility for handling and protecting in the strictest confidence, all safety-related data gathered in this way. Meanwhile, we look forward to working with you, the members of this committee, along with Transport Canada officials, as the provisions of the bill are implemented.

The proposed use of designated organizations is a particularly good reflection of the goals outlined in Transport Canada's Flight 2010. We look forward to more examples of this sort of government-industry partnership, which we believe typifies Canada's long-term commitment to aviation safety. We fully expect Bill C-6 will launch us on the path towards many of the objectives Transport Canada has set out in Flight 2010, goals the aerospace industry fully embraces in the interests of putting safety first.

Thank you, and I look forward to your questions.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Monsieur Bélanger.

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

Thank you, Mr. Chairman.

Thank you, gentlemen, for joining us today.

What we have heard here today is quite alarming, actually. Of course, Mr. Holbrook, everyone will want me to ask you this as a first question: Who? But before I get to that, I need to understand what relationship, if any, exists between the association you represent and the Air Canada Pilots Association. Is there any overlap in membership?

[Greg Holbrook]

None whatsoever, sir. We're completely independent.

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

All right. I just needed to know that.

It is quite striking, the different messages we're receiving from the inspectors--your association, Mr. Holbrook--and from the pilots, from Mr. Boucher's association. I've always thought that there are three sides to every story: yours, mine, and the facts. But I must admit here that there may be more sides than we realize.

Anyhow, you said, and I'm quoting you here, and I think it's very important that we have this cleared up, that last week a senior Transport Canada official called your office and stated--and then you quoted that official--“that it will be a problem” if any TC--I presume that's Transport Canada--inspectors appear before this committee to testify about safety concerns.

Who, sir, called you? I remind you that everything you say here, of course, is part of the public record, as it should be.

[Greg Holbrook]

Well, sir, I will be completely honest with you and say that it was Mr. Preuss.

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

He is the director general of—

[Greg Holbrook]

He is the director general of civil aviation.

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

Civil aviation. Can you elaborate on that? Did you have a discussion with that gentleman?

[Greg Holbrook]

No, I didn't. I was on the road at the time. I got the message from my assistant that this call had been placed to my office. I replied immediately to her and told her to please phone back and indicate that I would be appearing by myself and that there would be no TC inspectors appearing before this committee.

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

So you're appearing here as a representative of inspectors.

[Greg Holbrook]

Yes.

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

Have you talked to any inspectors about this conversation, or this admonition, about inspectors not appearing?

[Greg Holbrook]

No, I haven't had time to distribute that information throughout our membership.

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

Had any inspectors wanted to appear?

[Greg Holbrook]

They weren't asked to appear. If they were asked, I think they would be quite reluctant to do so for fear of what might happen to them in their employment situations.

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

This is something the committee might want to take up on its own with respect to what you've just said.

Mr. Boag, you said--and I only have your submission here in French, and you were speaking in English--that you are reassured that safety management systems costs that might have been a concern for smaller enterprises are being addressed.

I would like to know, again, with whom you were having that conversation. Which Transport Canada official was telling you that any concerns about the cost of SMS for smaller corporations and companies were being addressed? First, who were you having these conversations with?

[Peter Boag]

I can't tell you, because I don't know who, specifically, said that, but it's in the context of broad general discussions we've been having with Transport Canada through our committee system, which engages our member companies.

There were discussions on the implementation of SMS and concerns were raised by the smaller companies that the infrastructure that is required to put up an SMS system may be too significant and too difficult for a smaller company. The issues were then looked at. This is a system that ultimately is scalable. It doesn't mean that a smaller firm needs to put in a safety management system and an infrastructure of a size that might be more appropriate to Air Canada or a very large manufacturer. It's a scalable system.