Transport Committee on Feb. 28th, 2007

[Virgil P. Moshansky]

No. There are very few countries that do it, but it's a good idea. We did have a safety inquiry in 1982, the Dubbin Commission of Inquiry into Aviation, which was not as extensive as my Dryden inquiry turned out to be. It came up with a number of good recommendations, some of which were implemented, but not all, by Transport at the time. It revealed a number of weaknesses in the aviation system.

When we got into the Dryden inquiry, we decided to do a system-wide investigation, and that took us away from what would have been an easy finding. I could have wrapped up that inquiry in one week by finding it to be pilot error, which was the traditional finding by accident investigators.

The pilot took off with ice on his wings, so that's pilot error. Obviously it is. But the reason behind that error was important. We therefore went into an aviation system-wide inquiry involving not only the pilots or air crew, but the air carrier, air carrier maintenance, all their policies, training policies, and management safety policies. We also looked into the involvement of the regulator, and we found a great many problems throughout.

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

Actually, that leads right into what I wanted to talk about a little bit, and that was your Dryden inquiry. Because of the essence of time, I'll just ask you if you could explain a couple of the key system-wide causes that you found to be problematic at the time, and those system-wide causes that led Transport Canada to change regulations because of your recommendations.

[Virgil P. Moshansky]

One of the big problems we discovered with the regulator was that they were operating under 40-year-old ANOs and air regulations. They still had provisions in there for navigators on board airliners. There hadn't been a navigator in existence for at least thirty years. They were antiquated regulations. It was a real mishmash.

Dubbin, in his inquiry, had recommended that they do something about rewriting the air regulations, but they didn't do it. It was avoided for decades by successive governments, so that was one of the aspects I really pressed. Transport Canada subsequently did a marvellous job in rewriting the old ANOs and air regulations into the new Aeronautics Act and into CARs, the Canadian civil air regulations.

This was done as a result of the way they went about implementing it. You may or may not be aware that they set up twelve working groups under the Dryden implementation project. These working groups had representatives from all the groups within the aviation industry. They worked for three years, dealing with the way they should implement my recommendations. One of the results was the new Aeronautics Act.

[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?

[Virgil P. Moshansky]

The only ones that I can see offhand are the recommendations with respect to surveillance and monitoring. I made a very strong recommendation that there be effective surveillance and monitoring.

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

So the system changes that you helped to create to make our system safer won't be affected by this new legislation.

[Virgil P. Moshansky]

They'll be affected because you're not going to have the traditional audit program. The way I see it, you're not going to have in-flight monitoring.

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

So it'll be the surveillance and the auditing—

[Virgil P. Moshansky]

Even your pilot proficiency checks have been downloaded onto the carriers themselves.

[The Chair, Conservative, Merv Tweed]

Mr. Volpe.

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

Thank you, Mr. Chair.

Pardon me for my tardiness, but I had duties in the House. I feel a little bit at a disadvantage, so I'm just going to limit myself to a question or two and apologize to Judge Moshansky.

Part of the disadvantage comes from the fact that we had asked last week for some of the actual dollars and cents that had been allegedly removed from the funds allocated to the inspectorate, which you referred to in your written presentation. The other part is the fact that I wasn't able to share the back-and-forth questioning, so I'm going to ask you this.

Last week, we had Captain Greg Holbrook here, and he essentially took the position—and I hope I'm not misrepresenting it—that if Transport Canada was going to essentially diminish the role of the inspectorate or eliminate it altogether, this bill shouldn't go through. There were those at the table who suggested at the time that his role before the committee was one in which he was supposed to protect the interests, and therefore the jobs, of his own membership and to expand that membership, but that he had really no other thing to contribute. I've heard that from other people who have lobbied me and I guess other members of the committee. Do you share that view?

[Virgil P. Moshansky]

No, I certainly don't, because at the time of the Dryden inquiry, the inspectors made a major contribution to the inquiry in identifying the problems that existed within the aviation system.

These people are on the job. They're on the front lines. They know what's going on. Who better to inform on the state of aviation safety than the aviation safety inspectors? It's unimaginable that anyone could downplay their input into this program.

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

In your written statement you also indicate a severe amount of skepticism that voluntary compliance with the legislation, and therefore voluntary reporting, would provide the trend line necessary for an appropriate regulatory environment and for a management systems environment. This committee has heard from representatives in the industry and representatives from the regulatory bodies, both collectively and individually, that this is precisely what you have to put in place in order to ensure that the body of information required for an appropriate regulatory environment, i.e. building a new culture of safety, is exactly what's required. Why do you insist on such skepticism?

[Virgil P. Moshansky]

Take the marine SMS or IMS that they have. The audit that was done on the BC Ferries, for example, indicated that the effect of confidential or voluntary reporting was negative. People were not prepared to report voluntarily because they were afraid for their jobs and afraid of reprisals by management. In fact, in the audit report—I have it here somewhere—it indicates that management actually discourages voluntary reporting. That's in the audit. It hasn't worked with BC Ferries, and that's one example that I'm aware of.

[The Chair, Conservative, Merv Tweed]

Mr. Bélanger.

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

Thank you.

I have some suggestions for the committee when we get to other business, Mr. Chairman.

I have two quick questions, Justice.

First, when it was presented to us, this bill was juxtaposed on top of the current regulatory framework. In other words, the existence of safety management systems was in addition to what was already there, and nothing that currently exists in terms of ensuring aviation safety would be removed. After reading and hearing your testimony, I cannot draw any other conclusion than that you don't share that view.

[Virgil P. Moshansky]

No, I don't. It has been described as another layer of safety, but what's not being said is that they're removing one layer of safety and substituting this one, in my view.

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

Okay.

For the other one, we won't have the time, but I just want to plant the seed. If you have thoughts on this, it might be helpful if you provide suggestions as to where I can get this information.

Although it's not in the act, it has been suggested that clause 12 would only apply in circumstances or in the designated bodies that are “low-risk”. I've been trying to get a real understanding, a grasp, of what is intended by that.

Are we talking about everybody or those who have a particular safety record and are therefore considered low-risk, or are they just certain types of...? Conversely, what is high-risk, and how does one go from high to low, and the converse?

Although I'm sure the chairman is going to cut me off, your thoughts on that would be very much appreciated, because I think we're in a bit of une brume in this case here.

[Virgil P. Moshansky]

It seems that the determination on whether a particular carrier is in a low-risk or high-risk situation is best made by a qualified, experienced aviation inspector who will go to the site and examine it and then report back, rather than relying on the carrier, under SMS, to report it to their designated executive and take care of it themselves.

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

In other words, the SM system is not a good determinant of what is high- or low-risk.

[Virgil P. Moshansky]

It is in a way, because if it's functioning properly, you have people within the organization who theoretically are prepared to pass this information on without risk of reprisal, etc. I don't see how you're going to do that successfully in the absence of whistle-blower legislation, but theoretically that's what the objective is. You get this information, you accumulate it, you study it, and then you can identify risks.

That's the way they're planning to do it, I believe. Rather than having regulatory oversight on the operations, you're going to have regulatory oversight on the SMS program, in the way it runs.

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

Thank you for your indulgence, Mr. Chairman.

[The Chair, Conservative, Merv Tweed]

Mr. Jean.

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

Thank you, Mr. Chairman.

Our understanding--and I want to repeat it, although I know it has been said a lot--is that the regulations that currently exist are going to continue. In fact, they are going to be more or less a bottom level of regulations that everybody in the transportation industry has to comply with. My understanding is that they have actually been somewhat increased by this legislation over and above what was there a couple of years ago and that SMS will actually be a system over and above that, which will increase the safety management and give a culture of safety to the airline industry. Is that your understanding as well?

[Virgil P. Moshansky]

My understanding is that the regulations will continue to exist. However, the question is who is going to enforce them.