Evidence of meeting #39 for Transport, Infrastructure and Communities in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was transport.
A recording is available from Parliament.
3:35 p.m.
Conservative
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.
February 28th, 2007 / 3:35 p.m.
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.
3:50 p.m.
Conservative
3:50 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Thank you, Mr. Chairman.
Mr. Moshansky, first of all, I offer my apologies for arriving a couple of minutes late, but I got caught up in your testimony because you were very kind to have it in writing in both languages.
This is the most food for thought that this committee has received thus far on this bill, and I thank you very much for that, sir. I will need a bit more time to play your testimony against the act, but my first conclusion is that you zero in on the same section that many of us at the committee were zeroing in on, clause 12, which is the entire thing about designated organizations.
If I were to conclude that your testimony essentially argues that clause 12 constitutes some sort of abandonment by Transport Canada of its regulatory duties, would that be out of line?
3:50 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
That's fair. Okay.
I had one in particular, but it applies to most of clause 12, and I'll read it to you, because it's the one that sort of struck me as a bit of a catch situation. It's proposed new subsection 5.31(3):
(3) A designated organization has all the powers necessary to monitor compliance with the standards and rules that it establishes.
That seems to me to be a self-enclosed system once someone is designated, whoever they may be, and there's been some discussion among witnesses as to what those organizations may be. We're told they may be low-risk, and I've been trying to get a definition of what that is. We've got some more to do there as a committee, as far as I'm concerned, but it seems to me that it's a closed system, in that once an entity is designated, basically it can set the standards and the rules it wants, and it has the power to enforce them.
Is that your interpretation, sir?
3:55 p.m.
As an Individual
That's the way I read it. Each airline will have the capacity to set its own safety standards.
3:55 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Let's presume for a second that it becomes law; we're not suggesting that it will, but let's presume. That's the task we've been asked to do--to consider that. What safeguards should this committee, in your view, introduce specifically to this section? If indeed we allow SMS to continue as they exist now, what specific restrictions would you want to impose? I sense that they're all in your testimony, but I'd like to apply them to clause 12. To phrase it another way, which of the elements of clause 12 do you think this committee should not accept?
3:55 p.m.
As an Individual
What I see is the necessity of importing into clause 12 a provision requiring regulatory oversight by the regulator, Transport Canada. If you do that, I think you will have a very effective system. At the moment, it's quite clear to most objective observers that Transport Canada is getting out of the business of regulating the carriers to a large extent, except for what they call “focused audits”. Those are in no sense audits that would enable an inspector to get an overall picture of the carrier's operations. They will be focused on the--
3:55 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Do I still have some time?
I'd like to explore something else. On Monday we had testimony here from the airport association and from the people who build the carriers. My sense is that they will all be looking for this designation as a designated organization under clause 12, so it might not just be carriers; it might be those who build, those who operate the airports, and so forth. Does that add to your angst?
3:55 p.m.
As an Individual
It certainly does, because you'll have airport authorities setting standards with nobody looking over their shoulder--not effectively; there may be some cursory audit.
3:55 p.m.
Liberal
Mauril Bélanger Liberal Ottawa—Vanier, ON
Mr. Chairman, I may have some questions on a subsequent round, but I'm very satisfied with the answers I have received thus far. It behooves us to pay heed to the testimony we've heard today.
Thank you.
3:55 p.m.
Bloc
Robert Carrier Bloc Alfred-Pellan, QC
Welcome, Mr. Moshansky. Thank you for having come here to share your knowledge of this field with us.
You say that clause 12, that talks about designated organizations, is the part that worries you the most because this could allow Transport Canada to withdraw from its responsibility. However, representatives from the air transportation industry told us on Monday that if we were to remove clause 12 of the bill, we would be eliminating its very purpose.
What do you say to that?
3:55 p.m.
As an Individual
That's partially correct, because if you take clause 12 out, you don't have SMS. What I'm saying is don't take SMS out of clause 12; put in additional responsibility on the part of the regulator to carry out its oversight function of the carriers and whoever else is involved.
3:55 p.m.
Bloc
Robert Carrier Bloc Alfred-Pellan, QC
However, some companies have already put this system in place, for example Air Transat and Air Canada. This system already exists. Should the bill impose this system so that at least all companies are obligated to have their own safety management system?
3:55 p.m.
As an Individual
An SMS system is certainly one that should be encouraged. For some years now the major carriers have had their own safety organizations within the carriers, and they're doing a great job. I don't think you have too many worries with the major carriers; the worries, I think, are in the secondary or tertiary carriers and, as I mentioned, taxi operations, ambulance service operations, and other sorts of operations that are running on marginal economics.
4 p.m.
Bloc
Robert Carrier Bloc Alfred-Pellan, QC
Despite all of the good things you have to say about safety systems—and I do believe that they are effective—, you maintain that Transport Canada should nevertheless carry out official inspections in order that we not rely entirely on the safety system's self-regulation.
Am I right in saying that?
4 p.m.
Bloc
Robert Carrier Bloc Alfred-Pellan, QC
How might we ensure that the government carry out inspections independently from any legislation? Even the federal inspectors told us that the staff cuts that are already under way will only increase over time. The more we put safety systems in place, the fewer inspectors we will have.
As parliamentarians, how can we ensure that the government's safety system, that of Transport Canada, will be maintained?
4 p.m.
As an Individual
Well, it's a matter of convincing the government that this is necessary. I think the committee has the power to make a recommendation in that respect, and hopefully the government will seriously consider it.
On the question of the number of inspectors, I might point out that at the time of the Dryden inquiry, there was a shortage of inspectors, which had developed over a period of years prior to the Dryden crash in the 1980s. At the time, there were 1,400 aviation inspectors on staff, and at that time the expert evidence I heard was that they were 400 short of the number required to ensure the full carrying out of their responsibilities.
Since then, there has been a progressive reduction in the numbers of those inspectors. I have seen some figures lately that indicate that the present number of aviation inspectors is in the area of 800 to 850, which is way down from Dryden, almost to half of what it was at the time of Dryden, when it was inadequate.
4 p.m.
Bloc
Robert Carrier Bloc Alfred-Pellan, QC
Is it logical to maintain, within the bill, the implementation of safety systems? Must we impose this obligation upon all companies or all aircraft owners? The Canadian Business Aviation Association appeared before us on Monday, and we came to the realization that small owners are unable to set up safety systems themselves.
Would the bill impose this system upon any business, whatever its size?
4 p.m.
As an Individual
I understand the Transport Canada initiative to provide, for small carriers, lesser requirements with respect to the SMS system, something that would be affordable to them. But I think every carrier should be required to have a safety organization within it. It may not be as elaborate as the SMS system required of the major carriers, but they certainly should have a safety system in place.
4 p.m.
NDP
Peter Julian NDP Burnaby—New Westminster, BC
Thank you, Mr. Chair.
Thank you, Justice Moshansky, for appearing before us today. You have very impressive credentials, and the work you've done on safety in trying to assure that we have a safe airline system is really a credit to you. I know you've been awarded many awards as a result.
I'd like to come back, because you referenced it in your initial comments, to the Canadian Federal Pilots Association. They testified before us last week.
They have been surveyed, and out of that survey what resulted is that 80% of them—these are the inspectors who guarantee, or try to provide, the safety and security of our airlines—said that this plan, Mr. Cannon's SMS plan, would prevent them from addressing and correcting safety problems in a timely fashion before they happen; 74% of those aviation inspectors think a major aviation incident is likely in Canada in the near future, I assume to the level of the Dryden tragedy; 85% of them are worried about air operators and airports regulating themselves.
Do you share those concerns that were expressed by the Canadian Federal Pilots Association?