Transport Committee on June 6th, 2007

[Don Bell, Liberal, North Vancouver, BC]

I'm sorry, but I need to get this clarified in my mind.

If I understand the import of proposed subsection (2), it's that with the internal process that you've made reference to--the SMS process--if an employee comes forward and brings something to the attention of the company within that process, and if the company acts upon it in an appropriate way, let's say, that's satisfying, the issue is dealt with. So the safety issue has been dealt with.

If the company doesn't deal with it, and if the employee is not aware of the fact that they have other avenues to go to, appeals--if you want to call it--directly to this committee, to Transport Canada, to make the issue public outside of this realm, having first gone through the process that's required.... And then subsequently there is a problem, an incident that comes to the attention of Transport Canada. You then conduct an investigation and find out there's information that came in through the SMS. Then the thing is, according to this, that information cannot be used to prosecute against the document holder. That's what I'm understanding on this.

[Franz Reinhardt]

It cannot be used for enforcement purposes, but it can be used under section 7.1, which is certificate action. Transport Canada can suspend a certificate. It can be a 30-day suspension, 60 days; it can be a year. It can be a cancellation of a certificate under section 7.1 of the act, which states that the minister may suspend if organizations no longer meet the conditions of issuance of their certificate. The minister has full authority. If he needs evidence to go before the tribunal to substantiate the fact that a company is not performing, the minister can do it. The protection is there, and you can still use section 7.1.

[Merlin Preuss]

There's another way to close that loop. The specific item reported is not against which enforcement action will be taken. What will happen is that if a company does not respond appropriately, in accordance with the standards and expectations of the SMS, then we will go after the company using clauses like that to gain compliance. If it isn't reported that the company is not doing something that they should be doing, then we're back to where we were yesterday, which is talking about forensic audits to try to catch them.

Here we have the information coming freely to the company, in front of our eyes, where we can watch and then see what they do. If they don't act appropriately, we'll take certificate action. It bumps it all up one level and becomes much more serious for a company if they don't have the systems to deal with systemic problems that show up.

[Don Bell, Liberal, North Vancouver, BC]

Would that information be available, then, in the case of a public carrier, such as we're talking about potentially here, that has passenger service, for example? It could end up being a situation where that information would be available to other parties who might have a legal case. I'm thinking of relatives of a passenger who dies, for example.

[Merlin Preuss]

It's no different from today, is the answer. If...[Inaudible--Editor]...the report we have to take action in that manner--just the way I've described--that becomes a validation exercise, a type of inspection. That is then reportable and the report is then ATIP-able.

[The Chair, Conservative, Merv Tweed]

Mr. Bélanger.

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

Mr. Chairman, I just want to make sure we're still in the same frame of mind here or of the understanding that I had last week. If this clause is adopted as is, without the amendment, does the clause subtract any company or any operator who has an SMS from any obligation that they have outside of the SMS to report any incident, any occurrence, and to obey whatever regulation there may be?

[Franz Reinhardt]

It does not. Under the TSB act and regulations, there are reportable occurrences, including incidents and accidents, and if they don't report them, they can be sanctioned pretty heavily.

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

Does it remove any authority from Transport Canada or the safety board or any other institution that has authority from using that authority, again, outside of the SMS information?

[Franz Reinhardt]

It does not.

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

All right. So in effect, this is consistent with, I guess, the creation of a new space, in which we are trying to incite both employees and employers to generate information. It's an addition over and above what currently exists. It does not detract from it.

[Franz Reinhardt]

That's correct. In summary, it's the best of both worlds, Mr. Bélanger.

[The Chair, Conservative, Merv Tweed]

Mr. Julian.

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

I'm not sure that's true, Mr. Chair. The reality is that we have over a hundred vacant flight inspector positions--according to the information we've received before this committee--that haven't been filled. So the regulatory ability of Transport Canada has clearly been impacted.

What we have in the text here is very clearly the exclusion of any measure or any proceeding for a document holder. So given the proposed section there, there may be a contradiction between that and section 7.1. Very clearly, there would be, I think, some incoherence around definition, and I think in that whenever there is incoherence, there is a time element involved. We're talking about aviation safety. We can't broker delays while we fiddle around with whether or not a company can be prosecuted for what are dangerous or irresponsible actions.

So very clearly in the text of the law, that information is excluded. There cannot be the taking of any measure in any proceedings. It may not be what the government intended, but that is what is in the bill.

So I would suggest we adopt this amendment. It may allow the government then to get clearer wording around that proposed section, because very clearly, a company that has Transport Canada taking measures against it for information that has come through the system could rest on that section in any legal action against the government. That means delays.

I understand that perhaps the intention of the government is not reflected in that proposed section. The proposed section needs to be redone, and the simplest and most effective way to do that is to remove “the document holders” and allow the government to come back with amendments next week.

[The Chair, Conservative, Merv Tweed]

Monsieur Carrier.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

Thank you.

Thank you. Coming back to appreciably the same subject, all the information we are talking about concerns what is contemplated in subsection (1). It concerns information that staff or employees might disclose. Subsection (2) states that no proceedings may be instituted against an aviation document holder.

We are not talking about public disclosure here. Consequently, that remains internal. However, if the Department of Transport can take no measure in response to an information in due form, one may wonder what purpose an information serves. Any utility is ultimately removed.

[Franz Reinhardt]

I can answer you, Mr. Carrier. Mr. Julian's error was in not reading the section in full. You must read subsection (2) in full. I'm going to read it in English.

(2) Information disclosed under a process referred to in subsection (1) may not be used in the taking of any measure, or in any proceedings, against the document holder or the employee who disclosed it for a contravention of this Act or of an instrument

It's only for enforcement purposes. They can still be used, as we mentioned earlier, in paragraph (c) there:

(c) the Minister considers that disclosing the information or making it available is necessary for the purposes of section 7.1.

If we want to take certificate action, it's clear under section 7.1. I can read you section 7.1 too, if you want, but I don't think it's necessary.

[Robert Carrier, Bloc, Alfred-Pellan, QC]

I no longer understand.

[The Chair, Conservative, Merv Tweed]

Mr. Laframboise.

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

You are complicating matters. I'm talking from a purely legal point of view. Paragraph 5.392(1)(c) enables the minister, for the purposes of section 7.1, to obtain the information and to use it to cancel the licence and so on. However, subsection 5.392(2) states, and I quote:

(2) Information [...] may not be used [...]

[Franz Reinhardt]

I can give you an example, Mr. Laframboise. I think that will simplify matters.

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

No I'm talking from a legal point of view. It's a legal problem.

[Franz Reinhardt]

Yes.

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

I don't want one clause to be used against another.

[Franz Reinhardt]

Careful thought was given to this when these clauses were drafted. If people report numerous minor violations, from one to 10 minor violations, but the system and the company are working well, the minister, seeing that, will not use those figures against the company for each of the minor violations. On the other hand, if at some point the minister thinks that the information in the aggregate shows a deficiency in performance or control by the company, he may use section 7.1 and adopt measures, suspend the company's certificate. He may do that, but he undertakes not to adopt measures for each minor violation committed.