TCCA Policy Statement - IPB/BIP 2020-16

October 2020

Transport Canada Civil Aviation (TCCA) has often been criticized for doing their job and for not doing their job! The Transportation Safety Board (TSB) of Canada continues to include the Regulator on the 'TSB Watchlist' alleging Regulatory Surveillance activity “... has not always proven effective at verifying whether operators are, or have become, compliant with regulations and able to manage the safety of their operations. Furthermore, Transport Canada (TC) hasn’t always intervened on a timely basis to ensure transportation operators in the air, marine and rail sectors take appropriate corrective actions”.

On the other hand, Operators argue that aviation in general is too prescriptive, that Transport Canada Inspectors often operate outside of their mandate and interfere in areas where they shouldn’t, which is often cited by certain Client Enterprises and/or individual Canadian Aviation Document (CAD) Holders as an action tantamount to abuse of power. To be honest, I don’t think I would want to be a Transport Canada Inspector anymore, given the Stress, Pressure and lack of gratitude in the attainment of their function. Irrespective of that, I doff my hat and would like to take this opportunity to thank each and every one of them for a job well done.

That said, a significant Policy Statement was recently released by Transport Canada (TC) - IPB/BIP 2020-16 (Issue 01), which can be described in no other term other than “absolutely astonishing”! The significance and consequence to the Canadian Aviation Industry will undoubtedly be deliberated over for many years to come as will the lasting effect it will have on the industry and safety, not to mention commerce.

Although TC states the purpose of the IPB ‘is to provide information and guidance…’ my personal observation is it has not been well broadcast – albeit early days - and consequently, very few people have actually read the document or even heard of it. Most people in the industry therefore, have no idea how their lives and business may be about change. The IPB is available from the TC website as a special request, although for convenience, the following link (IPB/BIP 2020-16) will downloaded the document; something I strongly encourage.

Irrespective of what side of the fence you may personally sit on in respect to the ‘Oversight’ and ‘Surveillance’ quandary, there can be no question that this new TC Policy Statement will have significant ramification and consequence; one of which I hope, will be a very interesting debate. I therefore encourage you share this as the more people know about it the better.

The following excerpts provide some clarity being extracted directly from the IPB document. SI SUR-001 (Issue 09) and SI SUR-029 (Issue 02) are also affected (italics added):

Recent regulatory changes to the Canadian Aviation Regulations (SOR /2019-295) were made relating to the legal issue regarding compliance with manuals, programs, systems or procedures required by regulations to be developed by the applicant or Canadian Aviation Document (CAD) holder and approved or accepted by the Minister.

The purpose of this Internal Process Bulletin (IPB) is to provide information and guidance on this issue and to announce changes to Transport Canada Civil Aviation’s (TCCA) policy on making findings of non-compliance for failure to comply with manuals, programs, systems or procedures.

During oversight activities, TCCA inspectors would find CAD holders or employees not complying with manuals, programs, systems or procedures required by regulation to be established. This would often generate a finding of non-compliance and request for corrective action from the CAD holder. In some cases, findings were not related to specific rules of conduct other than “failure to comply with the manual”.

Those regulatory changes were made as result of the legal issue identified by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR). Specifically, the issue of the illegal sub-delegation of rule making through the requirements of certain regulations requiring compliance with CAD holder-developed manuals, programs, systems or procedures. The SJCSR determined that such rule making was not consistent with the enabling authority stated in the Aeronautics Act.

Subsequent to these regulatory changes, there is no longer any legal authority to enforce compliance with those manuals, programs, systems or procedures developed by the applicant or CAD holder and approved or accepted by the Minister.

Policy Statement:

TCCA will no longer make any findings of non-compliance for failure to comply with CAD holder developed manuals, programs, systems or procedures, whether or not they are still required by regulation to be complied with.

No enforcement measures, including requesting CAPs, enforcement punitive measures, or certificate action, are to be initiated where a CAD holder has failed to comply with their own manuals, programs, systems or procedures.

To reflect this regulatory change, the definition of “finding” in SI SUR-001 and SI SUR-029 is revised as follows:

Finding: a factual account, supported by evidence, of how an enterprise is not in compliance with the regulations.”

NOTE: For the purpose of this IPB it is important to understand that TCCA has decided not to write findings against provisions still requiring compliance with manuals, programs, systems or procedures, currently in the CARs, and that have not yet been amended or repealed.