It really is true that most of us in aviation can’t help but speak in TLA (Three Letter Acronyms). One of them, imprinted on us from very early on, is CYA, or Cover Your Ass. Even the Honourable Minister of Transport knows that one well, as is evidenced by his latest amendment to the CARs (or, Canadian Aviation Regulations… see what I mean?), an amendment which has significantly changed the rules of compliance, non-conformance, and criminal conviction. Hold this frequency to find out more, and why right now is a highly prudent time to review your company’s manuals.
On August 8th 2019, a small and seemingly unobtrusive update to the CARs was made, which affected substantive changes to the rules that concern your Canadian Aviation Documents (CAD). A CAD is a document approved by the Minister, which provides the privilege of conducting business, and explains how you will do so in compliance with the CARs. These changes include almost all TCCA issued certificates (AOC, AMO, ATS, Manufacturer, Airport, Heliport) and, most notably, the Policy and Control Manuals referenced on each certificate. For simplification, this article uses the example of Maintenance Policy Manuals for AMOs, but please see below for the complete list of affected regulations.
Transport Canada asserts that, seemingly out of concern for our financial wellbeing, the updates to the CARs were made “because certain provisions enabled Transport Canada (TC) to impose fines on those who contravene the requirements of the manual as if they violated the CARs”. In this respect, CAR 573.04(2) (among those in the list below) was entirely repealed. This regulation previously provided that “The person responsible for maintenance shall manage the activities of the approved maintenance organization (AMO) in accordance with the policies set out in the maintenance policy manual (MPM) established under section 573.10.” This, in conjunction with the provision that mandated the Accountable Executive responsible to ensure that the PRM was following the manual, gave us the document structure that we have been using for years. That structure was, in brief: the CARs tell us what we have to do, the Standards and guidance documents tell us how we should do it (and also make a number of demands that the CARs don’t support), and we write our manuals to tell TCCA as the enforcers how we, as a company, will follow those rules (and impositions). We go happily to work and after a few years Transport Canada shows up to check that we are doing what we told them we would do in the CAD that the Minister approved. If we aren’t doing exactly what it says, we expect to get into trouble.
This raises the question, what if we’ve been following our TCCA approved manual, but something in that manual has become, or could be interpreted to be, not quite compliant to the CARs? This has the potential to become a huge issue. Through approval of our manuals, the Minister is enabling us to act in accordance, but not every TCCA inspector who signs an approval page can be expected to be a subject matter expert. For example, sometimes it may happen that an inspector whose industry experience has consisted of line inspections on Air Canada’s 737 fleet is assigned to an avionics specialty shop. By that inspector’s signing of the AMO’s Policy Manual, the Minister is somewhat culpable in his granting of the privileges exercised by the company, processes which may have been misunderstood by the inspector. Now, if the inspector comes back in a few years and decides that what the company has been doing was wrong, the company has reasonable recourse to say “we were doing exactly what you approved us to do, in the way that you approved us to do it”. This was a really good defence and, although no one wants to end up in tribunal or court, misunderstandings do happen. The August CARs amendment has effectively removed this defence from the industry’s toolbox, yet still places the approval of our manuals, and thereby our conduct of business, squarely in the hands of those who may become accusers. It gets better…
In the past, fines were levied when non-compliance to a manual was alleged, because such sanctions are stipulated by the Aeronautics Act, in respect of designated provisions of the CARs. Once in receipt of such an accusation, a company had redress at tribunal, where the burden of proof is on the Minister. Note that the punishment for proven (or admitted) non-compliance to a designated provision is specifically restricted, by the Aeronautics Act, to monetary sanctions. The August 8th amendment removed these provisions from designated status, which means that non-compliance now exposes any alleged offender (and their superiors) to the potential for search, seizure, and conviction under the Act.
With the Minister reducing his exposure to liability by no longer requiring compliance to TCCA approved manuals, Transport Canada will be re-training its surveillance and enforcement staff. You can bet the company on that, but why would you? Bear in mind that the conformance of your manual to regulatory requirements can arbitrarily rest on the interpretation of one phrase, or even one word. Diligence would suggest the engagement of a regulatory expert to ensure your company’s ongoing compliance to the changing regulations. Due diligence is your best defence. At Sitka Aerotech Support, we do that.
The following is consolidated from http://www.gazette.gc.ca/rp-pr/p2/2019/2019-08-21/html/sor-dors295-eng.html. Notes and bold type have been added for clarity.
“Certain provisions in the CARs require compliance with manuals developed by regulated entities. A regulated entity may incur a fine of up to $25,000 for failing to adhere to, implement or comply with policies and procedures contained in these manuals. The SJCSR recommended that the CARs be amended because certain provisions enabled Transport Canada (TC) to impose fines on those who contravene the requirements of the manual as if they violated the CARs. This was not fully consistent with the enabling authorities under the Aeronautics Act.
The following 11 (Note: should be 12) provisions have been amended or repealed to remove the requirement to follow policies and procedures contained in manuals. Where the requirement for compliance with the manual was specifically designated, that designation has also been repealed.”
Subsection 302.305(1) — This subsection has been amended to clarify that operators must establish and maintain an Airport Wildlife Management Plan. Note - remains a designated provision.
Subsection 302.305(4) — Repealed. Note - formerly a designated provision which stated: The operator of the airport shall implement the plan.
Subsections 302.503(2) — This subsection has been amended to remove the reference to the airport operations manual while maintaining the obligation of the certificate holder to ensure distribution of quality assurance findings from SMS audits. Note - the rest of the subsection remains a designated provision.
Section 305.03 — This section has been amended to remove reference to the heliport operations manual. The prohibition against operating a heliport unless a heliport certificate has been issued in respect of that heliport is retained. Note - the rest of the section remains a designated provision.
Subsection 305.53(3) — Repealed. Note - formerly a designated provision.
Subsection 561.07(3) — Repealed. Note - formerly a designated provision which stated: Subject to subsection (4), any person who performs work under a manufacturer certificate shall comply with the manual.
Subsection 573.04(2) — Repealed. Note - was subordinate of a designated provision and formerly stated: The person responsible for maintenance shall manage the activities of the approved maintenance organization (AMO) in accordance with the policies set out in the maintenance policy manual (MPM) established under section 573.10.
Paragraph 573.03(1)(e) has been amended to remove the requirement to follow the maintenance policy manual. Note - the rest of the paragraph remains a designated provision.
Subsection 704.33(3) — This subsection has been amended to remove reference to the company operations manual. Fuelling an aircraft under this provision is to be carried out in accordance with procedures that meet the Commercial Air Service Standards. Note - the rest of the subsection remains a designated provision.
Subsection 705.03(1) — Repealed. Note - was subordinate to a designated provision and formerly stated: The operations manager shall manage the activities of the air operator in accordance with the company operations manual established under section 705.134.
Subsection 705.40(3) — This provision has been amended to remove reference to the company operations manual. Fuelling an aircraft under this subsection is to be carried out in accordance with procedures that meet the Commercial Air Service Standards. Note - the rest of the subsection remains a designated provision.
Subsection 805.03(2) — The reference to the manual created under subsection 805.02(2) of the CARs by the Air Traffic Services (ATS) operations certificate holder in this subsection has been removed. The obligation of the ATS operations certificate holder to ensure distribution of, and corrective action is taken to address, findings from its quality assurance program remains. Note - the rest of the subsection remains a designated provision.