Regulations and You
- Issue 3/2012
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A Just Culture
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Suspension of Canadian Aviation Documents—Immediate Threat to Aviation Safety
by Jean-François Mathieu, LL.B., Chief, Aviation Enforcement, Standards, Civil Aviation, Transport Canada
In a previous Aviation Safety Letter (ASL) article, we indicated that Transport Canada Civil Aviation (TCCA) has recently published internal guidance material related to the suspension or cancellation of a Canadian aviation document (CAD), typically a licence or certificate issued by TCCA. This information was published in TCCA staff instructions SUR-014, SUR-015 and SUR-016. In that article, we indicated that we would delve further into the legal authority the Minister has to suspend or cancel these documents.
We would now like to provide some detail regarding the suspension of a CAD under the authority of section 7 of the Aeronautics Act (the Act), that is to say—the suspension of a CAD in response to an “immediate threat to aviation safety”.
While the Act gives the Minister of Transport the authority to suspend a CAD when there are grounds to believe there is an immediate threat to aviation safety, the Act does not provide much detail in describing what an “immediate threat to aviation safety” is. For that reason, we have attempted to define it by rationalizing the two key words used in the phrase, those being: “immediate” and “threat”, as they relate to aviation safety.
An immediate threat to aviation safety is a threat to the safety of an aircraft that creates a reasonable expectation that unless immediate action is taken to neutralize the threat, an aircraft accident causing death, injury or significant damage to property is likely to occur imminently.
While a common use of the word “threat” can be interpreted rather broadly, in the context of aviation safety, and for the purpose of providing guidance to TCCA inspectors, we have defined “threat” as a condition that is likely to pose a risk of injury, death or significant property damage, as a result of an aircraft accident. While other threats may exist within aviation, such as risks to the health of ground personnel related to working conditions, or financial risks related to business operations, the “aviation safety” context limits the scope of the section 7 authority. The word “immediate” can be interpreted as qualifying something that currently exists or is about to exist imminently or without delay. Therefore, an immediate threat to aviation safety is a threat to the safety of an aircraft that creates a reasonable expectation that unless immediate action is taken to neutralize the threat, an aircraft accident causing death, injury or significant damage to property is likely to occur imminently.
An example of an “immediate threat to safety” would be a pilot who refused to de-ice and who proceeded for takeoff after he had been made aware that there was ice or snow adhering to the critical surfaces of his aircraft. In this context, the “threat” that is likely to pose a risk of death, injury or significant property damage is an aircraft accident resulting from the imminent attempt to take off in the knowledge that the performance of the aircraft would be degraded by the ice or snow adhesion. Therefore, a TCCA inspector could, where verbal notification of the surface contamination was being ignored by the pilot, serve the pilot with notice of pilot licence suspension. Wilfully disregarding a suspension is an additional offence of a serious nature under section 7.3 of the Act.
Due to the immediate nature of such a threat, a CAD suspension under this section takes effect immediately, and no procedural constraints delay the coming-into-effect of this type of suspension—except for the requirement to provide a notice to the holder of the CAD whose CAD is being suspended. Additionally, once the threat has been neutralized, the suspension is to be withdrawn. This authority is used only if an immediate threat to aviation safety exists. The Act recognizes and identifies the transient nature of such threats by providing authority to suspend only; cancellation of a CAD is not authorized under this section of the Act. A CAD suspension under section 7 is not used to address past regulatory non-compliance or any other identified safety deficiencies that are not of an urgent or immediate nature; it is used only to address existing and identifiable threats to safety that are of an urgent or immediate nature. Other actions can be taken with regard to the circumstances that lead to the immediate threat developing, but any other action would have to be taken under different sections of the Act, and such actions would take longer to implement and would involve more procedural fairness in their application.
Certainly, it would be a rare circumstance where this authority would need to be used; there are not many CAD holders (pilots, operators, etc.) who, when apprised of an immediate threat to aviation safety, would continue the aircraft operation, knowing that an accident is imminent. In fact, should such a circumstance arise, that is—where a CAD holder is not concerned enough about their own safety or the safety of their passengers to put a stop to a flight that is likely to end in an accident—a suspension of a licence or certificate may not be a strong enough response to eliminate the immediate threat. In these cases, it may be necessary to use the authority under a different section of the Act (section 8.7) to detain the aircraft until the safety issue can be dealt with in another way.
And so, while this authority is rarely used by TCCA, it is important that it exists and that CAD holders know that TCCA inspectors have the legal authority to take immediate action, and will do so whenever necessary to neutralize an immediate threat to aviation safety.
For more information on the subject, please refer to Staff Instruction SUR-014.
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