Critics slam changes to aircraft safety inspection system

Transport Canada's man in charge of aviation safety doesn't like the term SMS, referring to it as a "buzzword." But Merlin Preuss has nevertheless spent a fair bit of time recently defending the concept, which he says will lead to a more accountable aviation industry — and safer skies. Critics such as retired justice Virgil Moshansky, on the other hand, argue that Transport Canada's Safety Management Systems allows the industry to police itself, which is akin to "putting the fox in charge of the hen house."

So as we move into an era of deregulation for many major industries, who are Canadians to believe?

SMS (Safety Management Systems), the shorthand Transport Canada uses to describe its new approach, makes the aviation industry responsible for implementing systems designed to ensure safe air travel in Canada. Under the concept, the federal department will do fewer direct safety audits of air carriers, instead keeping watch over safety checks done by the airlines themselves.

In a spring report, federal Auditor General Sheila Fraser examined Transport Canada's march toward fully implementing its air safety management system. The report uses the following example to define the safety management system:

"For example, instead of conducting an inspection to assess whether the tires in the aircraft landing gear are sufficiently inflated, Transport Canada will assess whether a company has the systems in place to ensure that the tires are inflated, following up if necessary. The goal is to make companies more accountable for the management of risks. Transport Canada will still be accountable for safety oversight. The department maintains that safety management systems will allow more thorough identification and resolution of potential safety problems, making the transportation system safer."

'I would strongly recommend that the federal government assume a proactive approach to taking the pulse of the aviation safety in this country, before another major air disaster occurs, as is being predicted by many responsible and informed individuals in the aviation industry.' —2007 report by retired judge Virgil Moshansky

SMS is akin to trends in other industrial sectors, such as the food industry. In the wake of a massive meat recall caused by a deadly outbreak of listeriosis in August this year, the Canadian Food Inspection Agency is facing questions about allowing the industry to, in the words of the Agriculture Union of the Public Service Alliance of Canada, "police itself."

Though SMS was introduced in the late 1990s, it was only in 2005 that Transport Canada began asking larger carriers to start developing their own systems. According to the auditor general, the entire airline industry is expected to have safety management systems in place between 2011 and 2013. "Until then, Transport Canada has the task of managing the transition, while continuing its oversight responsibilities," the auditor general's report says.

Assessing SMS

One of the findings after the inquiry into the 1989 crash of an Air Ontario Fokker F-28 jet in Dryden, Ont., in which 24 people died, urged Transport Canada to hire more inspectors. In a 2007 report entitled The Role of the Judiciary in Aviation Safety: The Inside Story and Legacy of Dryden, retired judge Virgil Moshansky, who headed up the Dryden inquiry, repeated a warning that he had issued to parliamentarians months earlier:

"Having regard to the documented systemic problems in the aviation industry which have been surfacing for some time now, I am of the view that, 18 years after the Dryden crash, another wakeup call to Transport Canada is overdue. I would strongly recommend that the federal government assume a proactive approach to taking the pulse of the aviation safety in this country, before another major air disaster occurs, as is being predicted by many responsible and informed individuals in the aviation industry."

Critics like Moshansky argue that Transport Canada is eliminating many of the checks and balances it needs in order to ensure safety, at a time when the department is relying on the industry police itself.

Lack of resources

John Scott, who has been a pilot for 42 years, used to work for the federal aviation safety board as an accident investigator and now speaks for the Retired Airline Pilots Association of Canada. He remembers a time when Transport Canada had more inspectors than it currently employs.

'According to the International Civil Aviation Organization (ICAO), the rapidly expanding aviation industry and the limited resources of oversight authorities make it increasingly difficult to sustain the existing approach to managing safety.' —Auditor General Sheila Fraser

"They would go to airlines, or flight schools, and they would be the ones conducting the tests. They would do the evaluations and they would give you your ticket," Scott said. "Over time, the number of inspectors has continually decreased. I'm not going to say that Transport Canada has abrogated their responsibility, but the responsibility for checking has essentially devolved to the companies."

In her report, the auditor general pointed out that "in 2006, air transport in Canada carried 99 million passengers, up 6 per cent from 2005, and the number is expected to grow 40 per cent from 2006 to 2015. According to the International Civil Aviation Organization (ICAO), the rapidly expanding aviation industry and the limited resources of oversight authorities make it increasingly difficult to sustain the existing approach to managing safety."

During his appearance before Parliament's public accounts committee  this summer, Preuss, Transport Canada's director general of civil aviation, was asked about the number of inspectors.  He conceded there were 134 vacancies, but offered little elaboration. In an e-mailed response, Transport Canada explained that 15 of those vacancies are engineers — as opposed to inspectors. The department's inspectorate workforce now stands at 737. Taking the vacancies into consideration, Transport Canada is unable to fill 15 per cent of its inspectorate workforce.

Mike Wing, national president of the Union of Canadian Transportation Employees, which represents the civil aviation safety inspectors who work for Transport Canada, said Preuss's testimony shows the number of people conducting inspections is diminishing. That means there will be increased reliance on the industry to monitor itself with little oversight from Transport Canada, Wing said.

"This is about changing the type of inspection that we do," he said. "We're going to be primarily just taking a look at safety management. There will be much fewer specialists in the system. There will be people trained on SMS and things to look for in safety management systems, but it doesn't mean that those people have got the technical background that the inspectorate has traditionally had to ensure safety."

While Preuss conceded that the number of inspectors Transport Canada will need under SMS is an open question, he categorically denied that his department is abrogating responsibility for safety. Transport Canada will still conduct its own inspections under SMS, but in addition, it will now monitor the industry's safety systems, which are much better than they used to be, he said.

"No, we're not even asking [the industry] to police themselves. We are asking them to identify hazards before they become big problems … and you break a rule, you've created a hazard virtually by definition," Preuss said. "So one of the things we've asked them to do is put a system in place that shows us that yesterday and today and tomorrow, you're in compliance with the current regulations. And that gets inspected, and we have all the enforcement tools we had yesterday and we will apply them — and we have."

However, an internal memo from November 2006 casts some doubt on the vigilance with which the department will monitor the industry. In his paper, The Role of the Judiciary in Aviation Safety, Moshansky sums up that memo: "Transport Canada instructed its aviation inspectors not to initiate any further enforcement investigations into regulatory contraventions and to close all open cases against SMS certificate holders."

Whistleblower protection

Another important check on the system is protection for employees — whether with the airline industry or Transport Canada - who speak out about safety concerns. The Accountability Act offers some protection, and so, too, does bill C-7, the piece of legislation that gives Transport Canada the legal authority it needs to fully implement the security management system. The bill is currently in its third reading before Parliament and has not yet passed into law.

In order to get a sense of how important whistleblowers can be, one need only look at the United States and the experiences of Bobby Boutris and Doug Peters. The two inspectors with the U.S. Federal Aviation Administration spoke out publicly about safety concerns at Southwest Airline after unsuccessfully attempting to deal with the problems internally.

In Canada, bill C-7 does offer some protection, although it has no specific whistleblower protection.

"Although whistleblower protection was not introduced, the House [transport] committee agreed to add a number of new provisions to the bill that provide additional protection for employees who provide information under management systems and voluntary reporting process," states a Library of Parliament summary of the progress of bill C-7.

The summary has this to say about the additional protection: "The House committee further clarified under the new section 5.392(3) that a Canadian aviation document holder shall not use information disclosed under the management system in disciplinary proceedings against the employee who disclosed the information unless sanctioned under the management system. It also added section 5.392(4) to protect an employee who disclosed information in good faith under the management system against reprisals, including measures that adversely affect them, the employee's employment, or working conditions, from the Canadian aviation document holder."

As far as Transport Canada's director of policy and regulatory services, Franz Reinhardt, is concerned, bill C-7 protects employees.

"Transport Canada needs as much safety information as possible, so that's why we encourage employees to report internally through non-punitive, voluntary reporting within the company to make sure the company will have identification of safety hazards and can take corrective measure[s] as soon as possible, even before small incidents evolve into bigger accidents," Reinhardt said. "And in bill C-7, we have drafted the provisions for a whistleblower protection for individuals reporting internally who would be afraid of reprisals … regarding their employment. So if they do avail themselves of that internal reporting system, they may rest assured that, if no followup is made and they report publicly, that they will be protected and there will be no danger for their employment."

Union president Wing disagreed with Reinhardt's assessment.

"I don't see anything in the legislation that says that is the case … the [transport] committee did have an amendment to ensure whistleblower protection within this act. They [parliament] turned down that amendment," Wing said. "So in my mind, this act does not have that protection."

Scott of the Retired Airline Pilots Association of Canada also said there isn't enough protection.

"Until the Canadian government through the legal body produces a very clear whistleblower protection for aviation, then we're not there yet," he said.

"If the Canadian government were to have a look at the whistleblower protection that's been established in the United States, that is as good a founding to use as a premise … because they have done an awful lot of research," Scott added.

In addition to the need for increased traditional inspections and better whistleblower protection, critics such as Scott and Moshansky also feel there should be regular inquiries into air safety, preferably of a judicial nature, where witnesses can be compelled to testify.

They also feel that a third party, much like the office of the federal auditor general, should be set up to monitor whether Transport Canada is doing its job.

Without these checks and balances, the critics charge, Canada is setting itself up for potential disaster.