View PDF: 2017-04 (Sep-28-17)
The Minister of Transport (the “Minister”) recently appealed from a judicial review brought by the Canadian Union of Public Employees (CUPE).
At issue was a change in the operating procedures relating to Sunwing’s staffing of flight attendants and whether the change in question would compromise the safety of passengers and crew members in the event of an emergency evacuation.
In Canada, the Canadian Aviation Regulations, SOR/96-433 (CARs) impose regulatory requirements for the purposes of protecting passengers, crew members, aircraft, aerodromes and other aviation facilities. Pursuant to section 705.139 of the CARs, every air operator (other than all-cargo operators) must establish a Flight Attendant Manual (FAM) for the use and guidance of flight attendants.
Transport Canada publishes a Flight Attendant Manual Standard which forms the standardized template for commercial airlines. Part A of the Flight Attendant Manual Standard addresses issues relating to safety and emergency information that must be included in the FAM.
For the most part, the Flight Attendant Manual Standard is prescriptive. That is, it only identifies topics to be covered in the FAM and not specific compliance standards. Amendments to the FAM must meet the requirements of the Commercial Air Service Standards, which again does not provide specific compliance standards.
Compliance with these various requirements, including FAMs, is overseen by Cabin Safety Inspectors who are guided by the Cabin Safety Inspector Manual (CSIM), developed by Transport Canada.
In June 2013, Sunwing sought to change the staffing levels of the flight crew working on its 737-800 aircraft such that the new flight crews would no longer consist of one flight attendant for every 40 passengers, but now would be comprised of one flight attendant for every 50 passengers. This change in policy required an exemption from the Minister which was granted subject to conditions, including a requirement that Sunwing demonstrate that it was able to complete a partial evacuation simulation within 15 seconds.
Sunwing attempted the demonstrations in accordance with its FAM. One of the procedures in the FAM called for the mandatory issuance by the flight attendants of a “blocking command”. The command involves directing passengers not to block exit doors so that flight attendants could more easily open the aircraft doors and deploy evacuation slides. Sunwing was not able to meet this standard after three attempts.
At a debriefing session on November 27, 2013, the Cabin Safety Inspector suggested that making the blocking command discretionary would enable Sunwing to succeed. In a subsequent test where Sunwing flight attendants did not issue a blocking command, Sunwing met the requirements.
After successful completion of the partial evacuation demonstration, Sunwing completed a risk assessment form where it concluded that any risk to safety in making the blocking command non-mandatory would be mitigated by the fact that it would be unlikely that passengers would be blocking the doors that a flight attendant needed to access during an evacuation. No testing was done to verify this conclusion.
Sunwing then provided the Cabin Safety Inspector with a written request for approval of the amendment to the FAM regarding the change to the blocking command protocol. Transport Canada approved the amendment on November 29, 2013. It stated as follows:
Sunwing Airlines Inc.’s Cabin Crew Safety Bulletin No. 2013-10 meets the requirements of the Flight Attendant Manual Standard (TP12295) and therefore, in accordance with subsection 705.139(3) of the Canadian Aviation Regulations is hereby approved.
Another Transport Canada inspector found that Sunwing had met the condition for the approval of the staffing exemption to allow for a 1:50 flight attendant to passenger staffing ratio. That decision was judicially reviewed by CUPE and subsequently dismissed for mootness after the CARs were amended to allow precisely what Sunwing was seeking: a 1:50 flight crew/ passenger ratio.
CUPE also applied for judicial review of the verbal approval of the FAM amendment on November 27, 2013 and the follow-up written approval dated November 29, 2013. These decisions comprise the issues before the Federal Courts.
Federal Court Decision
The Federal Court accepted that there were two decisions – one verbal and one written. Justice Brown reviewed the decision on a reasonableness standard and held that the verbal decision was reasonable but the written approval was not.
The Federal Court came to four sequential determinations as articulated by the Federal Court of Appeal:
The Court first held that the CSIM, a Transport Canada guideline aimed at ensuring safety, provides a benchmark for the process that should be undertaken by Cabin Safety Inspectors when they are asked to make approvals under the CARs.
Second, the Federal Court concluded that ministerial approvals under the CARs (at least where safety is implicated) require a substantive review of the safety implications of a request. The Federal Court noted that the comprehensive review process identified in the CSIM would provide the necessary substantive administrative review required to make a decision under subsection 705.139(3) presumptively reasonable.
Third, the Court determined that no comprehensive review took place in this case.
Fourth, the Court concluded that the decision approving the change to Sunwing’s FAM was unreasonable as no comprehensive review had taken place.
The Court concluded at paragraph 75 of the Reasons that:
… The failure to conduct the required “comprehensive review” casts doubt on the integrity of the ultimate decision and has the potential to undermine confidence in the application of Transport Canada’s air passenger safety mandate. Specifically, this failure could jeopardize passenger and crew safety in an emergency evacuation, as outlined below. Therefore in my view the failure to conduct a “comprehensive review” was in this case unreasonable, in particular because the Risk Assessment Transport Canada requested was neither reviewed nor considered by Transport Canada itself.
Federal Court of Appeal Decision
The FCA also reviewed on a reasonableness standard but held only a single decision was reviewable – the November 29th approval of Sunwing’s FAM amendment.
Justice Gleason held that the Cabin Safety Inspector had to be satisfied that the FAM amendment would not compromise safety. The Cabin Safety Inspector failed to do so in a reasonable manner. She held that:
… to approve Sunwing’s proposed change to its FAM to make the blocking command optional as opposed to mandatory, the Cabin Safety Inspector was required to be satisfied that the amendment did not compromise the safety of passengers or crew on board Sunwing’s flights. And, for the Inspector’s decision to be upheld under the reasonableness standard of review, this Court must be able to ascertain whether the Inspector made such a determination, and, if so, whether there was a reasonable basis for it. In the present case, in the absence of reasons for the decision, the Court must have regard to the record to assess the reasonableness of the Inspector’s decision.
In light of the record, I cannot conclude that the requisite analysis was undertaken by the Inspector or discern how he could have concluded that the proposed FAM amendment did not compromise safety. In detailing the steps to be undertaken by Sunwing in making the change to its FAM, the Inspector reminded Sunwing that it was required to undertake a risk assessment, yet that assessment was never reviewed by the Inspector. Moreover, the assessment was cursory and there appears to have been little or no evidence to support the conclusions reached in the assessment.
The FCA agreed with the Federal Court and set aside the November 29, 2013 decision.
The Minister’s appeal on this point was dismissed, with modest costs payable to CUPE.
Canada (Transport) v. Canadian Union
of Public Employees, 2017 FCA 164