Federal Court decision
Federal Court of Appeal decision
The minister of transport recently appealed a judicial review brought by the Canadian Union of Public Employees (CUPE).
At issue was a change in Sunwing's operating procedures relating to its staffing of flight attendants and whether the change would compromise the safety of passengers and crew members in the event of an emergency evacuation.
The Canadian Aviation Regulations (SOR/96-433) impose regulatory requirements for the purposes of protecting passengers, crew members, aircraft, aerodromes and other aviation facilities. Pursuant to Section 705.139 of the regulations, all air operators (other than all-cargo operators) must establish a flight attendant manual for the use and guidance of flight attendants.
Transport Canada has published a Flight Attendant Manual Standard, which forms the standardised template for commercial airlines. Part A of this document addresses issues relating to safety and emergency information that must be included in the flight attendant manual.
For the most part, the Flight Attendant Manual Standard is prescriptive – that is, it identifies only topics to be covered in the flight attendant manual (and not specific compliance standards). Amendments to the flight attendant manual must meet the requirements of the Commercial Air Service Standards, which again provide no specific compliance standards. Compliance with these various requirements 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 crews working on its 737-800 aircraft from one flight attendant for every 40 passengers to one for every 50. This change in policy required an exemption from the minister, which was granted subject to conditions, including a requirement that Sunwing demonstrate that it could complete a partial evacuation simulation within 15 seconds.
Sunwing attempted the demonstrations in accordance with its flight attendant manual. One of the procedures in the flight attendant manual called for the mandatory issuance by the flight attendants of a 'blocking command', which involves directing passengers not to block exit doors so that flight attendants can open them and deploy evacuation slides more easily. Sunwing failed 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 in which the flight attendants did not issue a blocking command, Sunwing met the requirements.
After its successful completion of the partial evacuation demonstration, Sunwing completed a risk assessment form in which 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 flight attendant manual regarding the change to the blocking command protocol. Transport Canada approved the amendment on November 29 2013, stating 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 the CUPE and subsequently dismissed for mootness after the Canadian Aviation Regulations were amended to allow precisely what Sunwing was seeking.
The CUPE also applied for judicial review of the verbal approval of the flight attendant manual amendment on November 27 2013 and the follow-up written approval dated November 29 2013. These decisions comprise the issues before the federal courts.
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 that the written approval was not.
The Federal Court came to four sequential determinations as articulated by the Federal Court of Appeal:
- The Federal 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 asked to make approvals under the Canadian Aviation Regulations.
- The Federal Court then concluded that ministerial approvals under the Canadian Aviation Regulations (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 Sub-section 705.139(3) presumptively reasonable.
- The court determined that no comprehensive review had taken place in this case.
- The court concluded that the decision approving the change to Sunwing's flight attendant manual was unreasonable, as no comprehensive review had taken place.
The court concluded at Paragraph 75 of its 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 Federal Court of Appeal also reviewed the decisions on a reasonableness standard, but held that only a single decision was reviewable – the November 29 2013 approval of Sunwing's flight attendant manual amendment.(1)
Justice Gleason held that the cabin safety inspector had needed to be satisfied that the flight attendant manual amendment would not compromise safety, but had failed to do so in a reasonable manner. Gleason held that:
"To approve Sunwing's proposed change to its [flight attendant manual] 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 [flight attendant manual] amendment did not compromise safety. In detailing the steps to be undertaken by Sunwing in making the change to its [flight attendant manual], 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 Federal Court of Appeal 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 the CUPE.
For further information on this topic please contact Carlos P Martins at WeirFoulds by telephone (+1 416 365 1110) or email ([email protected]). The WeirFoulds website can be accessed at www.weirfoulds.com.
(1) Canada (Transport) v Canadian Union of Public Employees, 2017 FCA 164.