In the first of a new occasional series of interviews with lawyers at airlines, ALN speaks to Rob McCulloch – director, legal at Canadian low-cost airline WestJet – about his background in the aviation industry, the challenges and rewards of his role, and the opportunities and pitfalls of the changing regulatory landscape in Canada.
McCulloch began his legal career as a summer student with Borden Ladner Gervais in Calgary while pursuing his LLB at the University of Alberta and went on to work as an associate in the firm’s banking group. In 2013 he decided to pursue a “life-long interest” in aviation and take an in-house counsel job at WestJet, where he advised the operational side of the business on a range of issues, including technical operations, ground handling, procurement, network planning and alliances, distribution, domestic and international airports, and real estate.
ALN began exchanging emails with McCulloch shortly after he was named director at the carrier in May 2018 and the Q&A below is an edited version of that back-and-forth.
Rob McCulloch
What drew you to the aviation industry?
I was fortunate to grow up in the industry. My father is an aircraft mechanic in Whitehorse, Yukon, and owns and operates Whitehorse Air Maintenance. In addition to the maintenance side, our family owns and operates an aircraft charter and tour company – Kluane Glacier Air Tours. I grew up working in the family hangar fixing single and multi-engine aircraft alongside my dad and brother, and found the day-to-day operations always stimulating. My brother followed in my dad’s footsteps and also became an AME, and later a helicopter pilot. It’s certainly a family affair, and we’re always sharing stories of our experiences.
What particular challenges face in-house lawyers at airlines?
The biggest challenge I see is the dynamic nature of the industry – there’s certainly never a dull moment. We work in a very competitive, heavily regulated space, with over 100 destinations in 20 countries.
How does the airline manage its response to international regulatory challenges?
We have a regulatory affairs department that handles the majority of these issues. If necessary, we rely on external counsel in foreign jurisdictions.
How widely dispersed is the legal team?
Not at all! We have a group of seven lawyers (including our general counsel) that all work at our headquarters in Calgary, Alberta. We have an excellent working relationship with our Canadian regulators.
What issues are currently keeping you busy?
Canada is proposing Air Passenger Protection Regulations. The consultation period, during which we made written submissions to the Canadian Transport Agency, closed at the end of August. These Regulations will apply to the whole aviation sector and have the potential to significantly impact operators.
What reforms are you looking to see? What would be a good outcome for WestJet from the legislative process?
We’re hopeful the Canadian Transportation Agency doesn’t follow the EU approach, specifically with respect to Regulation 261. We feel Regulation 261 has sought to manage relations between passengers and airlines and impose standards of service (or compensation) rather than allow the market to find a level. We expect the regulations to only apply to domestic flights, as the Montreal Convention is the exclusive regime for international carriage. Ultimately, we’re hopeful the regulations will continue to allow airlines to be innovative in resolving guest issues, and also ensure airlines are not held responsible on a strict liability basis (as is often seen with Regulation 261).
How does WestJet respond to passenger rights issues when they arise?
Due to the public nature of our industry, air carriers are regularly in the media for passenger issues. We have an excellent group (internally referred to as Guest Solutions) that handles these matters – we feel it’s best to resolve issues directly with the guest, outside of the public realm.
What is your relationship with the wider management team and the board? How is compliance handled across the company?
I report to our executive vice president of corporate services and general counsel. I am secretary for the safety health and environment committee meetings of the board of directors and I regularly provide counsel to various management members. With respect to compliance, WestJet is a publicly traded company and complies with C-SOX [Bill 198, modelled on the Sarbanes-Oxley Act in the US] and has strong internal controls with respect to relevant legislative and regulatory requirements.
When do you turn to external law firms, and what do you look for when retaining them?
We turn to law firms mostly for specialised matters, or issues falling outside of Canadian law. For example, a claim arising in the EU is best handled by an EU firm with expertise in local law. To the extent we have the internal capacity, we prefer keeping costs low and performing the work internally. In looking for external counsel, expertise is most important, followed by cost and timeliness – given the nature of our industry, responding promptly is immensely important.
Do you have a regular panel of law firms your use as outside counsel? Do you see yourself as hiring the firm primarily, or the individual lawyer?
Yes, we use a number of firms as outside counsel. I usually work closely with individual lawyers – as such, I would view it as hiring the individual. In the EU, I primarily work with Simon Phippard of Bird & Bird, and in Canada, Michael Dery of Alexander Holburn.
What development or achievement do you take the most pride in from your tenure at WestJet?
To date, the execution of a purchase agreement for 65 737 MAX aircraft and accompanying CFM LEAP engine agreements. It was (and is) amazing to see tangible results – the very reason I joined WestJet. The agreements were signed in September 2013, with the first aircraft delivered in October 2017, making WestJet the first commercial carrier in Canada to take delivery. Prior to the commercial entry into service, a number of WestJetters were invited on a special “first Canadian flight” of the MAX aircraft – a special moment for all involved, and a memory I won’t soon forget.
