"PUBLIC INTEREST" and how it pertains to Transport Canada

[Gilles Hudicourt]

http://www.tc.gc.ca/eng/civilaviation/o ... #appendixe

Civil Aviation Directive (CAD) No. REG-003

Exemptions from Regulatory Requirements

1.0 INTRODUCTION

1.1 Policy Objective

The purpose of this document is to define parameters on how the Minister’s opinion is formed, and against what criteria, in granting exemptions from regulatory requirements and to ensure the exemption process is equitable to all those who come forward with a request, while simultaneously ensuring the best interests of the public are protected.

Public interest—The concept of public interest has no fixed meaning in law and its scope may be broadened or narrowed according to the circumstances. It is clear, however, that the simple protection of a “private interest” will not satisfy the public interest test. Consideration must be given to how the exemption will impact on other members or segments of the regulated community as well as on the public at large. (Please refer to Appendix A for factors to consider in the determination of “public interest” during the decision-making process of whether to grant or deny an exemption request.)
Aviation Safety—Any exemption issued under subsection 5.9(2) of the Aeronautics Act must be such that it is not likely to reduce the level of aviation safety afforded by the regulation to which the exemption applies.
The 2-fold test—The test for assessing the merits of an exemption request therefore is two-fold:

Is it in the public interest?
Is it not likely to affect aviation safety?

Each question stands on its own and must be addressed independently of the other by the OPI (and OTI as appropriate). In other words, the results of the test must be that the exemption is in the public interest and is not likely to affect aviation safety.

In most cases, exemptions are issued only in exceptional circumstances and may be granted only after a thorough analysis is conducted on the impact the granting of the exemption may have on aviation safety. An equivalent level of safety is established through the development of terms and conditions that will provide alternate requirements or procedures to ensure any safety concerns are satisfied and safety is not compromised. In this regard, consideration should be given to any pending amendments to the regulation as well as the terms and conditions of previously issued exemptions.


APPENDIX E – FACTORS TO CONSIDER WHEN INTERPRETATING “PUBLIC INTEREST” UNDER SUBSECTION 5.9(2) OF THE AERONAUTICS ACT


General factors to consider

All factors relating to the Minister’s responsibilities respecting aeronautics found in subsection 4.2 of the Aeronautics Act.
All factors relating to the general regulatory powers respecting aeronautics found in subsection 4.9 of the Aeronautics Act.
All factors relating to the aviation record of an applicant of a Canadian aviation document found in subsection paragraph 6.71(1) of the Aeronautics Act.
All factors relating directly to the adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provision for and best use of transportation facilities.
All factors relating to aviation public health and safety, as well as a general public benefit, need or welfare.
All factors that support the basic legal principle that justice should always be done and be seen to be done.
Factors to consider with particular focus on exemptions

The consequence of an exemption being granted or denied must be considered in terms of the needs of or benefits to the aviation public and the local community; consequences which may be of commercial or practical convenience, or necessity of the operation.
It is not sufficient that the exemption be considered “safe” and “commercially expedient” for the applicant.
All factors that examine the safety impact on the community at large.
All factors that examine the economic impact on “non-exempt” operators given that an exemption must not result in any unjustified competitive advantage to one party over another.
All factors that examine whether or not an exemption written against a foreign carrier will economically penalize another foreign carrier, or Canadian operator.
Note: In the rest of this Appendix E is outlined the legal analysis involved in making the determination of “public interest” under the Aeronautics Act.

THE LEGAL ANALYSIS INVOLVED IN MAKING THE DETERMINATION OF “PUBLIC INTEREST” UNDER THE ACT

What is the meaning of the term “Public Interest” in the Aeronautics Act?

There is no statutory definition for “public interest”.
Instead, the Minister has been delegated the authority by Parliament to use his discretion to make an opinion on what constitutes public interest.
How does the Minister exercise his discretion?

He must have regard to all of the relevant facts and law.
He must not be swayed by irrelevant considerations.
He must have regard to the letter and purpose of the legislation that gives him the power to act.
He must consider each case on its merits. Policy is relevant, but only insofar as applied to the facts.
How does the Minister determine what are relevant considerations?

He must make his examination of the facts and law in terms of the letter and spirit of the Act.
He must make this determination in relation to the policies found in the Act.
What are the Policies Found in the Aeronautics Act?

Section 4.2 provides the clearest policy.

“The Minister is responsible for the development and regulation of aeronautics, and the supervision (enforcement) of all matters connected with aeronautics.”
Section 4.9

a) The primary objective of regulation under the Act is to maintain an acceptable level of safety.

b) The primary objective of supervision under the Act is to ensure compliance with regulatory standards.

Caselaw

a) The Minister has a heavy responsibility towards the general public to ensure safety of air carrier operations.

b) The Minister has a duty of care towards the general public to enforce legislative and regulatory requirements in the interest of public safety.

c) The Minister has a very broad discretion to consider any factor when interpreting public interest, so long as it relates to the matter at hand.

What is the Primary Public Interest under the Aeronautics Act?

The safety of air travel by strict compliance with the rules of safety.

Responsibilities of the Minister

The Minister must make his determination with the following policies in mind:

a) The Minister is responsible to the public for the regulation and supervision of aviation
activities so as to promote safety.

b) The Act enables a detailed regime of regulation intended to promote an acceptable level of aviation safety.

c) Pilots, air carriers and other participants in the aviation industry are expected to comply with those regulations, and thereby achieve an acceptable level of aviation safety.

Within What Context is the Determination of public interest to be made?

In accordance with the circumstances of each individual case.
Within the jurisdictional limitations of the Aeronautics Act.
With regard to the impact of the decision on the applicant, the general public, other members of the aviation industry, and the proper regulatory enforcement and supervision of aeronautics.

As regards exemptions under subsection 5.9(2) of the Act, what specific interpretation does “public interest” have?

The interpretation must relate to the following:

a) Accommodation of alternative practices;

b) Fostering of a competitive aviation industry; and

c) Reference to something other than safety - that it is in the interest of the public (and not just the air carrier) that the exemption be granted.

[mbav8r]

In my opinion, this was severely overlooked, if in fact they are using the ministers "best interest" clause.

Public interest—The concept of public interest has no fixed meaning in law and its scope may be broadened or narrowed according to the circumstances. It is clear, however, that the simple protection of a “private interest” will not satisfy the public interest test. Consideration must be given to how the exemption will impact on other members or segments of the regulated community as well as on the public at large

.

Factors to consider with particular focus on exemptions
The consequence of an exemption being granted or denied must be considered in terms of the needs of or benefits to the aviation public and the local community; consequences which may be of commercial or practical convenience, or necessity of the operation.
It is not sufficient that the exemption be considered “safe” and “commercially expedient” for the applicant.
All factors that examine the safety impact on the community at large.
All factors that examine the economic impact on “non-exempt” operators given that an exemption must not result in any unjustified competitive advantage to one party over another.
All factors that examine whether or not an exemption written against a foreign carrier will economically penalize another foreign carrier, or Canadian operator.
Note: In the rest of this Appendix E is outlined the legal analysis involved in making the determination of “public interest” under the Aeronautics Act.

[ninjacrumb]

PUBLIC INTEREST is supposed to mean the exemption to a CAR can't give an unfair advantage over a competitor.

This is subjective, and a competitor may not know an exemption has even been granted. I'm not sure if exemptions are searchable in ATIPs but they should be. I recently heard of a new 705 start up trying to get an exemption from 705.01 and run the company aircraft as 704, therefore not being subject to creating a SMS.

[Bede]

Public interest: travelling public gets cheap, safe (in that order) air travel.
Private interest: ensuring Canadian pilots have jobs.

Sorry.

[CD]

This is subjective, and a competitor may not know an exemption has even been granted. I'm not sure if exemptions are searchable in ATIPs but they should be. I recently heard of a new 705 start up trying to get an exemption from 705.01 and run the company aircraft as 704, therefore not being subject to creating a SMS.

Most exemptions appear to be available via the online database:

Regulatory Services - Exemptions Search

It sounds as though what you might be referring to is an authorization? The database does contain references to a number of different aircraft that have been authorized to operate under 704. You can see these if you do a search by: {Authorization}; {Provision}; {704.01} or {703.01}.