Canada’s Renewed Attempt to Regulate Airports: The Introduction of Bill C-52
On June 20, 2023, An Act to enact the Air Transportation Accountability Act and to amend the Canada Transportation Act and the Canada Marine Act[i] was introduced in the House of Commons by the Hon. Omar Alghabra, Minister of Transport. This much awaited legislation follows failed attempts in 2003 and 2006 by Parliament to update the legislative frameworks for airports, airport authorities and other airport operators. On the heels of the COVID-19 pandemic and public concern over airport and airline delays, lost bags and stranded passengers, the Minister of Transport has indicated that the changes proposed by the Bill are intended to “help create a transportation sector that is more efficient, transparent and accountable”. This blog summarizes the aspects of the Bill relevant to the air transportation sector.
Enacting the Air Transportation Accountability Act: Part one of the Bill would enact the Air Transportation Accountability Act (the “Act”) in order to increase accountability and transparency in the air transportation sector through a number of measures:
- Establishing requirements respecting the provision of information to the Minister of Transport (the “Minister”): The Act grants the Minister broad powers to request information from airport operators, air carriers, and entities providing flight-related services. Requests may include information regarding (a) the capacity and development of the Canadian air transportation system, (b) operations and air traffic; and (c) compliance by an airport operator with Canada’s international obligations in respect of aeronautics; as well as any information that an airport authority is required to keep in accordance with its governing corporate legislation. The Act indicates that, with certain exceptions, this information will be kept confidential by the Minister and cannot be disclosed without the written consent of the party that provided the information; however, it is unclear how these confidentiality obligations will interact with freedom of information legislation.
- Requiring airport operators to take measures to help Canada meet its international obligations in respect of aeronautics: The Act authorizes the Minister to issue written directions to an airport operator to take any measure that the Minister considers necessary for Canada to meet its international obligations for aeronautics. At this point it is not known whether this broad reference to international obligations will be interpreted to include obligations under any international convention to which Canada is a party or only those obligations which Canada has specifically enacted into domestic law through another statute.
- Authorizing the Governor in Council to make regulations respecting the development and implementation of service standards related to flights and flight-related services: The Act is silent on what these service standards may entail, making the impact the Act will ultimately have on the day to day business of airport operators and service providers uncertain. Further, the Act states that any services provided on behalf of an airport operator must comply with the same service standards and that an airport operator will be held accountable for its service providers’ compliance with the service standards.
- Requiring noise management committees: Airport operators at certain high volume airports[ii] must establish and oversee a noise management committee to address questions and concerns of the public regarding aircraft noise.
- Providing a notice and consultation framework in respect of aircraft noise: The Act sets out a public notice and consultation regime for flight path alterations including temporary (less than one year) and permanent (at least one year) flight path alterations which involve low flight paths.[iii] This regime does not apply to flight path alterations that are caused by weather or other short term uncontrollable causes. The noise management committees will be required to provide a public notice, and in the case of permanent flight path alterations, hold a public consultation session, in advance of implementing any flight path changes. Public feedback must be taken into consideration by the proponent of a permanent flight path alteration. The Act also sets out a complaints process, which may ultimately result in the Canadian Transportation Agency (the “Agency”) ordering that a proponent not implement a proposed permanent flight path alteration.
Requiring airport authorities to create plans respecting climate change and climate change preparedness: The Act gives the Minister broad powers to enact regulations to address climate change. Through these regulations, the Minister can set greenhouse gas emissions reduction targets for airports and mandate climate change adaption actions.
The Act requires airport authorities that operate certain larger airports[iv] to increase their climate change disclosure by preparing a five-year climate change plan outlining a greenhouse gas emissions reduction target in respect of the operation of the airport and a description of actions to be taken to meet that target. These airport authorities must also submit a five-year plan respecting climate change adaptation actions which describes the current and anticipated impacts of climate change on the operation of the airport and actions taken to address those impacts. This adaptation plan must also describe current and future commercial opportunities for the airport arising from the impacts of climate change. The content of both plans must comply with recognized international standards and will be subject to change pursuant to regulations enacted by the Governor in Council. Consequently, the full scope of these plans is, as of yet, uncertain.
- Requiring airport authorities to publish information respecting diversity among directors and senior management: Airport authorities that are incorporated under an act of Parliament must publish and send to the Minister an annual report outlining the diversity of directors and members of senior management.
- Fees and Charges: The Act also gives the power to the Agency (after consultation with the Minister and other individuals or entities that Agency considers to be interested in the matter) to make regulations regarding the fees that it incurs in the exercise of its powers under the Act. The Act does not indicate who will bear the responsibility for paying such fees.
- Providing for an administration and enforcement mechanism that includes an administrative monetary penalty framework: The Act establishes two regimes for contraventions under the Act: offences and violations. While both violations and offences may result in the imposition of penalties of up to $5,000 for individuals and up to $250,000 for entities, violations alone may be resolved through compliance agreements with the Minister (which agreements may reduce or remove the applicable penalty).
Part 2: Amending the Canada Transportation Act: Part two of the Bill proposes amendments to the Canada Transportation Act with the intent of increasing informational transparency regarding the accessibility of air travel for persons with disabilities. Most importantly, the amendments authorize the Governor in Council to make regulations: (i) requiring the Canada Border Services Agency and various other parties, including carriers, owners and operators of transportation undertakings and certain service providers to provide information to the Minister or Agency for the purpose of supporting accessible transportation (which information the Minister and the Agency will be permitted to make public); and (ii) respecting the process for dealing with complaints relating to accessibility in relation to the transportation of persons with disabilities. Regulations may set out additional requirements which apply to certain persons or classes of persons, impose record-keeping requirements in relation to the complaints process and require the submission of reports to the Minister and Agency in relation to the complaints process.
Bill C-52 will now work its way through the remaining stages of the legislative process in the House of Commons and Senate. As Parliament is currently in summer recess, any further activity will not occur until this autumn. As the Bill is further debated in both chambers of Parliament, it remains to be seen whether the text will be amended to provide further clarity on the scope of these new provisions. The Act in its current state creates substantial uncertainty with respect to the requirements that those operating in the air transportation sector will face, both as a result of its vague language, and, most importantly, the significant latitude provided to the Minister and Governor in Council to enact wide-sweeping regulations.
[i] Available online: https://www.parl.ca/Content/Bills/441/Government/C-52/C-52_1/C-52_1.PDF
[ii]High volume airports are defined as those that have greater than 60,000 instrument flight rule movements for each of the three previous consecutive calendar years. This threshold may be amended by regulations.
[iii]Low flight paths are defined as flight paths lower than 2438m (8000ft).
[iv]Major airport authorities are defined as airport authorities that meet the passenger threshold of 4,000,000 passengers in the previous consecutive three years, or as otherwise determined by regulation.
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