Exemptions from Regulatory Requirements

Policy Objective

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.

Background

The Aeronautics Act delegates to the Minister of Transport the power to exempt from the application of regulatory requirements made pursuant to the Act only in exceptional situations when a regulation cannot or ought not apply, and if certain conditions are met. Such exemptions are issued by delegated officials in accordance with the Delegation of Authority Document.

When Parliament enacts a law, or a regulation or an order is made under an Act of Parliament, it is a fundamental requirement of the Canadian legal system that legislative enactments will be applied universally and govern all members of the affected public equally. This enables each person to know what is required by the law and to act with the expectation that all persons to whom the law applies will be obeying the known requirements of that law.

However, it has long been recognised that, in certain situations governed by law, there may be occasions when the regulation cannot or ought not to apply. In such cases, it may be appropriate to issue an "exemption" which excuses compliance from all or part of the regulatory requirement.

The legislation governing aviation safety in Canada is the Aeronautics Act, together with the Canadian Aviation Regulations. Parliament has vested the authority for administering this legislation in the Minister of Transport. The Minister has in turn delegated responsibility for regulatory policy to the Director General, Civil Aviation (DGCA). In order to ensure the orderly and safe development of aviation in Canada, operational restrictions have been imposed on virtually all aviation activities. The authority to exempt from regulatory requirements has been delegated to the Minister’s departmental officials identified in the Delegation of Authority Document.

Policy Statement

Civil Aviation is committed to implementing national standards and procedures for the consistent processing of exemption requests and a rationale in the development of criteria to either grant or deny exemptions from regulatory requirements.

Application

This policy applies to all parties involved in the civil aviation exemption-granting process in the Regions and at Headquarters.

Definitions

• Exemption:

  An exemption entitles a person to act outside the normal regulatory requirements.

  Generally speaking, there are two ways in which compliance with a regulation governing aviation will not be required:

1. Exemption Pursuant to a Regulation with Criteria (Authorisation):

   The first type of exemption is provided for in the regulation itself, by the use of such words as "unless authorised by the Minister", followed by criteria on which the authorisation will be based. Where these criteria form a complete guide for the granting of the exemption, the person who holds the Minister’s delegated authority may issue the exemption once all the criteria have been met. Since the conditions are actually set out in the regulation, the public is aware that an exemption is granted on that basis and that there will be no discrimination.
    

2. Exemption by Executive Decision Pursuant to subsection 5.9(2) of the Aeronautics Act

   (Executive Decision Exemption):

   Where the regulation itself does not include any provision for exemptions, subsection 5.9(2) of the Aeronautics Act may be invoked. This subsection authorises the Minister to exempt from the provisions of that Act or regulations made under it, on such terms and conditions that he deems necessary.

   Exemptions will be granted under subsection 5.9(2) only in unforeseen circumstances which are unlikely to recur or when the regulation is being amended to address certain situations. The Director General Civil Aviation, or the Regional Directors Civil Aviation hold the Minister’s delegated authority to issue such exemptions.

   5.9(2) "The Minister may, on such terms and conditions as the Minister deems necessary exempt any person, aircraft, aerodrome, facility or service from the application of any regulation or order made under this Part if, in the opinion of the Minister, the exemption is in the public interest and is not likely to affect aviation safety."

• 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.

Approach

The test for assessing the merits of an exemption request therefore is two-fold:

1. Is it in the public interest?
2. 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 both 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.

A person may also be exempt from the application of standards incorporated by reference into a regulation. For that purpose, the person must be exempt from the regulation but only to the extent that compliance to the standards is required. Subsection 5.9(2) would then be used, and the link between the regulation and the standard would be clearly spelled out in the wording of the exemption.

Policy letters cannot be used to change regulations or standards. Until the entire regulation-making process to amend a regulation or standard is completed, the old regulation stands. In some instances where the intended change to the regulation is to bring relief rather than impose stricter requirements, exemptions can be used to bring the change into effect before the amendment officially comes into force. Policy letters can be used to provide background and rationale for the planned issuance of the exemption.

With respect to the release of exemptions to the public, the departmental position is that the process available under the Access to Information Act need not be used in order for third parties to get copies. The information can be released by the issuing office following a general inquiry. At the same time, Transport Canada must exercise discretion to determine whether the text contains references to either personal or proprietary information and, in such cases, this information must be purged first before release.

The authority to issue an exemption is a power that must be exercised judiciously. To ensure that exemptions are granted in a non-discriminatory and consistent fashion at Transport Canada Civil Aviation Headquarters as well as in the Regions, the delegation of authority and procedures for issuing exemptions found in Appendix A are provided to assist in exercising this authority. Please also refer to all other Appendices for further guidance throughout the exemption request process, and document drafting.

Supplementary guidance material for granting an exemption from regulatory requirements is contained in Appendices (A-I).

Reporting

A report will be provided to NCAMX on a quarterly basis by the Chief, Regulatory Affairs.

Further Information

Nicole Girard
Chief, Regulatory Affairs (AARBH)
Telephone number: (613) 990-1184
Facsimile number: (613) 990-1198
E-mail: GIRARDN@TC.GC.CA

Art LaFlamme
Director General
Civil Aviation

Effective date: May 1, 1999
Modified: August 3, 1999