By Adam Hunt
COPA members and many of the other people involved in aviation have let us know that the CARs themselves have become one of the biggest barriers to aviation safety. The most common complaint is the CARs are not understandable.
The CARs exist to provide a regulatory framework to enhance aviation safety, but for many people they are not accomplishing that because people simply cannot understand them.
This problem is not limited to Private Pilots. It has been reported to us by flight instructors, AMOs, commercial air operators, Transport Canada inspectors and even aviation lawyers.
COPA has conducted surveys during the course of making presentations to aviation groups, and we have discovered that many pilots have never read the CARs. The leading reason given is, the language is not understandable, so reading them is pointless.
When pilots are asked how they deal with this apparent safety issue, the most common answer is, “I just go flying and hope I am not breaking any rules.”
Recreational pilots in particular, complain that it is unreasonable for a person who flies for fun to have to know so many complicated rules.
It is not only aviation people who have criticized the CARs as being difficult to understand. A Federal Court Judge, The Honourable Mr. Justice Michael L. Phelan, in writing his decision in the case of Boyd v The Minister of Transport on March 3rd, 2004 said that:
“This application for judicial review involves the interpretation and application of the Canadian Aviation Regulations, SOR/196-433 ("CARS"), a regulation that at times makes the Income Tax Regulations, C.R.C., c. 945 appear to be elegant prose.”
A Federal Court Judge’s serious criticism of the language of the CARs is cause for concern by everyone involved in developing and using these regulations. COPA is concerned that the lack of comprehensibility of the CARs may become a legal issue as more cases are appealed to the Federal Court.
A plausible defense of an alleged CAR violation could be that the accused could not understand the regulation. If the judge agrees the regulation is not understandable then it is likely the judge might set aside the offending regulation or larger parts of the CARs.
This could create a truly unnecessary crisis in aviation in Canada, depending on the regulation or regulations set aside.
If the CARs exist to create an environment of aviation safety then it is clear they are largely failing in that aim.
COPA is convinced the number of CAR infractions and the resulting licence suspensions and fines could be reduced if the rules were easier to understand. This would have a direct and positive impact on aviation safety.
It is also clear; the lack of comprehensibility of the CARs erodes our nation’s ability to be economically competitive. Some people who could benefit from aircraft ownership tell us they avoid it because the regulations are too difficult to understand – this becomes a barrier to learning to fly.
In discussions with Senior TC staff on this issue COPA has been told nothing can be done about the language of the CARs because it is driven by legal requirements imposed by the Department of Justice.
COPA has accepted that argument and focused most of its educational initiatives on trying to explain the CARs to pilots and other members of the aviation industry. For example, COPA produces “Did You Know” articles whenever we encounter a number of enquiries on the same topic.
The vast majority of these enquiries and consequent articles involve explanations of the intent of certain regulations, explaining what may be hidden in the regulations or may be overlooked by members who, with the best of intentions, are breaking the rules simply because they do not understand the rules.
It is apparent from the increasing frequency of these enquiries and increasing number of “Did You Knows,” the time has come to simplify the CARs, for the sake of aviation safety.
Recently, in the U.S., the FAA has dramatically “raised the bar” on aviation safety. They have been aware for some time the language of the existing FARs is a barrier to safety and they have taken action to fix the problem by introducing FARs in plain language.
These new rules are written in the “second person” and in “question and answer format.”
Apparently the U.S. government lawyers have found a way around the conflict between legal correctness and comprehensibility that seems to elude us here in Canada.
We have shown examples of these new FARs to Canadian pilots and they are impressed with the simplicity that this new FAR style brings.
They have also asked that COPA pursue plain language CARs as one of the most effective ways to improve aviation safety here in Canada.
We are told, the FAA’s plain language initiative is evolutionary. As parts of the FARs are amended, the new style and format will replace the old ones. There is no plan to do a “wholesale re-write” of the FARs.
Here is an example of a newly introduced section of the FARs dealing with flight instructor licencing, illustrating the new format. This is an actual regulation currently in use, not a proposal, a standard or guidance material.
Ҥ 61.417 Will my flight instructor certificate with a sport pilot rating list aircraft category and class ratings?
Your flight instructor certificate does not list aircraft category and class ratings. When you successfully pass the practical test for a flight instructor certificate with a sport pilot rating, regardless of the light-sport aircraft privileges you seek, the FAA will issue you a flight instructor certificate with a sport pilot rating without any category and class ratings. The FAA will provide you with a logbook endorsement for the category and class of light-sport aircraft you are authorized to provide training in.”
Aviation lawyers have contacted COPA for an explanation of CAR 606.02 Liability Insurance. Although the intent of the regulation is to require liability insurance on all aircraft flown in Canada, it can be interpreted that aircraft must not have insurance.
Here is part of the current CAR:
Liability Insurance
606.02 (1) This Section applies to every owner of an aircraft that is registered in Canada, or registered pursuant to the laws of a foreign state and operated in Canada, who is not required to subscribe for liability insurance in respect of the aircraft pursuant to Section 7 of the Air Transportation Regulations.
This CAR goes on at length and uses very complex language
COPA has rewritten that CAR. Here is what that section might look like in a new simplified language format, using the FAA style of “second person” and “question and answer” format:
“CAR 606.02
(1) Who needs to have liability insurance to fly in Canada?
All registered aircraft flown in Canada, including Canadian and foreign aircraft, must have liability insurance in force. This regulation will tell you how much insurance you need, depending on the size of aircraft and the purpose.”
As can be seen comprehension improves dramatically in this version. A secondary benefit is that the total number of words decreases from 965 in the complete original CAR to 441 in this simplified version in total.
COPA has proposed to TC that the CARs be changed to “Plane” Language Regulations. This COPA initiative will be debated at the CARAC Plenary meeting held on May 19, 2005.
The concept is as new CARs are created or CAR amendments are made, the new plain language format would be introduced in order to make the CARs more understandable for the people being regulated. That way the cost to TC would be zero – no extra labour required.
The obvious benefit of this initiative is an improvement in aviation safety. Additional benefits are that the plain language versions appear to be shorter and also enhance the country’s competitiveness, particularly in comparison to the U.S., where they are “FAR” ahead of us in making regulations understandable.
COPA will report back on TC’s response to this issue following the CARAC Plenary meeting.