Aviation Industry Indemnity Act

This Act may be cited as the Aviation Industry Indemnity Act.

The following definitions apply in this Act.

airport has the same meaning as in subsection 3(1) of the Aeronautics Act. (aéroport)

aviation industry participant means

an air carrier, as defined in subsection 3(1) of the Aeronautics Act, that is a Canadian, as defined in subsection 55(1) of the Canada Transportation Act;

NAV CANADA, a corporation incorporated on May 26, 1995 under Part II of the Canada Corporations Act;

an owner or operator of an airport;

a supplier of goods or services that directly support the operation of aircraft from an airport, including with respect to

the preparation of an aircraft for departure or on its arrival, including maintenance and cleaning of the aircraft and the loading and unloading of passengers, baggage and cargo,

freight forwarding,

air navigation, or

airport security services; or

an entity that is prescribed by regulation or a member of a class of entity that is prescribed by regulation. (participant de l’industrie aérienne)

event means

an act of unlawful interference with an aircraft, airport or air navigation facility, including an act of terrorism;

an act or omission in the course of armed conflict, war, invasion, hostilities, civil war, revolution, rebellion, insurrection, an application of martial law, a usurpation or attempted usurpation of power, a civil commotion or a riot; or

an act or omission committed by NAV CANADA, or any of its officers, employees or agents or mandataries, in accordance with an instruction given under an agreement entered into between that corporation and Her Majesty in right of Canada respecting the provision of air navigation services, as defined in subsection 2(1) of the Civil Air Navigation Services Commercialization Act, to the Department of National Defence or the Canadian Forces. (événement)

Minister means the Minister of Transport. (ministre)

The Minister may, in writing, undertake to indemnify

any aviation industry participant or class of aviation industry participant against their loss or damage, or liability for loss or damage, that is caused by an event; or

any beneficiary or class of beneficiary under an insurance policy held by an aviation industry participant against that beneficiary’s, or class of beneficiary’s, loss or damage that is caused by an event.

The undertaking to indemnify is limited to

loss, damage or liability, or any portion of it, that is not insured or otherwise indemnified; and

loss, damage or liability that is not solely with respect to a loss of income.

The Minister may attach terms to an undertaking, including terms that

specify the event or class of event that is covered by the undertaking or that is excluded from coverage;

specify the activity or class of activity in which an aviation industry participant engages that is covered by the undertaking or that is excluded from coverage;

specify the class of loss, damage or liability that is covered by the undertaking or that is excluded from coverage;

establish the maximum amount of indemnification, or the method to determine that amount, that may be paid out under the undertaking;

require that an aviation industry participant obtain a specified minimum amount of insurance coverage for events; and

require that an aviation industry participant or any beneficiary under an insurance policy held by an aviation industry participant enter, at the Minister’s request, into an agreement with the Minister respecting the conduct or settlement of any proceedings to which the participant or beneficiary is a party that are related to loss, damage or liability covered by the undertaking.

In attaching terms to an undertaking, the Minister may distinguish among aviation industry participants or beneficiaries, including among aviation industry participants or beneficiaries of the same class, and may distinguish among classes of aviation industry participants or beneficiaries.

An undertaking may incorporate any material by reference, regardless of its source, as it exists on a particular date.

The Minister must personally exercise the powers that are set out in this section.

The Statutory Instruments Act does not apply to an undertaking.

The Minister must cause an undertaking, an amended undertaking or a notice of revocation of an undertaking to be published in Part I of the Canada Gazette within 23 days after the issuance, amendment or revocation.

Subsection (2) does not apply to an undertaking, an amended undertaking or a revocation of an undertaking to indemnify NAV CANADA, or any beneficiary under an insurance policy held by NAV CANADA, that covers only events referred to in paragraph (c) of the definition event in section 2.

At any time after the Minister issues an undertaking, he or she may request that aviation industry participants — or beneficiaries under an insurance policy held by an aviation industry participant — that are covered by the undertaking provide him or her with any information that he or she specifies, including with respect to those aviation industry participants’ eligibility and their existing level of insurance coverage for events covered by the undertaking.

In order to submit a claim for indemnification with respect to an event, an aviation industry participant or beneficiary under an insurance policy held by that participant must provide the Minister with a written notice of a potential claim within two years after the day on which the event that could give rise to a claim occurred.

The aviation industry participant or beneficiary must provide the Minister with any additional information that the Minister considers necessary in the circumstances.

After an aviation industry participant or beneficiary under an insurance policy held by that participant submits a written claim for indemnification under an undertaking, the Minister must review the claim and — if a notice was provided in accordance with section 6 and the Minister determines that the claim is eligible for indemnification under the undertaking as it read on the day on which the event that gave rise to the claim occurred — indemnify the participant or beneficiary accordingly.

The aviation industry participant or beneficiary must provide the Minister with any additional information that the Minister considers necessary to determine if the claim is eligible for indemnification.

If the Minister considers that two or more events are directly connected by any factor or factors, including timing, cause or the parties involved, he or she may deem the events to be a single event.

The Minister may, in determining if a claim is eligible for indemnification, rely on a final determination, not subject to any appeal, of a court or other tribunal, in or outside Canada.

Despite subsection (1), the Minister is not required to indemnify an aviation industry participant or beneficiary if the Minister is of the opinion that the loss, damage or liability claimed is principally the fault of that aviation industry participant or beneficiary, as the case may be.

For greater certainty, the Minister’s determination of whether the claim is eligible for indemnification includes a determination of the amount, if any, of the indemnification.

Any amount payable under an undertaking is to be paid out of the Consolidated Revenue Fund.

Her Majesty in right of Canada is subrogated, to the extent of a payment under an undertaking to an aviation industry participant or beneficiary under an insurance policy held by that participant, to all of the participant’s or beneficiary’s rights in respect of the loss, damage or liability for which the payment was made.

Her Majesty in right of Canada may maintain an action, in the aviation industry participant’s or beneficiary’s name or in the name of Her Majesty, against any person to enforce those rights.

The Minister must, at least once every two years, assess whether it is feasible for aviation industry participants to obtain insurance coverage, or other similar coverage, for events referred to in paragraph (a) or (b) of the definition event in section 2.

The Minister must prepare a report on his or her activities under this Act within

90 days after the day on which he or she issued, amended or revoked an undertaking; and

two years after the day on which a report was last tabled, if he or she has not, within that period, issued, amended or revoked an undertaking.

The Minister must only report on his or her activities with respect to an undertaking covering an event referred to in paragraph (c) of the definition event in section 2 if he or she issues, amends or revokes such an undertaking.

The Minister must cause each report to be tabled in each House of Parliament within the first 15 days on which the House is sitting after the report is prepared.

The Governor in Council may, on the Minister’s recommendation, make regulations for the purpose of this Act, including regulations

prescribing an entity or class of entity for the purpose of the definition aviation industry participant in section 2; and

respecting the circumstances in which an undertaking may cover only one aviation industry participant.