Cape Town Convention and
Aircraft Protocol in Canada
Jean Surette
Senior Policy Advisor, Air Policy
Transport Canada
April 29, 2013
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BACKGROUND
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Strong support, involvement, and participation of various stakeholders including
the provinces, territories, airlines, industry associations, and aircraft
manufacturers
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Involved cooperation between numerous Federal departments and agencies
– Industry Canada, Department of Justice, Department of Foreign Affairs and
International Trade, Finance Canada, Export Development Canada
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LEGISLATIVE HISTORY
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2000 – The Department of Justice (Canada) sought the assistance of the
Uniform Law Conference of Canada (ULCC) to prepare a Uniform Act to
implement both the Convention on International Interests in Mobile Equipment
and the Protocol on Matters Specific to Aircraft Equipment (Uniform Act)
– A federal-provincial working group drafted the Uniform Act, which would
facilitate implementation of the Convention and Protocol by the provinces and
territories
2004 – Canada signed the Convention on International Interests in Mobile
Equipment and the Protocol to the Convention on International Interests in Mobile
Equipment on Matters Specific to Aircraft Equipment (Cape Town Convention
and Protocol)
2005 – Federal government passed the International Interests in Mobile
Equipment (aircraft equipment) Act (IIME Act), including targeted amendments to
the Bankruptcy and Insolvency Act, Companies’ Creditors Arrangement Act, and
Winding-up and Restructuring Act, as well as to the Bank Act
2012 – Federal government passed Bill C-45, the Jobs and Growth Act, 2012,
which included additional amendments to the IIME Act
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IMPORTANT LEGISLATIVE AMENDMENTS IN BILL C-45
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Amend the IIME Act to allow for the implementation of
“Alternative A”, a provision in the Protocol that allows a creditor to
reclaim property after 60 days, with no judicial discretion, if an insolvent
airline has failed to make payments
– Corresponding repeal of 2005 provisions in the Bankruptcy and
Insolvency Act, Companies’ Creditors Arrangement Act, and
Winding-Up and Restructuring Act that sought to reflect the intent
of Alternative A
• Amend the inconsistency clause in the IIME Act stating that the
Convention and Protocol prevail over certain other federal statutes in the
event of any inconsistency
– Specified public security legislation (i.e., Controlled Drugs and
Substances Act, Export and Import Permits Act, Special Economic
Measures Act, the United Nations Act, and certain provisions of the
Criminal Code) would be excluded to ensure their continued
application during insolvency proceedings
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IMPLEMENTATION OF CAPE TOWN IN CANADA
Other declarations of note:
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Transport Canada’s Canadian Civil Aircraft Register to accept Irrevocable
De-registration and Export Request Authorization (IDERA)
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Limited Bank Act exception
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Protection of non-consensual rights and interests (e.g., mechanics’ liens,
unpaid pension contributions, unpaid fees for airport and navigation
authorities, etc.)
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PROVINCIAL / TERRITORIAL IMPLEMENTATION
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In Canada, treaty-making power rests with the federal government, while
treaty implementation is distributed between Parliament and the provincial
legislatures depending on the issue
– The implementation of the Convention and Protocol in specific
provinces and territories also requires provincial and territorial
implementing legislation
– Alberta, British Columbia, Manitoba, Ontario, Newfoundland,
Nova Scotia, Northwest Territories, Nunavut, Quebec and
Saskatchewan have adopted implementing legislation
– Prince Edward Island and Yukon have introduced legislation;
New Brunswick expected to do so at a later date
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AIRCRAFT SECTOR UNDERSTANDING
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The Aircraft Sector Understanding (ASU)
– Developed under the auspices of the Organisation for Economic
Co-operation and Development (OECD)
– Sets out rules for financing by official export credit agencies of aircraft
and aircraft-related parts and services
– Countries that ratify the Convention/Protocol can be placed on the
“Cape Town List” under the ASU to be eligible for discounts from official
export credit agencies
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Canada expects to submit an application for inclusion on the ASU Cape
Town List imminently
– ASU Participants (i.e., Australia, Brazil, Canada, the European Union,
Japan, Korea, New Zealand, Norway, Switzerland and the United
States) determine eligibility through consensus, guided by analysis of
whether Canada’s legislation and declarations meet Qualifying
Declarations used in the ASU
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THANK YOU!
Jean Surette
Senior Policy Advisor
National Air Services Policy
Transport Canada
330 Sparks St.
Ottawa, ON K1A0N5
jean.surette@tc.gc.ca
(613) 949-0112
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