OTTAWA—Air Canada and WestJet are flying the new Boeing 737 Max aircraft exempt from regulatory standards meant to minimize passenger injuries in the event of an accident, the Star has learned.

Transport Canada granted temporary exemptions in 2017 to allow the airlines to launch services with the Boeing 737 Max models and in December, extended the exemptions for both airlines for more than a year.

The issue centres on new standards for the design of cabin furnishings, notably the seats, to reduce injuries to passengers during an accident. New commercial aircraft operating in Canada — including the 737 Max aircraft — are required to comply with what is known as head injury criterion (HIC).

“The rules were introduced to provide a higher level of safety for passenger protection in the event of a survivable aircraft accident,” according to a Nov. 27, 2017 briefing note to Transport Minister Marc Garneau obtained through access to information.

Questions have been raised about the safety of the Boeing 737 Max in the wake of two accidents. Following the latest crash on Sunday in Ethiopia, aviation regulators around the globe have grounded the aircraft until more is known about the cause of the crash and whether the two incidents are linked.

On Tuesday, Garneau said he was looking at “all potential actions” about the operation of the aircraft in Canada.

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The head injury criterion is meant to minimize casualties in the event of an accident, not to address the sort of concerns raised in recent days about the Boeing 737 Max’s autopilot system.

Air Canada, WestJet and Sunwing have placed orders for a total of 120 Boeing 737 Max models but because of the timing of production, 26 of the aircraft would not comply with the design rules at the time of delivery.

In August 2017, Transport Canada issued an exemption, valid until Jan. 1, 2019, to allow time for WestJet and Air Canada to bring their aircraft into compliance with the rules, which are harmonized with those in the U.S. and Europe.

But the briefing note expresses frustration that carriers didn’t appear to know about the looming changes. “(Transport Canada) has consistently upheld HIC standards as part of our … certificate regulations since the 1990s,” it stated.

The new Boeing 737 Max will be the backbone of Canadian airlines for the next several decades and will replace older aircraft now in use that don’t meet the head injury criteria.

Asked about the exemption this week, Transport Canada revealed that it has given the two carriers more time to comply. WestJet was given until June 30, 2020 and Air Canada’s exemption was extended to Dec. 31, 2021. Sunwing’s single-class configuration already complies with the standards.

The department said that such exemptions are only issued “if they are unlikely to reduce the level of aviation safety.” It said that alternative requirements or procedures are put in place to address any safety concerns.

In a statement to the Star, the department blamed the problem on a difference in requirements between the U.S. Federal Aviation Authority and Transport Canada that was identified late in the production planning, after the affected operators had placed their orders.

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Boeing could not produce aircraft conforming to the Transport Canada-specified design for a multi-class cabin in time for delivery of the aircraft, it said.

Air Canada placed its order for the Boeing 737 Max in 2014 and took delivery of its first aircraft in 2017.

“At the time the aircraft were ordered they did meet the standard, but the standard was subsequently changed and we have now been given time to retrofit the planes,” spokesperson Peter Fitzpatrick said.

WestJet did not respond to requests for comment.

Transport Canada did reject the request from one of the carriers — the airline’s name is censored from the document — for a permanent exemption from the new regulations for its Boeing 737 Max fleet. The company claimed they were not told when the new rules would come into effect when it signed its contract for the aircraft with Boeing.

But Transport Canada shot back that the carrier in question should have known the rules.

“TC maintains that … had many opportunities to become aware of and comply with Canadian certification and operating standards, and should have included HIC standards on their Boeing B737-MAX fleet,” the note said.

It bluntly stated that in a “regulated environment, it is the responsibility of the regulated party … to ensure that the fleet meet all regulatory requirements.

“The department is not prepared to accept … as the only operator in North America flying a version of the 737-8 MAX that is less safe than all their Canadian and American competitors,” the note said.

Excusing one carrier from the regulation would give it unfair economic advantage over its competitors, it said.

The new standards also affect how many flight attendants are on board. Only aircraft that comply with the new design standards will be allow to fly with fewer flight attendants — one for every 50 passengers, compared with one to 40. “It is expected with the added safety benefit of HIC seating, there will be fewer passenger injuries, which offsets the reduced number of attendants,” the note said.

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