Flying “High”: Current Preventative Measures in Advance of Marijuana Legalization in Canada

The issue of pilot intoxication has received a fair amount of media attention in Canada over the past few years. We have seen jail sentences imposed on airline pilots, a heavily publicized incident involving an intoxicated Sunwing pilot, and the fatal Carson Air Accident in 2015 (where investigators found significant levels of alcohol in the pilot’s bloodstream).  With the impending legalization of marijuana on October 17, 2018, it is a good time to consider the current regulatory framework for drug/alcohol testing in this new context.

Drug and Alcohol Testing

In Canada, there is no regulation that requires drug or alcohol testing for pilots.  In both India and Australia, breathalyzer tests are carried out on flight crews.  In the United States, …

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A new “Passenger Bill of Rights” is en route

The rights of air passengers in Canada are soon to be enhanced.  After several revisions and hours of Parliamentary debate, the Federal government enacted the Transportation Modernization Act on May 23, 2018.  As part of this new statute, the Canadian Transportation Agency (CTA) has been given a mandate to develop regulations for airlines’ obligations to air passengers.  The CTA has now opened a consultation process to receive input on the development of these regulations and to establish clear standards of treatment and consistent compensation for air travellers under certain circumstances.

The Transportation Modernization Act amends the Canada Transportation Act to give the CTA authority to make regulations defining the airlines’ minimum obligations to passengers with respect to a broad range …

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Innovation or Complication: The Emerging Regulatory Landscape for Drone Use in 2018

The use of drones recreationally and commercially continues to grow exponentially in Canada. While the commercial use of drones has been governed by rules set out in various regulatory exemptions (or by the requirement to obtain a special flight operations certificate (“SFOC”) from Transport Canada), the recreational use of drones that weigh under 35 kg was previously simply subject to guidelines encouraging users to “fly safely”. More recently, the Minister of Transport issued a series of interim orders respecting these aircraft. The current interim order No. 8 regulates all recreational use of drones weighing between 250 g and 35 kg.

UAS Task Force

In 2017, Transport Canada established the Unmanned Aircraft Systems (“UAS”) Task Force, staffed with members with expertise …

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Delta Air Lines Inc. v. Lukacs: Supreme Court weighs in on Canadian Transportation Agency’s application of civil courts’ tests of standing

The Supreme Court of Canada recently released its decision in Delta Air Lines Inc. v. Lukacs, 2018 SCC 2, in which it considered whether the Canadian Transportation Agency (the “Agency”) acted reasonably in dismissing the complaint of Gabor Lukacs against Delta on the basis that he met neither of the tests for standing that have been developed and applied by the civil courts.

Dr. Lukacs, who refers to himself as an “air passenger rights advocate”, filed a complaint with the Agency in which he argued that Delta’s practices in relation to the transportation of obese passengers were discriminatory. Dr. Lukacs is not obese. Rather, his complaint was based on an email sent by Delta to a passenger who …

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Canada Labour Code and Employee Safety: Is a Helicopter Medevac Operator Required to Provide Night Vision Goggles?

In the early hours of May 31, 2013, a Sikorsky S 76A helicopter operated by Ornge Air Ambulance crashed shortly after take-off from Moosonee airport (northern Ontario), resulting in the deaths of the two pilots and two paramedics.  The Crown brought charges against Ornge under the Canada Labour Code for failing to ensure employee safety, by failing to provide its pilots with night vision goggles (“NVGs”).  Ornge denied committing any offence arguing that it had complied with all legal and regulatory requirements and provided for an acceptable level of safety consistent with the standard of care that prevailed in the helicopter aviation industry at the time.  The Ontario Court of Justice recently released its decision R.v. 7506406 Canada Inc. (Ornge)

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Here We Go Again: Mental Injury and the Montreal Convention

In previous posts (click here and here), we discussed the trial and appeal decisions in Casey v. Pel-Air Aviation Pty (Supreme Court of New South Wales, Australia). The issue to be determined was whether Ms. Casey could recover damages for Post-Traumatic Stress Disorder (PTSD). Because Ms. Casey had been travelling internationally at the time of the subject aircraft accident, her claim was exclusively governed by the Montreal Convention, an international treaty. The Montreal Convention only allows for the recovery of damages for “bodily injury” (i.e. physical injury) and not purely mental injury.

Contrary to prior jurisprudence, the trial court in Casey accepted that Ms. Casey’s PTSD could be a “bodily injury” in that it was an injury to her …

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Ontario Court of Appeal confirms that US General Aviation Revitalization Act of 1994 does not apply to claims filed in Canadian courts

The Ontario Court of Appeal recently released its decision in Thorne v. Hudson Estate, 2017 ONCA 208, which arose out of the crash of a twin-engine Beech aircraft in New York State. The plane, carrying two pilots and one passenger, went down after experiencing a loss of power to one of its engines. The estates of the pilots brought claims in the Ontario Superior Court of Justice against the companies that inspected and maintained the engine (“ATC” and “CAR”), as well as its manufacturer, Continental Motors Inc. ATC and CAR brought third party claims against Continental, alleging negligent manufacture of the engine, misleading repair instructions, and the failure to warn them about certain engine failures.

Continental applied to have …

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British Columbia Court of Appeal Upholds Workers’ Compensation Appeal Tribunal decision regarding passengers’ rights to sue for damages resulting from an aircraft accident

On October 27, 2011, an aircraft crash-landed near the Vancouver International Airport.  Six of the surviving passengers commenced a lawsuit against the aircraft operator seeking to recover damages arising from their injuries.  The passengers were flying to Kelowna to attend an annual retreat organized by an organization named “The Executive Committee” (“TEC”).  The TEC is a member-based community of over 900 chief executives, entrepreneurs, and business owners from across Canada.  The passengers were founders and CEOs of various companies.  TEC provides peer advice and support, through a “safe refuge” for executives to discuss work and personal issues.  Each TEC member is required to attend meetings and pay annual dues for membership.  The passengers’ dues were all paid by their companies.  …

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A new “Passenger Bill of Rights” and other potential legislative changes affecting the Canadian airline industry

Bill C-49, the Transportation Modernization Act (the “Act”), had its 2nd reading in the House of Commons on June 19, 2017.  The Act consists of a package of amendments to the Canada Transportation Act, S.C. 1996, c. 10, as well as other pieces of legislation. However, its main focus is on the introduction of a new airline passenger bill of rights.  Other key amendments include a wider definition of “Canadian” to allow for an increase in foreign investment in air service providers, as well as provisions to promote joint ventures between air service providers while ensuring healthy competition in the industry.  Transport Canada has stated that the purpose of the legislation is to ensure a better …

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Transport Canada proposes controversial new regulations on flight crew hours of work and rest periods

On July 1, 2017, Transport Canada published draft amendments to the CARs regarding pilot hours of work and rest periods (click here for proposed regulations). According to Transport Canada, the new regulations will improve passenger and flight crew safety as they are based on the latest science regarding fatigue and will bring Canada in line with international standards and best practices.

The draft regulations are the product of over six years of work and consultation. In 2010, a joint government/industry working group studied the issue, relying on the assistance of a scientific expert in sleep and performance. Subsequently, comments were sought on three separate occasions and various meetings held with interested stakeholders.

The proposed regulations would apply to CARs …

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