New Drone Regulations Will Come Into Effect on June 1, 2019

While the use of drones is most often raised as a cautionary tale in the popular media, the commercial application of these aircraft has resulted in a rapidly expanding industry with diverse applications throughout Canada. According to Transport Canada, an estimated 193,500 drones are being flown in Canada, compared to only 37,000 “traditional” aircraft.  The recreational drone community is estimated at 140,800 operators for 2018 with a projected increase to 225,500 operators by 2025.  This rapid rise in numbers, combined with the limited skill and knowledge of many operators, has resulted in a number of dangerous incidents.  As a result, Transport Canada recently published new regulations meant to create a “predictable and flexible regulatory environment conducive to long-term planning while …

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Forum Non Conveniens – US Court Declines Jurisdiction

In Eldeeb v. Delta Air Lines, Inc., 2018 WL 6435739, the District Court of Minnesota recently granted a motion to dismiss (on the basis of forum non conveniens) an action brought pursuant to the Montreal Convention.  Forum non conveniens is a legal doctrine by which a court may decline to hear a case where another court is more suitable or appropriate.

Mr. Eldeeb (who suffered from pancreatic cancer) was travelling home from Minnesota to Egypt, with a layover in Paris, France.  At the time he booked his itinerary, he requested a wheelchair to assist him with disembarking the aircraft in Paris.

Upon arrival of his Air France flight from Minneapolis to Charles De Gaulle Airport in Paris, Mr. …

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Canadian Seaplane PFD Regulations

In a previous post, we discussed regulations proposed by Transport Canada in May 2016, setting out changes to provisions in the Canadian Aviation Regulations (“CARs”) that govern commercial seaplane operations. The proposed changes arose from recommendations made by the Transportation Safety Board of Canada following a seaplane accident that occurred in November 2009, near Saturna Island, British Columbia.

The draft regulations incorporated a requirement that all passengers of commercial seaplanes be instructed to wear a personal flotation device (which may be “worn” in a pouch that is attached to the person’s waist).  Pilots would also be required to undergo specific training (and recurrent training every three years) to facilitate underwater egress after an accident occurs, and to further mitigate …

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Timed Out

The Supreme Court of Nova Scotia recently reaffirmed a lower court decision, Paine v. Air Canada, 2018 NSSC 215, which considered Air Canada’s passenger tariff (terms and conditions of travel).  The court ruled that Air Canada was not required to compensate passengers who were denied boarding when they presented themselves at the check-in counter after the cut off time due to a lengthy line-up.

Three passengers were ticketed to travel on a domestic flight with Air Canada from Vancouver, BC to Sydney, NS.  Upon arriving at YVR, they joined the queue to check-in.  At that time, they were within the check-in time frame recommended by Air Canada.  However, by the time they reached the check-in counter, they were informed …

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Investigation of Military-Civilian Aircraft Accidents

Under Canada’s Aeronautics Act, the Minister of National Defence is required to designate a member of the Canadian Armed Forces or an employee of the Department of National Defence as the Airworthiness Investigative Authority (“AIA”).  The AIA is responsible for advancing aviation safety by investigating military occurrences and military-civilian occurrences (which are accidents or incidents involving a civilian aircraft and a military aircraft).  Canada’s Director of Flight Safety has been designated as the AIA.

Although the Aeronautics Act currently provides the AIA with many similar powers as those granted to Canada’s Transportation Safety Board, AIA investigators are presently not authorized to compel civilians (including civilian aviation companies performing contract work for the military) to provide statements or relevant documents …

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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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