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 reducing costly administrative burdens on businesses”. A benefit of the new regulations is ostensibly a reduction of the administrative burden on commercial operators of drones.
The new regulations will come into effect on June 1, 2019. In a move toward more gender-inclusive terminology, the regulations dispense with the terms “drones”, “unmanned aerial vehicles” and “unmanned air systems”. These aircraft are now referred to as “Remotely Piloted Aircraft Systems” (“RPAS”).
The new regulations govern two types of operations performed by RPAS with a maximum takeoff weight between 250 grams and 25 kilograms. “Basic operations” may be performed by individuals who are at least 14 years old and have successfully completed an online knowledge exam to obtain a pilot certificate. Basic operations must be conducted outside of controlled airspace, more than 30 metres away from people (measured both horizontally and at any altitude), and more than 3 nautical miles from an airport (or 1 nautical mile from a heliport). The RPAS must also be operated at an altitude of less than 400 feet.
“Advanced operations” may be performed by individuals who are least 16 years old, have successfully completed the online knowledge exam, and have completed a flight review with a Transport Canada approved training provider. Advanced operations may be conducted within controlled airspace (but only with air traffic control approval), between 30 metres and 5 metres away from people (measured both horizontally and at any altitude), over people (less than 5 metres away), and within 3 nautical miles from an airport (or 1 nautical mile from a heliport). There is a ceiling of 400 feet for advanced operations as well.
Any other operations of an RPAS that do not fall under the category of “basic operations” or “advanced operations” cannot be undertaken unless the operator has applied for and has been granted a Special Flight Operations Certificate (“SFOC”). An example of this type of operation are flights at an “advertised event” (defined as an outdoor event that is advertised to the general public, including a concert, festival, market or sporting event). Operation of an RPAS that weights more than 25 kilograms and operations above an altitude of 400 feet also require an SFOC.
The new regulations will also prohibit operations over or within a security perimeter established by a public authority in response to an emergency, with limited exceptions. Owners of RPASs will now be required to register their aircraft with Transport Canada and they must label their RPAS in a clearly visible manner with a unique registration number. In addition, manufacturers of RPAS that are conducting advanced operations must provide a declaration to Transport Canada confirming that the RPAS meets Transport Canada Safety Standard 922. This Standard includes minimum requirements for lateral position accuracy, altitude accuracy.
Interestingly, the current requirement that each RPAS owner purchase liability insurance coverage with a limit of at least $100,000 CAD has been removed in the new regulations. This was purportedly because of concerns with the cost of insurance and the lack of availability of insurance products covering the operation of RPAS.
This removal of the liability insurance requirement is a concerning development, particularly when one considers the risks of liability in the event of RPAS mishaps and accidents. In recent litigation resulting from injuries to a wedding guest caused by a photographer’s drone (Philadelphia Indemnity Insurance Company v. Hollycal Production, Inc. (United States District Court, California), the photographer had purchased a commercial insurance policy, but the policy excluded coverage for injury arising out of the use of any aircraft (we note that most homeowner policies also exclude coverage for aircraft). The wedding guest allegedly suffered a serious injury to her eye resulting in loss of sight. Accordingly, it appears that the photographer will be in the unfortunate position of being exposed to legal costs and the risk of legal liability for the wedding guest’s proven injuries.
With the new regulations coming into effect on June 1, 2019, RPAS operators and manufacturers should take steps now to ensure a smooth transition to compliance with the new requirements.
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. Eldeeb was initially denied use of a wheelchair. He was eventually provided wheelchair assistance to disembark the aircraft, but was left in the seating area of the arrival gate rather than being brought to the gate for his connecting flight to Egypt. He sat in the waiting area for approximately 12 hours and missed his connecting flight. He eventually re-booked a later flight and upon arrival in Cairo, he discovered that his luggage (containing his medication) had not yet arrived. He did not receive his luggage until one week later.
Mr. Eldeeb died one month later. The plaintiff trustee for his next of kin brought an action in Minnesota on his behalf against Delta Airlines (who sold the ticket but did not operate the flight) and Air France, alleging that Mr. Eldeeb’s death was hastened by the events at the Charles de Gaulle Airport. The plaintiff discovered that the lack of wheelchair service was caused by the wheelchair vendor at the airport going on strike. The plaintiff alleged that the lack of wheelchair service caused Mr. Eldeeb to suffer injuries and his eventual death and that the defendant airlines were strictly liable under the Montreal Convention.
The defendants brought a motion seeking to dismiss the claim on the basis of forum non conveniens. The defendants argued that the principle of forum non conveniens should apply as the case turned on events that occurred solely in France and involved French parties (the wheelchair vendor company) that were not subject to the court’s jurisdiction or subpoena power.
While the plaintiff conceded that France was an available forum, she suggested that a decision of the French Supreme Court (Cour de Cassation) held that French courts lack jurisdiction over Montreal Convention cases that have been dismissed by another court on the basis of forum non conveniens. The District Court did not accept this argument and found that the Cour De Cassation decision did not foreclose French jurisdiction in any and all Montreal Convention cases initially filed in another appropriate forum.
The court found that France was an alternative available forum as the defendants consented to the jurisdiction of France and agreed to service there. The court then weighed factors including access to sources of proof, availability of witnesses, and enforceability of judgment to determine whether to dismiss the action on the basis of forum non conveniens. The courts noted that most, if not all, of the facts underlying the case occurred in France as Mr. Eldeeb flew to Paris on an Air France flight and sustained alleged injuries at the Charles de Gaulle Airport, likely due to conduct or inaction of a French wheelchair vendor company.. In contrast, Minnesota had little relation to the case and none of the facts related to Minnesota (the plaintiff’s state of residence, the flight’s departure city, and Delta’s place of business) were materially relevant to the claim raised. The court stated that in these circumstances, maintaining the case in Minnesota would not only be inconvenient, it would substantially prejudice the defendants. The court found that although France would be an inconvenient forum for the plaintiff, other factors outweighed that inconvenience and granted the motion to dismiss.
In cases involving international air travel, there are often a number of potential venues for passengers to bring claims under the Montreal Convention, as Article 33 of the Montreal Convention provides five different places where courts have presumptive jurisdiction to hear the action. This decision confirms that even where plaintiffs bring lawsuits in their home jurisdiction, courts in the United States may be willing to dismiss the lawsuits where there would be significant inconvenience to the defendants, or where the facts related to the jurisdiction where the suit is brought are not materially relevant to the claim raised. Very similar forum non conveniens principles apply to cases brought in Canadian jurisdictions.
In a previous post, we discussed regulations proposed by Transport Canada in May 2016, proposing changes to provisions in the Canadian Aviation Regulations (“CARs”), which 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 floatation device (which may “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 the risks associated with exiting a seaplane following an accident into water.
The Canadian government recently announced that the regulatory provisions governing personal floatation devices will come into force on September 6, 2020. The regulatory provisions governing the new pilot training requirements will come into force on March 6, 2022.
A copy of the amendments to the regulations can be accessed here.
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 that their flight was closed and they were denied boarding. The airline attempted to rebook them on a flight departing one hour later, but the family declined on the basis that this was inconvenient. Ultimately, they were rebooked to travel the next day. The family then commenced an action in the Small Claims Court seeking $800 for denied boarding compensation, relying upon Rule 245AC of the Air Canada Domestic Tariff. The Small Claims Court adjudicator dismissed the claim on the basis that the passengers had not established that they were denied boarding on the basis of overbooking. The passengers appealed.
On appeal, the court considered whether the adjudicator erred in his interpretation of Rule 245AC and his finding that the passengers had the onus of proving that the denial of boarding was based on overbooking in order to be entitled to compensation.
On appeal, the court found there was no error by the adjudicator in interpreting the tariff. The language was clear and the remedies set out in the Rule only arose when “overbooking” is the cause of the involuntary denied boarding. The court was not prepared to find that the Rule applied to denied boarding due to a check-in delay. Further, the court went on to find that in order to succeed with a claim for denied boarding compensation pursuant to Rule 245AC, the claimants had the onus of presenting evidence to establish, on a balance of probabilities, that they were denied boarding because of overbooking. Here, the claimants had failed to do so and their appeal was dismissed.
The decision confirms that clear and unambiguous terms and conditions of carriage will be applied and highlights the importance for passengers to allow sufficient time for check-in.
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 or to submit to medical examinations. In addition, the powers of investigators under the Aeronautics Act were only to be exercised during the conduct of strictly military aviation accident investigations (in other words, investigations that do not involve civilians).
Although civilian aviation companies that support military aviation are contractually obligated to participate in investigations, any non-compliance on their part could only be pursued by the AIA in the civil courts as a breach of contract, which “can involve a slow and cumbersome process”.
Because of these concerns, new regulations under the Aeronautics Act were proposed to ensure that the AIA has sufficient powers to complete its investigations in both military-civilian aviation accidents and strictly military aviation accidents. The proposed regulations set out requirements for mandatory reporting by civilians of military-civilian occurrences to the AIA, the preservation of evidence, the keeping of records, the rights and privileges of observers involved in investigations, and warrants/notices to be issued by the AIA for search/seizure, production of information, the providing of statements, medical examinations, disclosure of patient information by a physician or health practitioner, and the performance of autopsies. The proposed regulations came into force on October 22, 2018, pursuant to an Order in Council. The full text of the regulations can be found here.
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, federal regulations require that employers conduct random alcohol testing among 10%, 25% or 50% of employees in safety sensitive functions (including pilots).
The implementation of drug/alcohol testing in Canada would face some legal challenges. In 2013, the Supreme Court of Canada (in C.E.P., Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34) held that drug and alcohol testing is only permissible in inherently dangerous work environments in two scenarios:
“for cause” testing of individual employees where there are reasonable grounds to consider they may be under the influence of drugs or alcohol; where an employee has been involved in an accident or other incident causing safety concerns; or
if an employer can demonstrate that there is a generalized problem of drug or alcohol abuse in an inherently dangerous workplace.
Employers who attempt to implement a drug and alcohol testing policy likely run the risk of a legal challenge to the policy. Furthermore, any attempts to legislate mandatory testing by federal regulators could be open to a challenge under Canada’s Charter of Rights and Freedoms, on the basis of a the right to life, liberty, security of the person, or the right to be secure against unreasonable search or seizure.
Operation of Aircraft while Intoxicated
The Canadian Aviation Regulations (CARs) state that no person shall act as a crew member of an aircraft:
(a) within eight hours after consuming an alcoholic beverage;
(b) while under the influence of alcohol; or
(c) while using any drug that impairs the person’s faculties to the extent that the safety of the aircraft or of persons on board the aircraft is endangered in any way.
In anticipation of the legalization date for marijuana, the federal government has recently passed several pieces of legislation concerned with imposing criminal penalties for operation of vehicles under the influence of marijuana,
On June 21, 2018, Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) received Royal Assent. Bill C-46 added provisions to section 253(3) of the Criminal Code, creating hybrid and summary offences if within two hours after ceasing to operate or assist in the operation of an aircraft, a person has a blood drug concentration over the limit prescribed by regulation. The prescribed limit is set out in The Blood Drug Concentration Regulation, published in the Canada Gazette, Part 11 on June 27, 2018. A person is guilty of a hybrid offense if they have a blood drug concentration over 5ng/mL of THC, and a summary offence if they have a blood drug concentration between 2ng/mL and 5ng/mL.
Carson Air TSB Report
Following the Carson Air Accident in April 2015, the TSB released a report in November 2017, recommending that the Department of Transport work with the Canadian aviation industry and employee representatives to develop and implement requirements for a comprehensive substance abuse program, including drug and alcohol testing, to reduce the risk of impairment of persons while engaged in safety sensitive functions. The TSB noted that the requirements should consider and balance the need to incorporate human rights principles with the responsibility to protect public safety.
In February 2018, Transport Canada provided a response to the TSB, which noted that there are already stringent medical requirements in place for obtaining a pilot’s license. Transport Canada further noted that under the Aeronautics Act, all physicians are required to report any medical conditions that may constitute a hazard to aviation safety to Transport Canada.
Transport Canada emphasized that it would continue to engage and collaborate with the Canadian aviation industry and employee representatives on this issue. Transport Canada held a “Fit to Fly” workshop in early June 2017, which brought together stakeholders from across the aviation industry to promote aviation safety culture within the aviation community and raise awareness about mental health and substance abuse. One of the panels at the workshop, entitled “Prevention, Implementation, and Measuring Success”, discussed random/mandatory drug and alcohol testing and enforcement.
Transport Canada also announced that in the fall of 2018, it would be launching an awareness campaign on substance abuse in aviation with the goal of educating the aviation community in recognizing substance abuse related symptoms and provide guidance in addressing possible problems.
Transport Canada also identified that currently, operators may administer alcohol and drug testing on flight crew members based on reasonable grounds of suspicion of impairment (“for cause” testing), as well as following an accident or incident. Pilots with a previous diagnosis of substance abuse may be subject to drug and alcohol testing to ensure compliance with the abstinence provisions of their certificate.
However, Transport Canada indicated that mandating any random drug and alcohol testing would require further analysis to determine the most effective means to address the recommendation while considering privacy and human rights issues.
Transport Canada also indicated that it is currently reviewing policy on impairment, specifically taking into account Bill C-46, and considering a number of approaches, including performing pre-employment testing for substance use, performing mandatory random substance use testing, and increasing the minimum time between consuming drugs/alcohol and beginning duty. This analysis is expected to be completed by fall of 2018.
In the meantime, the Director General of Civil Aviation has recently addressed a letter to the Canadian aviation community regarding impairment, including impairment caused by cannabis, in advance of the October 17, 2018, legalization date. The letter emphasizes that the CARs currently prohibit the use of cannabis by all members of a flight crew and that the transportation of cannabis across international borders remains illegal. The Director General states that Transport Canada will continue to work with Justice Canada, Health Canada, and Public Safety Canada to ensure that the issue of impairment receives proper policy and legal analysis to maintain aviation safety while balancing the legal rights of employees.
Several carriers have also announced that they will be implementing marijuana specific policies, including prohibiting marijuana use by employees in safety critical positions. As Canada enters a new frontier with the regulation and legalization of marijuana, all industries, including aviation, are considering the impact that this new “legal vice” will have on their businesses.
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 of issues including:
the communication of passengers’ rights and recourse options;
flight delays and cancellations;
denied boarding including bumping;
tarmac delays of three hours or more;
lost or damaged baggage;
the seating of children under the age of 14 years; and
the development of terms and conditions of carriage on the transportation of musical instruments.
The CTA is seeking input by holding in-person sessions, collecting questionnaires and receiving written submissions. The CTA is intent on moving forward quickly with the process. The scheduling of the in-person sessions was abbreviated with single day in-person sessions across the country occurring between mid-June and early July. Interested parties may also complete questionnaires and provide written submissions. The CTA has published a Discussion Paper on Air Passenger Protection Regulations, which provides a framework for the consultation process and its objectives. The consultation process is to remain open only until August 28, 2018. The draft regulations will likely be published before the end of the year.
The regulations created by the CTA will be in relation to flights to, from and within Canada, including connecting flights. Therefore, they will apply to both foreign and domestic carriers. However, at this time it has yet to be determined whether specific requirements set out in the new regulations will apply to some rather than all airlines. As part of the process, the CTA will consider regulations which exist in the US and EU. In those jurisdictions, some passenger protection requirements are differentiated by the type of airline, type of aircraft and aircraft operations. Similar differences are expected for Canadian airlines.
When the new air passenger protection regulations come into effect, airlines will be required to comply. Passengers who believe the airline has not followed its obligations will continue to have the option of filing a complaint with the CTA. If the CTA finds that the airline has not followed its obligations, the CTA may take corrective measures, including ordering the airline to compensate its passenger and/or issuing monetary penalties. The CTA has indicated that it intends to provide protections and levels of compensation which are world leading. Stay tuned for updates once the regulations are published.
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 in the areas of flight operations and technical analysis, policy and regulatory planning and stakeholder engagement, engineering and certification standards, and service delivery.
In establishing the UAS Task Force, Transport Canada is recognizing that the increasing use of drones is a departmental priority, as well as one of the top safety risks in aviation. Transport Canada has stated that it aims to provide a regulatory environment for drones that will promote innovation and economic growth and address emerging issues through collaboration with industry stakeholders.
The UAS Task Force has assisted with the creation of the Proposed Regulations Amending the Canadian Aviation Regulations (Unmanned Aircraft Systems) which would apply to all drones, commercial and recreational, weighing between 250 g and 25 kg being operated within visual line of sight (“VLOS”).
The Proposed Regulations divide drones into three operating categories, with more lenient or stringent regulatory requirements depending on weight and area of operation. The Proposed Regulations also introduce new definitions: a “very small unmanned aircraft” has a maximum take-off weight of more than 250 g but not more than 1 kg while a “small unmanned aircraft” has a maximum take-off weight of more than 1 kg but not more than 25 kg. The Proposed Regulations stipulate different compliance requirements if a small UAS is being used for “limited operations”, in rural areas and away from populations, or if used for “complex operations”, near built up areas, airports or aerodromes, or people.
Common to all three operating categories is the need for operator training and the requirement that the drone operator carry liability insurance of at least $100,000.
Operations that involve drones weighing more than 25 kg, operated beyond visual line of sight (BVLOS”), or used to transport payloads will require an SFOC.
Transport Canada intends for the new Regulations to come into effect sometime in 2018.
Through a series of consultation sessions conducted across Canada in 2017, the UAS Task Force identified a number of stakeholder concerns and recommendations regarding the Proposed Regulations. With respect to commercial use, the UAS Task Force heard concerns that commercial drone users need a predictable regulatory framework, and that the ongoing requirement for SFOCs results in administrative burden and hinders commercial use in many sectors. For recreational users, the UAS Task Force recognized concerns that the prohibitive cost of compliance could have a negative effect on owners and operators, and that implementation of complex rules for use might result in reduced compliance.
The UAS Task Force has also launched the UAS Centre for Expertise in Dorval, Quebec. The stated goals of the Centre of Expertise are to:
(a) Streamline and standardize the SFOC process;
(b) Provide expert advice to regional inspectors;
(c) Monitor SFOC performance; and
(d) Engage stakeholders on current issues and safety promotion.
For now, it appears that Transport Canada’s focus is on finalizing regulations with respect to VLOS operations of drones. With respect to BVLOS operations, the UAS Task Force has supported several early pilot projects including short range BVLOS trials by first responders. Transport Canada has also announced its intention in 2018 to select and authorize trials of BVLOS technology with further industry stakeholders. These trials will likely be an early step in a movement towards developing regulations for BVLOS operations, potentially opening the door to a host of new uses and markets for drone operators in Canada.
Time will tell whether the current regulatory strategy of Transport Canada will promote innovative drone use and collaboration between industry stakeholders and government, or only add further administrative burden and create additional challenges for commercial and recreational drone users alike.
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 had complained to the airline that he was uncomfortable during a flight as a result of being seated beside another passenger “who required additional space”. In its email apologizing for the passenger’s discomfort, Delta stated that it encourages “large passengers” to book additional seats in order to “guarantee comfort for all”, but that if a passenger requires more space when onboard the flight, the passenger may be asked to move to another location on the plane, or, if the flight is full, to take a later flight. Dr. Lukacs claimed that these practices were contrary to section 111(2) of the Air Transportation Regulations, which prohibits unjust discrimination in an airline’s conditions of carriage.
In its consideration of the complaint, the Agency questioned whether Dr. Lukacs had an interest in Delta’s practices governing the carriage of obese persons. In the civil courts, litigants must have either private or public interest standing. Private interest standing requires the claimant to establish that they have a direct personal interest in the subject matter, while public interest standing requires the court to apply a three-part test, one aspect of which is whether the claimant has a real stake or a genuine interest in the claim. Previous Supreme Court of Canada case law states that the test for public interest standing is to be applied in a flexible and discretionary way.
Dr. Lukacs argued that he had private interest standing on the basis that the practices at issue were in respect of the carriage of “large”, and not “obese”, persons, and that the fact that he was six feet tall and 175 pounds meant he could be considered a “large person”. The Agency rejected this argument. It was not satisfied that he was a “large person” for the purpose of Delta’s policy, and was unable to conclude that he was “aggrieved” or “affected” or that he had some other “sufficient interest” to establish private interest standing.
The Agency also held that Dr. Lukacs did not have public interest standing. In the Agency’s view, he did not meet the second aspect of the test, which it interpreted as requiring him to have been affected by legislation or government administrative action, or have a genuine interest in the validity of legislation or government action. His complaint was against a private company, and did not question the validity of any legislation or administrative action.
The majority of the Supreme Court of Canada found that, in dismissing Dr. Lukacs’ complaint on the basis that he failed to meet the civil courts’ tests for standing, the Agency did not reasonably exercise its discretion to hear the complaint. First, the Agency applied the test for public interest standing in a rigid way that arguably meant that test could never be met, as the Agency does not deal with complaints based on the validity of legislation or administrative action. The majority also found that the Agency’s application of the test was inconsistent with the rationale underlying public interest standing, which is for the court to use its discretion, where appropriate, to facilitate access to justice, not to bar it.
Second, the majority found that the effect of the Agency’s decision was that only a person targeted by a policy or practice could bring a complaint, and, therefore, that public interest groups would never be able to do so. In the majority’s view, this was contrary to the broad remedial discretion provided to the Agency under the Canada Transportation Act (the “Act”) to inquire into and decide complaints, which, in part, permits the Agency to correct discriminatory terms and conditions before passengers actually experience harm. Refusing a complaint based solely on the identity of the complainant prevented the Agency from hearing potentially relevant complaints, hindering its ability to fulfil the Act’s objectives.
The Court remitted the matter to the Agency for reconsideration in its entirety, indicating that it was for the Agency to determine how to exercise its discretion to hear and decide the complaint. In doing so, the Agency was not precluded from considering the standing tests of civil courts, provided these were reasonably adapted in light of the statutory scheme. Other ways suggested by the majority in which the Agency could exercise its discretion included examining whether the complaint is in good faith, timely, vexatious, duplicative, or in line with the Agency’s workload and prioritization of cases. The Agency could also consider whether the complaint raises a serious issue to be tried or is based on sufficient evidence.
We await the reconsideration decision of the Agency, and are hopeful that it will provide sufficient guidance regarding whether and how the Agency will adjudicate future complaints brought by an unaffected party.
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), 2017 ONCJ 750.
Helicopter Emergency Medical Services (HEMS) have been based out of Moosonee airport since the 80’s. Canadian Helicopters Ltd. (CHL) took over HEMS operations at Moosonee in 1999, flying Sikorsky S-76A helicopters. Ornge initially became involved with simply providing medical services and contracting the flying to CHL. They subsequently decided to take over flying and in 2008 Ornge ordered 12 AW 139 aircraft. Ornge began operations in Moosonee in April 2012. All Ornge aircraft and pilots were certified and capable of instrument flight.
Moosonee airport is not overly busy but can be challenging at night because of the lack of cultural lighting. In Moosonee and northern Canada, there is a known practice of declaring a night flight as VFR but conducting it as an IFR flight to avoid the need for an alternate airport and Wx report. Transport Canada was aware and tacitly approved of this. The helicopter involved in the accident had operated at Moosonee since 1999, without serious incident. The court described it as basic but capable. It complied with the regulations but lacked available upgrade equipment which the judge found could enhance safety. The new AW 139 helicopters were more sophisticated and powerful but reportedly had maintenance issues. The first one arrived in 2010 and the plan was to phase out the S-76A, although Ornge had no plan to station one at Moosonee as they considered it unsuitable for that area. Neither the Sikorsky nor AW 139 were equipped with NVGs. Witnesses at trial promoted NVG equipment, describing it as a near miraculous game changer which could turn night into day.
Because of the failure to provide NVGs, charges were brought against Ornge. The Crown was required to prove 2 elements, namely that (1) there was a failure of Ornge to ensure safety (2) by failing to provide the pilots with a means to enable them to maintain visual reference while operating at night. The court noted that “ensure” means: to make certain; to secure. However, in aviation one cannot completely eliminate risk. Therefore, the Court found that “safety” in aviation means: the state in which the risk of harm to persons or property is reduced to and maintained at or below an acceptable level. Surprisingly, and without detailed analysis or explanation, the judge simply held that when an accident occurs, an acceptable level of safety has automatically not been ensured. The judge also inferred from the fact that the take-off required the use of instruments that the standard search light was not adequate to provide an acceptable level of safety, although it was in essence an IFR departure.
Ornge was then required to prove on a balance of probabilities that it was not negligent and exercised reasonable care or due diligence. Put another way, Ornge had to show that it did what was reasonably practicable for a helicopter operator in its position to ensure the health and safety of its employees engaged in night flying out of Moosonee. Ornge argued that NVGs are not required by any regulation, not required by Canadian HEMS industry standard and not feasible. The court agreed that Ornge was in regulatory compliance, noting that Canadian aviation is heavily regulated with strict standards and oversight. The court also found that use of NVGs were not the industry standard for Canadian HEMS operations. It did note that they were used by operators in different industries and that almost all HEMS operators in the US used them (although US pilots and aircraft are not certified and qualified for IFR operations).
Based upon how the charges were framed and pursued by the Crown, the focus of evidence was almost exclusively on the failure to provide NVGs. However there was consideration of other steps that Ornge could have taken to avoid or lessen the possibility of the accident, such as installing an auto-pilot or TAWS. The judge found it difficult to understand why they weren’t required by the regulator or provided by the operator. He also referred to the availability of an enhanced search light. Although the evidence about these lights was meager, the court found that it provided a strong rebuttal to the defendant’s claim of due diligence, as these lights reportedly lit up everything and had been internally recommended by someone within Ornge. The judge said that Ornge had to answer why they had not installed the lights and show that it was impractical or cost-prohibitive. Based on the evidence at trial, the court held that Ornge had not done so. Although the judge found Ornge was negligent for failing to provide enhanced search lights, that was not the charge against them. The narrow charge against Ornge was that it failed to provide NVGs and not another alternate theory. As a result, all three counts were dismissed. While this decision appears to recognize that the operator fully complied with applicable regulations and met industry standards, it narrowly over-emphasized the availability of some enhanced equipment.