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.

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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.

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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.

Proposed Regulations

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.

What’s Next?

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 post Innovation or Complication: The Emerging Regulatory Landscape for Drone Use in 2018 appeared first on Aviation Law Blog.

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.

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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.

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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 brain because it involved changed patterns of neurotransmitter activity and chemical changes. In a unanimous decision, the appeal court then overturned the trial court’s ruling and found that while “bodily injury” does not exclude consideration of damage to a person’s brain, there must be evidence of actual physical damage to the brain.  While there was evidence to support the conclusion that Ms. Casey’s brain was malfunctioning as a result of biochemical changes, there was no evidence that her brain had been physically changed.  The biochemical changes did not amount to “bodily injuries”.

Recently, the United States Court of Appeals (Sixth Circuit) has also considered the issue of whether damages for “mental distress” type injuries could be awarded. In Doe v. Etihad Airways, the passenger was unexpectedly pricked by a hypodermic needle when she reached into an aircraft seatback pocket to retrieve an item. She sought damages for both her physical injury and her “mental distress, shock, mortification, sickness and illness, outrage and embarrassment from natural sequela of possible exposure to various diseases.” In accordance with prior jurisprudence, Etihad argued that the passenger could only recover damages for mental distress if the mental distress was caused by bodily injury.

The Court in Doe noted that most previous decisions considered the language in the Warsaw Convention (the predecessor treaty to the Montreal Convention). The Court interpreted new words in the Montreal Convention to infer that no causal link between the bodily injury and the mental injury is required. All that is required is that a bodily injury (a physical injury) is also suffered. In other words, the Court ruled that mental anguish is compensable as long as the passenger also suffers a physical injury in the same accident.

Prior courts have considered this rationale, but declined to rule in this manner because of the following possible illogical consequence. If two passengers are involved in an aircraft accident and one suffers purely mental injury, while the other suffers the same mental injury and a scratched finger (suffered while evacuating), then the passenger with the scratched finger can recover mental injury damages and the other passenger can recover no damages at all. The Court in Doe was not troubled by this outcome and found that it was fully consistent with the text of the Montreal Convention.

The Doe decision is an anomaly and is sure to generate further debate in the future. In Canada, the Courts have followed prior jurisprudence interpreting the Montreal Convention and have ruled that passengers can only recover damages for mental distress if the mental distress was caused by bodily injury.

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Continental applied to have the action dismissed on the basis that the claims against it were barred by a US federal statute, the General Aviation Revitalization Act of 1994 (“GARA”). GARA bars civil actions against a manufacturer for death, injury, or property damage arising out of an accident involving an aircraft or component from being brought more than 18 years after the date of delivery of the product to its first purchaser. In this case, the engine had been originally delivered in 1968. Continental therefore argued that, as the crash occurred in the US, GARA applied and barred the claims against it.

The Court of Appeal disagreed, upholding the decision of the lower court judge. First, the “crux” of the claims by the other defendants against Continental was found not to be the negligent manufacture of the engine, but, rather, negligent misrepresentation and failure to warn. The “situs”, or location, of the alleged tort was therefore not New York, but Ontario, where ATC and CAR had received and acted upon Continental’s instructions in maintaining and overhauling the engine. Given the legal principle that the substantive law to be applied to a tort claim is that of the jurisdiction where the tortious activity occurred, Ontario law, rather than New York law, applied. GARA, as a US statute, could therefore have no application.

Second, the Court reasoned that even if the tort were considered to have occurred in New York, GARA would be inapplicable because the claim had been brought in a Canadian court. It cited a decision of the US Ninth Circuit Court of Appeals stating that GARA only regulates the ability of a party to seek compensation from aviation manufacturers in US courts. This is because GARA is procedural, rather than substantive, legislation. Its effect is to start the running of the limitation period for a claim against the manufacturer at the time of delivery of the aircraft or component (rather than the date of the accident, as is typically the case in tort law), but it does not affect the substantive law of torts. Consequently, because the procedural law that applies to a claim is determined by the jurisdiction in which the claim has been brought, not the jurisdiction where the tort occurred, Ontario rules of procedure applied and GARA did not.

Continental is seeking to appeal this decision to the Supreme Court of Canada. However, even if the Supreme Court agrees to hear the appeal, Continental will have an uphill battle to convince the Court of its position. In this author’s view, the decision of the Court of Appeal, and the law on which it relies, are correct, and the result is unlikely to be overturned.

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The aircraft operator argued that the workers were not members of TEC just to receive education and training or to maintain any sort of qualification, but to further their work as CEOs.  The aircraft operators argued that the passengers were on the flight for business purposes.  Counsel for the passengers argued that the purpose of TEC was to develop its members personally and professionally, and not to further the goal of their employers.  In an extensive decision, the WCAT decided that while there was evidence supporting each argument, the TEC activities on balance were more for the passengers’ own benefit in enhancing their general knowledge and skills in relation to their functioning as CEOs.  The activities were found to be not sufficiently connected to their employment.

The WCAT decision was then appealed to the British Columbia Supreme Court.  The Court noted that it was required to show deference to the WCAT’s decision as the WCAT is an expert tribunal.  In order to overturn the decision, it had to be found that the WCAT’s decision was “patently unreasonable”.  In other words, the WCAT’s decision could only be overturned if the evidence was incapable of supporting the Tribunal’s findings of fact.  The Court found that while there was evidence supporting the air operators’ arguments, there was also ample evidence supporting the WCAT’s decision.

The British Columbia Supreme Court’s decision was then appealed to the British Columbia Court of Appeal.  On February 1, 2017, the Court of Appeal upheld the decision of the WCAT.  The Court of Appeal again noted the deference owed to WCAT decisions and the fact that there was evidence to support the WCAT decisions, which could not be said to be patently unreasonable.

This case is of particular interest as involves activities that involved both professional and personal issues.  Some TEC meetings involved the discussion of specific business initiatives and strategies, while others discussed work-life balance and family problems.  Although the resolution of all of these issues could be translated into assistance in being a more effective CEO, the WCAT appeared to liken these TEC meetings as more educational and not sufficiently connected to work.  The British Columbia Court of Appeal’s decision has not been appealed to the Supreme Court of Canada.

Northern Thunderbird Air Inc. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 60

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Passenger Bill of Rights

Section 19 of the Act will amend the Canada Transportation Act by requiring that the Canadian Transportation Agency (“CTA”) make regulations relating to flights to, from, and within Canada.  The focus of this section is on imposing obligations on carriers to establish a compensation regime for passengers in the event of flight delay, flight cancellation, or denial of boarding.  The regulations will set out minimum standards for treatment of passengers where the inconvenience is within the carrier’s control, required for safety purposes, or due to natural phenomena or security events.  The regulations will require that all terms and conditions as well as information regarding passenger right of recourse be made available and comprehensible to passengers.

In addition, the CTA will make regulations regarding minimum compensation for lost or damaged baggage, in circumstances where the Montreal Convention or other international treaties do not apply.  The CTA must also facilitate safe transport of children aged 14 years or under by guaranteeing priority for seat changes to ensure proximity to guardians and parents, as well as provide assistance and information to passengers in the event of a tarmac delay.  Furthermore, the Minister will be able to issue directions to the CTA to establish regulations respecting any obligation of a carrier towards passengers.

The Act will also require the addition of provisions to the Canada Transportation Act to stipulate that a complaint to the CTA against a carrier concerning any obligation prescribed by the new regulations may only be filed by a person adversely affected.  Such a provision ensures that the CTA has the ability to streamline the legitimate complaints of passengers whose rights have been directly affected.

While the Act sets out the areas in which the CTA must regulate, it does not provide any specifics of what the regulations will entail.  The CTA will be consulting with industry groups, consumer rights organizations and the public and following these consultations, the regulations will be drafted to be approved by the Governor in Council.

Ownership Requirements

The Act also requires amendments to allow for an increase in foreign ownership for commercial air carriers to meet the definition of “Canadian” under Part II of the Act. The Canada Transportation Act currently defines a “Canadian” corporation as one that is controlled in fact by Canadians and where at least 75% of the voting interests are owned and controlled by Canadians. The Act amends the definition of “Canadian” to lower the threshold to allow for up to 49% of voting interests to be owned and controlled by non-Canadians, so long as no more than 25% of the voting interests are owned directly or indirectly by any single non-Canadian, or one or more non-Canadians authorized to provide an air service in any jurisdiction.  These new requirements would allow for larger foreign investment and provide more competition and choice for travellers in the Canadian air transportation sector.

Joint Ventures

The Act will also create a system of review for arrangements between two or more air service providers, as well as consequential amendments to the Competition Act, Air Canada Public Participation Act, and several other pieces of legislation.

In the event of an arrangement, a notice of a proposed arrangement shall be provided by the air service providers involved to the Minister of Transport (the “Minister”) as well as the Commissioner of Competition (the “Commissioner”), and will include information required under guidelines to be developed through consultation between the Minister and Competition Bureau.

The Commissioner will report to the Minister and all parties within 120 days regarding any competition concerns that may arise from the proposed arrangement.  The parties will also be able to propose amendments to the arrangements which must be authorized by the Minister after consultation with the Commissioner.  Furthermore, the Act makes it an indictable offense if a party proceeds with the arrangement without authorization, or is not in compliance with the terms and conditions imposed by the Minister or Commissioner, with prescribed punishments of imprisonment for up to 5 years or a fine of up to $10,000,000.

These provisions will allow for more flexibility air carriers to coordinate their business and services, creating new opportunities for Canadian travellers while ensuring that competition-based concerns are given appropriate consideration.

Next Steps

The government is aiming to have the legislation in force by 2018.

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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 Subpart 703 (air taxi), 704 (commuter), and 705 (airline) operators. There are several key aspects to the proposed regulations. First, maximum annual flight time would be reduced from 1,200 to 1,000 hours. Second, the maximum flight duty period would be reduced from 14 hours to between 9 and 13 hours, depending on when the duty commences, and the number and duration of flights. The lower end of this range would apply to duty periods commencing between 23:00 and 03:59, reflecting research demonstrating the particularly detrimental effects of fatigue during the “window of circadian low”. Duty time limitations are also proposed. These include an annual maximum of 2,400 hours, and specific limits within 7- and 28-day periods depending on time free from duty, timing of the flights, and longest flight duty period.

Rest periods would be increased from 8 to between 10 and 12 hours, depending on whether the pilot is at home base, and whether the rest occurs in accommodation provided by the operator. Local night rest periods (beginning at 22:30 and ending at 07:30 at the location where the pilot is acclimatized) would have to be provided for “disruptive” schedules (e.g., where the pilot transitions from a night duty to an early morning duty), three consecutive night duty periods, or where there are time zone differences.

The proposed requirements can be deviated from in certain circumstances. First, an operator may implement a Fatigue Risk Management System (FRMS) that demonstrates that they can provide the same level of safety as the regulations. An FRMS includes elements such as identification of fatigue-related hazards, fatigue reporting, and training. An operator’s FRMS would not be approved by Transport Canada, but ongoing compliance would be monitored through requests for information/documentation as well as general inspections and audits.

Second, in “unforeseen operational circumstances”, the pilot-in-command would have authority to extend a duty period by up to three hours, depending on the number of relief pilots and the number of flights. Third, the maximum flight duty period could be increased with a combination of relief pilots and rest facilities. For example, if there are two additional pilots and a class 1 rest facility (a horizontal sleeping surface separate from the flight deck and passenger cabin), the maximum duty period is 18 hours.

Transport Canada claims that the costs of the proposed regulations will be $337.65 million and the benefits $314.30 million over a 15 year period. While a majority of the costs would be borne by Part 705 operators, Transport Canada acknowledges that the relative costs would be higher for smaller operators. The vast majority of the purported benefits are expected to come from a reduction in accidents, based on data that between 15% and 0% of aviation accidents are contributed to by fatigue and an assumption that the amendments will reduce the fatigue-related accident risk by over 50%.

Consultation on the proposed regulations is open until September 29 2017. Once the regulations are published in final form, 705 operators will have one year to comply, and 703 and 704 operators will have four years to comply with them.

Given the wide range of operations affected and the potential costs compared to estimated benefits, these proposed regulations are contentious. While all involved in the aviation industry place a very high value on safety, there remains an issue over balancing everyone’s interests and how best to achieve those goals at reasonable costs. Time will tell whether and how Transport Canada will respond to industry concerns and recommendations, and how the eventual implementation of the regulations will affect pilots and operators.

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