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Jan 3, 2018

Hughes Amys' Sean Tindale's article in The Lawyer's Daily: Mapping the shifting regulatory landscape of drone use in Canada

Posted in Legal Resource

Author Michael S. Teitelbaum

Related Lawyer Sean P. Tindale

Congratulations to our very own Sean Tindale for his excellent Lawyer's Daily article, pasted below, on the timely topic of drone use regulation in Canada.

As indicated, this article was originally published by The Lawyer's Daily,

(www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

A PDF version is also attached.

Well Done, Sean!



Business

Mapping the shifting regulatory landscape of drone use in Canada

By Sean Tindale

(January 3, 2018, 8:56 AM EST) -- 



Perhaps you know a young person, like my son, who wants to explore the world from an aerial perspective with 4K video — just like some of the vloggers he watches much too often on YouTube.

Before jumping head first into a drone purchase, you may want to consider how the new technology can be used under Canada’s current and anticipated drone regulations. A review of the regulatory landscape reveals, among other things, some of the risks and responsibilities facing drone users in Canada; and confirms that safe and lawful use of this new technology requires careful consideration. Despite how drones are often marketed, using them is not mere child’s play.

In Canada, the regulation of aircraft falls within the federal government’s jurisdiction over aeronautics. Accordingly, the starting point for rules governing drones, model aircraft and/or Unmanned Air Vehicles (UAVs) is Canada’s Aeronautics Act. Under the Act, the minister of Transport is responsible for various regulations and orders, including the Canadian Aviation Regulations SOR/96-433 and Interim Order No. 8 Respecting the Use of Model Aircraft. 

The primary source for current federal rules governing recreational drone use in Canada is Interim Order No. 8. Respecting the Use of Model Aircraft, made under the Aeronautics Act, s. 6.41(1).  The current regulations differentiate between drones based on weight, as well as the purpose for which the drone is used.

Regulations under Interim Order No. 8 that are applicable to all recreational drones, regardless of weight, include the following:

  • At all times, recreational drones must give way to manned aircraft;
  • Do not fly more than 90m above the ground;
  • Fly at least 5.5 km away from aerodromes (any area where aircraft take off and land);
  • Fly at least 1.8 km away from heliports or aerodromes used by helicopters;
  • Do not fly within controlled or restricted airspace;
  • Fly at least nine km away from a natural hazard or disaster area;
  • Do not fly in a police or security zone or area that could interfere with emergency or first responders;
  • Do not fly over or within an open-air assembly of people;
  • Do not fly at night or in clouds;
  • Fly within eyesight at all times (ie. within “visual line of sight”);
  • Fly only within 500m of your location;
  • Fly only if the drone is marked with a name, address and telephone number.

Exemptions from the above rules may apply if a drone is operated at a location or event approved by the Model Aeronautics Association of Canada.

Transport Canada recommendations that apply to the use of all drones include:

  • Inspection of a drone before flying (to ensure safe operation);
  • Respect for privacy — do not fly over private property or take photos or videos without permission;
  • Respect the Criminal Code, trespass laws and other applicable local laws.

 Currently, with respect to drones that weigh over 250g and under 35kg and that are used for recreational purposes, the following additional rules apply:

  • Fly at least 30m from vehicles, vessels and the public (if the drone weighs over 250 g and up to 1 kg);
  • Fly at least 75m away from vehicles, vessels and the public (if the drone weighs over 1 kg and up to 35 kg).

Flying a recreational drone where it is not permitted, or breaking other rules regarding drone operation, may result in a fine of up to $3,000 for a drone user.

A non-recreational drone (legally called an Unmanned Air Vehicle) is anything other than a recreational drone (model aircraft). Non-recreational drones must comply with the Canadian Aviation Regulations.

Currently, if a drone weighs more than 35kg, or if a drone (of any weight) is used for work/business or research (non-recreational purposes), special flight permission is required from Transport Canada. In particular, a Special Flight Operations Certificate outlines how and where the drone must be used. Commercial drone users that fly without a certificate may be fined up to $5,000 for a person and $25,000 for a corporation. A fine up to $15,000 may be imposed on a corporation for non-compliance with a flight certificate.  

If the current regulations are not enough to give you pause before making a drone purchase, then the new rules that are expected to take effect in 2018 might just change your mind. Specifically the new rules were developed with three categories of drones in mind. Each category is based on the size of the drone, the pilot and where the drone is operated. The three categories are as follows:  

Very small drones — more than 250g and up to 1 kg (recreational users):

  • Pilots must be 14 years old or older;
  • Pilots must have liability insurance;
  • Pilots must fly at least: 5.5km from airports; 1.85km from heliports; and 30m from people.

Small drones — more than 1 kg and up to 25 kg (rural users who operate in rural areas (agricultural purposes, wildlife surveys, natural resources):

  • Pilots must be 16 years old or older;
  • Pilots must mark their device with their name and contact information;
  • Pilots must pass a basic knowledge test;
  • Pilots must have liability insurance;
  • Pilots must fly at least: 5.5km from airports; 1.85km from heliports; 150 m from open-air assemblies of people; 75 m from people, vehicles, vessels; and 1 km from built-up areas.

Small drones — more than 1 kg and up to 25 kg (urban users who intend to fly in urban areas, within controlled airspace or close to locations where airplanes, helicopters and floatplanes, etc. land and/or take off):

  • Pilots must be 16 years or older;
  • Pilots must hold a pilot permit that is specific to small drones;
  • Pilots must have liability insurance;
  • Pilots must register and mark their device with a unique identification to be provided by Transport Canada;
  • Pilots must only operate a drone that meets a design standard;
  • Pilots must follow a set of flight rules;
  • Pilots must get approval from air traffic control when flying in controlled airspace or near aerodromes;
  • Pilots must fly at least: 150m from open-air assemblies, unless at least 90m high; and 30m from people, vehicles, vessels.

Additionally, under the new rules, operators of drones weighing between 250g and 25kg will not require a Special Flight Operations Certificate, but only if the drone is operated within visual-line-of sight.

With respect to the insurance requirements under the new rules, all operators who fly a drone that weighs more than 250g for any purpose must have minimum liability insurance of $100,000.

In terms of pilot training under the new rules, pilots of very small drones or small drones for limited operations (see categories #1 and #2 above) must pass an online examination that covers knowledge of safe drone operation. Pilots who intend to fly under category #3 (urban users and complex operations) must pass a written test and obtain a pilot permit related to small drones.

In the end, drones offer exciting new possibilities for users, whether recreational or commercial. At the same time, potential drone users are facing a regulatory landscape that is in transition. Current and anticipated regulations highlight the risks and enhanced responsibilities facing drone users — factors that potential purchasers may want to keep in mind.

Sean Tindale is a partner with Hughes Amys LLP practising civil litigation in the firm’s Hamilton office.

 

© 2018, The Lawyer's Daily. All rights reserved.

 

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