Canada is without a doubt one of the best countries on Earth to learn how to fly given its favourable exchange rate, low flight training costs in comparison with other nations, experienced flight instructors, internationally recognized and respected pilot licenses and ratings, globally renown civil aviation authorities, progressive immigration laws and regulations, and stable and peaceful society.
However, the Canadian and international aviation professional must understand that there is a serious lack of coordination between our legislatures and Parliament, and great legal disparities among the ten legislatures. Indeed, the lack of centralization of the educational component of the flight training regulatory framework has created “flight training havens” in this country. The objective of this article is to expose these flight training havens on a legal basis.
A. Flight Training and the Division of Powers
Pursuant to the Constitution Act, 1867, Canada is a federation in which Parliament and provincial legislatures share legislative power on selected matters. This is what we call in the legalese vocabulary the “division of powers”.
Sections 91 to 95 of the Constitution Act, 1867 enumerate the legislative powers falling under whether the exclusive jurisdiction of Parliament or provincial legislatures. For example, matters related to “Militia, Military and Naval Service, and Defense” (ss. 91(7) and “Indians, and Lands reserved for the Indians” (ss. 91(24) fall under exclusive jurisdiction of Parliament. Section 93 stipulates that “Provinces may exclusively make Laws in relation to Education”. But what about flight training?
B. What is the jurisdiction of flight training in Canada?
This question has never been really legally challenged, but here is a brief summary of the situation.
As there were no planes in 1867 flying in our skies, the Fathers of the Constitution did not textually include “aviation” in the Act. Therefore, we need to look at the jurisprudence. The Supreme Court of Canada has always confirmed that Parliament has exclusive jurisdiction to regulate the field of aviation given its national importance and interest. (In re Regulation and Control of Aeronautics in Canada, [1932] A.C. 54 (P.C.)., Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292, Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536). At the federal level, flight schools are called “flight training units” and are regulated by the Canadian Aviation Regulations promulgated under the Aeronautics Act. As additional information, you may be interested in Transport Canada’s portal on Personnel Training and Licensing, which has a section on Flight Training as well as a Flight Training Units Search tool.
That said, one cannot pretend that flight training exclusively falls under parliamentary jurisdiction as the education aspect is quite apparent and dominant especially for institutions providing a vocational program (i.e. commercial pilot license, integrated airline transport pilot license or flight instructor rating). With the emergence of private colleges focusing on career development – as the flight training industry oriented on airline careers – through the 1990s and 2000s, provincial legislatures across Canada started to enact legislation framing the operation of private career colleges. At the provincial level, privately owned flight schools are usually called “private career colleges” or “vocational career colleges”. While each province has created publicly-funded colleges providing aviation program such as Seneca College in Ontario and Centre québécois de formation aéronautique in Quebec, this article will focus on the private colleges providing flight training services across the ten provinces of Canada.
C. The Different Provincial Regimes
I have created the following chart to briefly illustrate which legislatures have the most relaxed laws in respect to education specific to flight schools. The results are surprising.
From this chart, one notices that Saskatchewan, Manitoba and New-Brunswick seem the be the most advantageous jurisdictions to operate a flight training unit in Canada when we evaluate the legal constraint on the educational perspective. Note that other provinces are not necessary “worst“ or “more disadvantageous” jurisdictions as other factors such as market accessibility, pool of general population, proximity and connections with the Canadian aviation industry, access to capital and financial institutions, proximity with public decision makers and national/international civil aviation organizations constitute valid criteria to considerate when an operator wants to start a flight training unit. This is without indicating generous financial assistance programs that some provinces may be offering to student pilots (i.e. Alberta) vis-à-vis other meagre or poorly efficient financial programs such as in Ontario for example. When applicable, each of these vocational institution legislation legal frameworks, for the private colleges, whether they embrace formulaic student refund policies, complex surety financial requirements imposed by the different governmental agencies, or have restrictions, in terms of the private colleges operations, must be understood.
D. What about the territories?
Canada’s territories – Yukon, Northwest Territories, and Nunavut – are strange federal creatures. One must understand that contrary to provincial status, territorial legislatures, respectively created by Parliament with the Yukon Act, 2002, Northwest Territories Act, 2014, and Nunavut Act, 1993, have no entrenched constitutional position or legislative power under the Constitution. That said, Parliament has devolved some of its constitutional powers to the territorial administrations in the above three acts and has transferred most of the legislative powers granted to the provinces by Sections 91 to 95 of the Constitution Act, 1867, including the jurisdiction over property and civil rights and education. There is no territorial legislation regulating private colleges in Yukon, Northwest Territories, and Nunavut and at the date that this article was published, there is only one flight training unit operating in the territories.
Conclusion
As noted above, it appears that the legislatures of Saskatchewan, Manitoba and New-Brunswick and the three territories have adopted more relaxed rules in respect to the educational activities of the flight training organizations. While other legislatures may have more complexed laws and “potential” legal constraints in the operation of flight schools as per Section 93 of the Constitution Act, 1867, it is noteworthy to mention that Parliament does regulate the operations – to some extent – of its schools and learning institutions falling under its exclusive powers such as the Royal Military College of Canada with National Defense, and schools located on Indian reserves (see ss. 114(2) of the Indian Act). Perhaps there are grounds for a constitutional challenge to accord exclusive federal jurisdiction to flight schools operating on federal lands (i.e. on airports part of the National Airports Systems)… Could Parliament propose a potential Flight Training Act that would regulate such flight schools? Would this Flight Training Act pass the pith and substance legal test?
This article was written by Alexis David Fafard, LL.L., J.D., Ottawa Aviation Services and can also be found at Flying Policies blog.