Flight training still open during Ontario province-wide lockdown?

[BlueLights]

Hello,

I’m just curious if it’s legal to still attend my flight training. I was told the training can still carry on. The restrictions does exempt post secondary education that has to be in person.

I feel it’s a little uneasy about this. Is this still allowed? Or is it just some word play by the FTU?

[photofly]

It's the business that has to obey the regulations, not the customer. It's legal for you to attend anything they offer.

[Civic]

It's the business that has to obey the regulations, not the customer. It's legal for you to attend anything they offer.

How do you conduct discovery or introductory flights side by side ( within 2 m) ? During the lockdown can we still conduct these types of training flights in Ontario? Are they essential ?

[photofly]

You would have to read the regulations carefully and come to your own conclusion.

[Civic]

You would have to read the regulations carefully and come to your own conclusion.

Thanks anyway

[Civic]

Hello,

I’m just curious if it’s legal to still attend my flight training. I was told the training can still carry on. The restrictions does exempt post secondary education that has to be in person.

I feel it’s a little uneasy about this. Is this still allowed? Or is it just some word play by the FTU?

First we have to find the regulation that is intertwined with operating a flight training business. Then we can make some sort of decision. We’ll keep digging for the regulation.

[boogs82]

Post-secondary
institutions
• Post-secondary institutions open for virtual instruction, with limited exceptions where in-person instruction is required (e.g., clinical training, trades).
Subject to physical distancing with limited exceptions
• In-person teaching (each instructional space at the institution at one time) and in-person examinations cannot exceed 10 persons, with limited
exemptions for:
o Diagnostic cardiac sonography and diagnostic medical sonography
o Diagnostic ultrasound
o Medical imaging
o Medical laboratory assistant and Medical laboratory technician
o Medical radiation technology
o Medicine
o Mental health and addictions services, including psychology services, social work services and counselling services
o Nursing
o Paramedic
o Personal support worker, supportive care worker, home care worker or a similar occupation
o Pharmacy/pharmacy technician
o Public health inspector, if the program is accredited by the Canadian Institute of Public Health Inspectors
o Rehabilitation sciences (nutrition, speech language pathology, occupational science, and physiotherapy)
o Respiratory therapy
Subject to additional requirements for in-person teaching that involves singing or the playing of brass or wind instruments

Transportation
services
• Businesses and facilities that provide transportation services, including:
o Transportation services provided by air, water, road, and rail, including taxis and other private transportation providers, and
o Support services for transportation services, including:
 logistical support, distribution services, warehousing and storage, truck stops and tow operators, and
 services that support the operations and safety of transportation systems including maintenance and repairs
o Marinas, boating clubs and other organizations that maintain docking facilities for members or patrons with conditions
o Businesses that provide and support online retail, including by providing warehousing, storage and distribution of goods that are ordered
online

Source: https://files.ontario.ca/moh-provincewi ... -12-22.pdf

Here are the appropriate exemptions. I do know that schools in the Barrie area are closed.

[Civic]

Thanks boogs82 appreciate it. You’re saying that Barrie schools are closed but others are open, I’m confused as now being a province wide lockdown how are some open and some closed ?

[photofly]

Because people interpret the regulations differently, and different regulations apply to different kinds of institutions and businesses. If you look carefully you'll see it's not generally the activity that's permitted or forbidden, it's businesses in different categories that can open or must close, and some that can open can only open for certain activities.


The actual regulations for Ontario are all listed here:
https://www.ontario.ca/page/emergency-i ... encyorders

[RedAndWhiteBaron]

Because people interpret the regulations differently, and different regulations apply to different kinds of institutions and businesses. If you look carefully you'll see it's not generally the activity that's permitted or forbidden, it's businesses in different categories that can open or must close, and some that can open can only open for certain activities.


The actual regulations for Ontario are all listed here:
https://www.ontario.ca/page/emergency-i ... encyorders

I read that, and it says precisely nothing about flight training - unless you are training at a career college or part of an IATP.

The closest thing to flight training in that document and its amendments is driving instruction: driving instruction is still allowed for career training, however general instruction is not, and they classify it by the type of license you are training for. Traaining for a G,G1,G2,M,or M1 is verboten. All other training is allowed, and training for a Z endorsement is specifically listed.

So I would interpret that as precedent (that's not quite the right word, I can't think of a better one) setting for flight schools providing career training, and banning recreational flight training - which is the opinion of every flight school I've asked.

[photofly]

Again, with a couple of exceptions (career colleges being one), it’s businesses that are permitted or forbidden to open, not specific activities that are permitted or forbidden.

[RedAndWhiteBaron]

Again, the document says nothing about flight training schools - not specifically. I don't mean "flight training" as an activity, but "Flight training school/unit", as a business. It says nothing about them.

It says this:

2. (1) Post-secondary institutions may only open if they meet the following conditions:

1. In-person teaching or instruction may only be provided if the following conditions are met:

i. The subject matter of the teaching or instruction requires that it be taught in-person, such as clinical training or training related to a trade.

ii. The instructional space must be operated to enable students to maintain a physical distance of at least two metres from every other person in the instructional space, except where necessary for teaching and instruction that cannot be effectively provided if physical distancing is maintained.

iii. The total number of students permitted to be in each instructional space at the institution at any one time must be limited to the number that can maintain a physical distance of at least two metres from every other person in the business or place, and in any event cannot exceed,

A. 50 persons, in the case of an instructional program described in subsection (1.1), and

B. 10 persons, in any other case.

Now, is an FTU classifiable as a "post-secondary institution"? It doesn't say (there may be another law that clears that one up, but I'm not aware of it). It only says this:

(1.1) An instructional program referred to in sub-subparagraphs 1 iii A and 3 ii A of subsection (1) is an instructional program in any of the following fields or an instructional program to train an individual for any of the following occupations, as the case may be:

1. Diagnostic cardiac sonography.

2. Diagnostic medical sonography.

<snip>A bunch of occupations, pilot not among them.

(2) In this section,

“post-secondary institution” means,

(a) a university,

(b) a college of applied arts and technology,

(c) a private career college,

(d) an Indigenous Institute prescribed for the purposes of section 6 of the Indigenous Institutes Act, 2017,

(e) an institution that is authorized to grant a degree by an act of the Legislature,

(f) a person who is delivering in-person teaching or instruction in accordance with a consent given under section 4 of the Post-secondary Education Choice and Excellence Act, 2000,

(g) a person approved to provide training for apprenticeship programs under paragraph 5 of section 64 of the Ontario College of Trades and Apprenticeship Act, 2009, or

(h) any other institution that is a designated learning institution within the meaning of section 211.1 of the Immigration and Refugee Protection Regulations (Canada), other than a school or private school within the meaning of the Education Act.

I cannot see any reason why flight schools are excluded where conducting career training, if I read the text of this order. It's confusing either way, and FTUs must be extrapolated based on what the spirit of this order appears to be, because they're not in the letter of it. The only way it makes sense to me is when one extrapolates commercial driver training, which is listed as an exception, to flight training units conducting career training.

[photofly]

Well, if a business isn’t listed, it’s forbidden to open. About that, there is no question.

[RedAndWhiteBaron]

Exactly - so how is it the interpretation of flight schools everywhere that they are allowed to remain open? Therein lies the question.

It does seem to be the general opinion...

[photofly]

Exactly - so how is it the interpretation of flight schools everywhere that they are allowed to remain open? Therein lies the question.

It does seem to be the general opinion...

You would have to ask each individual flight school; I suspect you'd get a wide variety of answers, if any of them are prepared to answer at all.

Incidentally, subject to some very limited exceptions, it's unlawful to offer career training in Ontario unless you're a registered private career college.

[Bede]

It comes down to who has the better lawyers. FTU’s (and airlines, banks, etc.) fall under the jurisdiction of the federal government and therefore the provincial regulations are inapplicable. See interjurisdictional immunity.

Sadly pursuing such a case would probably set you back $100k in legal fees if the province doesn’t agree and chooses to fine you.

[digits_]

Sadly pursuing such a case would probably set you back $100k in legal fees if the province doesn’t agree and chooses to fine you.

I'm curious, how would you end up with 100k in legal fees? What would a typical breakdown be?

[photofly]

It comes down to who has the better lawyers. FTU’s (and airlines, banks, etc.) fall under the jurisdiction of the federal government and therefore the provincial regulations are inapplicable. See interjurisdictional immunity.

Well, this is an overly-simplistic statement.

Some elements of what FTUs do is under the jurisdiction of the federal government, and some isn't. For instance, FTUs have to pay provincial sales taxes, are subject to provincial employment laws, and a raft of other stuff.

Banks are "federally regulated" as far as the Canada Labour Code goes, and their employees are not subject to the (eg) Ontario Employment Standards Act, but are their branches subject to provincial health legislation? Absolutely. Are FTUs subject to the Canada Labour Code? I don't know of any test cases, but no, not by my interpretation.

Regardless, you would get absolutely nowhere by saying that an FTU isn't covered by the present Ontario emergency regulations. Public health matters are provincially decided, and don't impinge on aeronautics specifically.

The topic of provincial regulation of commercial flight training seems to me to be on the borderline; certainly challengable, but not a slam dunk. More widely, judicial opinion has swung away from ruling anything to do with flying cannot be touched by the province: see Burlington Airpark Inc. v. Burlington (City), and see Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3,

A] court should favour, where possible, the ordinary operation of statutes enacted by both levels of government. In the absence of conflicting enactments of the other level of government, the Court should avoid blocking the application of measures which are taken to be enacted in furtherance of the public interest.

[Bede]

It comes down to who has the better lawyers. FTU’s (and airlines, banks, etc.) fall under the jurisdiction of the federal government and therefore the provincial regulations are inapplicable. See interjurisdictional immunity.

Well, this is an overly-simplistic statement.

It is simplistic as I don't have the time to write a 10 page legal explanation. However, you're still wrong.

Some elements of what FTUs do is under the jurisdiction of the federal government, and some isn't. For instance, FTUs have to pay provincial sales taxes, are subject to provincial employment laws, and a raft of other stuff.

That's because taxes don't "impair" the federal competency. Like I said, look up interjurisdictional immunity. It's a two part test- "core of the federal competency" and impairment. Ordering the shutdown of a federal regulated business is the definition of impairment (VIAA).

Regardless, you would get absolutely nowhere by saying that an FTU isn't covered by the present Ontario emergency regulations. Public health matters are provincially decided, and don't impinge on aeronautics specifically.

You are arguing the double aspect doctrine. That doctrine has repeatedly been rejected by all levels of courts (COPA).

The topic of provincial regulation of commercial flight training seems to me to be on the borderline; certainly challengable, but not a slam dunk.

Nothing's ever a slam dunk.

TMore widely, judicial opinion has swung away from ruling anything to do with flying cannot be touched by the province: see Burlington Airpark Inc. v. Burlington (City), and see Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3,

That's because in Burlington, the Court recognized that the Airpark was just trying to use IJI as a work around to store aggregate. They had no intention of using it to make a runway. The Court saw through their scheme and ruled accordingly.

[Bede]

Sadly pursuing such a case would probably set you back $100k in legal fees if the province doesn’t agree and chooses to fine you.

I'm curious, how would you end up with 100k in legal fees? What would a typical breakdown be?

Porsche payments $1800
Alimony $4500
Golf membership $5500

Seriously, it might be less. Let's say $50k. But legal fees climb so incredibly fast. Each email - 15 minutes, legal research takes days- at $750/hr for a constitutional lawyer. It all ads up.

I'm part of a flying club that's involved in litigation. I think we're up at around $70k and that's with junior lawyers working the case.

[photofly]

I'm part of a flying club that's involved in litigation. I think we're up at around $70k and that's with junior lawyers working the case.

If what you wrote is informed by anything these lawyers told you, I'd get different ones.

[Bede]

I'm part of a flying club that's involved in litigation. I think we're up at around $70k and that's with junior lawyers working the case.

If what you wrote is informed by anything these lawyers told you, I'd get different ones.

I'm not involved in the case or have any interaction with the lawyers. Just a club member.

Nice rebuttal though...

[digits_]

Seriously, it might be less. Let's say $50k. But legal fees climb so incredibly fast. Each email - 15 minutes, legal research takes days- at $750/hr for a constitutional lawyer. It all ads up.

I'm part of a flying club that's involved in litigation. I think we're up at around $70k and that's with junior lawyers working the case.

Ah ok, thanks. High hourly lawyer rates. I was wondering if there were perhaps insanely high court fees for cases like these.

[photofly]

That's because in Burlington, the Court recognized that the Airpark was just trying to use IJI as a work around to store aggregate. They had no intention of using it to make a runway. The Court saw through their scheme and ruled accordingly.

That was one finding. However the judge at first instance wrote:

The general statements made by Justice Beetz in
Construction Montcalm do not compel a conclusion that
the Burlington by-law is an unacceptable intrusion on
the core aeronautics power. First, the by-law is
designed to regulate the quality of fill and to prevent the
use of toxic or contaminated fill in the municipality. It is
not targeted legislation as in Lacombe. There is little
doubt that the runway construction must comply with
federal specifications relating to slopes, surfaces of
runways, runway shoulders and the slopes and strength
of runway shoulders. However, requiring Airpark to use
clean fill regulated by the municipality for the benefit of
other residents in the municipality will not be
permanently reflected in the structure of the finished
product in the sense meant by Justice Beetz.
The bylaw is not an attempt by the municipality to regulate
slopes or surfaces of runways, runway shoulders or the
slopes and strength of runway shoulders. While
regulating the quality of fill may have an impact on the
manner of carrying out a decision to build airport
facilities in accordance with federal specifications, such
regulation will not have any direct effect upon the
operational qualities or suitability of the finished product
which will be used for purposes of aeronautics. As a
result, the by-law does not impact or intrude on the core
of the federal power which, as noted above, is the
authority absolutely necessary to enable Parliament “to
achieve the purpose for which exclusive legislative
jurisdiction was conferred.”The general statements made by Justice Beetz in
Construction Montcalm do not compel a conclusion that
the Burlington by-law is an unacceptable intrusion on
the core aeronautics power. First, the by-law is
designed to regulate the quality of fill and to prevent the
use of toxic or contaminated fill in the municipality. It is
not targeted legislation as in Lacombe. There is little
doubt that the runway construction must comply with
federal specifications relating to slopes, surfaces of
runways, runway shoulders and the slopes and strength
of runway shoulders. However, requiring Airpark to use
clean fill regulated by the municipality for the benefit of
other residents in the municipality will not be
permanently reflected in the structure of the finished
product in the sense meant by Justice Beetz. The bylaw is not an attempt by the municipality to regulate
slopes or surfaces of runways, runway shoulders or the
slopes and strength of runway shoulders. While
regulating the quality of fill may have an impact on the
manner of carrying out a decision to build airport
facilities in accordance with federal specifications, such
regulation will not have any direct effect upon the
operational qualities or suitability of the finished product
which will be used for purposes of aeronautics. As a
result, the by-law does not impact or intrude on the core
of the federal power which, as noted above, is the
authority absolutely necessary to enable Parliament “to
achieve the purpose for which exclusive legislative
jurisdiction was conferred.”

And this aspect was upheld on appeal:

In our view, the application judge’s characterization is supported by
a careful reading of the by-law....We explicitly endorse the application judge’s reasoning in
the passage set out in paragraph 12 above.

The purpose of the COVID regulations are to protect public health and they have nothing to do with aeronautics.

I wish you were right; but I believe you are not.

[Bede]

Don't get me wrong. I never said that my argument is the obvious outcome of a case, but it is a valid argument. Remember, environmental, building code, planning aspects of a wide variety of cases have all been dismissed.