Canadian Aviation Regulations (CARs) 2019-1
Introduction
In 1996 a revised set of aviation safety rules came into force in a consolidated and simplified format known as the Canadian Aviation Regulations (the CARs). The CARs are a culmination of several years of work, incorporating a new rule-making process and several new principles and recommendations.
1. Background
(1) Old Regulatory Structure
The old regulatory structure consisted of three elements:
(a) The Aeronautics Act
The Aeronautics Act (Act) is an act of Parliament providing the basis for the regulation of aeronautics. The Act empowers the Governor in Council (Special Committee of the Cabinet) to make regulations to carry out the Minister's mandate.
(b) Regulations
Regulations are rules of conduct made by the Cabinet on the advice of the Minister of Transport or by the Minister him or herself. In the legal sense, the Air Regulations, Air Regulations Series (which began to be published in the mid 1980's to replace the Air Regulations and Air Navigation Orders) and Air Navigation Orders (ANOs) are considered "regulations" in that they are all rules of conduct prescribing or directing action or forbearance. The making, amending and repealing of "regulations" must follow certain legal requirements as set out in the Statutory Instruments Act.
(c) Standards Documents
Many of the regulatory provisions made under the Act incorporate "standards" publications by reference.
There are two principal types of standards: those which set out criteria and conditions to be met for the issuance and maintenance of a Canadian aviation document; and those which set out the "how-to" of complying with a specific rule of conduct.
Standards may be contained in a Transport Canada Aviation (TCA) publication (i.e. Airworthiness Manual, Standards Obstructions Markings Manual, Canada Air Pilot and Manual of All Weather Operations), publications of other federal agencies and publications produced outside of the federal government (such as Annex 2 of ICAO - Document 7030 and the FARs). Furthermore, standards may be incorporated at a fixed date or amended from time to time.
Unlike "regulations," the making and amendment of standards documents is a flexible process not subject to the legal requirements set out in the Statutory Instruments Act.
Some publications which contain standards also contain material such as recommended practices and advisory notes which do not have the force of law. These publications should clearly differentiate which provisions are mandatory and which are not.
(2) Problems with the Old Rules
As set out in the 1991 paper entitled Renewal of the Canadian Aviation Safety Regulations: Issues and Strategies (the "1991 Paper") several problems with the old aviation safety rules (Air Regulations and ANOs) were identified, namely that they were:
(a) out of date and did not represent modern technology;
(b)difficult to understand;
(c)illogical in their organization;
(d)overly complex and utilized legal language.
(3) Proposals for Change
(a) Change the Rules
The 1991 paper made the following recommendations to change the rules:
(i) develop new regulations (CARs);
(ii) eliminate the ANOs;
(iii) use plain language (simplify);
(iv) develop a logical and user-friendly structure; and
(v) make it easy to determine what standard applied to a rule by widely using "incorporation by reference" to call up detailed standards.
(b) Change the Rulemaking Process
(i) Develop a Fast-track Process
A fast-track process was recommended in the 1991 Paper for developing the CARs. The concept envisaged creation of a joint Transport Canada Aviation/Privy Council Office (Justice) team with technical and legal staff working together continuously.
The project conceived from this paper was given rapid approval by the Deputy Ministers of Transport and Justice. The project formally commenced August 1, 1992.
The process proved to be highly effective as the regulations were completely restructured and rewritten in less than three years.
(ii) Increase Public Participation
The rulemaking process in Transport Canada, under its old format, was highlighted by extensive processing and approval delays and viewed by the aviation community as lacking public access and participation. There was also a need to bring the various rulemaking proposals to the notice of senior management at an earlier stage and to facilitate harmonization with other national jurisdictions.
The Canadian Aviation Regulation Advisory Council (CARAC) was created to provide a process for full and meaningful participation by the aviation community in the development of the CARs.
The CARAC process addresses many of the problems identified with respect to the rulemaking process and forms part of TCA's renewed approach to consultation and rulemaking.
2. CARs Principles
In keeping with Aviation Regulation's philosophy of a shared commitment with the aviation community to safety, the CARs include the following four regulatory principals:
(1) Applying a Risk-based Approach to Regulation
The CARs were developed taking into account the safety risks inherent in aviation activities and the potential consequences of non-compliance. Consequently, commercial activities attract the greatest level of regulation while recreational aviation activities involve minimal regulation and encourage self-regulation. Similarly, the level of regulation differs amongst the types of commercial activities, for instance, the regulations for air taxi operations are much less onerous than those for commuter operations.
(2) Minimizing the Regulatory Burden
In the CARs, regulations are based on identified needs and safety deficiencies. In so far as it is practicable the regulations are also harmonized with those of the United States (FARs) and the European Union (JARs). The CARs are intended to be cost-effective; allowing for technical innovation and business practices tailored to an operator's specific requirements.
(3) Increasing the Delegation of Regulatory Authorities
The CARs recognize the extensive use of industry delegates to exercise a variety of regulatory authorities. Delegations are made based on need and cost-effectiveness and recognize the expertise in the private sector. Delegates are closely monitored by Transport Canada Aviation to ensure their continued competency.
(4) Increasing Communication with the Aviation Community - CARAC
The CARs were developed in partnership with the aviation community through CARAC, which continues to play a pivotal role in ongoing rule making.
3. CARs Regulatory Structure
The new regulatory structure consists of four elements:
(1) The Aeronautics Act
The existing powers as set out in the Act provide for the making and repealing of regulations. The Act remains unchanged.
(2) Canadian Aviation Regulations
(a) General Overview
The former regulations (Air Regulations, Air Regulations Series, and the ANOs) have been repealed and replaced by the CARs.
(b) Types of Provisions
As with the previous regulations, two types of provisions are found in the CARs:
(i) Offence-creating Provisions
There are two categories of offence-creating provisions:
A. those which require a specific conduct or behaviour; and
B. those that prohibit a certain type of conduct or behaviour on the part of the holder of a Canadian aviation document or other member of the regulated community.
The first type tells us "what to do" and the second tells us "what not to do". Non-compliance is a violation and can result in judicial or administrative action.
These provisions may set out conditions for compliance. In other words, a provision may tell us that a certain behaviour is prohibited unless a specific condition is met.
Example 1: Section 602.28
Example 2: Subsection 401.03(1)
Example 3: Subsection 704.28
(ii) Administrative Provisions
Administrative provisions generally address the obligations and authorities of the Minister and delegated officials.
Example 1: Subsection 705.07(1)
In this example, the Minister is obliged to exercise his/her authority to issue or amend an air operator's certificate where the operator meets the six conditions set out in this subsection.
Example 2: Subsection 401.18(1)
In this example, an administrative duty is imposed on a flight test examiner (a Minister's delegate).
(3) Standards
As in the previous regulatory structure, numerous standards publications have been incorporated by reference in the CARs.
Example: paragraph 604.14
In this example, the CARs incorporates by reference the standard set out in the Canada Air Pilot for instrument approach procedures.
While some standards continue to exist in an independent manual (i.e. the Canada Air Pilot or Designated Airspace Handbook), other standards are published in a format complementing the CARs in which the standard is referenced. For example, there is no longer a Personnel Licensing Handbook, instead there is a specific standard complementing each Subpart of Part IV of the CARs.
In addition, certain documents which previously contained guidelines have now become standards documents.
(4) Advisory Materials
Advisory Materials are recommended procedures or guidance material which provide information in respect of a regulation or a standard.
4. CARs Numbering System
The CARs numbering system looks very different from that used by the Air Regulations, Air Regulation Series and Air Navigation Orders in that it reflects a new drafting format and a new regulatory structure.
(1) The New Drafting Format
The Canadian Aviation Regulations are divided into eight parts. Generally, each part corresponds to one of the broad areas of aviation which TCA is mandated to regulate (e.g. personnel licensing, airworthiness, commercial air services, etc.). The regulatory provisions of each part are grouped together in sub-parts that deal with related topics. Each subpart is broken down into divisions. Fortunately, the further breakdown of the CARs uses the current format in that each division consists of related sections, each of which has been given its own title. Sections are broken down into subsections, paragraphs, subparagraphs, etc.
Parts and divisions are cited using upper case Roman numerals (e.g I, II, IV) while subparts and sections are cited using Arabic numbers (e.g. 1, 2, 3, etc.)
Example: Part IV - Personnel Licensing and Training consists of seven Subparts:
400 - General
401 - Flight Crew Permits, Licences and Ratings
402 - Air Traffic Controller Licences and Ratings
403 - Aircraft Maintenance Engineer Licences and Ratings
404 - Medical Requirements
405 - Flight Training
406 - Flight Training Units
Example: Subpart 405 - Flight Training consists of four divisions:
Division I - General (sections 1-2)
Division II - Flight Training Program (sections 11-14)
Division III - Personnel and Aircraft (sections 21-24)
Division IV - Flight Training Operations (sections 31-33)
Example: Division III - Personnel and Aircraft consists of the following four sections:
405.21 Qualifications of Flight Instructors
405.22 Aircraft Familiarization
405.23 Training Aircraft Requirements
405.24 Flight Training at Aerodrome
(2) The New Regulatory Structure
As discussed, the new regulatory structure includes regulations (the CARs), standards and advisory materials. The new numbering system is much more user friendly, in that it permits quick identification of a regulation, standard or advisory material. The second number in a citation identifies what the reader is examining. (See Appendix A)
The numbers and letters after the first three digits provide focus to the specific component of the regulation. (See Appendix B)
5. Guidelines in Navigating Through the CARS
The following three steps will assist you in finding a specific provision in the CARs:
(1) Consult the Index (Parts)
The index located at the beginning of the CARs shows the breakdown of the regulatory provisions into parts, and then subparts. It also provides a brief description of each part and subpart. By consulting the index, it is possible to quickly narrow the search for the key regulatory provisions by identifying the subparts which are most likely applicable and by eliminating those which are clearly inapplicable.
(2) Consult the Table of Contents (Subparts)
At the beginning of each subpart is a table of contents which lists the divisions and describes the sections found within each division. Thus, once the applicable subparts have been identified, the appropriate tables of contents can be consulted to locate sections which appear to be relevant. By reading these sections, key sections are identified. It may be useful to create a list of relevant sections.
(3) Read the Relevant Sections
Read each section on the list to identify the key provisions and any provisions which may qualify the key provisions.
Example
To find the requirements with respect to operation of aircraft when icing conditions may be present you would do the following:
(a) Consult the CARs Index
Consulting the CARs index allows you to eliminate parts II (Identification, Registration and Leasing of Aircraft), III (Aerodromes and Airports), IV (Personnel Licensing and Training), and VII (Commercial Air Services). Parts V (Airworthiness) and VI (General Operating and Flight Rules) may contain provisions of interest.
The subpart description in the index reduces the list of relevant subparts to:
507 - Flight Authority
602 - Operating and Flight Rules
605 - Aircraft Requirements
606 - Miscellaneous
(b) Consult the Table of Contents (Subparts)
A review of the table of contents of the identified subparts, narrows the possible applicable sections to the following:
602.11 - Aircraft Icing
605.30 - De-Icing or Anti-Icing Equipment
(c) Read the Relevant Sections
Reading these sections reveals that section 602.11 is the most relevant. Nonetheless, other sections may provide qualifications which have a bearing on the issue at hand.
6. Guidelines in Reading the CARs
(1) General Reading
To fully understand a provision (i.e. section, paragraph, clause, etc.) it must be read in its entirety, often more than once. In first reading a provision you are attempting to do the following:
(a) Ascertain the Scheme of the Provision
Contrary to popular belief there is a scheme, (in other words, an internal structure) to legislative provisions. Ideally legislation should have the following structure:
(i) application section;
(ii) interpretation section;
(iii) prohibitions;
(iv) exceptions;
(v) conditions.
While not every section of the CARs follows the ideal structure, each section does have a scheme.
Example 1: Section 602.11-Aircraft Icing contains subsections which indicate the following scheme:
Subsection 602.11(1) - interpretation/definition section
Subsection 602.11(2) - general prohibition
Subsection 602.11(3) - exception
Subsection 602.11(4) - conditions re: inspection prior to take-off
Subsection 602.11(5) - conditions re: who is to perform inspection
Subsection 602.11(6) - specific duty to report observed frost, etc. and inspect
Subsection 602.11(7) - specific duty to inform
Example 2: Section 401.05 - Recency Requirements, likewise, contains subsections which indicate the following scheme:
Subsection 401.05(1) - general prohibition re: recency
Subsection 401.05(2) general prohibitions re: recurrent training (exception glider) and specific prohibition re: pilot licence - glider
Subsection 401.05(3) - specific prohibition re: instrument rating
Subsection 401.05(4) - specific prohibition re: flight engineer licence
Subsection 401.05(5) - specific prohibition re: second officer rating
Subsection 401.05(6) - specific prohibition re: flight instructor rating - ultra-light
(b) Ascertain the Purpose of the Provision
To each provision, there is a purpose, in the sense that there is an aim or object to the legislation.
Example 1: Section 602.11
The purpose of the above section is to restrict flights with frost, etc. adhering to the critical services, and provide requirements as to detection, inspection and reporting of frost on critical surfaces prior to take-off.
Example 2: Section 401.05
The purpose of this section is to ensure that the holders of (specified) licences and endorsements meet mandatory recency requirements.
(c) Narrow Your Focus
Having ascertained the scheme and purpose of the provision, you can now zero in on that portion of the provision which relates to your problem.
Example: Subsection 602.11(3) and (4)
A pilot would look at the above section if he/she were searching for exceptions to the de-icing provisions.
Examples: Subsections 401.05(1), (2) and (3)
A pilot with an ATPL would focus on the above sections if he/she were looking for the applicable recency requirements.
(2) Specific Reading
The following steps may assist you in understanding a specific provision of the CARs:
(a) Identify Key Punctuation
As discussed, the CARs breakdown into sections, subsections, paragraphs, subparagraphs, clauses and subclauses. The punctuation used throughout the CARs is determined by the type of provision you are reading.
(i) Sections and Subsections
In the CARs you will generally encounter three types of sections. All sections, regardless of the type, end with a period (.).
(A) Single Sections
Example: Section 604.19
(B) Sections Consisting of Several Subsections
Example: Section 704.17
(C) Sections Containing Several Paragraphs
Example: Section 401.04
Subsections may be self-contained (as shown in subsections 704.17(1), (2) and (3)) or can consist of several paragraphs. Both types of subsections end with a period (.). This is because each subsection deals with a distinct, but related concept.
(ii) Paragraphs and Subparagraphs
Unlike sections and subsections, paragraphs, whether self-contained or further broken down into subparagraphs, are always connected by way of a semi-colon (;).
Subparagraphs are also always connected, regardless of whether they are self-contained or further broken down, by way of a comma (,).
(iii) Clauses and Subclauses
Clauses, whether self-contained or further broken down into subclauses, are always connected by way of a comma (,). Similarly subclauses are always connected by way of a comma(,).
Example: Section 604.73
This section consists of three subsections. Each subsection has been broken down into paragraphs. Paragraph 604.73(3)(a) is further broken down into subparagraphs and clauses.
(b) Identify Key Words and Phrases
In addition to using standard punctuation, legislation also uses certain key words and phrases.
(i) "And" and "Or"
A key to understanding provisions which are connected by a semi-colon or a comma, is to determine whether the provisions are connected by the word "and" or "or". "And" is a conjunction which requires that every provision (usually a condition) it joins be satisfied. "Or" is a conjunction which requires that at least one of the provisions (or conditions) must be satisfied.
Example: Section 702.19
In this section two choices are given to a pilot-in-command of a helicopter; to follow all the conditions set out in paragraph (a) or to follow all the conditions set out in paragraph (b).
(ii) Mandatory and Permissive Words
As discussed, there are two types of provisions in the CARS: offence-creating provisions and administrative provisions. An offence-creating provision uses mandatory words such as: "shall," "will," and "must." Where the legislation states that a person "shall" do something, he or she has no choice but to do it. Conversely, where a provision states that "no person shall" do something, he or she is prohibited from doing a certain act.
Example: Subsection 602.86(2).
This subsection prohibits a person from operating an aircraft with carry-on baggage, equipment or cargo on board unless one of the four methods of stowage/restraint set out in paragraphs (a), (b), (c) and (d) are followed.
Permissive words and phrases such as "may," "should," and "it is (strongly) recommended" denote a suggestion as opposed to a legal obligation. While it may be highly desirable that a person do something, he/she is not obligated under the law to do it; there are generally no legal consequences if the person opts not to do it.
Note:
The word "may" is also used in provisions which provide exceptions to mandatory provisions
Examples: Subsections 703.106(1) and (2).
In the above example, a mandatory provision is set out in subsection (1) and an exception (or in this case an alternative) is set out in subsection (2).
(iii) Conditional Words and Phrases
Certain provisions include qualifiers or conditions, as indicated by the words "subject to", "if" and "unless".
Example: subsection 703.106(1)
The mandatory requirement set out in the above subsection is qualified by the words "subject to subsection (2)", and the exception set out in subsection (2) is qualified by the condition, "if the air operator has established in its company operations manual procedures for amending that manual".
(iv) Incorporation by Reference
As discussed, the CARs incorporate by reference various standards documents. Consequently, when a document is referred to by the CARs, you must also read the relevant sections of that standards document to fully understand the CARs provision.
Example 1: Section 602.74
The above section incorporates by reference information set out in the Canada Flight Supplement. Therefore, to comply with the mandatory requirement set out in this section, you must also read the appropriate sections of the Canada Flight Supplement.
Example 2: paragraph 702.17(1)(b)
Similarly, the above paragraph incorporates by reference the Commercial Air Service Standards.
(c) Interpret Key Words and Phrases
There are three types of words and phrases which you will encounter in the CARs:
(i) Defined Aviation-Related Words and Phrases
Several aviation-related words and phrases used throughout the CARs are defined either in the CARs or the Act (e.g. "aircraft", "aeroplane", "land aircraft", "rocket", etc.). These definitions are crucial to ascertaining the meaning and applicability of a provision.
(ii) Undefined Commonly Used Words and Phrases
To fully understand a provision, you will have to identify and interpret several commonly used words and phrases, such as:
(A) Prepositions
Such words as "between," "on" and "within" can be crucial in understanding a provision. The general meaning of these words and examples of their use are set out in Appendix B.
(B) Legally Derived Words and Phrases
Many of the problems in understanding legislation are caused by the overuse of archaic legal words and phrases (e.g. "as heretofore described," "in accordance with," "in pursuance thereof," "notwithstanding" etc.). The trend in recent years has been to simplify the wording of legislation as much as practical and replace archaic legal terms with everyday language. Appendix C sets out archaic legal terms and their everyday equivalent.
(C) Deeming Provisions
Generally, a deeming provision ("shall be deemed...") treats as true, for the purposes of law, that which is not necessarily true in fact.
Often a deeming provision expands the scope of a concept to include things that would not otherwise be associated with that concept.
Example: Subsection 602.14(1).
The above example expands the concept of built-up area.
A deeming provision may also be used to remove any doubts as to whether a concept does or does not include particular things.
Example: Subsection 705.34(4).
Note:
As illustrated in the above examples, the deeming provision is specifically limited in its application (ie., ..."for the purposes of this Subpart...").
(D) Vague Commonly Used Words
Although the CARs have tried to eliminate vague commonly used words, you may still encounter words such as, "adequate," "suitable," "as soon as practicable" and "appropriate". In interpreting these words, start with the dictionary meaning, choose the one which appears to be most applicable and then determine, based on the facts and circumstances, what is "adequate," "suitable," etc.
For instance, the word "adequate" generally means "sufficient", "equal to what is required", "suitable to the case or occasion" or "satisfactory." What is considered to be adequate depends on the situation or context. Often there will be few guidelines and much uncertainty. Some of this uncertainty can be resolved by considering industry practice. In any case, it is advisable to consult the appropriate Transport Canada personnel.
Very similar in meaning are the words "suitable" ("well fitted for the purpose," "appropriate to the occasion") and "appropriate" ("suitable or proper").
The phrase "as soon as practicable" generally means "as soon as can be reasonably expected" (as opposed to as soon as possible). What is reasonable depends on the facts and circumstances of each case, including what may be customary. In interpreting this phrase, it is advisable to consult the appropriate Transport Canada personnel.
Example: Subsection 602.76(4).
(E) Words Found Within Definitions
In reading a definition you will often encounter the word "means" or "includes".
The word "means" indicates a specific and exhaustive definition of the term in question. Something is not encompassed by a term if it does not fall squarely within the term's definition.
Example: Subsection 602.04(1).
Thus a beverage containing 2.5 per cent or less of proof spirits is not an "intoxicating liquor" for the limited purposes of Section 602.04.
The word "includes" refers to a qualifier, example or a series of examples which helps to expand or clarify the meaning of a particular term or word. The qualifier or example does not amount to a complete definition of the term.
Example: Section 101 defines the term "owner".
In this case, the word "includes" expands the definition of "owner" (since the registered owner may not necessarily have legal custody and control of the aircraft).
(iii) Undefined Aviation-Related Words and Phrases
These are the most difficult words and phrases to interpret, in that it requires reference to dictionaries and sometimes jurisprudence (case law) to obtain a definition. The definition once obtained must be applied to the particular facts or circumstances of your situation.
Example: Section 602.12
In this example, while the phrase "built-up area" is crucial to understanding the low flying prohibitions and qualifications set out in the section, the term is not defined in the CARs. Judicial consideration of the term can assist in determining the meaning of a "built-up area."
(d) Steps In Interpreting Words and Phrases
To summarize, if the meaning of a particular term seems uncertain to you, the following steps should be taken in order to give it a meaning which is legally most appropriate.
(i) Consult the interpretation provisions of the section, division or subpart in which the provision of interest is located or in the applicable standard to see whether the term in question has been explicitly defined.
(ii) If no definition is found in the section, division, etc. containing the provision, then consult the definitions in Subpart 101 of the CARs to determine whether a definition of the term is located there.
(iii) If no definition is found in Subpart 101 of the CARs, then consult the definitions set out in section 3 of the Aeronautics Act.
(iv) If no definition can be located by following steps 1 through 3, look to a general dictionary for the plain meaning of the term. If the term is of a technical nature, then it may be appropriate to consult dictionaries that specialize in aeronautical or legal terms.
(v) If the plain meaning of a term, as discerned from a dictionary, appears to be ambiguous or to result in an absurd or anomalous result when applied to the provision of interest, then CONTACT THE APPROPRIATE TRANSPORT CANADA PERSONNEL.
WHERE THE MEANING OF LEGISLATION REMAINS UNCERTAIN OR AMBIGUOUS, DO NOT HESITATE TO CALL FOR HELP. TO ENSURE CONSISTENCY IN INTERPRETATION, TCA ENCOURAGES YOU TO CALL FOR ASSISTANCE. INITIAL ENQUIRIES SHOULD BE DIRECTED TO THE NEAREST REGIONAL OR DISTRICT OFFICE. WHERE DEBATE ARISES IN A REGIONAL OFFICE AS TO THE MEANING OF A PROVISION, HEADQUARTERS PERSONNEL (INCLUDING DOJ) SHOULD BE CONTACTED.
7. Case Study - Section 602.13
(1) What Is It?
(a) Based on the wording of the provision you are reading an offence-creating provision as opposed to an administrative provision.
(b) Based on the second digit being a "0", you are reading a regulation.
(2) Where Is It?
Part VI (General Operating and Flight Rules)
Subpart 2 (Operating Flight Rules)
Division I - (General)
(3) What Is It About?
As the title of the section indicates, this section is about Take-offs, Approaches and Landings within Built-up Areas of Cities and Towns.
(4) What Is the Scheme Of the Section?
Subsection (1) - General Prohibition
Subsection (2) - Exception - Take-offs
Subsection (3) - Exception - Take-offs
Subsection (4) - Exception - Landing in a Balloon
(5) How Is the Section Structured?
The section consists of four subsections. Subsection (1) is self-contained while subsections (2), (3) and (4) contain paragraphs some of which are broken down into subparagraphs.
(6) What are the Key Points to Note in Each Subsection?
(a) Subsection (1)
This subsection:
(i) uses mandatory words " ..no person shall...";
(ii)provides for four exceptions to the general prohibition:
A.subsections (2), (3) and (4) of this section;
B.section 603.66;
C.the applicable sections of Part VII; and
D.TOALs conducted at an airport or a military aerodrome.
(iii) uses aviation-related words defined in CARs 101, such as "take-off" and "landing";
(iv) uses aviation-related words defined in section 3 of the Act, such as "aircraft", "airport" and "aerodrome";
(v) uses commonly used prepositions, such as "within". (See Appendix B for further examples);
(vi) uses undefined aviation-related terms, for example "built-up area" (consult judicial consideration) and "approach" ("final part of a flight before landing" Concise Oxford Dictionary).
(b) Subsection (2)
This subsection:
(i)uses permissive words i.e."a person may" to indicate it is an exception to the general prohibition;
(ii)applies only to situations where certain conditions are met; and
(iii)based on the use of the word "and" between paragraphs (b) and (c), indicates that a person wishing to fall under the exception must follow the requirements set out in paragraphs (a), (b), and (c).
(c) Subsection (3)
In this subsection:
(i) permissive words i.e. "a person may" are used to indicate it is an exception to the general prohibition;
(ii) the provisions apply only to "balloons" as defined in Subpart 101;
(iii) based on the use of the word "and" between the paragraphs, a person wishing to fall under the exception must follow the requirements set out in paragraphs (a), (b), (c), (d) and (e);
(iv) paragraph (d) involves a mathematical calculation as to the diameter of the launch site. If the diameter of the launch site is less than the greater of the calculations made in subparagraphs (i) and (ii) then a person cannot take-off in a balloon from that site. For example, if the greatest dimension of a balloon is its height (100 feet) and add 25% of 100 feet (25 feet) we would get the figure 125 feet. Since this figure is greater than 100 feet, the diameter of the launch site cannot be less than 125 feet;
(v) paragraph (e) sets out where within the launch site the take-off must be conducted as well as the rate of climb. Depending on the circumstances, the rate of climb will be one of the two set out in subparagraphs (i) and (ii);
(vi) subparagraph (e)(ii) uses undefined aviation-related terms ("open-air assembly of persons"); and
(vii) ascertaining the "maximum rate of climb possible, considering operational and passenger safety" as set out in subparagraph (e)(ii) will be a question of fact.
(d) Subsection (4)
In this subsection:
(i) as in subsection (3), the permissive words "a person may" are used to indicate it is an exception to the general prohibition;
(ii) the provisions apply only to "balloons" as defined in Subpart 101;
(iii) based on the use of the word "and" between the paragraphs, a person wishing to fall under the exception must follow the requirements set out in both paragraphs (a) and (b);
(iv) paragraph (a) requires that the "landing is necessary to avoid endangering the safety of the persons on board". The words necessary and endangering ("to cause danger"; "to expose to loss or injury") can be given their ordinary dictionary meaning. Whether the actions were necessary to avoid endangering will be determined by the facts;
(v) paragraph (b) requires that the pilot-in-command contact the appropriate ATC unit or flight service station, and sets out in subparagraphs (i) through (iii) all the mandatory items which that communication must contain;
(vi) paragraph (b) uses several aviation-related terms defined in Subpart 101, such as: "pilot-in-command" "air traffic control unit" and "flight service station"; and
(vii) paragraph (b) uses two vague commonly used terms: "appropriate" and "as soon as possible" (which is not the same thing as "as soon as practicable").
8. Overview of CARs Part I
Part I of the CARs consists of four subparts:
(a) Subpart 101 - Interpretation
Although there are still definitions specific to certain sections, definitions of a general application are now consolidated in Subpart 101. Similarly, there is no longer any duplication between the definitions found in sections 3 of the Act and Subpart 1 of the CARs. The definition section contains several new terms (such as "air operator certificate") as well as amended definitions (such as "crew member", "day", "operator" and "owner").
(b) Subpart 102 - Application
A new paragraph has been added to the effect that rockets, hovercraft and wing-in-ground-effect machines, unless otherwise indicated in the Regulations, are not subject to the CARs.
(c) Subpart 103 - Administration and Compliance
Subpart 103 consists of six divisions:
(i)Division I
The above Division sets out the requirements for incorporating standards by reference, including consultation requirements.
(ii)Division II
The above Division deals with several compliance activities (such as inspection of aircraft and documents, and the return of Canadian aviation documents) as well as new provisions with respect to record keeping which reflect technological advances.
(iii) Division III
The above Division contains the provisions formerly found in the Canadian Aviation Document Regulations (Air Regulations, Series I, No. 2).
(iv) Division IV
(v)The above Division contains the "designated provisions" and the schedule formerly found in the Designated Provisions Regulations (Air Regulations, Series I, No. 3).
(vi) Division V
The above Division introduces new rules concerning the preservation and return of evidence, including aircraft. Section 103.12 notes that the Minister is not required to make repairs or modifications to anything seized or detained.
(vii) Division VI
(viii) The above Division sets out a new definition of "principal" which clarifies the Minister's authorities to suspend, cancel or refuse to issue or renew a Canadian aviation document on the grounds of public interest.
(d) Subpart 104 - Charges
This Division incorporates the fees and charges previously contained in Air Regulations, section 820 and the Aircraft Marking and Registration Charges Regulations (Air Regulations, Series II, No. 4).