Overview

Canadians are taking drones to the skies in increasing numbers. In 2017, there were an estimated 337,468 drones in Canada, 74 percent of which were recreational, and 26 percent of which were used for non-recreational purposes¹. Globally, the market for commercial drones is staggering – it is expected to reach US$17 billion by 2024.²

The influx of drones in Canada’s skies are creating a new and growing concern for lawmakers. As cities and towns are grappling with the safety (and other) concerns presented by drone use in their borders, more and more municipalities are enacting bylaws that affect drone operations. In many cases, municipal bylaws place additional requirements on drone operators beyond what Part IX of the Canadian Aviation Regulations (the CARs) require.

Do municipalities have the legal authority and jurisdiction to enact bylaws impacting drone operations? The answer depends on the specific nature and wording of the bylaw, and whether the provisions improperly encroach on the Canadian federal government’s exclusive authority to regulate aeronautics granted by the Constitution Act, 1867.³

In order to mitigate legal risks when conducting flights, drone operators need to analyze and abide by all applicable municipal bylaws before flight. Unless a court determines that a municipal bylaw impacting drone operations is invalid, drone operators must comply with the bylaw at all times. Municipalities ought to ensure that their bylaws are clearly drafted, and that they do not overreach by regulating drone operations in ways inconsistent with the CARs.

Legal background

i ) Constitutional division of powers

In Canada, the federal government (Federal Government), and the provincial and territorial governments (Provincial Governments) have the power to make laws. Section 91 of the Constitution outlines the powers of the Federal Government, which include aviation, trade and commerce, military, public debt, navigation and shipping, bankruptcy, and insolvency.⁴ The authority and jurisdiction to make laws and regulations relating to drones and other aviation activities falls under the Federal Government’s exclusive jurisdiction. In addition to the specific powers set out in section 91, the Federal Government has the power to make laws for the peace, order and good government (POGG) of Canada.⁵

Sections 92, 92A and 93 outline the powers of the Provincial Governments. These powers include local works and undertakings (with limited exceptions set out in Section 92(10)), property and civil rights, and generally all matters of a merely local or private nature in the province.⁶

ii) Powers of municipalities

Municipalities have the power to pass bylaws to allow them to provide any service that the municipality considers necessary or desirable for the public, but are limited by the powers delegated to them by the province in which they are situated. ⁷

Bylaws can cover issues such as governance structure, accountability and transparency, financial management, public assets, economic social and environmental well-being of the municipality, including climate change, health and safety, authorized services, protection of persons and property, animals, structures, and business licensing. Further, the courts shall “broadly” interpret municipal powers to enable them to govern their affairs and respond to municipal issues.⁸

To date, the most common municipal bylaws enacted apply to drone operations within public parks (though a greater number of municipalities are enacting bylaws that preclude operations over streets and other areas). For example, the Ontario Municipal Act, 2001 delegates power from the Provincial Governments to municipalities to make laws relating to public parks, and create offences arising from the violations of those laws.⁹

iii) Examples of municipal bylaws currently in force

Many municipalities have already implemented bylaws impacting drone operations to address safety and other concerns. However, a major issue faced by drone operators is knowing whether a given bylaw applies to drone operations. Even though a drone is considered to be an “aircraft” in the CARs, the same term in other legislation (i.e. references to aircraft in municipal bylaws) cannot automatically be ascribed the same meaning. This ambiguity creates another layer of complexity and uncertainty for law-abiding drone operators.

Some examples of municipal bylaws currently in force that may affect drone operations include:

• Calgary, Alberta: Bylaws prohibiting the launch or operation in a park of “any remote control device including … planes” and prohibiting the operations of “model airplanes of any nature” from using a street for the “purposes of flying”;
• Toronto, Ontario: Bylaw prohibiting the operation of ‘powered models of aircraft, rockets, watercraft, or vehicles’, unless authorized by permit;
• Canmore, Alberta: Bylaw prohibiting the operation of drones in public parks, unless authorized by the chief administrative officer;
• Saskatoon, Saskatchewan: Bylaw prohibiting the use of any “model aircraft or unmanned aerial vehicles” in any park or recreation facilities, except as permitted by the City;
• Mississauga, Ontario: Bylaw prohibiting the operation in a park of “any remote-controlled or other powered devices, including but not limited to, model versions of aircraft, rockets, watercraft and vehicles, other than in a designated area, unless authorized by permit”;
• Hamilton, Ontario: Bylaw prohibiting the operation in a park of ”any powered models of aircraft, rockets, watercraft or any ground vehicle, unless authorized by permit”;
• Richmond, British Columbia: Bylaw prohibiting flying radio-controlled, fixed-line-controlled or power-launched model aircraft or gliders in public parks or school grounds; and
• Morden, Manitoba: Bylaw limiting “powered model aircraft and vehicle” usage within the city limits, unless used for advertising, marketing or film production with the approval of the City Managers.

Challenging the legality of municipal bylaws

Municipal bylaws, including those impacting drone operations, are presumptively valid and enforceable and must be complied with when applicable. However, municipal bylaws can be challenged where it appears that the municipality has overstepped the law-making authority the province has granted to it. Only when a bylaw (or provisions within a bylaw) are declared unenforceable by a court are citizens relieved from a bylaw’s requirements.

i) Analysis conducted by courts in bylaw challenges

If challenged in a court proceeding, a court may determine that a municipal bylaw is either intra vires (within) the municipality’s law-making authority, or ultra vires (outside) the municipality’s law-making authority. Generally, a bylaw is ultra vires when the bylaw limits the ability of the federal power or goes to the core of the federal authority. Below is a general summary of the analysis that a court would likely undertake.

If a municipal bylaw falls under one of the provincial heads of power, then the bylaw is considered to be intra vires and will continue to remain law. However, if the municipal bylaw engages, to any extent, a power under the jurisdiction of the Federal Government, the court will consider and apply specific legal doctrines to determine whether the bylaw ought to remain law, including: i) federal paramountcy, ii) interjurisdictional immunity, and iii) ancillary powers.¹⁰

ii) Federal paramountcy

When applying the doctrine of federal paramountcy, the court will be guided by the principle set out in the Supreme Court of Canada’s decision in Rothmans: “Where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency.”¹¹

When reviewing the impugned municipal bylaw, the court will consider three things:

1. Whether both laws can be complied with at the same time;
2. Whether the municipal bylaw frustrates the purpose of overlapping federal laws; and
3. Where either (a) or (b) exists, the federal law will govern, and the municipal bylaw will be deemed ultra vires.¹²

iii) Interjurisdictional immunity

If federal paramountcy does not apply, the court will determine whether interjurisdictional immunity applies to the heads of power. The court will determine this by analyzing whether the bylaw goes to the “core” of the engaged federal power. If it does, the bylaw will be deemed ultra vires.¹³

iv) Ancillary powers

If only a part of the bylaw goes to the core of the federal power, the court will consider a third principle, ancillary powers, to determine whether part of the bylaw can be “saved” and remain law. In considering this principle, the court may consider multiple factors, including:

1. The extent to which the provision intrudes on federal powers;
2. Whether it was validly enacted; and
3. Whether the provision is integrated or functionally related to the bylaw as a whole.

The specific provision is removed if the court determines that the provision is intrusive on the federal power, and is not integrated or functionally related to the bylaw as a whole. If the specific provision cannot be removed, then the entire bylaw will be ultra vires.¹⁴

v) Notable municipal bylaw challenges

To date, there have been no reported court challenges to municipal bylaws relating to drones in Canada. Indeed, case law of any kind concerning the use of drones in Canada is sparse.

However, in the conventional aviation context, courts have considered challenges against bylaws that were alleged to improperly touch upon federal aviation law-making powers. An analysis of these cases provides some guidance about what can be expected from the courts when bylaws impacting drone operations are challenged. 

In R. v. De Havilland Aircraft of Canada Ltd., the City of North York implemented a bylaw in order to limit the noise disturbance of an aircraft test company. However, complying with the bylaw would have put the company in violation of its obligations under the Federal Aeronautics Act. Therefore, the federal law prevailed and the bylaw was inoperative for that company¹⁵.

In 2010, the Supreme Court of Canada examined jurisdiction over aeronautics tin Québec (Attorney General) v. Lacombe, wherea municipal zoning bylaw prohibited aerodromes within a quiet vacation area. The SCC held that the bylaw was ultra vires because it was not a zoning bylaw in practice but rather had the effect of prohibiting aerodromes. The court found the bylaw to be invalid because the purpose and effect of the bylaw touched more on regulating aeronautics than it did on land use planning.¹⁶

The decision of Burlington Airpark Inc. v. Burlington (City) allowed a bylaw to prevail. In that case, an airport was being expanded near the Niagara Escarpment. The City had a bylaw regarding fill operations and ordered the airport construction to comply with the bylaw. The airport argued that their operations fell within federal jurisdiction. However, the court ruled that the bylaw was valid and binding upon the owner regarding landfill activities at the airport. The bylaw fell within provincial jurisdiction and did not infringe on the operations of the airport.¹⁷

Most recently, the decision in Oshawa (City) v. 536813 Ontario Limited applied the doctrine of interjurisdictional immunity. Although the defendant did not obtain a building permit before constructing modifications to its aircraft hangar, the court ruled that the Ontario Building Code Act, 1992 unacceptably interfered with and impacted the core federal competency as it applied to the hangar. Therefore, the charge against the defendant under the Ontario Building Code Act, 1992 was found ultra vires the city of Oshawa.¹⁸

Key takeaways for municipalities and drone operators

Municipal bylaws that purport to impact drone operations may face challenges if they encroach on the Federal Government’s aeronautics power, rather than focusing on the effect of drone use on well-being in public places. Municipalities should ensure that any proposed or enacted bylaws to control drone use within the municipality does not encroach on the Federal Government’s aviation jurisdiction, and only touch on municipal land and the well-being of its constituents. Further, bylaws that clearly define that drones are included in a list of prohibited aerial vehicles will greatly assist operators in complying with the provisions, and reduce the municipality’s potential exposure to a court challenge.

For drone operators, determining the applicable municipal bylaws, and ensuring compliance with them needs to become a routine step when planning operations. As the applicable regulatory and bylaw framework becomes more complex, obtaining the necessary permits and planning for compliant operational parameters where municipal bylaws apply will become (yet another) cost of doing business.

For further information, please feel free to reach out to Kathryn McCulloch or another member of Dentons’ Aviation group.

A special thanks to Matthew Maich (summer student) for their assistance in the preparation of this Insight.