Jurisprudence: what is law? The study and theory of law, obtain deeper understanding
of the nature of law, legal reasoning, legal systems, and legal institutions.
Legal positivism: developed by (Jeremy Bentham). The existence and contents of law
depends on the social facts and not its merits. The law depends on what type of
governance is in place. Law is a matter of what is practiced and tolerated not the fact the
law is just or unjust, wise or unwise etc. The view that the law is a social construction.
Social thesis: law is a social phenomenon.
Legal realism: (Karl Llewellyn) there is a conceptual seperation between law and
morality(they are fundamentally different things), what the law is and what it ought to be.
(seperation thesis). Moral content not essential to law. The law depends on the political,
economic, and social context it is made. Judges make laws based on the views they have.
Natural law: denies the social thesis and says that law is both a social and moral
phenomenon. “and unjust law is no law at all”.. ideal law means that moral content
essential to law.
The law represents compromise, consensus, and power
Compromise because it resolves conflicts within political, economical, and social
It is maintained on the basis of consensus to its social and moral legitimacy
It represents power because it attempts to control behaviour and activity, supports certain
world views and rejects others.
Most of law originates from patterns of behaviour that the society ordered itself into
Source of Canadian Law: The rule of law ---> opposed to the rule of man
rule of law is based on non-arbitury rules – so there is no abuse of power
Source of Canadian Law: the ConstitutionAct of 1867
TheAct sets out governance rules and strategy for Canada, which seperates federal and
Source of Canadian Law: the ConstitutionAct of 1982 includes the charter of rights and
freedoms which protects citizens from oppressive legislative action. took away all UK
powers over canada as a colony
therefore, constitutional law consits of the charter of rights and freedoms and federal
(territorial) power, and provincial (municipal) power.
Source of Canadian Law: Statutory is written law made by different levels of government (federal house of commons,
provincial legislative assemblies) these laws are still lower in rank than constitutional
laws, but higher in rank than other sources of law.Applying statutory law involves judges
Sorce of Canadian Law: Regulatory
Statutory law grants certain executive branches and organizations power to make
regulation legislation becxause they are more experienced with day to day operations and
can make better laws.Applying regulatory law still involves judges iterpretations.
Source of Canadian Law: Treaties
government representatives can enter into agreements with other countries, then the
agreement becomesstatute in Canada and becomes law
eg. the chicago convention became the aeronautics act
Source of Canadian Law: Common Law
Judge made law (case law) where they determine existence of certain legal principles in
question, and look to prior court decisions on similar matters for direction. (goes back
centuries to roman period, UK, and US use same principles)
Aviation common law is derived from motor law, employment law, and maritime law
All provinces except quebec are the same for common law principles, common law can
also be found in the writings of statutes, common law interprets the statutes, and common
law can be overridden if it conflicts with statute law.
Source of Canadian Law: Civil Law
means that the core principles of the law are codified in writing and not evolving from
interpretation by judges
Case law: stare decisis (stand by decisions made)
legal precedent: influential court has made decision regarding application of principles
to certain facts and must be the same decision for same set of facts in the future. This
guides the conduct of the courts.
decidendi: the rationale for the decision carries the weight for the precedent. It is
the legal, moral, social, and political principles used by the court to compose a rationale
for a particular judgement. The reason behind the judgement.
Obiter dicta: (said in passing) the judges opinion on the facts of the case, if there is no
conflicting precedent to the judges opinion, it can be influential in the outcome, although
their opinion is not binding the court it is presuasive.
In the absense of precedent sufficiently similar to the case, the court is free to make it's
own decision which in turn serves as the precedent in the future. In British Canada, the supreme courts of Canadas decision could be further appealed to a
higher court in Britain (JCPC) until 1949.
Binding impact highest authority to lowest
Supreme court of Canada->Provincial court of appeals->Supreme court of the Province-
>County of district court->Provincial court
Persuasive impact: other countries courts etc.
Source of Canadian Law: books of authority and experts
these can influence a courts decision, scholars of law can analyze social implications and
resolve complex situations...eg. Expert witnesses
Source of Canadian Law: context
increased knowledge and technology calls for different interpretation of law, likewise
social developments such as changing values and beliefs call for law changes
Types of law
Domestic and International
Domestic has substantive law: which is codified law or written law
and procedural law: which is the rules by which a court hears and determines a case and
administers the substantive written law
Domestic law is also seperated into private and public law
Public: constitutional, criminal, taxation, administrative
Private: tort, contracts, property, family, company etc...
The consitution act of 1867 sets rules for federalism, section 91 and 92 allocate power
between federal parliament and provincial legislature as mentioned earlier..
The consitution of canada (1982) is the supreme law of canada, any law that is
inconsistent with constitution has no effect
Patriation means that only domestic parliament can amend the constitution, no more
Division of powers
Federal: Section 91 authoritative power after other powers have been delegated to
provinces for “Peace, order and good government”
Provincial: Section 92 power over matters of local or private nature
there is 3 ways to attack a law: The law is invalid if its purpose and effect falls within jurisdiction of another government
Ultra vires (beyond power)
under ancillary powers doctorine the law can be saved if it complements a valid
The law is inapplicable if it falls within jurisdiction of the government but impairs the
core powers of the higher up government. Doctorine of interjurisdictional immunity
The law is inoperative if there are inconsistent federal and provincial laws but both are
within jurisdiction of the government in question (intra vires) federal jurisdiction prevails
to the extent of the inconsistentcy. Doctorine of Paramountcy
Case: Re regulation and control ofAeronautics in Canada
Federal government enacted Air Board Act and Air Regulations to perform its obligations
to convention with 17 other countries. This included the liscencing and inspection of
pilots, planes, and aerodromes.
Court found that the statute (Air BoardAct) and regulations (Air Regulations) were result
of a treaty and therefore within the power of the federal government. S.132 of
Constitution gives federal government exclusive power to enforce treaties with foreign
nations. NOTE** the names of treaties and acts were renamed after british rule but
principle of federal jurisdiction still holds.
There is general tension between provincial interest in local land use planning and federal
interest in a unified aeronautical navigation system
Under CAR 302.01, except in built up areas and where scheduled passenger service is
provided, people are permitted to construct aerodromes without registering. IF registered,
must be available to anyone who needs to use it and maintain federal standards
Case: Johannesson vs West St. Paul(SCC 1951)
The West St. Paul by-law trying to limit the location of airports is ultra vires. It is
encroaching on federal jurisdiction and therefore invalid.
The SCC found that federal jurisdiction over aeronautics resides within Peace, Order, and
Good Government power.
Case: Venchiarutti vs Longhurst (Ontario CA1992)
Longhurst made airstrip on moms land, by-law in Muskoka limits use of land to certain
activities. By-law cannot limit location of airstrip because it is part ofAeronautics Act
and federal jurisdiction over aerodromes. The by-law is inapplicable. It is intra vires but
aerodromes are federal jurisdiction.
Case: OrangevilleAirport vs Caledon (town) (Ontario CA1976) Airport had federal approval for building of 5 new hangars, Caledon didn't issue permits
because Ontario zoning by-law. The law is inapplicable. Caledon cannot limit the design
of the airport because it is integral to the aeronautics system throughout Canada. It is intra
vires but cannot impair core powers ofAeronautics Act which is federal jurisdiction.
Case: Greater TorontoAirportsAuthority vs Mississauga (Ontario CA2000)
GTTAbegan redevlopment of Pearson. Mississauga under provincial law tried to levy
development charges. The charges are inapplicable, construction of airports falls under
core of exclusive federal aeronautics power.
Case: Sacre-Coeur (municipality) vs Lacombe (SCC 2010)
Lacombe obtained federal liscence to operate plane tour business on lake. Municipality
created by-law to prohibit aviation on the lake. Law is invalid. No jurisdiction over
aeronautics (ultra vires) cannot make law against it.
Case: Laferriere vs Quebec (SSC 2010)
Laferriere built airstrip on land designated farming land by Quebec law, they ordered it to
be changed back, but even though the law is intra vires, it is impairing core competency
of federal power. The location of aerodromes is a core federal competency.
Provincial/municipal legislation cannot impair core of aeronautics, but can impair non-
Core aeronautics: the authority necessary for federal government to achieve purpose of
legislation. It is identified from case law. Location of airports and aerodromes, design of
Aeronautics: defined as the physical act of flight, from takeoff to landing.
Case: Montcalm Inc vs Quebec (Minimum Wage Commission) (SCC 1978)
Wage commision sought to recover compensation for employess of Montcalm who built
runways at an MirabelAirport. Provincial legislation (minimum wage act) is not
inapplicable because wages are not a part of core aeronautics.
Case:Air Canada vs Ontario (Liqour Control Board) (SCC 1997)
Mark-up of liqour sold in province for purpose of in-flight consumption. The mark-up is
not inapplicable because supply of liqour is not part of core aeronautics and intra
vires(within power) for provincial government.
Case: R.Vs Pearsall (Saskatchewan CA1997)
Pearsall was charged with unlawful use of aircraft for hunting, contrary to provincial
legislation. Law is intra vires and not inapplicable because law is meant to regulate
hunting not aviation. Almost every aspect of Canadian aviation law is related directly or indirectly with
Canadas treaty obligations.
Globaliztion demands uniform expectations to certain behaviours
Treaties are a legal instrument that creates legal order among signing nations. Often
requires new laws within the nation to perform obligations to treaty. This process of law
making ultimately binds the signing nations.
In Canada, treaties are part of British heritage.
1. Minister of Foreign Affairs supervises the negotiation of treaties. (treaties are only a
consent to be bound, no effect until a law is passed)
2. Treaty is sent to Cabinet for approval, and a signing order is issued.
3. Cabinet authorizes Minister of Foreign Affairs to sign instrument of ratification
4. Canada is bound as soon as treaty comes into force
5. Implementation requires passing of domestic legislation
The main treaties for aviation:
Convention on International CivilAviation (Chicago Convention)(1944) which are
the rules of airspace, aircraft registration, and safety. To date, there is 191 member states.
It is the source of international air law and reason the international organization exists
Articles 1,2,3 give nation exclusive athority over its airspace. There is no accepted
international limit to airspace vs outerspace.
Warsaw Convention(1929) and Montreal Convention(1999) which are rule for air
ICAO is special agency under United Nations. ICAO developed standards and
recommended practices. Standards are binding for signing states unless a member state is
unable to comply and voices objection through their delegation council. Some states
cannot comply due to lack of financial and human resources. Recommended practices are
viewed as desirable suggestions. Member states need not comply with recommended
States need to keep their regulations uniform to the greatest possible extent to project the
ICAO standards (article 12). States should collaborate to secure the highest practical
degree of uniformity
Fundamental problem is no law enforcing entity at international level, enforcement relies
on negative publicity and economic sanctions.
Part 1 substantive law provisions for regulation of aeronautics
Minister of Transport responsible for development and regulation of aeronautics and the supervision of all matters within aeronautics.
Governor Council can make regulations to carry out Ministers orders
Canadian Aviation Regulations (CAR's)
The basic safety and operational rules relating to aviation
CAR's Advisory Council make changes to CAR's to improve safety and harmonize better
with ICAO. Members are part of government and aviation community and there are 9
replaced by Canada TransportationAct.
Act established Canadian TransportationAgency (CTA). It is an independent tribunal and
economic regulator that supports accessible and competitve national transportation
system. They resolve complaints about noise, fees, charges and rates as well as disabled
persons accessiblity issues. Issues liscences and permits to transportation carriers under
Quasi-Judicial: excersise power like a court or judge.
Part 3: miscellaneous administration provisions
Part 4: replaced by Transportation Appeal Board of Canada.
TransportationAppeal Tribunal of CanadaAct
established Transportation Appeal Tribunal of Canada that deals with reviews and appeals
(example permit refusals, refusing to issue, suspending, or cancelling, and monetary
Approximately 250 aviation accidents in Canada per year and about 60-70 fatalities per
Canadian Transportation Accident Investigation and Safety BoardAct
established Transportation Safety Board of Canada(TSB) and its objective is to advance
transportation safety by conducting independent investigations and locating risks in the
transportation system. The findings do not assign fault or determin criminal liabilities and
the opinions of investigators are not admissible in court.
CivilAir Navigation Services CommercializationAct gave the Minister of Transport
authority to transfer NAV CANADAthe air navigation services. They provide traffic
control, weather briefings, airport advisory services, and aeronautical information
Canadain Air Transport SecurityAuthorityAct
established Canadian Air Transport SecurityAuthority (CATSA) and they screen people
and their property who access aircraft of restricted areas. Canada Border ServicesAgencyAct
establishes Canada Border ServiceAgency which regulates the inflow and outflow of
good, people, plants, and animals. Operates at 13 international airports
Aerodrome: land or water supporting surface for use for aircraft departures and arrivals
and includes any buildings associated with that practice. Under CAR's they require
inspections, markings, warning notices, wind direction indicator, lighting, prohibitions,
and fire prevention.
Registering an aerodome provides better safety and is included in Canadas flight
supplement, and limits liability by listing hazarads and potential risks, as well as reduced
hassles with documentation requirements.
If aerodrome is listed in CFS can either be public or private use. Private use requires prior
Even if not listed as public, emergency use still allowed, and this carries greater liability
to others to make sure it's safe to land. Must consider insurance options.
Airport: must be located within built up area or town, must be used by operator for
scheduled service, to become airport aerodrome needs accredidation from Minister. To
receive airport status the operator must show how the operations will work and set out a
manual with standards and services.An airport also has more strict safety obligations due
to higher volume of traffic. It is costly to maintain airport certification status and there are
no immediate advantages.
Until 1992 the largest 25 airports in Canada were operated by federal government. There
was pressure to transfer management to local authoritities to increase efficiency and
NAS (national airports system) airports are now private not for profit corporations with
60 year leases to the federal government. They are efficient and self funded. The rates
and charges they apply are unregulated. Members of governing board are nominated by
different levels of government.
Non-NAS airports are also run by local authorities. Government gives Airports Capital
Assistence Program to these airports to help with infrastructure costs.
Rights asscociated with airspace
trespassing: does not require proof of damages, unjustified invasion of anothers
possession. Trespassing law is codified in Ontarios trespass to property act but only in
relation to land and structures, so planes on the ground. Old roman law that he who owns
the soil, owns everything above (coelum maxim: a maxim is an attempt at a general
statement of the law) but this does not seperate outerspace from airspace. IF this was common law every flight would be trespassing.
Case: Lord Bernstein of Leigh vs Skyviews (1977 Quebec)
Skyviews flew over Bernstein property and took photos, Bernstein claimed invasion of
property and tresspass. No trespassing. Coelum maxim does not apply in a literal sense to
common law. Impossible to conduct flight if this were true.
But a low flying aircraft could still commit tresspass, owner of land has ownership to
certain height to be able to to use and enjoy their land.
Case: Lacroix vs Canada (Federal court 1950)
air and space are a thing of the entire community (res omnium communis), Lacroix claim
of interference with his property when planes are landing at airport. Coelum maxim is not
a principle of Canadian law.
Case: Air Canada vs Manitoba (1978)
Manitoba tried to get tax from consumption of good over its airspace. Did not succeed,
coelum maxim not a principle of Canadian law.
Case: Didow vsAlberta Power (1988)
power line wires intruded 6 feet onto Didows land and he sought to have them removed.
This amounted to trespassing. The permanent struture impedes on his potential use and
enjoyment of his land.
Height of private airspace in U.S case determined at least 150 feet maybe even 300 feet.
Under Aeronautics Act, cannot erect structures to block the flow of air traffic into airports
due to airport zoning regulations. However, in certain circumstances can erect structures
if it is a reasonable and neccessary use of the property. But it is unclear if they would be
liable for nuisance damages.
Nuisance requires proof of damages. It is indirectly interferring with use and enjoyment
of property causing potential damage. It must be substantial interference and
If inhibiting structure is deliberately erected to obstruct it is nuisance.
If it is not deliberately erected it depends..
Case: Nor-Video Services vs Ontario Hydro (1978)
Ontario hydro constructed new transformer station to save money directly in the path of
Nor-videos television signal tower and reception tower. This caused interference with TV
signal. Nor-video won nuisance case because substantial and unreasonable interference
with Nor-videos enjoyment of property.
Case: Hunter vs Canary Wharf (1997) Canary constructed building on their property interfering with TV signal into Hunters
home. No nuisance claim.An owner is entitled to build on their land subject to planning
control as long as there is no prior agreement and is not liable if the building interferes
with enjoyment of neighbours land. Difference with Ontario hydro case is they built
transformer on public land.
The following are NOT a defence to nuisance
Claim that activity is of public benefit.
Claim that location is most suitable place for activity
Claim that care and skill was taken to carry out activity
Claim that multiple persons are to blame (in that case each is given proportion of
Claim that the use of the property is reasonable
Defences to nuisance
Statutory authority: if activity is authorized by statute and defendant can prove it.
Case: Sutherland vs Attorney General (2002)
Vancouver airport added a runway creating more noise, citizens sued for damages due to
nuisance. There was an unreasonable and substantial interference with the use and
enjoyment of land. However, the defense won because the precise location and exact
configuration of the runway were authorized under a statutory scheme, noise nuisance
was the inevitable result of the statute.
Abnormal sensitivty of persons or uses of property: if the person is not normal, or easily
irritated by nuisance, the court is saying the interference is not substantial to be
considered nuisance. The person is the type to over react and too sensitive as opposed to a
normal person. Their claim cannot hold in court.
Canadian sources of liscencing:
Acts create legislation, then regulation creates subordinate legislation such as Statutory
Instruments Act, then standards are incorporated by reference into legislation.
There is examinations and medical requirements for liscencing
You recieve an aviation document booklet that is valid for up to 5 years
Must have language proficiency for use of radiotelephony communications in
Pilots holding certain liscences can obtain those of another country when certain
conditions are met.
NAV CANADAissues liscences for air traffic and flight service specialists Domestic rules of the air require a properly liscenced pilot is allowed to fly within the
rules of CAR's
If there is an offence to Aeronautics Act- dealt with by Minister of Transport
Offence to CAR's- minister of transport
Criminal Code- cops
most common general aviation offences
low flying, overweight aircraft, incorrect/out of date liscence, knowingly flying a
Information about offences comes from citizens, polices, air traffic, inspections, and
you are given letter of investigation and allowed 30 days to respond, they attempt to
contact you by phone, or notice of suspension or monetory penalty,
findings of investigation are non-negotiable
Criminal offences are concerned with public wrongs. Behaviour deviating from rules of
society. (victims commonly receive no compensation- fines paid to the state)
Society punishes deviant behaviours in order to: deter it from happening; express
community outrage; reform the person(modern)
Accused's state of mind:
For absolute liability – doesnt matter
for strict liability – was due cared owed by accused? (balance of probabilities)
for negligence – prove that there was absense of due care (beyond reasonable doubt)
for all others –provethat there was intention,recklessness or wilful blindness (beyond
Eg absolute liability : parking tickets (state of mind doesnt matter, need only prove act
NOT FOUND INAVIATION LA