A Mistaken Policy Guideline for MAAC Clubs
In this article you will find:-
- A short discussion of the background to the subject.
- A discussion of the contention that the rules don’t require a member to present a pilot certificate to fly an RPAS.
- Discussion of the claim that MAAC shouldn’t police TC regulations.
- The erroneous contention that CAR 103.02 outlaws requesting to verify a pilot certificate.
- MAAC’s thoughts on discipline for non-compliance.
- The contention that the requirement in the safety code is sufficient for clubs to rely upon.
- What are the legal consequences to clubs and MAAC?
- Discussion and conclusions.
Background.
On May 18th, 2023, Mike Anderson, the President of MAAC, issued a Policy Guideline for Clubs on the subject of the production of Transport Canada Pilot’s Certificates in order to obtain permission to fly RPAS at club facilities. The guidelines strongly recommend that clubs DO NOT require their members to produce those certificates and even contends that it is illegal to do so. This policy guidance is badly flawed and should be immediately withdrawn. We will review its flaws here.
The Rules Don’t Require it.
The first point, that is made in the first paragraph of the guidelines, is that MAAC rules do not require the production of the certificates. The implication of this is that only MAAC rules should be applied. This, in itself, is at variance with MAAC’s own rules which state that clubs must apply MAAC rules as a minimum, but may add any further requirements to suit their own circumstances. The real question should be – “Why do MAAC rules not require that those responsible for the operation of club facilities that include RPAS operation ensure that those operations are in compliance with the law?”
MAAC Should Not Police Transport Canada Regulations.
It is stated, quite explicitly, in the first paragraph of these guidelines, that MAAC believes it should not be policing compliance with Transport Canada’s requirement for pilot certificates. We believe that this is exactly what Transport Canada expects MAAC to do. This stated position from MAAC will almost certainly work strongly against the possibility of MAAC being granted another exemption from Part IX by Transport Canada at any time in the future.
It was stated in another recent article by the President that the total ban on flying was done to illustrate to Transport Canada that MAAC is serious about safety and a reliable partner. It was highly questionable whether that action had any chance of achieving that effect. This statement, however, should convince Transport Canada that MAAC is not a reliable partner to carry out the policies that they have put in place.
Does CAR 103.02 Outlaw Requesting Proof of a Pilot’s Certificate?
The second paragraph of the guidelines cites a section of the Canadian Aviation Regulations which MAAC believes limits who can request to see a pilot certificate. The statement is made that this section says that ‘the only people that have the legal authority to make a “request for production of documents” (pilot certificate) are a “peace officer, an immigration officer, or the Minister”.’ {Note: the reference to the pilot certificate in this quotation was added by the author of the guidelines, it does not appear in the actual CAR section.}
This strongly implies that MAAC believes that only those named people may request to see a pilot certificate. That is wrong! Anyone may ask to see the document referred to – the owner of the document may refuse anyone except those named, for whom he/she must produce the document. It must also be recognized that the right to refuse to produce the document for inspection does not carry with it any absolution from the reasonable consequences of that refusal.
Here is the real crux of the matter though – that section of CARs quite explicitly refers to documentation for an AIRCRAFT – it has absolutely nothing whatsoever to do with pilot certificates.
Discipline for Non-Compliance.
The third paragraph in these guidelines explains that a further reason not to ask for the pilot certificate is that the club should avoid setting a policy where refusal to comply becomes grounds for discipline or expulsion. Yet another illustration of the blinkered view of the current administration – the only response to any sort of misbehaviour is to deny membership privileges. The paragraph goes further – to suggest that the request could result in legal difficulties for the club.
In fact, a club that requires to see a pilot certificate has a simple, non-draconian, non-disciplinary, response available for those who refuse that perfectly reasonable request – that person may not operate an RPAS at that facility, though they may conduct non-RPAS activities!
Of course, the last part of that sentence may become moot if the current administration has its way and ALL model aircraft flying, of every category, not just those covered by Transport Canada regulations, are deemed by MAAC to be subject to the same restrictions. Movements in that direction are already under way, even though nothing in the legislation requires it. The excuse for this action is, again, that it will convince Transport Canada of our worth as a partner. It will do no such thing. Transport Canada has made it clear, in writing, that it does not consider that there is any justification for such a move. If they did they would have included it in the legislation. Why would anyone think that Transport Canada would be impressed by actions that they didn’t deem it necessary to take?
Pilot Certificates and the Safety Code.
The case is made, throughout this document, that because the requirement for possession of a pilot certificate in order to fly RPAS is contained within the safety code, and MAAC members sign a statement that they will adhere to the safety code, it is inappropriate to check that any individual is, in fact, adhering to some part of the safety code. That is a very unwise position to take. It is, in fact, extremely good safety practice to reinforce safety requirements in many situations. Because an employee’s contract stipulates that they will adhere to safety practices that doesn’t mean that the employer shouldn’t put up signs reminding them of the fact – or that safety boots shouldn’t have a label on them that an employer can easily see to verify that the rules are being followed.
Site Operating Certificates.
Wording of the Site Operating Certificates is quoted and said to show that a club is not responsible for the CAR compliance of its members. A court would almost certainly disagree and find that a club that had not checked the basic fact of an RPAS flier having a pilot certificate was derelict in its duty and thus bore at least some liability for any consequent injury or damage.
The wording of the SOC’s was created by MAAC. Competent legal opinion should have been sought.
Legal Consequences to Clubs.
These guidelines, quite mistakenly, start out by warning that asking to see a pilot certificate could result in legal complications for the club. That can only be described as vaguely ludicrous. There are, however, significant legal risks for clubs who choose to follow these guidelines. If a club member was assumed to have a pilot certificate because MAAC rules say they should, but, after an accident occurred that caused bodily injury, it turned out that the perpetrator was not qualified under Part IX of CARs, there would be huge ramifications for the club. The miscreant would be without insurance (unless they had alternate coverage through some policy other than MAAC’s) so it is very likely that the injured party would sue the club as complicit – and possibly also sue MAAC because of this advice that has been given to the clubs.
Discussion and Conclusions.
These extremely ill-considered policy guidelines should be rescinded immediately.
Why is MAAC so adamant that a perfectly reasonable request MUST NOT be made of a flier. The reason given in these guidelines has no validity whatsoever. No harm can come from checking the qualification (despite MAAC’s position on that) but the club endangers itself by not doing so.
What benefit does MAAC believe can accrue from declaring a policy of “not policing” Transport Canada’s requirement for a pilot certificate in order to operate an RPAS.
Damage to MAAC has been done – the President has advised a course of action that puts both the clubs and MAAC itself in jeopardy. That damage can be undone. The damage to MAAC’s credibility with Nav Canada and Transport Canada will be much more difficult to undo.
It is clear from this action, if not from previous ill-advised ones, that those who have been appointed to senior and influential positions within MAAC – at the Board level and in certain advisory groups – are dangerously incompetent. It is also clear that this Board, as a whole, is incapable of providing the proper oversight to those people – or of recognizing their inadequacies and replacing them.
When dealing with matters that have such sensitivity in terms of government regulations and legal liability MAAC should consult actual subject matter experts – ie. lawyers – before putting out advice of this nature to its affiliated clubs. It should be noted that the clubs that MAAC is jeopardizing in this way are legally separate entities from MAAC and could themselves sue MAAC for the damage inflicted upon them.
Given the litany of missteps that have dogged MAAC in recent years, and the fact that matters are getting worse rather than better, consideration should be given to the removal of the Board in its entirety and engaging a trustee to take over and govern MAAC until such time as a competent, well-ordered, Board of volunteers, with appropriate professional guidance, can be established.