Unmanned aerial systems—commonly known as drones—are vehicles that operate without an on-board pilot to control their movements. Drones vary in size, use, shape, form, and purpose. Popular for mainstream recreational and commercial uses, the use of drones is growing exponentially and is limited only by imagination.
Beyond their use as toys, drones are poised to play a leading role as a tool for businesses and governmental institutions. Tremendous opportunity is available to use drone technology in virtually any industry: energy, infrastructure, farming, surveying, mining, oil and gas, forestry, photography, entertainment, or defence and security. Companies are experimenting with drones that can provide temporary internet access to disaster stricken areas, scan the exterior of large buildings, make commercial deliveries, defence deployment, monitor wildlife migration and identify trespassers on private property. The ability to aggregate massive amounts of data and images, without the traditional restrictions of geography, time and cost, has opened up a new era for business.
If a drone is to be used as a tool to advance business, production or services, ensuring compliance with the laws and regulations applicable to drones is essential. Regulations in Canada are behind those of other countries (most notably, the United States), but are expected to be revised and expanded upon in the spring of 2017.
Current regulatory framework
As aircraft, drones are regulated under the existing aeronautical and aviation statutes (being the Aeronautics Act and the Canadian Aviation Regulations, primarily). The Canadian Aviation Regulations1 govern civil aviation safety and security in Canada and are administered by Transport Canada. At present, drones typically require permission from Transport Canada before take-off and are regulated by size and use (recreational or commercial).
- Is pre-flight permission required? Before a drone flight, an operator must determine whether permission from Transport Canada must first be obtained. Permission is not required for many smaller, recreationally-used drone flights. For the operation of larger drones, particularly for commercial purposes, permission can be obtained from Transport Canada by obtaining a special flight operations certificate (“SFOC”) or an air operator certificate.
- SFOCs Generally, SFOCs set out conditions for a specific drone flight or operation, and impose various mandatory operating and flight safety conditions. All drones operated for commercial purposes weighing over 25 kg and drones operated for recreational purposes weighing over 35 kg will require an SFOC before flight.
- Exemptions where pre-flight permission is not required On December 21, 2016, Transport Canada released new exemptions to the SFOC requirement and simplified the rules for commercial operations.2 As long as an operator complies with certain flight safety standards and operational conditions, an operator can conduct a drone flight without an SFOC in the following circumstances:
- Recreational drone flights:
- For drones that weigh 35 kg or less, Transport Canada's permission is not required before the flight.
- Commercial drone flights:
- Recreational drone flights:
- Conditions apply to all drone flights Even if an SFOC is not required, conditions still apply to a drone flight. A drone operator must always fly the drone in accordance with aviation safety.5 A key condition of drone flight in Canada is that the drone may only be operated within the visual line of sight (“VLOS”) of the operator. For instance, commercial drones weighing between 1 kg and 25 kg must remain within the visual line of sight of the operator (among other things) in order to comply with the exemption. However, where a drone flight is conducted for commercial purposes pursuant to an SFOC (where the applicant for the certificate has demonstrated that the drone has sense-and-avoid technology, for example), beyond visual line of sight is permissible. Obtaining an SFOC to operate a drone beyond visual line of sight of the operator (“BVLOS”) will allow a company to use a drone to its maximum potential. Operating in remote, dangerous or difficult to access locations (for example, for monitoring pipe lines, the conditions of a logging road in winter or agricultural production) without an SFOC, but under the exemption, may be of limited value as it does not actually remove the need to have a person (an employee or contractor) physically attend.6
Penalties for failure to comply with regulations
Whether or not a person operates a drone under an SFOC, they must still adhere to mandated safety requirements.7 Further, there are additional operational conditions (including requirements to remain prescribed distances from aerodromes and to remain within the visual line of sight of the operator). For example, an operator shall subscribe for a minimum of $100,000 in liability insurance.
In the event of non-compliance (with an SFOC or safety requirements), Transport Canada may:
- issue fines of up to $5,000 for a person and up to $25,000 for a corporation if an operator flies a UAV without an SFOC; or
- issue fines of up to $3,000 for a person and up to $15,000 for a corporation if an operator does not follow the requirements of their SFOC.8
Expected revisions to regulatory framework
As mentioned above, Transport Canada is expected to reveal a revised regulatory framework for drone operations in the spring of 2017. Nevertheless, the requirements for an SFOC for commercial operations will continue. Rather than distinguishing between the types of operations (whether for recreational or commercial use), these exemptions are expected to distinguish between operations based on their associated risk. The regulations will allow for “lower risk” commercial operations to continue without the need to apply for an SFOC. Drone operations with drones weighing less than 25 kg will likely be able to proceed with fewer regulatory obstacles, with the SFOC process being reserved for drone operations with greater risk to aviation safety (over 25 kg and beyond visual line of sight).
A corporation considering drone technology for its business in Canada will need to answer two key questions before engaging drones in their business: 1) is obtaining an SFOC necessary to use drones to accomplish our business objectives and 2) should we hire an employee to operate the drone(s) or hire a third party drone service provider.
In deciding both of these points, the company should consider the extent of the proposed operation(s), the location of use of the drones (urban versus rural areas), and the respective operational costs. If a third party drone operator is contracted to conduct the drone flight(s) for the company, ensure that it has liability insurance for any issues arising from the use of the drone and that that the company will own the information collected.
This article was co-authored by Josh Shneer, Student at Law, of Dentons' Toronto office.