COPA Freedom to Fly Fund

The Freedom to Fly Fund is focused on the big picture and deals with issues that will leave a lasting mark on people’s freedom to fly,” said Jim Ferrier, COPA’s Director of Aviation Operations. “We field many requests, but since the Freedom to Fly Fund is 100 percent donation-based, we are careful with the money and very selective with the cases we support. An AOPA program, which allows pilots to pay a monthly fee for access to legal assistance, has likely caused confusion about the Fund.” According to Garth Wallace, former publisher of COPA’s Canadian Flight Magazine, the COPA Special Action Fund was created in 1978. At the time, the Board of Directors “launched an appeal to members to contribute to a trust fund that would pay legal fees when COPA needed to take government agencies to court.” Shortly after its inception, the Freedom to Fly Fund’s mandate was expanded to develop educational materials for the public, legislators, government and officials in Canada and to promote protect and advance the interest of General Aviation. In the 1990s, COPA provided financial support to the ultralight industry in their pursuit of carrying passengers. Today, its focus is primarily to support legal and court costs.

Fighting issues that impede the right to fly and safety are important objectives and COPA’s work has already made a significant impact in the aviation community. Thousands of private aerodromes dot the countryside across Canada. They are not all registered in the Canada Flight Supplement, and many are considered “Prior Permission Required,” but the courts support that they form a web of safety across the country. Ferrier reflected, “Although you would normally call the owner and ask permission to land, if I were flying, encountered difficulties and saw an airfield nearby, it is going to be much safer landing there than landing on a road.” The Federal Government’s exclusive jurisdiction over aeronautics was first signalled in 1919 as part of Canada’s obligations to England and aviation following the First World War. Despite this well-known fact, there are times when provinces and municipalities overstep their authority. Cases are often fought over establishing aerodromes, their location and construction. To confuse matters, federal and provincial laws can overlap and must coexist.

The remedies and decisions are not always black and white, or consistent. As Ferrier explains, “Municipal and provincial laws that aim to restrict the freedom to fly do not apply. However, Federal Jurisdiction does not mean ‘carte blanche.’” COPA’s prudent management and use of the Freedom to Fly Fund is also out of necessity. Pursuing a court case is exceedingly expensive. As Glenn Grenier, a Partner with the law firm McMillan LLP and COPA’s legal advisor, says, “If we were to take on every case, we would use the fund up in a year.” COPA members will remember the two most recognizable cases from 2010, which went to the Supreme Court of Canada and whose decisions once again affirmed the Federal Government’s jurisdiction. Grenier explained: “The Federal Government’s exclusive jurisdiction over aeronautics was established in 1952 with the Johannesson v Municipality of West St. Paul. The other two big cases, from 2010—Quebec (AG) v COPA and Quebec (AG) v Lacombe—which, by the way, were heard and decided simultaneously—have reaffirmed that position, and many cases thereafter continue to cite those decisions.” It may seem like trying to navigate through dense fog. Still, it’s important to remember that a critical criterion for the Freedom to Fly Fund is that the issue must be potentially precedent-setting. “We understand that pilots might find themselves in unfair situations. Flying costs continue to increase— like with hangar fees or landing fees,” Ferrier explained. “The COPA team is nothing if not sympathetic. It’s just that costs do sometimes need to go up and the Freedom to Fly Fund may not be the remedy to challenge that.

In those cases, George Farrington, COPA’s external relations director and I are always open to a conversation, and we can write a letter or refer you to our legal counsel. We are constantly monitoring the big picture issues, like the ADS-B mandate, and advocating for GA pilot’s rights.” New cases arise continuously across the country. Although few end up being heard by the Supreme Court of Canada, other issues being tested include provincial and municipal jurisdiction and noise, amongst others. As Grenier aptly points out, “The network of aerodromes is all about safety. The more you have, the better. If there’s an aerodrome below you, it’s safer than if not.” Understanding how a precedent-setting case can be leveraged to help in another case is helpful in appreciating how the Freedom to Fly Fund is used. Deciding whether to pursue a case is a nuanced process that involves legal counsel and COPA’s Board of Directors. An interesting example of the Fund in action is the Ontario Environmental Tribunal’s 2016 decision concerning the Collingwood Regional Airport. South of Nottawasaga Bay, Ontario, wind turbines were going to be built downwind by Fairview Wind Incorporated (Wiggins v. Ontario (Environment and Climate Change)).

Grenier, a private pilot from age 16 and an aviation enthusiast, was one of two lawyers arguing the case against the placement of the wind turbines. He explained, “The lawyers for the municipality and the Ontario Ministry of the Environment and Climate Change were focused on IFR. We recognized that the more accurate and correct focus was VFR, based on the airport’s traffic. Our expert witness was Conrad Hatcher, longtime COPA member, flight instructor, and aviation authority.” “Within two weeks, Conrad had taught the members of the Tribunal how to fly a circuit. Based on the evidence we provided, the Tribunal determined that wind turbines’ proposed positioning would present harm to human health by creating obstacles for pilots flying in to and out of the Collingwood airport and nearby Clearview Field in Stayner. The decision made sense and was right—the potential turbulence caused by the wind turbines constitutes an obstacle. It was amazing how quickly the Tribunal members, as non-pilots, absorbed the information and got it right.

The Collingwood case evidence and decision were then acknowledged in a similar 2024 decision by the Alberta Utilities Commission. A wind farm that would affect two nearby aerodromes—Fetaz and Maier was planned. Donna and Gerard Fetaz, the aerodrome owners, were naturally concerned about the wind turbines. They engaged Grenier and funded the case themselves. As their representative, Grenier provided evidence about the downwind turbulence hazard that certain of the wind turbines would cause, which had not been considered by the Commission prior to that. “While Capital Power’s experts—the company building the wind farm—provided reports suggesting the turbulence was negligible, the Commission agreed with the evidence we provided demonstrating the opposite, and three of the wind turbines were not approved to be built,” Grenier explained. “By supporting the Collingwood case, the COPA team produced evidence that was significant to this case.” “When COPA learned of the decision,” Ferrier added, The Board of Directors identified the additive legal arguments contained in the case and decided to offset some costs through the Freedom to Fly Fund.” Contrasting these outcomes, where the right to fly would have been curtailed because of safety issues, with an increase in local hangar or landing fees, it’s clear that fighting for the greater good of General Aviation is the most importantuse of the Freedom to Fly Fund’s resources. Applying for support through the Freedom to Fly Fund is straightforward. COPA members who believe they have a case can complete this form to start the review process. If warranted, Ferrier will engage Grenier to assess the issue’s merits. Grenier’s advice to the Board of Directors will help them determine whether to proceed. Ultimately, the Freedom to Fly fund will be managed and preserved for bigpicture issues.