No. 32604 SUPREME COURT OF CANADA

Transcription

No.
32604
SUPREME COURT OF CANADA
(ON APPEAL FROM THE QUEBEC COURT OF APPEAL)
BETWEEN : ATTORNEY GENERAL OF QUEBEC
APPELLANT
(Respondent)
AND :
THE CANADIAN OWNERS AND PILOTS ASSOCIATION, in
substitution for the Respondents, Bernard Laferrière and Sylvie Gervais.
RESPONDENT
(Appellants)
AND :
HONORABLE PIERRE LORTIE, judge of the Court of Quebec
INTERVENER
(Mis en cause)
AND :
COMMISSION DE PROTECTION DU TERRITOIRE AGRICOLE DU
QUÉBEC, TRIBUNAL ADMINISTRATIF DU QUÉBEC (section du
territoire et de l’environnement), VILLE DE SHAWINIGAN, WILLIAM
BARBER, LOUISE BARBER, RUSTY BARBER, LOUISE SOKOLIK,
MICHEL SOKOLIK, BERTHE DUCASSE, JOCELYNE GALARDO,
CHANTALE TRÉPANIER, et BRUCE SHOOR
INTERVENERS
(Mis en cause)
ATTORNEY GENERAL OF CANADA
ATTORNEY GENERAL OF ONTARIO
ATTORNEY GENERAL OF NEW-BRUNSWICK
ATTORNEY GENERAL OF BRITISH-COLUMBIA
INTERVENERS
AND :
RESPONDENT’S FACTUM
(RULE 42 of the Rules of the Supreme Court of Canada)
Me Pierre J. Beauchamp
PATERAS & IEZZONI
500 Place d’Armes Bureau 2314
Montréal (Quebec)
H2Y 2W2
Tel. 514-284-0860
Fax : 514-843-7990
[email protected]
Marie-France Major
LANG MICHENER LLP
300-50 O’Connor St.
Ottawa, ON,
K1P 6L2
Tel. 613-232-7171 Ext :131
Fax: 613-231-3191
[email protected]
Counsel for
RESPONDENT/Appellants
Agent for RESPONDENT/Appellants
Dan Cornell
CORNELL, MORTLOCK & SILLBERG
272 Kent Street West
Lindsay, Ontario
K9V 4S5
Tel: 705-324-4312
Fax: 705-324-7525
[email protected]
Counsel for RESPONDENT/Appellants
Me Alain Gingras
Me Sébastien Rochette
MINISTÈRE DE LA JUSTICE
CHAMBERLAND, GAGNON (Justice –
Québec)
300, boul. Jean-Lesage, bureau 1.03
Québec (Québec) G1K 8K6
Tel. : 418 649-3524
Fax : 418 646-1656
[email protected]
Counsel for APPELLANT/Respondent
Me Pierre Landry
NOËL & ASSOCIÉS, S.E.N.C.
111, rue Champlain
Gatineau (Québec) J8X 3R1
Tel. : 819 771-7393
Fax : 819 771-5397
[email protected]
Agent for
APPELLANT/Respondent
L’honorable Pierre Lortie, J.C.Q.
PALAIS DE JUSTICE DE
CHICOUTIMI
227, rue Racine Est, 1er étage
Chicoutimi (Québec) G7H 7B4
Tel. : 418 696-6751
Fax : 418 698-3798
INTERVENER/Mis-en-cause
Me Louise Mousseau
CARDINAL, LANDRY
25, boul. Lafayette, 3e étage
Longueuil (Québec) J4K 5C7
Tel. : 450 442-7100
Fax : 450 651-2258
[email protected]
Me Pierre Landry
NOËL & ASSOCIÉS, S.E.N.C.
111, rue Champlain
Gatineau (Québec) J8X 3R1
Tel. : 819 771-7393
Fax : 819 771-5397
[email protected]
Counsel for INTERVENER/Mis en cause,
Commission de protection du territoire
agricole du Québec
Agent for INTERVENER/Mis en
cause, Commission de
protection du territoire agricole
du Québec
Me Jacques Lemieux
MOREL, LEMIEUX
Édifice Lomer-Gouin
575, rue St-Amable, 5e étage
Québec (Québec) G1R 5R4
Tel. : 418 643-0355
Fax : 418 643-6989
[email protected]
Counsel for INTERVENER
Tribunal administratif du Québec
Me Annie Pagé
Me Benoît Lussier
PAGÉ LUSSIER
55, Avenue de l’Hotel-de-Ville
C.P. 400
Shawinigan (Québec) G9N 6V3
Tel.: 819-536-7211
Fax: 819-536-0882
Me Richard Gaudreau
BERGERON, GAUDREAU,
LAPORTE
167 rue Notre-Dame-de l’île
Gatineau (Québec) J8X 3T3
Tel. : 819-770-7928
Fax:. 819-770-1424
Counsel for INTERVENER
Ville de Shawinigan
Agent for INTERVENER
Ville de Shawinigan
Me Pierre Bordeleau
LAMBERT THERRIEN BORDELEAU
SOUCY
303, 7e Rue
Shawinigan (Québec) G9N 1C6
Tel. : 819 536-2455
Fax : 819 536-2339
[email protected]
Counsel for INTERVENERS /Mis en
cause, William Barber, Louise Barber,
Rusty Barber, Louise Sokolik, Michel
Sokolik, Berthe Ducasse, Jocelyne
Galardo, Chantale Trépanier, et Bruce
Shoor
Attorney General of Canada
INTERVENER
Christopher M. Rupar
JUSTICE CANADA
Édifice Banque du Canada
1212-234, rue Wellington, Tour Est
Ottawa (Ontario) K1A 0H8
Tel. : 613-941-2351
Fax : 613-954-1920
[email protected]
Agent for INTERVENER,
Attorney General of Canada
Attorney General of Ontario
INTERVENER
Robert C. Houston
BURKE-ROBERTSON
70 Gloucester Street
Ottawa (Ontario) K2P 0A2
Tel.: 613-236-9665
Fax : 613-235-4430
[email protected]
Agent for INTERVENER
Attorney General of Ontario
Attorney General of New-Brunswick
INTERVENER
Brian A. Crane Q.C.
GOWLING LAFLEUR HENDERSON LLP
2600-160 Elgin Street
Box 466 Station D
Ottawa (Ontario) K1P 1C3
Tel.: 613-233-1781
Fax: 613-563-9869
[email protected]
Attorney General of New-Brunswick
Attorney General of British-Columbia
IINTERVENER
Robert E. Houston Q.C.
BURKE-ROBERTSON
70 Gloucester Street
Ottawa (Ontario) K2P 0A2
Tel.: 613-236-9665
Fax; 613-235-4430
[email protected]
Attorney General of British-Columbia
TABLE OF CONTENTS
Page
PART I :
STATEMENT OF FACTS ............................................................... 1
Overview ......................................................................................... 1
Facts ............................................................................................... 1
PART II :
QUESTIONS IN ISSUE................................................................... 3
PART III :
ARGUMENT.................................................................................... 4
Federal jurisdiction over aeronautics............................................... 5
Definitions of “aerodrome” and “airport” .......................................... 8
Federal regulation ........................................................................... 9
The doctrine of interjurisdictional immunity ................................... 12
Uniformity of the Canadian jurisprudence ..................................... 16
This Court ..................................................................................... 16
Quebec ......................................................................................... 18
Ontario .......................................................................................... 19
Alberta........................................................................................... 20
British-Columbia............................................................................ 22
The impact of the Johannesson decision on
Canadian jurisprudence ................................................................ 22
The doctrine of double-aspect....................................................... 23
Paramountcy ................................................................................. 34
PART IV :
ORDER SOUGHT CONCERNING COSTS .................................. 38
PART V :
ORDER SOUGHT......................................................................... 39
PART VI :
TABLE OF AUTHORITIES............................................................ 40
PART VII :
STATUTES AND REGULATIONS ................................................ 44
ANNEX I:
JUDGMENT
GRANTING
SUBSTITUTION OF PARTIES
MOTION
FOR
1
PART I : STATEMENT OF FACTS
Overview
1.
The question that arises on this appeal is whether the Minister of Transport
alone, under the auspices of the Aeronautics Act, R.S. 1985, c. A-2 holds the
authority to allow or prohibit the construction and operation of an aerodrome
within the province of Quebec, when these activities would not be permitted by
the provincial legislation in place, to wit An Act respecting the preservation of
agricultural land and agricultural activities, R.S.Q. c. P-41.1.
2.
Respondent submits that the Quebec Court of Appeal judgment must be upheld
as it correctly reaffirms the general principle that if the effect of a provincial law
would be to affect a vital part of a federally-regulated enterprise, then the
provincial law, although otherwise valid, will not apply to the federally-regulated
enterprise.
3.
Furthermore, the application of the double-aspect doctrine proposed by Appellant
has no bearing on the facts of this case. The subject-matter in question does not
have a double-aspect, one federal, one provincial where the relative importance
of each piece of legislation (the Aeronautics Act, R.S. 1985, c. A-2 and An Act
respecting the preservation of agricultural land and agricultural activities, R.S.Q.
c. P-41.1), are of roughly equal importance.
4.
In fact, the application of s. 26 of An Act respecting the preservation of
agricultural land and agricultural activities, R.S.Q. c. P-41.1 has the effect of
intruding into the exclusive sphere of federal jurisdiction over aeronautics and of
preventing the former Respondents, Bernard Laferrière and Sylvie Gervais, from
carrying on their activities which are otherwise permitted and controlled by
federal legislation and regulations.
Facts
2
5.
In 1998, Respondents, Bernard Laferrière and Sylvie Gervais, cleared part of a
wooded lot they owned and built a grass runway and a hangar adjacent to it for
the parking, assembly and maintenance of aircraft.
6.
Their airfield is an aerodrome governed by Subpart I – Aerodromes, of Part III –
Aerodromes, Airports and Heliports of the Canadian Aviation Regulations, which
applies to all aerodromes except airports.
– Aeronautics Act, R.S. 1985, c. A-2, s. 3(1).
– Canadian Aviation Regulations, SOR/96-433, s. 301.
7.
Their airfield is shown on the VFR navigation chart for the region and appears in
the Canada Flight Supplement and as such, is integrated into the national
aeronautical navigation system used by pilots across Canada.
– Canada Flight Supplement, Nav Canada, effective 0901Z 25 September
2009. p. B476 (Respondent’s Book of Authorities, Tab 6)
– Montreal VFR Navigation Chart. (Respondent’s Book of Authorities,
Tab 29)
8.
The Respondent further refers the Court to the statement of facts outlined in Part
I of Appellant’s Factum as well as to the summary done by the Honourable
Justice Vézina J.A. in the judgment of the Court of Appeal which is the subject of
the present appeal. (Appellant’s Record, Vol. 1, p. 82-83).
9.
Finally, on June 10th, 2009, Justice Abella, ruling on the Canadian Owners and
Pilots Association’s motion to add or substitute a party and to be granted an
extension of time to July 3rd 2009 to file its Factum and Book of Authorities,
granted the Applicant the status of Respondent in substitution to the
Respondents, Bernard Laferrière and Sylvie Gervais and the requested
extension of time.
– Judgment granting Motion for substitution of responding parties and for an
extension of time to file its Factum and Book of Authorities to July 3rd 2009
(Justice Abella) June 10th, 2009. (ANNEX I )
3
PART II: QUESTIONS IN ISSUE
10.
The questions in issue in the present appeal are those stated by the Honourable
Chief Justice on February 2nd 2009:
11.
Is the Act respecting the preservation of agricultural land and agricultural
activities, R.S.Q., c. P-41.1, constitutionally inapplicable under the doctrine of
interjurisdictional immunity to an aerodrome operated by the Respondents?
12.
Is the Act respecting the preservation of agricultural land and agricultural
activities, R.S.Q., c. P-41.1, constitutionally inoperative under the doctrine of
federal legislative paramountcy, having regard to the Aeronautics Act, R.S.C.
1985, c. A-2 and the Canadian Aviation Regulations, SOR/96-433.
13.
Respondent respectfully submits that the first constitutional questions should
receive an affirmative answer, in which case it is not necessary to decide on the
second question. However, if this court were to find that interjurisdictional
immunity does not apply to the facts of this case, then we submit that the second
question should receive an affirmative answer.
14.
The Court of Appeal of Quebec was justified in law in applying the doctrine of
interjurisdictional immunity.
15.
The subject-matter of aeronautics and aviation including aerodromes falls within
the exclusive legislative authority of the Parliament of Canada.
16.
The federal jurisdiction extends to those things in the air and on the ground that
are essential for “aerial navigation” or “air transportation” to take place.
4
17.
Airports and aerodromes are an integral and vital part of aeronautics and aerial
navigation and cannot be severed from that subject-matter so as to fall under a
different legislative jurisdiction.
18.
Thus, to decide whether to build an airfield and where to build it constitute
matters of exclusive federal concern and decisions of this type are not subject to
provincial or municipal regulation or permission.
19.
The regulation of airport and aerodrome location does not present a double
aspect precluding the application of the doctrine of interjurisdictional immunity to
the facts of this case.
20.
If this Court were to find that the principles of interjurisdictional immunity should
not be applied to the facts of this case, then An Act respecting the preservation of
agricultural land and agricultural activities, R.S.Q., c. P-41.1 would still be
inoperative by virtue of federal paramountcy in that abiding by the provincial
order prohibiting the esTablishment of an aerodrome within the agricultural zone
creates an operational conflict and frustrates the federal legislative intent
expressed in the Aeronautics Act, R.S.C. 1985, c. A-2 and the Canadian Aviation
Regulations.
PART III: ARGUMENT
21.
The federal jurisdiction over aeronautics including the regulation of aerodromes
and airports with regard to provincial and municipal zoning power has been
settled law over the last fifty years, ever since the decision rendered by this Court
in Johannesson et al. v. Rural Municipality of West St. Paul et al. [1952] 1 S.R.C.
292, which clearly esTablished the exclusive federal jurisdiction over aerodromes
and which ruled as ultra vires a provincial act and a municipal by-law passed
thereunder which prohibited the construction and operation of an unlicensed
aerodrome within the Municipality of West St. Paul.
5
– Johannesson et al. v. Rural Municipality of West St. Paul et al. [1952] 1
S.R.C. 292 (Respondent’s Book of Authorities, Tab 10)
22.
This issue has given rise to different interpretations as to which constitutional
doctrine should be applied in deciding on the applicability of provincial and
municipal zoning legislation prohibiting or affecting the construction and location
of such aerodromes and airports.
23.
Since Bell Canada v. Quebec (Commission de la santé et de la sécurité du
travail), [1988] 1 S.C.R. 749, the doctrine of interjurisdictional immunity has been
applied to cases of this nature.
– Bell Canada v. Quebec (Commission de la santé et de la sécurité du
travail), [1988] 1 S.C.R. 749. (Respondent’s Book of Authorities, Tab 2)
24.
The aviation cases are therefore well within the bounds newly elaborated by this
Court with regard to this doctrine, and are “situations already covered by
precedent”.
– Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, para. 54, 77.
(Respondent’s Book of Authorities, Tab 4)
– British Columbia (Attorney General) v. Lafarge Canada Inc [2007] 2
R.C.S. 86, para. 23, 64. (Respondent’s Book of Authorities, Tab 3)
Federal jurisdiction over aeronautics
25.
The subject matter of aeronautics and aviation including aerodromes falls within
the exclusive legislative authority of the Parliament of Canada.
– Re Aerial Navigation A.G. Canada v. A.G. Ontario et al. [1932] A.C. 54
– Johannesson et al. v. Rural Municipality of West St. Paul et al. supra,
– Re Orangeville Airport Ltd and Town of Caledon et al. (1976) 11 O.R. (2d)
546 (Ont. C.A) (Appellant’s Book of Authorities, Tab 11)
6
– Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1
S.C.R 754 (Appellant’s Book of Authorities, Tab 5)
– Venchiarutti v. Longhurst (1992) 92 D.L.R. (4th) 554; 8 O.R. (3d) 422 (Ont.
C.A.) (Appellant’s Book of Authorities, Tab 14)
– Air Canada v. Ontario, [1997] 2 S.C.R. 581 (Appellant’s Book of
Authorities, Tab 1)
– Greater Toronto Airports Authority v. Mississauga (City) (2000), 192
D.L.R. (4th) 443 (Ont. C.A.), 2000 CanLII 16948 (ON C.A.); leave to appeal
refused, [2001] 1 S.C.R. ix (Respondent’s Book of Authorities, Tab 8)
26.
The Appellant at the very least, acknowledges that aeronautics does fall within
the exclusive authority of the government of Canada, but disagrees as to whether
this exclusive authority encompasses the location of aerodromes which are not
certified and therefore not “airports” within the definition of the Aeronautics Act,
R.S. 1985, c. A-2 and the Canadian Aviation Regulations, SOR/96-433.
27.
However, the Courts have never held this distinction to be relevant in determining
whether this matter was within the exclusive federal jurisdiction over aeronautics.
28.
For example, the decision to build an airport and the location of an airport have
been held to be matters of exclusive federal concern. In Construction Montcalm
(supra at p.770-774), this Court stated that:
The construction of an airport is not in every respect an integral part of
aeronautics. Much depends on what is meant by the words “construction”.
To decide whether to build an airport and where to build it involves aspects of
airport construction which undoubtedly constitute matters of exclusive federal
concern: the Johannesson case. This is why decisions of this type are not
subject to municipal regulation or permission: the Johannesson case; City of
Toronto v. Bell Telephone Co.; the result in Ottawa v. Shore and Horwitz
Construction Co. can also be justified on this ground. Similarly, the design of
a future airport, its dimensions, the materials to be incorporated into the other
the various buildings, runways and structures, and other similar specifications
are, from a legislative point of view(…) matters of federal concern. The
reason is that decisions made on these subjects will be permanently reflected
in the structure of the finished product and are such as to have a direct effect
upon its operational qualities and, therefore, upon its suiTability for the
purpose of aeronautics.( Emphasis added)
– Construction Montcalm Inc. v. Minimum Wage Commission, supra.
(Appellant’s Book of Authorities, Tab 5, pp.40-41 )
7
29.
In stating this principle, this Court cited with approval the decision in
Johannesson dealing with an unlicensed aerodrome built to receive and maintain
small aircraft on the shores of the Red River while dealing with questions relating
to the construction of the Mirabel International airport.
30.
Federal jurisdiction extends to those things in the air and on the ground that are
essential for “aerial navigation” or “air transportation” to take place. Airports and
aerodromes are an integral part of the subject matter of aeronautics. The federal
jurisdiction encompasses purely local (intra-provincial) aeronautics as well as
where, within the Canadian territory, aeronautic activity may be carried out. This
includes the carriage of passengers, all the administration related to such activity,
the landing, parking and reception of aircraft as well as of the pilots and their
passengers.
– Johannesson v. rural Municipality of West St. Paul, [1952] 1 S.C.R. 292
– Greater Toronto Airports Authority v. Corporation of the City of
Mississauga, supra (Respondent’s Book of Authorities, Tab 8)
– Hogg, Peter W., Constitutional Law of Canada, vol. I, 5th ed. (Loose leaf),
Scarborough, Ont.: Thomson Carswell, 2007, p. 22-24 (Respondent’s
Book of Authorities, Tab 34)
31.
In Greater Toronto Airports Authority, supra, the Authority in question and Nav
Canada commenced a redevelopment project of Toronto’s Pearson Airport which
is located within the corporate limits of the City of Mississauga. The City argued
that the Ontario Building Code Act and the Ontario Building Code applied to all
new buildings constructed at the airport as part of the redevelopment and sought
to impose development charges pursuant to a by-law passed under the Ontario
Development Charges Act. The buildings to be constructed included an air traffic
control tower, a new terminal, temporary facilities for tenants relocated during
construction and an upgraded utilities and airport support system, all clearly
integral to the operation of the airport.
8
32.
The Ontario Court of Appeal held, relying on Air Canada v. Ontario (Liquor
Control Board) (supra), that the federal jurisdiction over aeronautics includes
more than aerial navigation in the strict sense; it includes the construction of
airport buildings and the operation of airports. Indeed, the Court stated that:
A long line of cases, including several decision (sic) of this court, has held
uniformly that provincial and municipal planning and zoning legislation does
not apply to airports. See Johannesson v. West St. Paul, supra; Re
Orangeville Airport Ltd. v. Town of Caledon (1976), 11 O.R. (2d) 546 (C.A.);
Re Walker v. Ontario (Minister of Housing) (1983), 41 O.R. (2d) 9 (C.A.);
Venchiarutti v. Longhurst (1992), 8 O.R. (3d) 422 (C.A.). (…)
Therefore, the Building Code Act and the Development Charges Act stand on
the same constitutional footing as provincial planning and zoning legislation.
None of this legislation applies to the construction of airport buildings.
If any confirmation of this proposition were needed, it comes from
Construction Montcalm. (…) In Construction Montcalm, Beetz J. commented
that the result in Horwitz Construction was also justified on the ground that
the building of barracks “involves aspects of airport construction which
undoubtedly constitute matters of exclusive federal concern … not subject to
municipal regulation or permission” (at p. 770). In short, requiring a
municipal building permit for the construction of an airport building affects a
vital or integral part of an aeronautics undertaking. (Emphasis added)
– Greater Toronto Airports Authority v. Corporation of the City of
Mississauga, supra, para. 51, 52, 53. (Respondent’s Book of
Authorities, Tab 8)
Definitions of “aerodrome” and “airport”
33.
The Aeronautics Act, R.S.C. 1985, c. A-2, s.3(1) provides the following definition
for “aerodrome”:
“Aerodrome means: Any area of land, water (including the frozen surface
thereof) or other supporting surface used or designed, prepared, equipped or
set apart for use either in whole or in part for the arrival, departure,
movement or servicing of aircraft and includes any buildings, installations and
equipment situated thereon or associated therewith.”
9
– Aeronautics Act, R.S.C. 1985, c. A-2, as amended, s. 3(1)
34.
An “Airport” is an aerodrome in respect of which a Canadian aviation document is
in force. This is required where the aerodrome is located within the built-up area
of a city or town or where there is scheduled passenger–carrying service and
involves certification that such airport meets accepted safety standards.
– Canadian Aviation Regulations, SOR/96-433, s. 302.01(1)
– Transport Canada Aeronautical Information Manual (A.G.A., s. 2.3)
Federal regulation
35.
The Parliament of Canada has enacted a comprehensive scheme of legislation
and regulation to govern aeronautics:
– Aeronautics Act, R.S.C. 1985, c. A-2.
– Canadian Aviation Regulations (“CARs”), SOR/96-433.
– Transport Canada Aeronautical Information Manual (“TC AIM”), TP 14371
– Canada Flight Supplement (Respondent’s Book of Authorities, Tab 26)
– Water Aerodrome Supplement (Respondent’s Book of Authorities, Tab
27)
– Transport Canada Aerodrome Standards and Recommended Practices
publications (Respondent’s Book of Authorities, Tab 25)
– VFR Navigation Charts (VNC) (Respondent’s Book of Authorities, Tab
29)
36.
The power to regulate the location, operation and activities at aerodromes rests
with the Governor in Council and, as it relates to the matter at hand, this power is
exercised by the Minister of Transport:
“4.2 The Minister is responsible for the development and regulation of
aeronautics and the supervision of all matters connected with aeronautics
and, in the discharge of those responsibilities, the Minister may [...]
[…] (b) construct, maintain and operate aerodromes and esTablish and
provide other facilities and services relating to aeronautics;
10
[…] 4.9 The Governor in Council may make regulations respecting
aeronautics and, without restricting the generality of the foregoing, may make
regulations respecting
[…] (e) activities at aerodromes and the location, inspection, certification,
registration, licensing and operation of aerodromes;
[…] (l) the prohibition of the use of airspace or aerodromes;” (emphasis
added)
– Aeronautics Act, R.S.C. 1985, c. A-2, ss. 4.2 b) and 4.9 e) and l).
37.
The grass airfield and hangar used by the Respondents constitute an aerodrome
within the meaning of the Aeronautics Act, R.C.S. 1985, c. A-2.
38.
There is a comprehensive regulatory regime for unregistered and registered
aerodromes which includes the following:
a. An aerodrome listed in the Canada Flight Supplement or the Canada
Water Aerodrome Supplement can be designated Prior Permission
Required (PPR) to indicate that the aerodrome operator’s permission is
required prior to use.
TC AIM Canada, AGA 2.2(a)
b. Procedures for noise abatement.
TC AIM Canada, AGA 4.1.2
CAR 601. 105 and 601.106.
c. Aerodromes standards
CAR 301.01 – General
CAR 301.02 – Inspection
CAR 301.03 – Registration and publication in CFS and WAS
CAR 301.04 – Markers and markings
CAR 301.05 – Warning Notices
CAR 301.06 – Wind Direction Indicator
CAR 301.07 – Lighting
11
CAR 301.08 – Prohibitions:
– No vehicles or obstructions
– Rules for towing an aircraft
– Use of aircraft lights on the aerodrome manoeuvring area
– Operation of a vessel in the area of a water area of an
aerodrome
– Remove or interfere with aerodrome markers
– Control of birds and animals
– Use of firearms within or into an aerodrome
– Displaying false markers
CAR 301.09 – Fire prevention
– Canadian Aviation Regulations, SOR/96-433.
– Transport Canada Aeronautical Information Manual, TP14371 AGA, pp.
47-69 (Respondent’s Book of Authorities, Tab 31)
39.
In the case at bar, a runway that’s 1 000 meters long and a hangar adjacent to it,
are facilities that are an integral and essential part of a functioning aerodrome.
Indeed, in Air Canada v. Liquor Control Board of Ontario, this Court held that the
provision of liquor on passenger flights was not an integral part of the airline’s
undertaking, and thus the airline was subject to provincial liquor legislation. In
determining what was integral to the federal aeronautics power, Judge Iacobucci
stated as follows :
This Court has defined the scope of the federal aeronautics power by
reference to the physical act of flight. Aeronautics is: “The flight and period of
flight from the time the machine clears the earth to the time it returns
successfully to the earth and is resting securely on the ground.” Johannesson
v. rural Municipality of West St. Paul, [1952] 1 S.C.R. 292 at p.319, [1951] 4
D.L.R. 609. Thus, the federal aeronautics jurisdiction encompasses not only
the regulation of the operation of aircraft, but also the regulation of the
operation of airports. Proceeding on this understanding, courts have held
zoning laws that affect the location and design of airports to be
constitutionally inapplicable.(Emphasis added)
– Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581,
paragraph 72 (Appellant’s Book of Authorities, Tab 1, pp. 3-4)
12
40.
Thus, there is recent authority from this Court which dictates that both
aerodromes and airports are vital and essential parts of aeronautics. It does not
matter whether the airfield is licensed, registered, private or commercial. In both
Air Canada and Construction Montcalm, this Court made no distinction between
the small aerodrome in Johannesson and other types of airfields. This Court has
interpreted the ratio from Johannesson broadly, and thus cases should not be
distinguished on the basis of the aerodrome’s size, registration or ownership or
whether they are water or land or used for commercial or private purposes.
– Regional District of Comox-Strathcona v. Hansen et al, (2005) BCSC 220
(CanLII), para. 30 and 48 (Respondent’s Book of Authorities, Tab 17)
– Venchiarutti v. Longhurst, supra, (Respondent’s Book of Authorities,
Tab 20)
– Hogg, Peter W., Constitutional Law of Canada,
supra, p. 22-24.
The doctrine of interjurisdictional immunity
41.
Recently, this Court, in Paul v. British Columbia (Forest Appeals Commission)
[2003] 2 S.C.R. 585, examined the question of the distribution of powers. In this
case, the Court had to decide whether the British Columbia Forest Appeals
Commission had jurisdiction to decide the existence of aboriginal rights or title.
Mr. Paul, a registered Indian, had argued that he had cut and was in possession
of timber pursuant to his aboriginal rights.
42.
Having first examined the pith and substance of the legislation and determined
that the parties conceded that the Code in question was in its entirety valid
provincial legislation, Justice Bastarache went on to discuss the doctrines of
incidental effects and interjurisdictional immunity :
12. As a law of general application, the Code applies ex proprio vigore to
Indians, to the extent that it does not touch on the “core of Indianness”[…]
13
13. In the classic federalism cases, the vires of legislation is challenged:
Reference re Firearms Act (Can.), supra; Global Securities Corp. v. British
Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21.
Here the question is the relationship between valid provincial legislation and
matters under the federal competence to legislate under s. 91(24).
(3)
Incidental Effects
14. The doctrine of incidental effects holds that where there is a valid
provincial law of general application, the provincial law applies if its effects
upon matters within federal legislative competence are “merely incidental,
irrelevant for constitutional purposes”: P. W. Hogg, Constitutional Law of
Canada (loose-leaf ed.), vol. 1, at p. 15-8, quoted in Global Securities,
supra, at para. 22. See also General Motors of Canada Ltd. v. City National
Leasing, [1989] 1 S.C.R. 641, at p. 670. In other words, as Iacobucci and
Major JJ. put it in Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 81, “it
is constitutionally permissible for a validly enacted provincial statute of
general application to affect matters coming within the exclusive jurisdiction
of Parliament”. Since all relevant provisions of the Code are valid provincial
legislation, it follows that by virtue of the doctrine of incidental effects, any
impact of the Code upon aboriginals is irrelevant for classification purposes.
It remains to be seen, however, whether the law’s application to specific
factual contexts can be put in issue.
(4)
Interjurisdictional Immunity
15. The doctrine of interjurisdictional immunity is engaged when a provincial
statute trenches, either in its entirety or in its application to specific factual
contexts, upon a head of exclusive federal power. The doctrine provides
that, where the general language of a provincial statute can be read to
trench upon exclusive federal power in its application to specific factual
contexts, the statute must be read down so as not to apply to those
situations: Grail, supra, at para. 81. The doctrine has limited the application
of a provincial statute to a matter of exclusive federal power in numerous
contexts. (Emphasis added)
– Paul v. British Columbia (Forest Appeals Commission), supra, para 12,
13, 14, 15. (Respondent’s Book of Authorities, Tab 13)
43.
More recently, this court again reviewed the order of application of those
principles in two fundamental cases, Canadian Western Bank v. Alberta [2007] 2
R.C.S.3 and British Columbia (Attorney General) v. Lafarge Canada Inc [2007] 2
R.C.S.86.
14
44.
Reviewing the jurisprudence on the question of interjurisdictional immunity, the
Court held that this review showed that although interjurisdictional immunity
should be applied with restraint, it’s natural area of application is in relation to
those heads of legislative authority that confer on Parliament power over
enumerated federal things, people, works or undertakings.
– Canadian Western Bank v. Alberta, supra, para. 67. (Respondent’s Book
of Authorities, Tab 4)
45.
This Court, in that context, named aeronautics as such a federal activity, citing
the Mississauga case and referring approvingly to the Johannesson, Re
Orangeville Airport and Venchiarutti cases as examples of the application of this
principle. The Mississauga case involved the development of the Toronto airport
and held that a neighbouring municipality could not impose its land-use
development controls and charges on the planned expansion of terminal facilities
there:
“Of course interprovincial and international carriers have a vital and
essential interest in being able to land at an airport or having access to a
safe harbour. Aircraft cannot remain aloft indefinitely awaiting planning
permission from other levels of government. This activity does not lend itself
to overlapping regulation. See Johannesson v. West St. Paul (Rural
Municipality), [1952] S.C.R. 292; Re Orangeville Airport Ltd. and Town of
Caledon (1976), 66 D.L.R. (3d) 610 (Ont. C.A.), and Venchiarutti v.
Longhurst (1992), 8 O.R. (3d) 422 (C.A.).” (Emphasis added)
– Canadian Western Bank v. Alberta, supra, para. 54. (Respondent’s Book
46.
It’s interesting to note here that this Court again does not distinguish between the
major international airport that is the Toronto airport, and the aerodrome
composed of a small gravel strip on agricultural land of the Venchiarutti case.
47.
In the present appeal, the Appellant presents to this Court the same argument
that was raised and rejected by this Court in Johannesson v. West St. Paul
15
(Rural Municipality) (supra). Indeed, the attorneys then acting for the Attorney
General of Manitoba had pleaded that :
Assuming that the Dominion has jurisdiction over the subject of aeronautics
generally by virtue of the “peace, order and good government” clause, the
Province is not precluded from enacting s.92(1), since in pith and substance
it is nothing more than a zoning regulation, within the legislative competence
of the Province under 92(13), property and civil rights, or 92(16), matters of a
local or private nature.
(…)
In any event until the Dominion invades this field a Province may continue to
do so. (emphasis added)
– Johannesson v. West St. Paul (Rural Municipality), supra, pp. 299 - 300 301. (Respondent’s Book of Authorities, Tab 10)
48.
On this question, then, Chief Justice Rinfret stated:
I entertain no doubt that the decision of the Judicial Committee is in its pith
and substance that the whole field of aerial transportation comes under the
jurisdiction of the Dominion Parliament.
(…)
In those circumstances it would not matter that Parliament may not have
occupied the field.
(…)
I fail however to see how it can be argued that the Dominion Parliament has
not occupied the field. The Aeronautics Act, R.C.S. 1927, c. 3, as amended
by c. 28 of the Statutes of 1944-45, c.9 of the Statutes of 1945, and c.23 of
the statutes of 1950, makes it a duty of the Minister “to supervise all matters
connected with aeronautics *** to prescribe aerial routes *** to prepare such
regulations as may be considered necessary for the control or operation of
aeronautics in Canada *** and for the control or operation of aircraft
registered in Canada wherever such aircraft may be *** for the licensing of
navigation and the regulation of all aerodromes and air-stations, etc.”
Such regulations have been passed under the authority of the Aeronautics
Act by P.C. 2129, part of which deals with the subject matter of airports and
provides for the issuing of licences by the Minister. In the circumstances, the
16
dominion legislation occupies the field, or at least so much of it as would
eliminate any provincial legislation, and, more particularly, that here in
question. (emphasis added)
– Johannesson v. West St. Paul (Rural Municipality), supra, p. 303 (Rinfret,
J.). (Respondent’s Book of Authorities, Tab 10)
And also :
The Judicial Committee having decided that legislation in relation to
aeronautics is within the exclusive jurisdiction of the Dominion, it follows that
the province cannot legislate in relation thereto, whether the precise subject
matter of the provincial legislation has, or has not already been covered by
the Dominion legislation. (emphasis added)
– Johannesson c. West St. Paul (Rural Municipality), supra, p. 318-319
(Estey, J.). (Respondent’s Book of Authorities, Tab 10)
49.
Although the Aeronautics Act has changed since the decision in Johanesson was
rendered, the same argument applies today as the current legislation still grants
the Minister all the same regulatory powers:
– See the definitions of “aerodromes” and “airports” at section 3(1) of the
Aeronautics Act, L.R.C. (1985), c. A-2, as well as section 4.9 e) which
authorizes the Governor in Council to make regulations concerning “the
location, inspection, registration, certification and operation of airports”, and s.
4.9 l) concerning the prohibition of the use of airspace or aerodromes.
– See subsection 2 of Part III of Canadian Aviation Regulations, DORS/96-433,
in relation to airport (s. 302.01 to 302.10), and subsection 5 of said part III in
relation to heliports (s. 305.01 to 305.54), and s. 301.08 in relation to
standards and prohibitions for aerodromes.
Uniformity of the Canadian jurisprudence
This Court
50.
Since the Johannesson decision, this Court has always maintained that decisions
relating to the question of whether to build an airport or aerodrome, and where to
build it are at the core of the jurisdiction of the federal authority over aeronautics:
17
– Construction Montcalm Inc. v. Min. Wage Com., supra, (Respondent’s
– Air Canada v. Ontario (Liquor Board Control) , supra, (Respondent’s
51.
It is now settled law that the federal power to adopt laws concerning an essential
part of a federal undertaking is exclusive and a provincial law which affects the
core of a federal competence or impairs a vital or essential part of that
undertaking is inapplicable:
– Constitutional Law of Canada, Peter Hogg 5ed Supplement p. 15-33, 1534. (Respondent’s Book of Authorities, Tab 34)
– Canadian Western Bank v. Alberta, supra, para. 49 to 51. (Respondent’s
52.
And so, provincial zoning legislation which applies to the location and design of
aerodromes and airports is constitutionally inapplicable and must be read down.
– Air Canada v. Ontario (Liquor Board Control), supra, p. 609-610
(Appellant’s Book of Authorities, Tab 1, pp. 3-4).
53.
The application of the interjurisdictional immunity principle in matters of
aeronautics was clearly esTablished by this Court (Beetz J.) in the Bell Canada
1988 case.
– Bell Canada v. Québec (C.S.S.T.), supra, pp. 840 - 844 (Respondent’s
Book of Authorities, Tab 2).
54.
Thus, even though this Court now advocates a more restrained approach in the
application of interjurisdictional immunity and has held that, in the examination of
a constitutional question “it should, in general, be reserved for situations already
covered by precedent”, Respondent submits that questions relating to the
application of provincial laws or municipal by-laws of general application or
specifically directed to aviation or aeronautic activity, are just such questions that
18
have been well settled by the application of the doctrine of interjurisdictional
immunity for over fifty years.
– Canadian Western Bank v. Alberta, supra,
55.
para.
77,
78,
54
This Court further endorsed the application of interjurisdictional immunity in
matters of aeronautics in British Columbia (Attorney General) v. Lafarge Canada
Inc., which was issued as the same time as the aforementioned Western Bank
decision, and the approach of this Court was followed by Justice Vézina in the
judgment a quo. Thus, the Quebec Court of Appeal sided with reason, with the
jurisprudence of this Court as well as the rest of Canadian jurisprudence on this
question.
– British Columbia (Attorney General) v. Lafarge Canada Inc., supra, para.
64 (Respondent’s Book of Authorities, Tab 3)
56.
The application and use of this doctrine in matters of aeronautics is uniform
throughout Canada in the provinces where this question has been raised, and
the judgment a quo simply confirms the state of the law in Quebec on this
question.
Quebec
57.
Indeed, taking a fresh look at its former decision in the Berthier St-Louis et un
autre c. Commission de protection du territoire agricole de Québec [1990] R.J.Q.
322, Justice Vézina of the Quebec Court of Appeal states:
Cet arrêt ne peut plus tenir, compte tenu de la jurisprudence supérieure - et
pan canadienne – relative à la compétence fédérale exclusive en matière
d’aéronautique, incluant le site d’un aéroport comme l’a réitéré la Cour
suprême dans l’arrêt Air Canada c. Ontario (Régie des Alcools).
19
– Judgment of the Court of Appeal (hon. André Brossard, France Thibault
and Paul Vézina), no. 200-09-005674-061, 4th of March 2008, para.68 :
(Apppellant’s Record, vol. 1, p. 80).
– Berthier St-Louis c. Commission de protection du territoire agricole de
Québec [1990] R.J.Q. 322. (Appellant’s Book of Authorities, Tab 13)
Ontario
58.
The courts in Ontario have followed the Johannesson decision, endorsed by the
Ontario Court of Appeal in: Re Orangeville Airport Ltd. and Town of Caledon
(supra), Venchiarutti v. Longhurst (supra) and Mississauga (City) v. Greater
Toronto Airports Authority (supra), where the court stated:
[39]
The interjurisdictional immunity principle holds that “a basic
minimum and unassailable content” must be assigned to each head of
federal legislative power. Because federal legislative power is exclusive,
provincial laws cannot affect that essential core. A provincial law, valid in
most of its applications, must be read down not to apply to the core of the
exclusive federal power. The application of this principle differs from the
paramountcy doctrine in that it does not require conflicting or inconsistent
federal legislation, or even the existence of federal legislation.
(…)
[48]
Provincial or municipal laws that seek to regulate the physical
structure of airports and airport buildings will affect a vital or integral part of
an aeronautics undertaking.
(…)
[52]
the Building Code Act and the Development Charges Act stand on
the same constitutional footing as provincial planning and zoning legislation.
None of this legislation applies to the construction of airport buildings.
(Emphasis added)
– Mississauga (City) v. Greater Toronto Airports Authority , supra, para. 39,
48 and 52. (Respondent’s Book of Authorities, Tab 8)
20
59.
This position has been endorsed by this Court in Air Canada v. Ontario (Liquor
Control Board), [1997] 2 S.C.R. 581, p. 610, referred to by the Honourable
Justice Vézina in the judgment a quo:
Ainsi, la compétence fédérale en matière d’aéronautique comprend non
seulement la réglementation de l’exploitation d’un aéronef, mais également
la réglementation de l’exploitation des aéroports. Compte tenu de cela, des
tribunaux ont jugé que des lois sur le zonage qui touchaient l’emplacement
et la conception d’aéroports étaient constitutionnellement inapplicables.
– Judgment of the Quebec Court of Appeal, supra, para. 66: (Appellant’s
Record, vol. I, p. 80)
Alberta
60.
In Taylor et al. v. Registrar of South Alberta Land Registration District et al. (June
16th 2005) 255 D.L.R. (4th) 457 (2 vs. 1) the Alberta Court of Appeal upheld the
application of a provincial law on condominiums and cancelled the registration of
a Condominium Plan approved by Transport Canada. In doing so, the Court
clearly recognized that with regard to the units (lots) designated as essential to
the operation of the airport, the doctrine of interjurisdictional immunity applied. In
this case, since only a part of the subdivision plan (8 units out of 82) was
dedicated to aeronautic activity, and since by virtue of the provincial law, the plan
could not be separated, the Court decided that the Condominium Plan submitted
should follow the regular approval process required by the provincial law, which
would not have been the case, had it been only a matter of the units and lots that
concerned the operation of the airport:
If the application of provincial laws will affect the essential core of the
federally regulated enterprise, then the provincial laws must be read down
as not to apply to the Condominium Plan.
We are concerned here with the subdivision proposed by the Condominium
Plan. It is readily apparent that the uses proposed for units 1 to 7 and unit 42
are vital components of an aeronautics operation. I will agree with the
Chambers Judge that if the Condominium Plan comprised only those units,
there would be no doubt that the subdivision would fall under exclusive
21
federal jurisdiction and provincial planning legislation could not apply to it.
However, there is a question as to whether the creation of units 8 to 90
inclusive (excepting unit 42) by the Condominium Plan is vital and essential
to AAL’s aeronautics operation.
– Taylor et al. v. Registrar of South Alberta Land Registration District et al.
(June 16th 2005) 255 D.L.R. (4th) 457, para. 37-38. (Respondent’s Book
61.
However, Hunt J.A. (dissenting) declared:
What, then, is this case about? As argued by the parties, at its heart lies the
doctrine of interjurisdictional immunity. In summary, this doctrine is engaged
“when a provincial statute trenches, either in its entirety or in its application
to specific factual contexts, upon a head of exclusive federal power” (Paul v.
British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, 2003
SCC 55, 231 D.L.R. (4th) 449, at para. 15). In such cases, the statute must
be read down so as not to apply (Ibid).
[…]
“The interjurisdictional immunity doctrine protects the essential core of
federal power (Ordon Estate v. Grail, [1998] 3 S.C.R. 437 at 497, 166 D.L.R.
(4th) 193). Another way of posing the question of its applicability is whether
the provincial legislation affects a federal service in one of its vital or
essential aspects regarding its esTablishment, management or operation
(Commission de transport de la Communauté urbaine de Québec v. Canada
(National Battlefields Commission), [1990] 2 S.C.R. 838 at 854, 74 D.L.R.
(4th) 23). (Emphasis added)
– Taylor et al. v. Registrar of South Alberta Land Registration District et al.,
supra, para. 102 et 105. (Respondent’s Book of Authorities, Tab 19)
62.
While stating that the absence of federal legislation on every detail of a subject
under federal authority does not mean that the field is vacant, Hunt J.A. would
have maintained the Condominium Plan approval by Transport Canada. Indeed,
according to her, even the lots which were not directly related to the exploitation
of the airport, which she had already judged as vital and essential to this activity,
and therefore excluded from the application of the provincial law, were
nonetheless an integral and essential part of the proposed aeronautics activity,
22
that is, the expansion of the airport, since they were essential as a means of
providing financing (sale of the units) for the improvement of the airport.
– Taylor et al. v. Registrar of South Alberta Land Registration District et al.,
supra, para. 129. (Respondent’s Book of Authorities, Tab 19)
British Columbia
63.
This is also the state of the law in British Columbia, where the Supreme Court of
that province, in the matter of Regional District of Comox-Strathcona v. Hansen
et al., [2005] 7 W.W.R. 249 (B.C.S.C.), after considering the jurisprudence which
had evolved since the case of Re The Queen in right of British Columbia and Van
Gool (1987), 36 D.L.R. (4th) 481 (B.C. C.A.), maintained the inapplicability of a
municipal by-law, which prohibited the operation of an aerodrome in an
agricultural (municipal) zone, citing as precedent Bell Canada v. Québec
(C.S.S.T.) [1988] 1 S.C.R. 749 and the Venchiarutti case (supra) of the Ontario
court of Appeal.
– Regional District of Comox-Strathcona v. Hansen et al., [2005] 7 W.W.R.
249 (B.C.S.C.) (Respondent’s Book of Authorities, Tab 17)
– Re The Queen in right of British Columbia and Van Gool (1987), 36 D.L.R.
(4th) 481 (B.C. C.A.) (Appellant’s Book of Authorities, Tab 12)
The impact of the Johannesson decision on Canadian jurisprudence
64.
For the more than fifty years that it has stood, the Johannesson case has been
directly or indirectly cited in many decisions of this Court and many lower courts.
Johannesson has been the source of law in matters of aeronautics and the
principles enunciated therein have been widely followed and applied. Thus, in
Whitbread, Justice LaForest of this Court stated:
23
Once Canadian waters are conceived of as a single navigational network, it
becomes clear that the activity of navigation is very akin to the activity of
aeronautics, and it seems to me that the factual similarity should lead to similar
constitutional treatment. In Johannesson v. Municipality West St. Paul, [1952]
1 S.C.R 292, this Court ruled that aeronautics was a distinct legislative matter
that came within Parliament's power to make laws for the "peace, order and
good government of Canada". This was because it was a matter that went
"beyond local or provincial concern or interests and must from its inherent
nature be the concern of the Dominion as a whole".
– Whitbread v. Walley, [1990] 3 S.C.R. 1273, p. 1298. (Respondent’s Book
– See also: Corporation de la Municipalité de St-Denis de Brompton v.
Filteau et al., [1986] R.J.Q. 2400, pp. 2402-2405. (Respondent’s Book of
Authorities, Tab 7)
65.
Following Johannesson, Canadian jurisprudence has been unanimous in its
application of the doctrine of interjuridictional immunity to federal jurisdiction over
aeronautics and has never questioned it, whether it be in cases of direct
application of provincial legislation or municipal regulation in matters of
aeronautics (Mississauga, Air Canada, Re Orangeville) or questions of the
application of provincial legislation of general application which would have the
effect of impairing an essential or vital aspect at the core of the federal
jurisdiction. (Bell Canada (1988), Venchiarutti, Mississauga, Canadian Western
Bank and Lafarge)
66.
With the exception of Van Gool, there is thus universal application of the doctrine
of interjurisdictional immunity throughout Canada in matters of aeronautics.
– Re The Queen in Right of British Columbia and Van Gool, supra.
(Appellant’s Book of Authorities, Tab 12)
The doctrine of double aspect
67.
The Attorney General of Quebec attempts to distinguish the present case from
Johannesson, and the jurisprudence that followed it, by submitting that
24
Johannesson was merely concerned with a section of the Municipal Act of
Manitoba, which specifically authorized municipalities to regulate aerodromes, as
well as a municipal by-law adopted pursuant to this section, which prohibited the
construction and operation of aerodromes and that such legislation should have
been held valid under the double-aspect doctrine.
68.
Interestingly, in 1951, the Attorney General of Manitoba pleaded, in the
Johannesson case, that :
Even assuming that licensing and regulation of commercial airports is
incidental or ancillary to the legislative power of the Dominion under s.132;
as licensing and regulation of airports, particularly with respect to location,
clearly falls within s.92 the double aspect rule will apply and unless the
Dominion has occupied the field, provincial legislation is competent. Under
s.4 of the Aeronautics Act, regulations have been passed relating to airports,
(See Part II of Air Regulations 1948), but the Dominion has not occupied the
field in so far as location of airports is concerned.
[…]
The licensing and regulatory provisions of the Regulations are merely to
enforce compliance with those regulations which have been enacted to carry
out treaty obligations and are not an occupation of the whole field to the
exclusion of the Province.
– Johannesson v. West St. Paul (Rural Municipality) (supra) p. 299-300
69.
The definition of the double aspect doctrine states that subjects which in one
aspect and for one purpose fall within s. 92 may in another aspect and for
another purpose fall within s. 91 of the Constitution Act, 1867.
– Hogg, Peter W., Constitutional Law of Canada, supra, p. 22-24.
70.
The Attorney General of Manitoba, as in our case, claimed that the impugned
section of the Municipal Act which dealt with location did not clash with Dominion
legislation in respect to licensing and regulation. Indeed, since it had not been
superseded by Dominion legislation, it was valid under the province’s legislative
25
powers under s. 92(13) Property and civil rights and s. 92(16) Matters of local
interest.
– Johannesson v. West St. Paul (Rural Municipality), supra, p.299-300
71.
The Court rejected this point of view. Justice Kellock stated:
It is no doubt true that legislation of the character involved in the provincial
legislation regarded from the standpoint of use of property is normally
legislation as to civil rights, but use of property for the purposes of an
aerodrome, or the prohibition of such use cannot, in my opinion, be divorced
from the subject matter of aeronautics or aerial navigation as a whole. If that
be so, it can make no difference from the standpoint of a basis for legislative
jurisdiction on the part of the province that Parliament may not have
occupied the field.
[…]
I think, therefore, that as the matters attempted to be dealt with by the
provincial legislation here in question are matters inseparable from the field
of aerial navigation, the exclusive jurisdiction of Parliament extends thereto.
The non-severability of the subject matter of “aerial navigation” is well
illustrated by the existing Dominion legislation referred to below, and this
legislation equally demonstrates that there is no room for the operation of
the particular provincial legislation in any local or provincial
sense.(Emphasis added)
– Johannesson v. West St. Paul (Rural Municipality), supra, p.311-312
72.
In our case, it is not contested that the pith and substance of the challenged
legislation is agriculture and its protection and enhancement:
1.1 The object of the agricultural land preservation regime esTablished by this
Act is to secure a lasting territorial basis for the practice of agriculture, and to
promote, in keeping with the concept of sustainable development, the
preservation and development of agricultural activities and enterprises in the
agricultural zones esTablished by the regime.
26
– An Act respecting the Preservation of agricultural land and agricultural
activities, R.S.Q. c. P-41.1, s. 1.1.
73.
This matter is well within s. 92(13), s. 92(16) and s. 95 of the Constitution Act of
1867.
74.
This Court has found that when the features of a law or the federal and provincial
characteristics of a law are roughly equal in importance, then the conclusion is
that kind of law may be enacted by either parliament or a legislature.
– Hogg, Peter W., Constitutional Law of Canada, supra, p. 22-24.
75.
But there is no double aspect in our case, although the Appellant argues that
there are two aspects to the question at bar: one being land use for the purpose
of agriculture and another being land use for the purpose of aeronautics. In fact,
there is only one aspect to the An Act respecting the preservation of agricultural
land and agricultural activities (supra), that is the protection of agricultural lands
for the promotion of agriculture within the province.
76.
As the province cannot legislate on matters of aeronautics, it is the effect of the
law that is challenged.
77.
The subject matter under examination in this case is the prohibition of
aerodromes within the designated agricultural zone. As the Attorney General of
Canada pleaded in Johannesson:
to ascertain the “matter” in relation to which legislation is enacted, regard
must be had to the “pith and substance” or the “true nature and character” of
the legislation. To determine this, regard is to be had to the effect and the
object or purpose of the legislation.
– Johannesson et al. v. Rural Municipality of West St. Paul et al. supra,
27
78.
Since the effect of s. 26 of the Act (non-agricultural use prohibited) is to control
and regulate the “surface of the earth” in the agricultural zone, and the “landing
and taking off” of aircraft, it abrogates the rights and liberties of persons to use
their property for aeronautic activity, and in that sense, it is directed at
“aeronautics”.
79.
What we are faced with is a situation of operational conflict where the purpose of
the Aeronautics Act and the Canadian Aviation Regulations and the rights and
obligations created thereunder in regard to jurisdiction over aerodromes and
airports are in conflict with, and frustrated by, the application of the provincial
statute.
– British Columbia (Attorney General) v. Lafarge Canada Inc, supra, para
84. (Respondent’s Book of Authorities, Tab 3)
– Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, para 72.
– Henri Brun, Droit constitutionnel, 4e éd., pp. 459-460. (Respondent’s
80.
Appellant reviews the federal legislation in relation to aerodromes and airports
and admits that s. 26 of An Act respecting the preservation of agricultural land
and agricultural activities could not apply to airports and heliports, as the
regulation of aerodromes provided for under the Canadian Aviation Regulation
(DORS/96-433) adopted pursuant to the Aeronautics Act (R.S.C. 1985, c. A-2), is
sufficiently precise to exclude the application of s. 26 of that statute with regard to
aerodromes which constitute airports or heliports.
81.
Appellant argues, however, that the Aeronautics Act and the Canadian Aviation
Regulations are not precise enough to exclude the application of s. 26 to
aerodromes such as the one operated by Bernard Laferrière and Sylvie Gervais.
82.
Appellant submits that this Court should apply the double aspect doctrine to this
case since it pleads that there is no conflict between the federal and provincial
28
legislation in place because the federal authority has not legislated or issued
specific regulations with regard to what it calls “unregulated aerodromes”. There
would, therefore, be no conflict of laws, no paramountcy and under the doctrine
of double aspect, the application of s. 26 of the Act should not be invalidated.
– (Appellant’s Factum, para. 23 - 26)
83.
As stated above, this approach was already pleaded by the Attorney General of
Manitoba in the Johannesson case (supra) and rejected by this Court.
84.
Moreover, this approach fails to understand the legislative intent of the
Aeronautics Act (R.S.C. 1985, c. A-2), and the Canadian Aviation Regulations
dealing with aerodromes, airports and heliports under Part III.
85.
An airport is an aerodrome for which an airport certificate has been issued by the
Minister. This certification is required for an aerodrome that is located within the
built-up area of a city or town, a land aerodrome that is used for the purpose of
scheduled air service for the transport of passengers and for any other
aerodrome in respect of which the Minister “is of the opinion that meeting the
requirements necessary for the issuance of an airport certificate would be in the
public interest and would further the safe operation of the aerodrome.
– Canadian Aviation Regulations, SOR/96-433, s. 302.01(1)
86.
The public interest is always a consideration in the regulation of aerodrome and
airport activity by the Minister. For example, in a recent case in the province of
Quebec at Lac St-Augustin near Quebec City, the Minister of Transport
intervened in the public interest when municipal and provincial concerns were
raised with regard to aircraft operations at the lake and imposed conditions of
operation on operators using the water aerodrome, which were then published in
the Canada Water Aerodrome Supplement and the Canada Flight Supplement.
29
This is a perfect example in matters of aeronautics of the cooperative federalism
which Justice Binnie speaks of in the Lafarge decision.
– Marcel Filteau v. Aviation Roger Forgues (C.S.) REJB 1997-00093, p.114, and Jugement of Bernard Godbout J.C.S, dated 9 June 2003, p.3
– Canada Water Aerodrome Supplement, p. B173-B174 (Respondent’s
– Canada Flight Supplement, p. B739-B740 (Respondent’s Book of
Authorities, Tab 26)
87.
The public interest is an essential factor in the issuance of an airport certificate
and such a certificate will be required of any aerodrome operator where the
minister deems it necessary “in the public interest”.
88.
This approach is exemplified by the recent agreement (June 15th 2009) between
the City of Shawinigan and Transport Canada on the certification and regulatory
restrictions at the Lac à la Tortue water aerodrome following local residents
complaints about aircraft noise levels in the conduct of sightseeing flights by air
tour operators at the water aerodrome.
89.
In this case, the Minister decided that a site specific operation manual would be
developed and a noise advisory committee created to propose restrictions and
procedures to reduce noise, subject to fines under the Canadian Aviation
Regulations, SOR/96-433. Accordingly, pursuant to s. 602.105 of the Canadian
Aviation Regulations, Transport Canada imposed restrictions on the hours and
days of operations of commercial sightseeing flights.
–
90.
<http://www.tc.gc.ca/mediaroom/releases/que/2009/09-q003e.htm>
Furthermore, since under s. 6.71(1) of the Aeronautics Act, the Minister may
refuse to issue or amend a Canadian aviation document, such as an airport
certificate, on the grounds, among others, that “the aerodrome does not meet the
30
qualifications or fulfill the conditions necessary for the issuance or amendment of
the document, or that the public interest warrants the refusal, it is clear that only
the Minister has the authority to authorize or prohibit the construction, location
and operation of an aerodrome within Canada. This is so because, where the
Minister deems it in the public interest, he may require at any time from the
owner or operator of an aerodrome whether registered or unregistered, the
application for the issuance of an airport certificate, thus changing at any time, in
the public interest, an aerodrome into an airport or prohibiting the operation of an
aerodrome.
– Aeronautics Act, supra, s. 6.71 (1) a), b), c).
91.
In such cases, where a certificate has been issued, according to Appellant’s
position, s. 26 of An Act respecting the preservation of agricultural land and
agricultural activities would not apply as Appellant’s position is that it does not
apply to airports or heliports because of an incompatibility rendering inoperable
the provincial enactment by virtue of the federal paramountcy doctrine.
– (Appellant’s Factum, para. 58, p. 24)
92.
However, the Canadian Aviation Regulations, SOR/96-433, also require that an
airport, (i.e. an aerodrome for which a certificate has been issued) abide by a
number of conditions and standards set out in the aerodrome standards and
recommended practices publications of the Minister (Aeronautics Act, R.S.C.
1985, c. A-2, s. 302.03(1)). If these standards and conditions are not met, the
Minister may refuse to issue or renew such certificate (Aeronautics Act, R.S.C.
1985, c. A-2, s. 6.71(1)).
93.
In such a case, the airport may have to be closed. This would obviously be the
case for an airport certificate required of an aerodrome located within a built-up
area (Canadian Aviation Regulations, SOR 96-433, s. 302.01(1)). But in the case
31
of an airport certified, for example, under s. 302.01(1)b) where the certification is
required for a land aerodrome used by an air operator for the purpose of a
scheduled air service for the transport of passengers, the airport operator may
not be interested in maintaining the standards and conditions of his certificate as
required by the Minister, when such an air service is terminated or interrupted.
The maintenance of such standards, in the absence of an air operator, might
easily be too onerous. Is this airport, which has now become a registered or
unregistered aerodrome, suddenly subject to the provisions of s. 26 of An Act
respecting the preservation of agricultural land and agricultural activities, R.S.Q.
c. P-41.1 if it is located in an agricultural zone?
94.
And what if, after relinquishing its airport certificate to the Minister, the operator
decides to reapply for certification of the aerodrome, for example, to allow the
resumption of scheduled passenger air service. Does this then mean that in that
circumstance, s. 26 of the Act respecting the preservation of agricultural land and
agricultural activities, R.S.Q. c. P-41.1 would not apply? It becomes obvious that
this is the very sort of situation of uncertainty and exercice of discretionary power
into the core of a federal jurisdictional matter that the doctrine of interjurisdictional
immunity is meant to avoid.
95.
In Commission de transport de la communauté urbaine de Québec v. Canada
(National Battlefields Commission), [1990] 2 S.C.R. 838, this Court held the Bus
Transport regulations issued under the Quebec Transport Act inapplicable to a
federal bus sightseeing transport service as it constituted a massive intrusion on
a vital and essential aspect of the federal bus service:
Section 17 of the Regulation leaves the list of operating conditions and
restrictions attached to the permit open. If this is a discretionary power
granted to the Commission -- which is possible under s. 5.1 of the Act, but
which I do not have to decide here -- it seems quite clear that the appellant
Commission cannot be subject to it without losing ultimate control over the
substance of the service it provides under its mandate.
32
At another level, certain conditions for obtaining a permit set out by the
government in s. 12 of the Regulation also affect vital aspects of the federal
service. Under subs. (4), the Commission may refuse to issue a permit if it
considers that the service provided does not fulfill the needs of the
population of the territory to be served. This condition affects the
fundamental decision to create a service and so impinges on its very
existence, making the Commission des transports du Québec responsible
for evaluating the need for the service in accordance with its view of the
population's requirements. […]
The Act itself contains certain provisions affecting the federal service in
some of its essential aspects. We have seen that under s. 40, a permit
holder must obtain authorization from the Commission des transports to
alter the services it provides, otherwise it may have its permit changed,
suspended or revoked by the Commission. […] There seem to be few limits
on the discretion of the Commission des transports in authorizing a holder to
alter the services provided, and in my opinion the appellant Commission's
control over the substance of the service it offers is thereby affected. […]
Accordingly, in my view, it is the permit system as a whole which cannot be
applied to appellant commission. The consequence of applying the legislation
on permits would be to make the setting up, substance and maintenance of
the federal transport service subject to the largely discretionary control of the
Commission des transports and the government, when these aspects are
within exclusive federal jurisdiction. The Regulation is therefore
constitutionally inapplicable to the federal service, as are the provisions of the
Act dealing with the permit system. (Emphasis added).
– Commission de transport de la communauté urbaine de Québec v.
Canada (National Battlefields Commission), [1990] 2 S.C.R. 838 pp.
859-860 (Respondent’s Book of Authorities, Tab 5)
96.
In the same manner, the stated object of An Act respecting the preservation of
agricultural land and agricultural activities, R.S.Q. c. P-41.1 is to create a whole
series of rules and conditions for the protection and preservation of agricultural
lands and it vests discretionary power with the Commission de protection du
territoire agricole to oversee its application.
97.
The criteria considered in its decisions relate exclusively to the intent of the Act,
as stated at s. 3, that is, to secure the preservation of the agricultural land of
Quebec.
33
–
98.
An Act respecting the preservation of agricultural land and agricultural
activities, R.S.Q. c. P-41.1, s. 62, 62.1.
The Commission has no interest, no expertise and we submit no authority in
matters of aeronautics and particularly in the esTablishment of regulations of
airports and aerodromes within its territory.
99.
Yet, since 1990, there have been at least 30 reported cases where the
Commission exercised such authority in examining requests for the development,
enhancement and construction of aerodromes. In seven cases it denied the right
of the petitioners to operate such airfields within the designated agricultural zone.
In other cases, it imposed restrictions and conditions on the development and
operation of these airfields. In others, it actually permitted such uses. See for
example:
– Refused: CPTAQ No. 28020-197209, January 22nd 1993; CPTAQ No.
324254, February 26th 2002; CPTAQ No. 330373, May 2nd 2003;
– Accepted with conditions: CPTAQ No. 309742, July 26th 1999; CPTAQ
No. 202237, July 23rd 1993; CPTAQ No. 325021, September 16th 2002;
– Accepted: CPTAQ No. 17070-191673, July 9th 1992; CPTAQ No. 54040223678, August 2nd 1995 and CPTAQ No. 54040-234566, April 9th 1996.
(Respondent’s Book of Authorities, Tabs 22-24)
100. To paraphrase the statement of this Court in National Battlefields Commission,
supra, the consequences of applying this legislation would be to make the
“setting up, substance and maintenance” of an aerodrome or airport subject to
the discretionary control of the Commission de protection du territoire agricole
when these aspects are within exclusive federal jurisdiction.
101. The Act respecting the preservation of agricultural land and agricultural activities,
supra, is therefore constitutionally inapplicable to Respondent’s aerodrome.
102. This Court has specified that such intrusions must be of the nature of an
impairment to the core of the subject matter under federal jurisdiction.
34
103. Aerodromes and airports are at the core of the federal jurisdiction over
aeronautics and s. 26 which prohibits the location, installation and operation of
an airfield within the agricultural zone of the Province of Quebec cannot be
reconciled with the federal power over aeronautics and, as such, must be ruled
inapplicable to the aeronautic activities of the Respondents, Bernard Laferrière
and Sylvie Gervais.
Paramountcy
104. In the event that this Court were to find the doctrine of interjurisdictional immunity
not applicable to the facts of this case, then the Court should still hold s. 26
inoperative due to the doctrine of paramountcy.
105. The Appellant submits that the federal legislation in relation to aerodromes is
simply permissive and not exhaustive, such that to avoid a legislative “vacuum”
the application of the provincial law should not be inhibited or rendered
inoperative by virtue of the federal paramountcy doctrine.
106. In fact, the Aeronautics Act creates an implicit right to operate aerodromes and
the Minister of Transport is the only authority with the power to prohibit such
installation and operation.
– Aeronautics Act, supra, s. 4.9 e) and l)
– Canadian Aviation Regulations, s. 301.08 Prohibitions
107. As previously discussed, the conflict of application is obvious as the use of s. 26
of the Act by the Commission de protection du territoire agricole du Québec has
put the Respondents and others in a position where they are unable to comply
with the federal and provincial provisions due to the conflict which exists between
such legislation.
108. For example, in Richard Marcotte v. Commission de protection du territoire
agricole et al., the Commission has issued an order prohibiting the Petitioner,
35
Richard Marcotte, from using the aerodrome he had built on his field
notwithstanding the fact that he had the support of the municipal and regional
authority as well as the support of both members of Parliament and the
Legislature for the development of a regional aerodrome. Mr. Richard Marcotte
has challenged this order with the Tribunal administrative du Québec on
constitutional grounds and this case is awaiting this Court’s decision in the
present appeal before proceeding.
– Richard Marcotte v. Commission de protection du territoire agricole et al.,
STEQ 139771-079 (Respondent’s Book of Authorities, Tab 18)
109. Therefore, in such cases, from the point of view of Respondents, Bernard
Laferrière and Sylvie Gervais, and others subjected to such authority by the
Commission, there is clear operational conflict with the federal jurisdiction over
aeronautics.
110. The intrusion by the Commission de protection du territoire agricole into an
exclusive federal sphere goes far beyond an incidental and ancillary effect, it has
a fundamental effect, and as this Court held in Husky Oil Operations Ltd. v.
Minister of National Revenue, [1995] 3 S.C.R. 453:
In short, a legislative intention to intrude into an exclusive federal sphere is
neither necessary nor sufficient to scrutinize the applicability of provincial
law. It is the fact of intrusion, and not the intention to intrude, which is
determinative for division of powers purposes.
– Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R.
453, para. 45 (Respondent’s Book of Authorities, Tab 9)
111. In the case at bar, there need not be a provincial intention to intrude into the
exclusive federal sphere of aeronautics and to conflict with the standards and
requirements for aerodromes and airports esTablished by the Canadian Aviation
Regulations, SOR/96-433 in order to render the provincial law inapplicable and
inoperative. It is sufficient that the effect of provincial legislation is to do so.
– Husky Oil Operations Ltd. v. Minister of National Revenue, supra, para. 39
36
112. In a matter of changes to the common law, this Court has stated that there needs
to be a significant problem and an urgent reason for fundamental doctrines to be
changed:
There are sound reasons supporting this judicial reluctance to dramatically
recast esTablished rules of law. The court may not be in the best position to
assess the deficiencies of the existing law, much less problems which may be
associated with the changes it might make. The court has before it a single
case; major changes in the law should be predicated on a wider view of how
the rule will operate in the broad generality of cases. Moreover, the court may
not be in a position to appreciate fully the economic and policy issues
underlying the choice it is asked to make.
– R v. Salituro, [1991] 3. S.C.R. 654, p.668 (Respondent’s Book of
Authorities, Tab 14)
113. Respondent is not unmindful of the statement of this Court that:
To attain these objectives, a certain degree of predicTability with regard to
the division of powers between Parliament and the provincial legislatures is
essential. For this reason, the powers of each of these levels of government
were enumerated in ss. 91 and 92 of the Constitution Act, 1867 or provided
for elsewhere in that Act. As is true of any other part of our Constitution —
this “living tree” as it is described in the famous image from Edwards v.
Attorney-General for Canada, [1930] A.C. 124 (P.C.), at p. 136 — the
interpretation of these powers and of how they interrelate must evolve and
must be tailored to the changing political and cultural realities of Canadian
society. It is also important to note that the fundamental principles of our
constitutional order, which include federalism, continue to guide the
definition and application of the powers as well as their interplay. Thus, the
very functioning of Canada’s federal system must continually be reassessed
in light of the fundamental values it was designed to serve.
As the final arbiters of the division of powers, the courts have developed
certain constitutional doctrines, which, like the interpretations of the powers
to which they apply, are based on the guiding principles of our constitutional
order. The constitutional doctrines permit an appropriate balance to be
struck in the recognition and management of the ineviTable overlaps in rules
made at the two levels of legislative power, while recognizing the need to
preserve sufficient predicTability in the operation of the division of powers.
The doctrines must also be designed to reconcile the legitimate diversity of
regional experimentation with the need for national unity. Finally, they must
37
include a recognition that the task of maintaining the balance of powers in
practice falls primarily to governments, and constitutional doctrine must
facilitate, not undermine what this Court has called “co-operative federalism”
(Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R.
453, at para. 162; Reference re Employment Insurance Act (Can.), ss. 22
and 23, [2005] 2 S.C.R. 669, 2005 SCC 56, at para. 10. (Emphasis added)
– Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, para. 22-24.
114. The Canadian Civil Aircraft Register maintained by Transport Canada shows the
following as of January, 2009:
Private Aircraft
Commercial Aircraft
State
Total
23,041
4,275
109
27,425
– Canadian Civil Aircraft Register,
115. As of 2004, there were 330 airports and 774 registered aerodromes for a total of
1 104 registered airfields. It is estimated that there are in excess of 2 000
unregistered aerodromes.
– Northamerican Transportation Statistics DaTabase (Respondent’s Book
– Transport Canada Regional and Small Airport Study, p.8 (Respondent’s
116. From these statistics, it is evident that the vast majority of aeronautic activity in
this country comprises small aerodromes, yet the Appellant pleads that such
activity is not part of the core of federal jurisdiction over aeronautics.
117. These activities include medevac services, search and rescue, flight training,
forest fire spotting/fighting, business and commercial travel, crop spraying,
aircraft repair and maintenance, sightseeing and charter operations, aerial
photography, aircraft storage, gliding and air shows.
38
118. This would mean that instead of one aviation regulator, there will be ten
provinces, three territories and thousands of municipalities that have no particular
expertise in this highly specialized area regulating such activity.
119. Some potential problems and areas of conflict include provincial vs. federal
building codes, application of municipal noise by-laws, specifications for fuel
hoses and systems, fire prevention/fighting requirements and snow and ice
removal from runways and taxiways which could affect aviation safety.
120. All this, without the oversight authority and expertise developed over seventy five
years of application by the federal government.
121. For all the above reasons, Respondent, The Canadian Owners and Pilots
Association, submits that there are no compelling or urgent reasons to disturb
more than fifty years of settled caselaw in Canada.
PART IV: ORDER CONCERNING COSTS
122. The Respondent submits that costs be awarded to it and that no costs be
awarded against it in the event that this Court grants this appeal.
123. Former Respondents Laferrière and Gervais, having ceased the operation of the
aerodrome since 1997, have now disposed of their interest in the property where
their airfield was located.
– (Record of Applicant’s Motion for an order for the substitution or
addition of COPA as a party)
124. Although successful at the Quebec Court of Appeal on their constitutional claim,
they had seen this case be appealed to this Court and had therefore not been
able to operate said airfield.
125. Respondent COPA has had to “carry the fight” and has incurred substantial cost
in this matter.
126. Since this case deals essentially with a jurisdictional conflict which should have
been carried out in this forum by the Attorney General of Canada and the
39
Attorney General of Quebec, it would be highly unfair that Respondent be
assigned costs against it if this appeal is successful.
PART V – ORDER SOUGHT
127. Respondent, the Canadian Owners and Pilots Association, prays the Court to:
– Dismiss the present appeal;
– Answer the first constitutional question in the affirmative, in which case it
is not necessary to answer the second question.
– In the alternative, if this court were to find that interjurisdictional immunity
does not apply to the facts of this case, then we submit that the second
question should receive an affirmative answer.
– Award costs to it and that no costs be awarded against it in the event that
this Court grant this appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITTED, this 25th day of June, 2009
__________________________
Pierre J. Beauchamp
Counsel for Respondent COPA
40
PART VI – TABLE OF AUTHORITIES
Para.
CASES
Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R.
581………………………………………………………………………………….. 25, 39, 40,
50, 52, 59
Bell Canada v. Quebec (Commission de la santé et de la sécurité du
travail), [1988] 1 S.C.R. 749……………………………………….…………….. 23, 53, 63,
65
Berthier St-Louis c. Commission de protection du territoire agricole de
Québec [1990] R.J.Q. 322………………………………………………………..
57
British Colombia (Attorney General) v. Lafarge Canada Inc., 2007 S.C.C.,
23…………………………………………………………………………………… 24, 43, 55,
79
Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, 2007 CSC
22……………………………………………………………................................ 24, 43, 44,
45, 51, 54
Commission de transport de la communauté urbaine de Québec v. Canada
(National
Battlefields
Commission),
[1990]
2
S.C.R.
838…………………………………………………………………………………..
Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1
S.C.R 754…………………………………………………………………………..
Corporation de la Municipalité de St-Denis de Brompton v. Filteau et al.,
[1986] R.J.Q. 2400………………………………………………………………..
95
25, 28, 40
50
64
Greater Toronto Airports Authority v. Mississauga (City) (2000), 192 D.L.R.
(4th) 443 (Ont. C.A.), 2000 CanLII 16948 (ON C.A.); leave to appeal
refused, [2001] 1 S.C.R. ix…….………………………………………………… 25, 30, 31,
32, 45, 58
65
Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R.
453…………………………………………………………………………………..
110, 111
41
Johannesson et al. v. Rural Municipality of West St. Paul et al. [1952] 1
S.R.C. 292………………………………………………………………………….
21, 25, 30
40, 45, 47,
48, 50, 64,
65, 67, 68
70, 71, 77
83
Law Society of British Columbia v. Mangat, [2001] 3 S.C.R.
113…………………………………………………………………………………..
79
Marcel Filteau v. Aviation Roger Forgues (C.S.) REJB 1997-00093, and
Judgement
of
Bernard
Godbout
J.C.S,
dated
9
June
2003…………………………………………………………………………………
86
Paul v. British Columbia (Forest Appeals Commission) [2003] 2 S.C.R.
585…………………………………………………………………………………..
41, 42
R. v. Salituro, [1991] 3. S.C.R. 654…...…………………………………………
112
Re Aerial Navigation A.G. Canada v. A.G. Ontario et al. [1932] A.C.
54……………………………………………………...........................................
25
Re Orangeville Airport Ltd and Town of Caledon et al. (1976) 11 O.R. (2d)
546 (Ont. C.A)……………………………………………………………………..
25, 45, 58
65
Re The Queen in right of British Columbia and Van Gool (1987), 36 D.L.R.
(4th) 481 (B.C. C.A.)………………………………………………………………
63, 66
Regional District of Comox-Strathcona v. Hansen et al., (2005) BCSC 220
(CanLII)……………………………………………………………………………..
40, 63
Richard Marcotte v. Commission de protection du territoire agricole et al.,
STEQ 139771-079………………………………………………………………...
108
Taylor et al. v. Registrar of South Alberta Land Registration District et al.,
(June 16th 2005) 255 D.L.R. (4th) 457 (2 vs. 1)..............................................
60, 61, 62
Venchiarutti v. Longhurst (1992) 92 D.L.R. (4th) 554; 8 O.R. (3d) 422 (Ont.
C.A.)………………………………………………………………………………...
Whitbread v. Walley, [1990] 3 S.C.R. 1273…………………………………….
25, 40, 45
58, 63, 65
64
42
Decisions of the Commission de protection du territoire et des activités
agricoles :
– Refused: CPTAQ No. 28020-197209, January 22nd 1993; CPTAQ
No. 324254, February 26th 2002; CPTAQ No. 330373, May 2nd
2003;………………………………………………………………………
– Accepted with conditions: CPTAQ No. 202237, July 23rd 1993;
CPTAQ No. 309742, July 26th 1999; CPTAQ No. 325021,
September 16th 2002;…………………………………………………...
– Accepted: CPTAQ No. 17070-191673, July 9th 1992; CPTAQ No.
54040-223678, August 2nd 1995 and CPTAQ No. 54040-234566,
April 9th 1996……………………………………………………………..
99
99
99
DOCUMENTS
AerodromelStandardslandlRecommendedlPracticesl
Publications…………………………………………………...............................
35
Canada Flight Supplement, Nav Canada, effective 0901Z 25 September
2009…………..…………………………………………………………………….
7, 35, 86
Canada Water Aerodrome Supplement, Nav Canada, effective 0901Z 12
March 2009………………………………………………………………………...
35, 86
Canadian Civil Aircraft Register,
<http://www.tc.gc.ca/aviation/activepages/ccarcs/aspscripts/en/monthsuma
irbycatresultprint.asp?month=1&year=2009>................................................
114
Montreal VFR Navigation Charts…………….................................................
7, 35
Northamerican Transportation Statistics DaTabase,
<http://nats.sct.gob.mx/nats/sys/Tables.jsp?i=3&id=24>...…………………
…
115
Transport Canada Aeronautical Information Manual………………………….
34, 35, 38
Transport Canada Regional and Small Airport Study, TP
14283B…………………………………………………..…………………………
115
Transport Canada News Release, The City of Shawinigan and Transport
Canada agree on the management of the Lac-à-la-Tortue water
aerodrome:d<http://www.tc.gc.ca/mediaroom/releases/que/2009/09q003e.htm>………………..……………………………………………………….
89
43
DOCTRINE
HOGG, Peter W., Constitutional Law of Canada, vol. I, 5th ed. (Loose leaf),
Scarborough,
Ont.:
Thomson
Carswell,
2007…………………………………………………….…………………………..
BRUN, Henri, Droit constitutionnel, 4e éd, Cowansville, Éditions Yvon Blais
………………………………………………………………………………………
30, 40, 51
69, 74
79
44
PART VII – STATUTES AND REGULATIONS
Loi sur l’aéronautique, L.R.C. (1985), ch. A-2
Aeronautics Act, R.S.C. 1985, c. A-2
Loi sur la Protection du territoire et des activités agricoles, L.R.Q. c. P-41.1
An Act respecting the preservation of agricultural land and agricultural activities, R.S.Q.
c. P-41.1
Règlement de l’aviation canadien, DORS/96-433
Canadian Aviation Regulations, SOR/96-433

No. 32604 SUPREME COURT OF CANADA

Transcription

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