Respondent The-Canadian-Owners-and-Pilots

Transcription

No. 32608
SUPREME COURT OF CANADA
(ON APPEAL FROM THE QUEBEC COURT OF APPEAL)
BETWEEN :
ATTORNEY GENERAL OF QUEBEC
APPELLANT
(Respondent)
AND :
ANABELLE LACOMBE and
JACQUES PICARD and
3845443 CANADA INC.
RESPONDENTS
(Appellants)
AND :
THE CANADIAN OWNERS AND PILOTS ASSOCIATION
(COPA)
RESPONDENT
(Intervener)
AND:
MUNICIPALITY OF SACRÉ-COEUR
INTERVENER
(Respondent)
AND :
ATTORNEY GENERAL OF CANADA
ATTORNEY GENERAL OF ONTARIO
ATTORNEY GENERAL OF NEW-BRUNSWICK
ATTORNEY GENERAL OF BRITISH-COLUMBIA
INTERVENERS
FACTUM OF RESPONDENT
THE CANADIAN OWNERS AND PILOTS ASSOCIATION
(RULE 42 of the Rules of the Supreme Court of Canada)
Me Pierre J. Beauchamp
PATERAS & IEZZONI
500 Place d’Armes Bureau 2314
Montréal (Québec) H2Y 2W2
Tel. 514-284-0860
Fax : 514-843-7990
Email :[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 : [email protected]
Counsel for RESPONDENT/Intervener
Agents for
RESPONDENT/Intervener
Dan Cornell
CORNELL, MORTLOCK & SILLBERG
272 Kent Street West
Lindsay, Ontario
K9V 4S5
Tel: 705-324-4312
Fax: 705-324-7525
Email: [email protected]
Counsel for RESPONDENT/Intervener
Me Alain Gingras
MINISTÈRE DE LA JUSTICE
Me Sébastien Rochette
CHAMBERLAND, GAGNON (Justice –
Québec)
300, boul. Jean-Lesage, bureau 1.03
Québec (Québec) G1K 8K6
Tél. : 418 649-3524 Fax : 418 6461656
[email protected]
Me Pierre Landry
NOËL & ASSOCIÉS, S.E.N.C.
111, rue Champlain
Gatineau (Québec) J8X 3R1
Tél. : 819 771-7393
Fax : 819 771-5397
[email protected]
Correspondants for Appellant
Attorneys for Appellant
Me Mathieu Quenneville
LAVERY, DE BILLY, S.E.N.C.R.L.
1, Place Ville-Marie, 40e étage
Montréal (Québec) H3B 4M4
Tél. : 514 877-3087
Fax. : 514-871-8977
[email protected]
Attorney for Respondents
Anabelle Lacombe, Jacques
Picard and 3845443 Canada Inc.
Me Charles A. Veilleux
MORTENCY SOCIÉTÉ D’AVOCATS
S.E.N.C.R.L.
3075 chemin des Quatre-Bourgeois,
Bureau 400
Québec (Québec) G1W 4X5
Tél. : 418-651-9900
Fax.: 418-651-5184
[email protected]
Attorney for Intervener
Municipality of Sacré-Coeur
Me Pierre Landry
NOËL & ASSOCIÉS, S.E.N.C.
111, rue Champlain
Gatineau (Québec) J8X 3R1
Tél. : 819 771-7393
Fax : 819 771-5397
[email protected]
Correspondants for Respondents
Anabelle Lacombe, Jacques
Picard and 3845443 Canada Inc.
Attorney General of Canada
INTERVENER
Christopher M. Rupar
JUSTICE CANADA
Édifice Banque du Canada
1212-234, rue Wellington, Tour Est
Ottawa (Ontario) K1A 0H8
Tél. : 613-941-2351
Fax : 613-954-1920
[email protected]
Counsel for INTERVENER,
Attorney General of Canada
Attorney General of Ontario
INTERVENER
Robert C. Houston
BURKE-ROBERTSON
70 Gloucester Street
Ottawa (Ontario) K2P 0A2
Tél.: 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
Tél.: 613-233-1781
Fax: 613-563-9869
[email protected]
Agent for INTERVENER,
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
Tél.: 613-236-9665
Fax; 613-235-4430
[email protected]
Agent for INTERVENER,
Attorney General of British-Columbia
TABLE OF CONTENTS
PART I :
STATEMENT OF FACTS ...............................................................1
Overview......................................................................................1
Facts............................................................................................3
PART II :
QUESTIONS IN ISSUE ...................................................................4
PART III :
ARGUMENT ....................................................................................6
Federal jurisdiction over aeronautics ...............................................7
Definitions of “aerodrome” and “airport” .......................................9
Federal regulation......................................................................10
The doctrine of interjurisdictional immunity ....................................15
Uniformity of the Canadian jurisprudence ......................................20
This Court ..................................................................................20
Quebec ......................................................................................21
Ontario .......................................................................................22
Alberta .......................................................................................23
British-Columbia ........................................................................25
The impact of the Johannesson decision on Canadian
jurisprudence .................................................................................25
The doctrine of double-aspect .......................................................26
Paramountcy..................................................................................34
PART IV :
ORDER SOUGHT CONCERNING COSTS...................................39
PART V :
ORDER SOUGHT..........................................................................40
PART VI :
TABLE OF AUTHORITIES ............................................................41
PART VII :
STATUTES AND REGULATIONS .................................................44
1
PART I – STATEMENT OF THE FACTS
Overview
1.
In 1951, the Attorney General of Canada pleaded in this Court, in the
Johannesson case, that the legal content of the subject-matter “aeronautics”
meant that Parliament could “legislate to vary or abrogate existing rights, powers
or liberties or to create new rights, powers and liberties with respect to the
ownership or operation of aircraft in the air, or on the ground”.
– Johannesson v. West St. Paul (Rural Municipality), [1952] 1 S.R.C. 292,
p.294. (Respondents’ Book of Authorities, tab 11)
2.
This was so because this authority necessarily includes the use of the earth’s
surface in connection with the use of the air and the means of using it as a mode
of transport. The control in every respect of the places where airplanes may land
and take off, including the location of such places, “is quite as essential a part of
the control of aeronautics as control of where and the conditions under which
airplanes may fly”.
– Johannesson v. West St. Paul (Rural Municipality supra, p.295.
(Respondents’ Book of Authorities, tab 11)
3.
As we know, this Court endorsed this position in Johannesson, which set the
precedent for future jurisprudence in matters of aeronautics.
4.
The Attorney General of Quebec now wishes to see this precedent changed and
in essence, in the present case, resubmits the same arguments that were then
presented by the Attorney General of Manitoba and rejected by this Court.
– Johannesson v. West St. Paul (Rural Municipality), supra, p.299-301.
5.
This case, as in Johannesson, deals with the applicability of a municipal by-law
which specifically prohibits the use of Lake Gobeil, situated within the territory of
the municipality of Sacré-Coeur, as a base of operation (a water aerodrome) for
seaplanes operated by the Respondents and any other operators.
2
6.
Like the Johannessons, the Respondents have an Operating Certificate from
Transport Canada to conduct their aeronautic activity.
And, like the
Johannessons, their water aerodrome is not a certified airport.
7.
The question that arises therefore on this appeal is the extent to which
aerodromes, as federally regulated enterprises, must comply with a municipal
zoning by-law, or more specifically put with reference to the facts of this case :
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 location and
operation of an aerodrome, in this case a water aerodrome on Lake Gobeil,
within the territory of the municipality of Sacré-Coeur, when these activities would
not be permitted by by-laws No. 209 and No. 210 of the Municipality of SacréCoeur, more particularly by-law No. 209: Règlement relatif aux permis et
certificats, aux conditions préalables à l’émission de permis de construction, ainsi
qu’à l’administration des règlements de zonage, de lotissement et de
construction, and by-law No. 210: Règlement de zonage, adopted pursuant to
s.113 of the Act respecting land use planning and development (R.S.Q., c. A19.1).
8.
Respondent, The Canadian Owners and Pilots Association (“COPA”), 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 valid in the generality of its application, will not apply to the federallyregulated enterprise.
9.
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 by-laws
3
No. 209 Règlement relatif aux permis et certificats, aux conditions préalables à
l’émission de permis de construction, ainsi qu’à l’administration des règlements
de zonage, de lotissement et de construction and No. 210: Règlement de
zonage), are of roughly equal importance.
10.
In fact, the application of by-laws No. 209 and No. 210 has the effect of intruding
into the exclusive sphere of federal jurisdiction over aeronautics and impairing
Respondent’s activities which are permitted and controlled by federal legislation
and regulations.
Facts
11.
The Respondent 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. 17-18.
12.
Respondent COPA notes that the water aerodrome in question is a registered
water aerodrome governed by Subpart I – Aerodromes, of Part III – Aerodromes,
Airports and Heliports of the Canadian Aviation Regulations, SOR/96-433, which
applies in respect of all aerodromes except airports.
13.
Once registered, the Respondent’s water aerodrome is shown on the Transport
Canada VFR navigation charts (VNC) for that area and in the Canada Water
Aerodrome Supplement, and becomes an integral part of the air navigation
system of Canada.
– Chicoutimi and Montreal VFR Navigation Charts, and Canada Water
Aerodrome Supplement, p. B92. (Respondents’ Book of Authorities,
tabs 23, 25)
4
PART II – QUESTIONS IN ISSUE
14.
The questions in issue in the present appeal are those stated by the Honourable
Chief Justice on February 2nd 2009:
15.
Does the zoning by-law No. 210 of the Municipality of Sacré-Coeur, adopted
pursuant to s.113 of the Act respecting land use planning and development,
R.S.Q., c. A-19.1, encroach on the power of the Parliament of Canada over
aeronautics under the introductory paragraph to s. 91 of the Constitution Act,
1867 and, if so, are ss. 4.1 and 4.2 of and schedule B to that by-law ultra vires?
16.
Is zoning by-law No. 210 of the Municipality of Sacré-Coeur constitutionally
inapplicable under the doctrine of interjurisdictional immunity to an aerodrome
operated by the Respondents?
17.
Is zoning by-law No. 210 of the Municipality of Sacré-Coeur constitutionally
inoperative under the doctrine of federal paramountcy, having regard to the
Aeronautics Act, R.S.C. 1985, c. A-2, and the Canadian Aviation Regulations,
SOR/96-433?
18.
Respondent COPA respectfully submits that the three stated constitutional
questions should receive an affirmative answer for the following reasons:
19.
The enactment and application of by-laws No. 209 and 210 constitutes an
encroachment on the federal power of the Parliament of Canada over
aeronautics as the pith and substance of the said by-laws is not zoning but the
prohibition of aeronautic activity within a defined territory of the municipality and
as such, the by-laws are ultra vires.
20.
Furthermore, the Court of Appeal of Quebec was justified in law in applying, in
respect of this case, the doctrine of interjurisdictional immunity.
5
21.
The subject-matter of aeronautics and aviation, including aerodromes, falls within
the exclusive legislative authority of the Parliament of Canada.
22.
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.
23.
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.
24.
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.
25.
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.
26.
If this Court were to find that the doctrine of interjurisdictional immunity should
not be applied to the facts of this case, then by-laws No. 209 and 210 would still
be inoperative by virtue of federal paramountcy in that abiding by the municipal
by-laws prohibiting aeronautic activity within the designated zone creates an
operational conflict and frustrates the federal legislative intent expressed in the
Aeronautics Act, R.S.C. 1985, c. A-2.
6
PART III – ARGUMENT
27.
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 v. West St. Paul (Rural Municipality)(supra) clearly established
the exclusive federal jurisdiction over aerodromes and 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.
– Johannesson v. West St. Paul (Rural Municipality), supra, (Respondents’
Book of Authorities, tab 11)
28.
This debate 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.
29.
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), supra. (Respondents’ Book of Authorities, tab 4)
30.
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.
– British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2
R.C.S. 86, para. 23, 64. (Respondents’ Book of Authorities, tab 5)
7
Federal jurisdiction over aeronautics
31.
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
– Re Orangeville Airport Ltd and Town of Caledon et al. (1976), 11 O.R. (2d)
546 (Ont. C.A) (Respondents’ Book of Authorities, tab 17)
– Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1
S.C.R 754 (Respondents’ Book of Authorities, tab 8)
– Venchiarutti v. Longhurst (1992), 92 D.L.R. (4th) 554; 8 O.R. (3d) 422 (Ont.
C.A.) (Respondents’ Book of Authorities, tab 20)
– Air Canada v. Ontario, [1997] 2 S.C.R. 581 (Respondents’ Book of
Authorities, tab 2)
– Mississauga (City) v. Greater Toronto Airports Authority (2000), 192
D.L.R. (4th) 443 (Ont. C.A.), 2000 CanLII 16948 (ON C.A.) leave to appeal
refused, [2001] R.C.S. ix (Respondents’ Book of Authorities, tab 10)
32.
The Appellant, at the very least, acknowledges that aeronautics do 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.C. 1985, c. A-2, and the Canadian Aviation Regulations, SOR/96-433.
33.
However, 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, 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,
8
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, p.770774. (Respondents’ Book of Authorities, tab 8)
34.
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 operations related to such activity,
the landing, docking and reception of aircraft, or of seaplanes in this case, as well
as of the pilots and their passengers.
– Johannesson v. West St. Paul (Rural Municipality), [1952] 1 S.C.R. 292
– Mississauga (City) v. Greater Toronto Airports Authority, supra
– Hogg, Peter W., Constitutional Law of Canada, vol. I, 5th ed. (Loose leaf),
Scarborough, Ont.: Thomson Carswell, 2007, p. 22-24 (Respondents’
35.
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.
9
36.
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 decisions of this court, have 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)
– Mississauga (City) v. Greater Toronto Airports Authority, supra, para. 50,
52, 53. (Respondents’ Book of Authorities, tab 10)
Definitions of “aerodrome” and “airport”
37.
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.”
10
38.
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.
– Transport Canada Aeronautical Information Manual, TP 14371, AGA 2.3
– Canadian Aviation Regulations, SOR/96-433, s. 302.01(1)
Federal regulation
39.
The Parliament of Canada has enacted a comprehensive scheme of legislation
and regulation to govern aeronautics and these requirements are widely
disseminated to the aviation community:
– 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 (Respondents’ Book of Authorities, tab 22)
– Water Aerodrome Supplement (Respondents’ Book of Authorities, tab
23)
– Transport Canada Technical Publications, including Aerodrome Standards
and Recommended Practices publications. (Respondents’ Book of
Authorities, tab 29)
– VFR Navigation Charts (VNC) (Respondents’ Book of Authorities, tab
25)
40.
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;
[…] 4.9 The Governor in Council may make regulations respecting
aeronautics and, without restricting the generality of the foregoing, may
make regulations respecting
11
[…] (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).
41.
The seaplane base established by the Respondents on Lake Gobeil constitutes
an aerodrome within the meaning of the Aeronautics Act, R.S.C. 1985, c. A-2.
42.
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
CAR 301.08 – Prohibitions:
– No vehicles or obstructions
– Rules for towing an aircraft
– Use of aircraft lights on the aerodrome maneuvering area
12
– 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
– Transport Canada Aeronautical Information Manual, TP14371 AGA, pp.
47-69 (Respondents’ Book of Authorities, tab 27)
– Canadian Aviation Regulations, SOR/96-433.
43.
The essential change to by-laws 209, 210 and 211 by the adoption of by-law 260,
was to create a new zone (61RF) which had the same attributes as the original
zone (33RF) except that it specifically authorized at note 19, “the use of rafts,
quays or any other structures used for water landings or the reception of
seaplanes or their passengers in zone 61RF”[ Respondent’s translation]. (See
by-law 260, Section 4.2 e) e), Appellant’s record, vol III, p.121)
44.
These structures and facilities are an integral and essential part of a functioning
aerodrome.
Indeed, in Air Canada v. Liquor Control Board of Ontario, 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. West St. Paul (Rural Municipality), [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), supra, paragraph 72
13
45.
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 their 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) (Respondents’ Book of Authorities, tab 18)
– Venchiarutti v. Longhurst, supra, (Respondents’ Book of Authorities,
tab 20)
– Hogg, Peter W., Constitutional Law of Canada, supra, p. 22-24.
46.
Municipal governments in Canada possess authority, delegated from their
respective provincial governments, to regulate zoning on their own territory.
However, provincial governments may only delegate powers with which they are
lawfully vested, and municipalities possess only such powers as are expressly
delegated to them.
– 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town),
[2001] 2 S.C.R. 241-258 (Appellant’s Book of Authorities, tab 18)
– A.G. Québec v. Pierre Larochelle [et al], REJB 2003-51811 (C.A.)
47.
However, because the object of by-law 260 is to specify in which sector (or zone)
of the Respondent Municipality’s territory seaplane activities can be carried out
(only in sector 61RF), and because its effect is to prohibit the operation of
seaplanes and of a seaplane base out of Lake Gobeil, located within sector 33
RF where such activity is not permitted, its pith and substance is aeronautics and
the impugned by-law is ultra vires the powers of the Municipality of Sacré-Coeur.
48.
Consequently, although the intention of the Municipality to answer the complaints
of some of its residents in relation to the operation of seaplanes in and out of
14
Lake Gobeil may be a valid municipal concern, where the answer to these
complaints lies with the regulation of the aeronautic activity of Appellants, it
cannot legislate.
– A.G. of Quebec v. Larochelle, supra, paragraph 43. (Respondents’ Book
of Authorities, tab 3)
49.
In Spraytech v. Hudson, L’Heureux-Dubé J. stated that :
4. Each level of government must be respectful of the division of powers that
is the hallmark of our federal system; there is a fine line between laws that
legitimately complement each other and those that invade another
government’s protected legislative sphere.
(…)
20. While enabling provisions that allow municipalities to regulate for the
“general welfare” within their territory authorize the enactment of by-laws
genuinely aimed at furthering goals such as public health and safety, it is
important to keep in mind that such open-ended provisions do not confer an
unlimited power. Rather, courts faced with an impugned by-law enacted
under an “omnibus” provision such as s. 410 C.T.A. must be vigilant in
scrutinizing the true purpose of the by-law. In this way, a municipality will not
be permitted to invoke the implicit power granted under a “general welfare”
provision as a basis for enacting by-laws that are in fact related to ulterior
objectives, whether mischievous or not. (Emphasis added)
– 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town),
supra, para 4 and 20. (Respondents’ Book of Authorities, tab 1)
50.
In the case at bar, the Municipality of Sacré-Coeur could not, under the guise of
amending its zoning, enact a by-law that had in fact an ulterior motive: the
prohibition of seaplane operations, whether private or commercial, from Lake
Gobeil in answer to complaints from the local residents.
Only the Federal
Minister of Transport under the concept of the division of power has that
authority.
51.
In the case of Corporation de la Municipalité de St-Denis de Brompton, the
Quebec Court of Appeal struck down a municipal by-law promulgated under
Section 413 (12) of the Municipal Code as being clearly legislation in the matter
15
of navigation as it was aimed at the use of boats on navigable waters. Bernier
J.A. stated that:
La question est plutôt de savoir si une législation provinciale est
constitutionnelle au seul motif que son but ultime et immédiat relève de la
compétence provinciale, nonobstant qu’en ce faisant elle empiète sur un
domaine spécifique de la juridiction exclusive du fédéral.
Le premier juge a répondu, et je suis d’accord avec lui, que cette prétention
n’était pas fondée en droit; qu’une législation provinciale ne peut, même
dans la poursuite d’objets provinciaux, légiférer de façon à porter atteinte
directe à une matière de compétence fédérale exclusive; (…)
Ce principe a été réitéré et appliqué quant aux autres domaines de
juridiction exclusive du fédéral. (…)
L’arrêt Johannesson c. Rural Mun. Of West St-Paul, auquel le premier juge
fait renvoi, est un autre exemple de l’application de ce principe. La Cour, en
étant venue à la conclusion qu’en vertu de l’article 132 de la Loi
constitutionnelle de 1867 le pouvoir législatif en matière d’aéronautique
relevait du fédéral, a déclaré invalide un règlement de zonage visant à
prohiber l’établissement d’un aéroport dans un secteur de la municipalité, et
ce, peu importe que le fédéral ait ou non légiféré dans le domaine ou que
sous certains aspects la législation provinciale (ici par délégation) puisse
relever de domaines de la juridiction législative de la province. (…)
C’est toujours le même sophisme. On a omis de tenir compte que les droits
de navigation ne peuvent être abrogés ou réglementés que par le
fédéral. (Emphasis added)
– Corporation de la Municipalité de St-Denis de Brompton v. Filteau et al.,
[1986] R.J.Q. 2400, pp. 2402-2405. (Respondents’ Book of Authorities,
tab 9)
52.
In fact, in the case at bar, as the aim of this by-law is specifically directed at the
aeronautic activity of the Respondents, it constitutes an encroachment into the
exclusive competency of Parliament over aeronautics and, as such, the
municipal by-law is ultra-vires the powers of the municipality.
The doctrine of interjurisdictional immunity
16
53.
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.
54.
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. 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
17
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. (Respondents’ Book of Authorities, tab 14)
55.
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.
56.
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. (Respondents’ Book
57.
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
18
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. (Respondents’ Book
58.
It’s interesting to note that this Court again did not distinguish between the major
international airport that is the Toronto airport, and the aerodrome composed of a
small gravel strip on agricultural land in the Venchiarutti case.
59.
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
(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. (Respondents’ Book of Authorities, tab 11)
60.
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.
(…)
19
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
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 (j.
Rinfret). (Respondents’ Book of Authorities, tab 11)
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, pp. 318-319 (j.
Estey). (Respondents’ Book of Authorities, tab 11)
61.
Although the Aeronautics Act, R.S.C. 1985, c. A-2,
has changed since the
decision in Johanesson was rendered, the same argument applies today as the
current legislation still grants the Minister of Transport all the same regulatory
powers, and the Minister has adopted a comprehensive regulatory regime for
aerodromes and airports :
20
– See the definitions of “aerodromes” and “airports” at section 3(1) of the
Aeronautics Act, R.S.C. 1985, c. A-2, as well as section 4.9 e) which
authorizes the governor in counsel 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, SOR/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. 301.01 to 301.09 in relation
to standards and prohibitions for aerodromes.
Uniformity of the Canadian jurisprudence
This Court
62.
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:
– Construction Montcalm Inc. v. Min. Wage Com., supra, (Respondents’
– Air Canada v. Ontario (Liquor Board Control), supra, (Respondents’
63.
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:
– Hogg, Peter W., Constitutional law of Canada, supra, pp.15-33, 15-34.
– Canadian Western Bank v. Alberta, supra, para. 49-51. (Respondents’
64.
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, pp. 609-610
21
65.
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. 840-843 (Respondents’
66.
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
have been well settled by the application of the doctrine of interjurisdictional
immunity for over fifty years.
– Canadian Western Bank v. Alberta, supra,
67.
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 at the same time as the 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 (Respondents’ Book of Authorities, tab 5)
68.
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
22
69.
Indeed, taking a fresh look at its former decision in the Berthier St-Louis 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).
– Judgment of the Court of Appeal (hon. André Brossard, France Thibault et
Paul Vézina), no. 200-09-005674-061, 4th of March 2008, para.68 :
(Appellant’s Record, vol. 1, p. 80).
– Berthier St-Louis c. Commission de protection du territoire agricole de
Québec, [1990] R.J.Q. 322. (Appellants’ Book of Authorities, tab 15, p.
107)
Ontario
70.
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.
(…)
23
[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.
– Mississauga (City) v. Greater Toronto Airports Authority , supra, para. 39,
48 and 52. (Respondents’ Book of Authorities, tab 10)
71.
This position has been endorsed by this Court in Air Canada v. Ontario (Liquor
Control Board) (supra), 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
72.
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 aeronautical activities, 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.
24
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
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.,
supra, para. 37-38. (Respondents’ Book of Authorities, tab 19)
73.
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
(Natinal Battlefields Commission), [1990] 2 S.C.R. 838 at 854, 74 D.L.R.
(4th) 23).
– Taylor et al. v. Registrar of South Alberta Land Registration District et al.
(supra) para. 102 and 105. (Respondents’ Book of Authorities, tab 19)
74.
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,
25
and therefore excluded from the application of the provincial law, were
nonetheless an integral and essential part of the proposed aeronautics activity,
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. (Respondents’ Book of Authorities, tab 19)
British Columbia
75.
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.(supra) 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 (supra) and the Venchiarutti
case of the Ontario Court of Appeal (supra).
– Regional District of Comox-Strathcona v. Hansen et al, supra
– Re The Queen in right of British Columbia and Van Gool, supra,
(Appellant’s Book of Authorities, tab 14, p. 95)
The impact of the Johannesson decision on Canadian jurisprudence
76.
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:
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]
26
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. (Respondents’ Book
77.
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)
78.
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 14)
The doctrine of double aspect
79.
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.
27
(…)
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
(Estey, J.). (Respondents’ Book of Authorities, tab 11)
80.
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.
81.
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 legislature it was valid under the Province’s legislative
powers under s. 92(13) Property and civil rights and s. 92(16) Matters of local
interest.
–
82.
Johannesson v. West St. Paul (Rural Municipality), supra, p.299-300
To the same effect, the Municipality of West St-Paul had submitted that since the
Johannessons had not obtained a licence from the Minister of Transport for their
aerodrome, they might not be granted a licence where the aerodrome is located
in defiance of local by-laws:
The Aeronautics Act does not purport to give any person or company the
right to locate an airport in breach of local by-laws. Assuming that the
Dominion has ample power in this regard, it has not exercised the power.
– Johannesson v. West St. Paul (Rural Municipality), supra, p.301-302
83.
The Court rejected this point of view. Justice Kellock stated:
28
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
84.
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 that kind of law may be enacted by either parliament or a legislature.
– Hogg, Peter W., Constitutional Law of Canada (supra) p. 22-24.
85.
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 municipal
purposes and another being land use for the purpose of aeronautics. In fact,
there is only one aspect to ss. 4.1 and 4.2 and Annex B of the Municipality of
Sacré-Coeur zoning by-law No 210, as amended by ss. 4.1 and 4.2 of by-law No
260. It is the intention of the Municipality to prohibit commercial activities related
to the use of water aerodromes in the Municipality other than zone 61-RF, such
as zone 33-RF where the Respondents have built their water aerodrome.
– Appellant’s Factum, para. 39
29
86.
As the province or municipality cannot legislate on matters of aeronautics, it is
the effect of the laws that is challenged.
87.
We are not faced here with a situation where the municipal by-law has both an
aeronautics aspect and a land use aspect, which are roughly of equal
importance.
88.
The subject matter under examination in this case is the prohibition of
aerodromes within the municipality. 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.
89.
Since the purpose and effect of said by-law is to control and regulate the “surface
of the earth” in the municipal zone, for the landing and taking off of aircraft, and
to abrogate rights and liberties of persons to use their property for aeronautical
activities, its aim is directly related to aeronautics.
90.
What we are faced with is a situation of operational conflict where the purpose of
the Aeronautics Act, R.S.C. 1985, c. A-2, and the Canadian Aviation Regulations,
SOR/96-433, 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 municipal by-laws.
– British Columbia (Attorney General) v. Lafarge Canada Inc, supra para 84.
– Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, para 72.
30
– Henri Brun, Droit constitutionnel, 4e éd., pp. 459-460. (Respondents’
91.
Appellant submits that since this prohibition of aeronautic activity (i.e. the takingoff, landing, docking and facilities for the receiving and departing of passengers)
is “necessary” for the peace of mind of the residents of Lake Gobeil, it remains
valid as an “integral part” of the zoning by-law. It was adopted to protect the
holidaying character of Lake Gobeil. Yet, whatever the purpose and intent of this
by-law may be, it’s pith and substance is aeronautics and, as such, must be ruled
ultra-vires.
92.
Appellant reviews the federal legislation in relation to aerodromes and airports
and admits that the regulation of aerodromes provided for under the Canadian
Aviation Regulation (SOR/96-433), adopted pursuant to the Aeronautics Act,
R.S.C. 1985, c. A-2, are sufficiently precise to exclude the application of zoning
by-law No 210 with regard to aerodromes which constitute airports or heliports.
93.
Appellant argues however that the Aeronautics Act, R.S.C. 1985, c. A-2, and the
Canadian Aviation Regulations, SOR/96-433, are not precise enough to exclude
the application of said by-law to aerodromes such as the one operated by the
Respondents.
94.
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
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 zoning by-law No 210 should not be
invalidated.
– Appellant’s Factum, para. 55-61
31
95.
As we have seen above, this Court has already decided on this issue and ruled
that such by-laws are ultra-vires the municipality.
96.
However, since we must deal with this question again, let us look at Appellant’s
argument, which we submit fails to understand the legislative intent of the
Canadian Aviation Regulations, SOR/96-433, dealing with aerodromes, airports
and heliports under Part III.
97.
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).
98.
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 Lake 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 and Water Aerodrome supplements. 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. B173-174 (Respondents’
– Canada Flight Supplement, p. B739-B740 (Respondents’ Book of
32
99.
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”.
100. Since, under s. 6.71(1) of the Aeronautics Act, R.S.C. 1985, c. A-2, 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
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 since 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 (always in the public interest) an
aerodrome into an airport or prohibiting the operation of an aerodrome.
– Aeronautics Act, R.S.C. 1985, c. A-2, s. 6.71 (1) a), b), c).
101. In such cases, where a certificate has been issued, according to Appellant’s
position, zoning by-law No 210 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. 53, p. 23)
102. 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)).
33
103. 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 (Aeronautics Act, R.S.C. 1985, c. A-2, s. 302.01(1)). But in the case of an
airport certified, for example, under s. 302.01(1) b) of the Aeronautics Act, R.S.C.
1985, c. A-2, 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 a zoning by-law such as zoning by-law No 210?
104. 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 mean that the zoning
by-law would not apply? It becomes obvious that this is the very sort of situation
of uncertainty and exercise of discretionary power into the core of a federal
jurisdictional matter that the doctrine of interjurisdictional immunity is meant to
avoid.
105. 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:
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
34
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
106. The provinces, territories and the municipalties in this country have no interest,
no expertise and, we submit, no authority in matters of aeronautics and
particularly in the establishment or regulation of airports and aerodromes within
their territory.
107. 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 provinces and municipalities when these aspects
are within exclusive federal jurisdiction.
108. Zoning by-law No 210 is therefore constitutionally inapplicable to Respondents’
aerodrome.
109. 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.
110. Aerodromes and airports are at the core of the federal jurisdiction over
aeronautics and Zoning by-law No 210 which prohibits the location, installation
and operation of a water aerodrome within the Municipality of Sacré-Coeur
cannot be reconciled with the federal power over aeronautics and, as such, must
be ruled inapplicable to the aeronautic activities of the Respondents.
Paramountcy
35
111. 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 by-laws No
209 and No 210 inoperative due to the doctrine of paramountcy.
112. 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.
113. In fact, the Aeronautics Act, R.S.C. 1985, c. A-2, 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, R.S.C. 1985, c. A-2, s. 4.9 e) and l)
– Canadian Aviation Regulations, SOR/96-433, s.301.08 Prohibitions
114. As discussed above, the conflict of application is obvious as the prohibition
imposed by zoning by-law No 210 has put the Respondents in a position where
they are unable to comply with the federal and provincial provisions due to the
conflict which exists between such legislation.
115. The Respondents are authorized by their Operating Certificate (issued by
Transport Canada) to operate out of Lake Gobeil, but cannot abide by this
authorization because they are prohibited from doing so by the application of said
zoning by-law.
116. This is a clear case of conflict with federal jurisdiction over aeronautics.
117. In the current Canada Water Aerodrome Supplement which lists all registered
water aerodromes in Canada there are 39 such water aerodromes in Quebec
and more than 300 in Canada.
36
– Canada Water Aerodrome Supplement, Nav Canada, effective 0901Z 12
March 2009 (Respondents’ Book of Authorities, tab 23)
118. If the Appellant’s position is accepted, all of the water aerodromes that serve this
country will then be subject to provincial and municipal regulation.
119. In a matter of change 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 (Respondents’ Book of
120. Respondent is not unmindful of the statement of this Court that:
The division of powers, one of the basic components of federalism, was
designed to uphold this diversity within a single nation. Broad powers were
conferred on provincial legislatures, while at the same time Canada’s unity
was ensured by reserving to Parliament powers better exercised in relation
to the country as a whole.
[…]
To attain these objectives, a certain degree of predictability with regard to
the division of powers between Parliament and the provincial legislatures is
essential. […] 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
37
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.
– Canadian Western Bank v. Alberta, supra,
para.
22,
23,
24.
121. 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,
<http://www.tc.gc.ca/aviation/activepages/ccarcs/aspscripts/en/monthsum
airbycatresultprint.asp?month=1&year=2009>. (Respondents’ Book of
122. 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 (Respondents’ Book
– Transport Canada Regional and Small Airport Study, p. 8 (Respondents’
123. From these statistics, it is evident that the vast majority of aeronautic activity in
this country is carried on by the general aviation sector of aviation, and at
registered and unregistered aerodromes, yet the Appellant pleads that such
aerodrome activity is not part of the core of federal jurisdiction over aeronautics.
124. These activities include medevac services, search and rescue, flight training,
forest fire spotting/fighting, business and commercial travel, crop spraying,
38
aircraft repair and maintenance, sightseeing and charter operations, aerial
photography, aircraft storage, gliding and air shows.
125. The Vancouver, B.C., water aerodrome which has regular passenger service is
the only water airport in Canada. If the Appellant’s position is accepted, all other
water aerodromes that serve this country will then be subject to provincial and
municipal regulation.
– Canada Water Aerodrome Supplement, Nav Canada, effective 0901Z 12
March 2009, p. B223-B229. (Respondents’ Book of authorities, tab 23)
126. 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.
127. 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.
128. All this, without the oversight authority and expertise developed over seventy five
years of application by the federal government.
129. 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.
39
PART IV – ORDER CONCERNING COSTS
130. Respondent, The Canadian Owners and Pilots Association, submits that costs be
awarded to it and that no costs be awarded against it in the event that this Court
grant this appeal.
131. Although successful at the Quebec Court of Appeal on these constitutional
questions, along with Respondents Annabelle Lacombe, Jacques Picard and
3845443 Canada inc., they have seen this case appealed to this Court and have
therefore had to invest substantial resources to ensure the rights of their
members are protected.
132. 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
Attorney General of Quebec, it would be highly unfair that Respondent, The
Canadian Owners and Pilots Association, be assigned costs against it if this
appeal is successful.
40
PART V – ORDER SOUGHT
133. Respondent, the Canadian Owners and Pilots Association, prays the Court to:
– Dismiss the present appeal;
– Answer the three constitutional questions in the affirmative.
– 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 18th day of June, 2009
__________________________
Pierre J. Beauchamp
Counsel for respondent COPA
41
PART VI – TABLE OF AUTHORITIES
Para.
CASES
1.
114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson
(Town), [2001] 2 S.C.R. 241 ......................................................................... 46, 49
2.
Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R.
581 ............................................................................31, 36, 44, 45, 62, 64, 71, 77
3.
A.G. Québec v. Pierre Larochelle [et al], REJB 2003-51811 (C.A.)........ 46, 48, 49
4.
Bell Canada v. Quebec (Commission de la santé et de la sécurité
du travail), [1988] 1 S.C.R. 749 .............................................................. 29, 65, 77
Berthier St-Louis c. Commission de protection du territoire agricole
de Québec, [1990] R.J.Q. 322 ............................................................................ 69
5.
British Columbia (Attorney General) v. Lafarge Canada Inc., 2007
S.C.C., 23 ......................................................................................... 30, 55, 67, 90
6.
Canadian Western Bank v. Alberta, [2007]
2 S.C.R. 3 ................................................................30, 55, 56, 57, 63, 66, 77, 120
7.
Commission de transport de la communauté urbaine de Québec v.
Canada (National Battlefields Commission), [1990] 2 S.C.R. 838 .................... 105
8.
Construction Montcalm Inc. v. Minimum Wage Commission, [1979]
1 S.C.R 754 ...................................................................................... 31, 33, 45, 62
9.
Corporation de la Municipalité de St-Denis de Brompton v. Filteau et
al., [1986] R.J.Q. 2400 (Qué. C.A.)..................................................................... 51
10.
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 to SCC referred, 2001 R.C.S. IX......................... 31, 34, 35, 36, 57, 70, 77
11.
Johannesson et al. v. Rural Municipality of West St. Paul et al., [1952] 1
S.R.C. 292 ..............1, 2, 4, 5, 27, 31, 34, 45, 57, 59, 60, 61, 76, 77, 79, 81-83, 88
12.
Law Society of British Columbia v. Mangat, [2001] 3 S.C.R.
113 ..................................................................................................................... 90
42
13.
Marcel Filteau v. Aviation Roger Forgues (C.S.) REJB 1997-00093,
and Judgment of Bernard Godbout J.C.S, dated 9 June 2003 ........................... 98
14.
Paul v. British Columbia (Forest Appeals Commission), [2003] 2
S.C.R. 585 .................................................................................................... 53, 54
15.
R. v. Salituro, [1991] 3. S.C.R. 654................................................................... 119
16.
Re Aerial Navigation A.G. Canada v. A.G. Ontario et al., [1932] A.C.
54 ....................................................................................................................... 31
17.
Re Orangeville Airport Ltd and Town of Caledon et al. (1976), 11
O.R. (2d) 546 (Ont. C.A)......................................................................... 31, 57, 70
Re The Queen in right of British Columbia and Van Gool (1987), 36
D.L.R. (4th) 481 (B.C.C.A.) ............................................................................ 75, 78
18.
Regional District of Comox-Strathcona v. Hansen et al., (2005)
BCSC 220 (CanLII)....................................................................................... 45, 75
19.
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) .................................... 72-74
20.
Venchiarutti v. Longhurst (1992), 92 D.L.R. (4th) 554; 8 O.R. (3d)
422 (Ont. C.A.) ..................................................................... 31, 45, 57, 58, 70, 77
21.
Whitbread v. Walley, [1990] 3 S.C.R. 1273 ........................................................ 76
DOCUMENTS
22.
Canada Flight Supplement, Nav Canada, effective 0901Z 25
September 2009 ..................................................................................... 39, 42, 98
23.
Canada Water Aerodrome Supplement, Nav Canada, effective
0901Z 12 March 2009 ...................................................... 13, 39, 42, 98, 117, 125
24.
Canadian Civil Aircraft Register,
<http://www.tc.gc.ca/aviation/activepages/ccarcs/aspscripts/en/mont
hsumairbycatresultprint.asp?month=1&year=2009> ........................................ 121
25.
Chicoutimi and Montreal VFR Navigation Charts ......................................... 13, 39
26.
Northamerican Transportation Statistics Database,
http://nats.sct.gob.mx/nats/sys/tables.jsp?i=3&id=24 ....................................... 122
27.
Transport Canada Aeronautical Information Manual .............................. 38, 39, 42
43
28.
Transport Canada Regional and Small Airport Study, TP 14283B ................... 122
29.
AerodromelStandardslandlRecommendedlPracticeslPublication ....................... 39
DOCTRINE
30.
HOGG, Peter W., Constitutional Law of Canada, vol. I, 5th ed.
(Loose leaf), Scarborough, Ont.: Thomson Carswell, 2007........ 34, 45, 63, 80, 84
31.
BRUN, Henri, Droit constitutionnel, 4e éd, Cowanville, Éditions Yvon
Blais ................................................................................................................... 90
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
Règlement de l’aviation canadien, DORS/96-433
Canadian Aviation Regulations, SOR/96-433

Respondent The-Canadian-Owners-and-Pilots

Transcription

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