



COURT OF APPEAL FOR ONTARIO

CITATION: Collingwood Aviation Partners Ltd.
    v. Winterland Airfield Holdings Ltd., 2022 ONCA 131

DATE: 20220215

DOCKET: C69470, C69471

Huscroft, Sossin and Favreau
    JJ.A.

BETWEEN

Collingwood Aviation Partners
    Ltd.

Applicant (Respondent in Appeal)

and

Winterland Airfield Holdings
    Ltd.

Respondent (Appellant)

AND BETWEEN

Winterland Airfield Holdings
    Ltd.

Applicant (Appellant)

and

Collingwood Aviation Partners
    Ltd.

Respondent (Respondent in Appeal)

David W. Levangie and Teodora Prpa, for
    the appellant

Nancy Roberts and Mark Sheeley, for the
    respondent

Heard: February 2, 2022 by
    video conference

On appeal from the judgment of Justice Edward
    M. Morgan of the Superior Court, dated April 26, 2021, with reasons reported at
    2021 ONSC 3023.

REASONS FOR DECISION

[1]

The appellant, Winterland Airfield Holdings Ltd.
    (Winterland), owns and operates an airport in Collingwood, Ontario.

[2]

The respondent, Collingwood Aviation Partners
    Ltd. (CAPL), owns the adjoining property and operates air services and a
    flight school. CAPL uses the runways on Winterlands airport lands for its air
    services and the flight school.

[3]

Winterland appeals the application judges judgment
    in which he granted declarations that CAPL is entitled to unimpeded access to
    the airport lands and that Winterland is not entitled to charge user fees to
    CAPL for access to those lands.

[4]

For the reasons that follow, the appeal is
    dismissed.

Background

[5]

Before 1968, the Town of Collingwood did not
    have an airport. The original owners of CAPL set up a company to build a runway
    on land owned by the Town that was designated for an airport. In exchange, the
    Town gave CAPLs predecessor a plot of land abutting the airport lands. As part
    of the arrangement between the parties, CAPLs predecessor also agreed to
    provide air services, including the operation of a flight school, on those
    lands.

[6]

As described by the application judge, [o]ver
    the decades, the relationship between the two owners embodied this symbiotic
    existence. Three consecutive owners of what is now the CAPL property provided
    the requisite air services, operated the flight school, and enjoyed unimpeded
    access to the airports land.

[7]

In 2014, after CAPL bought the flight school
    lands, it asked that the arrangement with the Town be reduced to writing. The
    parties entered an Operating Agreement on June 16, 2014. The Operating
    Agreement set out CAPLs right to access the airport lands as follows:

The Owner [CAPL] and its tenants/licensees
    shall have full access to the Collingwood Region Airports runway systems and
    other facilities and services necessary for flight operation across the Airport
    Landson a 24 hour per day/365 days per year basis, subject to applicable
    government regulations, as long as an airport continues to be operated on the
    Airport Lands...

[8]

In 2019, Winterland bought the airport from the
    Town. As part of this transaction, the Town assigned the Operating Agreement to
    Winterland.

[9]

In December 2019, Winterland erected a wire
    fence that surrounded CAPLs property on three sides. The fence only left a
    90-foot wide opening along the eastern boundary between the properties, thereby
    reducing CAPLs previous 240-foot access to the runways on the airport lands.
    The fence on the northern boundary of CAPLs property impeded access to a field
    area that CAPLs tenants used to turn airplanes around. The fence on the
    southern boundary blocked CAPLs access to a drainage ditch, which caused
    problems with snow removal and flooding. The fence also blocked footpath access
    between the two properties.

[10]

CAPL removed the wire fence from its eastern
    boundary a week after it was erected, but Winterland replaced the fence with a concrete
    barrier. The concrete barrier was removed in January 2020, pending the outcome
    of this litigation.

[11]

CAPL brought an application to the Superior
    Court, seeking declaratory relief in relation to its right of access to the
    airport property. Winterland brought a cross-application in which it sought
    declaratory relief in relation to its rights to control access between the two
    properties. As part of the cross-application, Winterland also sought a
    declaration that CAPL was underinsured.

[12]

The application judge granted CAPLs application
    and dismissed Winterlands cross-application. In doing so, he found that CAPL has
    a right of unimpeded access to the airport lands along CAPLs eastern
    boundary, based on the Operating Agreement and a right of easement. He also
    found that Winterland was not entitled to charge any user fees for CAPLs
    access to the airport lands. Finally, he found that Winterland did not meet its
    burden of proving that CAPL was underinsured. Based on these findings, the
    application judge made the following declarations:

a.

a Declaration that the CAPL property has the benefit of full access
    to the airport property along the 240-foot boundary between the CAPL property
    and the airport property, being the eastern boundary to the CAPL property;

b.

a Declaration that under the Operating Agreement and as a common law
    easement, the CAPL property has a right, subject to applicable government
    regulation, to unimpeded access to the airport property along the 240-foot
    eastern boundary of the CAPL property;

c.

a Declaration that CAPL has no obligation to pay an access fee for
    the purpose of accessing the airport property;

d.

an Order than any fence erected by Winterland to the north of the
    CAPL property is to be at least 30 feet north of the boundary line between the
    two properties;

e.

a Declaration that CAPL has a right of access to the drainage
    infrastructure along its southern property line for the purposes of snow
    removal and for ensuring proper drainage on its property.

[13]

By separate endorsement dated October 18, 2021,
    the application judge granted $311,228.77 in costs to CAPL.

[14]

Winterland challenges all aspects of the
    application judges decision.

[15]

Many of Winterlands arguments invite this court
    to make different findings of fact and reweigh the evidence. However, it is not
    the role of the court to consider the issues decided by the application judge
    afresh. The court will only interfere with the application judges decision if
    he made errors of law or palpable and overriding errors of fact or mixed fact
    and law.

[16]

As set out below, we are satisfied that the
    application judge made no reversible errors.

Access Rights in the Operating Agreement

[17]

Winterland argues that the application judge
    erred in interpreting the reference to full access in the Operating Agreement
    to mean unimpeded access. The application judge found that full access
    meant unimpeded access based on the surrounding circumstances which, in this
    case, included evidence that the Town of Collingwood and CAPL intended the
    Operating Agreement to capture the access CAPL had enjoyed to the airport lands
    prior to the signature of the agreement. The application judge found that CAPLs
    historical access to the airport lands was unimpeded. This is a finding of
    mixed fact and law which is entitled to deference and that is well supported by
    the record.

[18]

Winterland argues that this interpretation of
    full access is unreasonable because it ignores the safety requirements of an
    airport. We disagree. The application judge was not satisfied that Winterland
    presented sufficient evidence of safety concerns to justify the proposed
    fencing. As part of Winterlands evidence of safety concerns, it included a
    photograph of a child in the vicinity of the runway. While the application
    judge may have made a factual error in describing the timing of the photo, this
    error on its own was not palpable and overriding. It relates to one isolated
    incident and does not detract from the application judges overall assessment
    of the paucity of evidence presented by Winterland regarding safety concerns
    that would justify the fencing. In fact, the application judge found that the
    fencing posed concerns for the safe operation of the flight school. These were
    findings of fact available on the record.

[19]

Winterland also argues that the application
    judge failed to consider s. 301.08 of the
Canadian Aviation Regulations
,
    SOR/96-433, which prohibits activities such as walking, standing, driving a
    vehicle or parking a vehicle or aircraft in the area of an aerodrome without
    permission of the operator. While the application judge did not address this
    argument in his decision, there is no requirement that a court consider all
    arguments made by a party. In any event, this provision does not run contrary to
    the application judges finding that the Operating Agreement gives CAPL
    unimpeded access to the airport lands. Rather, as pointed out by CAPL, the
    Operating Agreement gives CAPL the necessary permission to access the airport
    lands.

[20]

Ultimately, the Operating Agreement and the
    declarations granted by the application judge require CAPL to comply with all
    government laws and regulations. If CAPL does not comply with a particular law
    or regulation, Winterland can pursue available remedies to enforce compliance.
    The declarations made by the application judge do not preclude Winterland from
    doing so.

[21]

Accordingly, we see no error in the application
    judges interpretation of the access clause in the Operating Agreement.

Easement by implication

[22]

We see no errors in the application judges
    finding that CAPL has a right to unimpeded access to the airport property on
    the basis of a common law easement by implication.

[23]

Winterland does not dispute that the application
    judge properly articulated the test for an easement by implication but argues
    that the application judge erred in his application of the test.

[24]

The application judge relied on the following
    test for an easement by implication set out in Anne Warner La Forest,
Anger
    & Honsberger
,
Law of Real Property
, loose-leaf, 3rd ed.
    (Toronto: Thompson Reuters, 2021), at para. 17.12:

In order for a quasi-easement which was
    exercised during unity of ownership to become an easement by implication of
    law, the right claimed must meet certain criteria:

a)

it must be necessary to the reasonable enjoyment of the part
    granted;

b)

it must have been used by the owner of the entirety for the benefit
    of the part granted up to and at the time of the grant; and

c)

it must have been apparent at the time the land for which the
    easement is claimed was acquired.

For an easement to be apparent, its previous
    use must be indicated by some visible, audible or other apparent evidence on
    either the quasi-dominant or the quasi-servient tenement which could be seen,
    heard or smelled by a reasonable inspection.

[25]

The application judge made findings of fact
    about the agreement between the Town and CAPLs predecessor at the time the
    lands were severed. Based on those findings, the application judge was
    satisfied that the rights of access were apparent at the time the agreement
    was concluded. For example, the application judge found that it would be
    impossible for CAPLs predecessor to operate a flight school without broad
    runway access on CAPLs eastern boundary, as well as a buffer zone access on
    CAPLs northern side and footpath access for pilots and students.

[26]

Winterland argues that the application judge
    erred in finding that unimpeded access is necessary to CAPLs reasonable enjoyment
    of its lands. The application judge made no such error. He considered that necessity
    forms part of the test for an easement by implication and he found that being
    ringfenced and losing its historic access to the airport lands would be
    substantially more harmful to it than a mere inconvenience. The application
    judge went on to review the evidence of how CAPL had to conduct its business
    while the fencing was up and the overall impact of the fencing on the three
    relevant sides of the property. He ultimately concluded that the fencing and
    restrictions are not just inconvenient, they are a serious interference with
    CAPLs use of its property and, in addition, impose unnecessary hazards for the
    operation of the aircraft by CAPL and its tenants. These were findings of fact
    supported by the record.

[27]

Winterland also argues that the application
    judge erred in failing to address and find that a 1992 agreement extinguished
    any easement right that may have previously existed. Again, the court is not
    required to address all arguments made by the parties. In this case, as pointed
    out by CAPL, the 1992 agreement did not address access rights and, therefore,
    there is no basis for a finding that it extinguished the easement the
    application judge found exists in this case.

[28]

Finally, Winterland argues that the application
    judge erred by failing to consider that, even if an easement exists, it does
    not preclude Winterland from exercising some control over access to its
    property through the use of fences. In making this argument, Winterland relies on
    the decision in
Gardiner v. Robinson
, 2006 BCSC 1014, where the
    Supreme Court of British Columbia held that broad rights of access to footpaths
    did not prevent a property owner from erecting a fence and gates. However, in
Gardiner
,
    the Court emphasized, at para. 27, that the landowners ability to erect
    fencing and gates depends on whether they interfered in a substantial and
    unreasonable way with the petitioners right of access. As reviewed above,
    this is precisely the analysis the application judge conducted in this case. He
    concluded that the proposed fencing would constitute a substantial interference
    with CAPLs enjoyment of its property.

[29]

Ultimately, the application judge committed no errors
    in his application of the common law test for an easement by implication.

User fees

[30]

We see no error in the application judges
    finding that Winterland cannot charge user fees to CAPL for access to the
    airport lands.

[31]

The Operating Agreement contains the following
    provision dealing with access fees:

This Agreement does not preclude the Owner
    [CAPL] or tenants of the [CAPL] Property to be exempt from any applicable user
    fee as determined by the Town from time to time.

[32]

The application judge held that this provision
    does not allow Winterland to charge access fees to CAPL, reasoning that
    Winterland cannot charge for a right of access which CAPL already owns. The
    application judge held that the provision in the Operating Agreement dealing
    with fees confirms that CAPL will not be exempt from user fees levied on users
    of the Airport generally, with the exception, of course, of those fees that
    touch on access to the airport lands, which are specifically given to CAPL as
    of right.

[33]

Winterland argues that this finding is contrary
    to the plain wording of the relevant provision and that it is commercially
    unreasonable.

[34]

When interpreting the Operating Agreement, the
    application judge was required to consider the wording of the relevant
    provision and the factual matrix. In this case, given his finding that the
    Operating Agreement and implied easement give CAPL unimpeded access to the
    airport lands, we see no error in the application judges finding that Winterland
    has no right to charge fees for this access.

[35]

Winterlands inability to charge access fees
    does not make the agreement commercially unreasonable. Winterland is entitled
    to charge other fees and, as pointed out by CAPL, the Town and now Winterland
    have derived other benefits from the arrangement between the parties, including
    CAPLs obligation to buy fuel exclusively at the airport.

Insurance coverage

[36]

We see no error in the application judges
    finding that Winterland did not prove that CAPL is underinsured.

[37]

The Operating Agreement requires CAPL to at its
    own expense, procure and maintain in force adequate insurance for the CAPL
    Property and its uses that is acceptable to Winterland, acting reasonably,
    naming Winterland as additional insured. When Winterland raised the issue of
    insurance, CAPL increased its coverage from $1,000,000 to $5,000,000 and
    produced a Certificate of Insurance.

[38]

The application judge rejected Winterlands
    argument that CAPL was underinsured on the basis that there was no objective
    evidence to support this position.

[39]

Winterland argues that the application judge
    improperly shifted the burden of proof on this issue. We see no merit to this
    argument. Winterland sought a declaration regarding the issue of insurance on
    the cross-application. It provided no evidencenotably presenting no expert
    evidencethat CAPLs insurance coverage was inadequate. In the circumstances,
    the application judge made no error in dismissing this aspect of Winterlands
    cross-application.

Dismissal of cross-application

[40]

Winterland argues that the application judge
    erred in dismissing the cross-application without giving it any proper
    consideration. Specifically, it argues that it had put forward a proposal for a
    rolling fence between the properties that could be opened as needed.

[41]

We see no merit to this argument. While the
    application judges conclusions on the cross-application are contained in a
    conclusory one paragraph section of his decision, it is evident from his
    decision as a whole that he considered the applicants cross-application.

[42]

For the most part, the cross-application was a
    mirror to CAPLs application, and sought declarations related to the parties
    respective rights in relation to the boundaries between both properties. The application
    judges declarations address those issues.

[43]

In addition, it was Winterland that raised the
    issue of insurance coverage in its cross-application, an issue that the
    application judge addressed and dismissed.

[44]

Finally, while in its argument before this
    court, Winterland placed significant emphasis on the issue of a rolling fence,
    it is evident that this issue was not significant to the arguments before the application
    judge and does not detract from his finding that CAPL is entitled to unimpeded
    access to the airport lands.

Motion for leave to appeal costs order

[45]

Following the commencement of the appeal, the appellant
    served a supplementary notice of appeal, seeking leave to appeal the
    application judges costs order.

[46]

Other than this supplementary notice, the
    materials filed by the appellant did not include a costs order or the application
    judges costs endorsement. The appellants factum did not address the issue of
    costs and the appellants counsel did not make any arguments on the issue
    during oral arguments.

[47]

In the circumstances, we see no basis for
    granting the motion for leave to appeal the application judges costs order.


Conclusion

[48]

For these reasons, we dismiss the appeal and the
    motion for leave to appeal costs.

[49]

The respondent is entitled to costs of the
    appeal which we fix at $60,000, all inclusive.

Grant
    Huscroft J.A.

L.
    Sossin J.A.

L. Favreau
    J.A.


