



COURT OF APPEAL FOR ONTARIO

CITATION: Burlington (City) v. Burlington Airpark Inc., 2017
    ONCA 420

DATE: 20170524

DOCKET: C62477

Feldman, Sharpe and Roberts, JJ.A.

BETWEEN

The Corporation of the City of Burlington

Appellant (Respondent in Appeal)

and

Burlington Airpark Inc.

Respondent (Appellant)

John B. Laskin and Peter E.J. Wells, for the appellant

Ian Blue, Q.C. and Anna Husa, for the respondent

Heard: March 28, 2017

On appeal from the judgment of Justice M.R. Gibson of the
    Superior Court of Justice, dated June 30, 2016.

Sharpe J.A.:

[1]

The appellant Burlington Airpark Inc.
    (Airpark) owns an aerodrome located in the City of Burlington, the respondent
    on this appeal. Airpark appeals an order requiring it to file an application
    for a permit under Burlingtons By-Law 64-2014 for fill work and site
    alteration carried out before the 2014 By-Law was passed and while an earlier
    by-law was in effect.

[2]

Airparks fill and site alteration work
    commenced in 2008. Until 2013, Burlington accepted that the work was part of an
    airport improvement and therefore not subject to regulation by a municipality.
    In 2013, Airpark applied for a severance to obtain land needed to extend the
    main runway. At that point, Burlington investigated and took the position that
    Airpark was conducting a commercial fill operation and that By-Law 6-2003 did
    apply. Accordingly, Burlington issued a notice to comply. Airpark took the
    position that, as an aerodrome, pursuant to the
Constitution Act,
    1867
it was not subject to the 2003 by-law. A consent
    order was entered precluding Airpark from conducting any further fill or site
    alteration work pending the determination of Burlingtons application to
    enforce compliance with the 2003 by-law. Murray J. ruled in November 2013 that
    Airpark was subject to the 2003 by-law:
Burlington Airpark v.
    Burlington (City),
2013 ONSC 6990, 17 M.P.L.R. (5th) 254.
    That decision was upheld by this court in June 2014: 2014 ONCA 468, 23 M.P.L.R.
    (5th) 1.

[3]

While those cross-applications were before the
    courts, Burlington prepared a more stringent by-law to replace the 2003 by-law.
    By-Law 64-2014 was passed on September 22, 2014. By its terms, the 2014 by-law
    repealed the 2003 by-law with no transitional provision to continue the 2003
    by-law, and came into force on the date of its passing.

[4]

The central issue on this appeal is whether
    Burlington can require Airpark to apply for a permit under the 2014 by-law for
    work Airport did prior to the enactment of that by-law.

A.

FACTS

[5]

Airpark is a registered aerodrome pursuant to the
Aeronautics Act
, R.S.C. 1985, c. A-2
and the
Canadian
    Aviation Regulations
, SOR/96-433
.
It was established in 1962 and provides a base for corporate airlines, a flight
    training school, patient and organ transfer flights and other aviation
    activities and aviation-related businesses.

[6]

Airpark acquired the aerodrome in 2006 and invested nearly $4 million in
    improvements to its infrastructure. These improvements included widening the
    main runway, paving the secondary runway, and adding new taxiways and hangars.

[7]

In 2008, Airpark began levelling the land to the west of the main runway
    to bring it up to the same grade as the runway and to permit aircraft to taxi
    safely to and from the runway. This involved the importation of fill.
    Burlington officials provided a report to Council in 2009 stating that, as the
    work related to aeronautics, the work was under federal jurisdiction and the
    local municipalitys by-laws did not apply. Airpark maintains that it performed
    the fill work on this understanding. Burlington maintains that its position was
    based on Airparks representations that the fill was in fact for airport
    expansion work, that the fill was clean, and that the work would end in the
    summer of 2009. Burlington alleges that those representations were untrue.

[8]

In 2013, Burlington began receiving complaints from neighbouring
    landowners regarding noise, drainage problems, dust and traffic safety arising
    from Airparks fill operation. Airpark had filed a severance application to
    allow it to purchase abutting lands in order to extend the main runway. This
    met with community opposition and was subsequently withdrawn. In response,
    Burlington investigated the matter and concluded that work had not been
    performed as initially described in numerous respects, including the amount of
    fill deposited, its cleanliness, and the purpose for which the fill was
    deposited.

[9]

Burlington took the position that Airpark was depositing fill as a
    commercial activity rather than as a planned expansion of its aeronautical
    facilities. It issued an order for Airpark to comply with the 2003 by-law.
    Burlington then issued a violation notice but took no further enforcement
    proceedings. At that point, Airpark had completed 95 to 97% of its proposed
    fill work.

[10]

Airpark brought an application seeking a declaration that its operations
    were governed by the
Aeronautics Act
and that Burlingtons by-law did
    not apply to its activities.  Burlington brought its own application for a
    declaration that the 2003 by-law was binding on Airpark. A consent order was
    made pursuant to which Airpark ceased fill and grading operations pending the
    determination of the applications.

[11]

Murray J. dismissed Airparks application and declared that the by-law
    was binding on Airpark in respect of its fill operations at the airport. He
    noted that Burlington knew of the work and took no steps to enforce the by-law,
    and he stated that this may have a bearing on Burlingtons ability to enforce
    its by-law with respect to construction already completed: 2013 ONSC 6990, at
    para. 13.
Murray J. declined to make any enforcement order,
    stating that [t]he issue of enforcement is properly left to the municipal
    authorities (para. 26).
This court upheld that decision:
2014 ONCA 468
.

[12]

In 2013, while those applications were pending before the Superior Court
    and this court, Burlington undertook a review of the airport that included a
    plan to pass a new by-law. In September 2014, after the release of this courts
    2014 decision, Burlington passed By-Law 64-2014, repealing the 2003 by-law and establishing
    a new regime prohibiting any dumping or removal of fill or altering of grades
    without a permit. The 2014 by-law contains a number of provisions that are more
    onerous than those found in the 2003 by-law.

[13]

Between the dismissal of Airparks appeal and the enactment of the new
    by-law in September 2014, Burlington made several requests of Airpark to file
    an application for a Site Alteration Permit under the 2003 by-law, which
    Airpark refused to do. After the 2014 by-law was passed and the 2003 by-law was
    repealed, Burlington made several more requests of Airpark to file an
    application under the new by-law. Airpark again refused, maintaining that the 2014
    by-law could not be applied retroactively. Airpark did apply under the 2014
    by-law for a permit to complete its work. Burlington refused to process that
    application unless Airpark submitted an application for a permit under the 2014
    by-law relating to the work that had been performed before the 2014 by-law was
    enacted.

B.

DECISION OF THE APPLICATION JUDGE

[14]

In April 2015, Burlington commenced the application now under appeal
    seeking a mandatory order under the
Municipal Act, 2001
, S.O. 2001, c.
    25, s. 440, requiring Airpark to remove all fill deposited since 2008 by
    November 30, 2015 or, in the alternative, an order requiring Airpark to submit
    an application under the 2014 by-law for all work performed since 2008.

[15]

Airpark resisted the application on several grounds. Airpark argued that
    the by-law could not be applied retroactively, that it was constitutionally
    inapplicable to its operations as Burlington had, in effect, enacted the by-law
    to specifically target Airparks aeronautics operation, that the by-law was
    impermissibly vague, and that the application was out of time and barred by the
Limitations Act, 2002
, S.O. 2002,
    c. 24, Sch. B
.
Airpark also contested Burlingtons
    evidence regarding the quality of the fill it had deposited and relied on
    evidence that the fill and grading activities were related to airport safety.

[16]

The application judge found that Airparks constitutional argument was
    the same as the one it made unsuccessfully in 2013, and before this court in
    2014, with respect to the earlier by-law. He agreed with Murray J.s finding
    that compliance with the by-law would not impair the federal aeronautics power
    or create an operational conflict, because the by-laws substance in this case
    was the regulation of alleged commercial landfill activity on the site and not
    aeronautics activity. He further found that Airpark was in fact operating a
    commercial landfill business on the site and that not all the fill it deposited
    was required for the purpose of airport modifications.

[17]

The application judge rejected Airparks argument that the by-law was
    impermissibly vague.

[18]

The application judge did not specifically deal with the retroactivity
    issue but held that Burlingtons application was not barred by the
Limitations
    Act
and adopted Burlingtons submission that the proceedings it had
    commenced under the 2003 by-law were automatically continued by the
Legislation
    Act, 2006,
S.O. 2006, c. 21, Sch. F., s. 52, as if they had been taken
    under the 2014 by-law.

[19]

The application judge determined that there was insufficient evidence to
    support an order for the removal of the fill and decided that the appropriate
    order was to require Airpark to submit a complete application under the new
    2014 by-law, with respect to the work it had already performed. He held that
    this would be the best mechanism to advance the expeditious exploration of the
    issue [of contamination] and to require Airpark to participate constructively
    in the process: para. 120. He awarded Burlington costs on a substantial
    indemnity basis, fixed at $118,000.

C.

ISSUES

[20]

The principal issue raised by Airpark on this
    appeal is this:

Did the application judge err by giving By-Law
    64-2014 retroactive effect, requiring Airpark to apply for a permit for work
    already done before that by-law was enacted?

Airpark also raises the following issues:

Did the application judge err by admitting
    certain expert evidence?

Did the application judge err in fact
    regarding the constitutionality of the application of By-Law 64-2014 to Airpark
    and in holding that Airpark was precluded from arguing that issue?

[21]

Airpark also contests the finding that it was
    carrying out a commercial fill operation.

[22]

In oral submissions, Airpark abandoned its
    argument that Burlington was estopped from changing the position it held when
    the fill was being placed in 2008-13, namely that its by-laws did not apply.

[23]

Airpark also seeks leave to appeal the
    application judges costs order.

D.

ANALYSIS

(1)

Did the application judge err by giving By-Law 64-2014
    retroactive effect, requiring Airpark to apply for a permit for work already
    done before that by-law was enacted?

[24]

Paragraph 1 of the order of the application
    judge provides:

THIS COURT ORDERS AND DECLARES that Burlington
    Airpark Inc. shall file an application by August 31, 2016 under By-Law 64-2014
    for the 2008-2013 fill work and site alteration carried out before By-Law
    62-2014 had been passed, and while By-Law 6-2003 was in effect.

[25]

Airparks central submission on this appeal is
    that, on its face and in its operation and effect, the order improperly gives
    By-Law 64-2014 retroactive effect.

(a)

The 2014 by-law

[26]

I turn first to the language of the 2014 by-law.
    The by-law repeals the 2003 by-law and makes no provision for its continuing
    application. Part 14 of the 2014 by-law provides that the 2003 by-law is
    hereby repealed (s. 14.01) and that the 2014 by-law shall come into full
    force and effect on the date of its passing (s. 14.02). There is no
    transitional provision to bridge the repeal of the 2003 by-law and the
    enactment of the 2014 by-law. I discuss below the question whether the 2003
    by-law is continued by the
Legislation Act, 2006
, but note here that the 2014 by-law does not have that effect.

[27]

Like the 2003 by-law, the 2014 by-law requires
    anyone who proposes to dump or remove fill or to alter the grade of lands
    within the municipality to obtain a permit to do so unless there is something
    in the by-law stating that a permit is not required. Section 2.02 of the 2014
    by-law provides:

No person shall place,
    dump, cut or remove any fill, or cause or permit the placing, dumping, cutting
    or removal of fill on, nor alter or cause or permit the alteration of the grade
    of any lands in the City, including any lands which are submerged under any
    watercourse or other body of water, or along the Lake Ontario or Burlington Bay
    shoreline, without having first obtained a Site Alteration Permit issued by the
    Director, unless this By-law states it does not apply or that such a Permit is
    not required.

[28]

The application for a permit triggers a process
    of review, discussion and consultation with municipal officials regarding the proposed
    fill and grading work and the measures that must be taken to ensure that such
    work complies with the by-laws standards.

[29]

Part 4 of the by-law provides for the site
    alteration application process. A person applying for a permit meets with
    municipal officials to assess the plan and to determine whether a permit is
    required and if a permit can be issued. Section 4.04.01 contains the detailed
    requirements for an Application for a Site Alteration Permit and s. 4.04.02
    stipulates the requirements of a Control Plan that is to be submitted at the
    same time. Detailed provision for the required supporting documentation is made
    in s. 4.06 and the required details of hauling information is set out in s.
    4.08. Part 5 sets out additional requirements for applications for permits for
    large scale operations.

[30]

Part 6 sets out in considerable detail the
    conditions for the issuance of Site Alteration Permits.

[31]

Part 7 provides that permits are valid for one
    year and may be renewed under certain conditions by the Director. Permits may
    be revoked for various reasons and when a permit is revoked all work shall
    cease unless the permit is restored. However, s. 14.03 provides that there
    shall be no renewal or extension of permits issued under the 2003 by-law.

[32]

Part 8 provides for inspection, including soil
    testing and the taking of samples, to ensure that the conditions of the permit
    are being complied with.

[33]

Part 9 provides for appeals to Council from
    decisions concerning permits and Part 12 sets out the fees payable for permits
    and the posting of security to cover certain costs of maintaining site control,
    stabilizing the site and rehabilitation measures.

[34]

Some of the 2014 by-laws standards are more
    onerous than those of the 2003 by-law. Section 2.10 mandates that the quality
    of any fill must comply with the applicable Soil, Ground Water and Sediment
    Standards for use under Part XV.1 of the EPA and the Management of Excess Soil
     A Guide for Best Management Practices, January 2014, as required by the
    Director. Section 5.01.01 requires a work plan in accordance with a provincial
    standard announced in 2014. The fees imposed by under Part 12 are significantly
    higher than those imposed by the 2003 by-law although I note that Burlington
    indicated that it would waive the higher fees for Airpark.

[35]

Failure to comply with the by-law is dealt with
    in three ways. Section 2.03 deals with the situation where a person has done
    something for which a permit is required without first obtaining a permit:

Where a person has
    placed, dumped, cut or removed fill or altered the grades or drainage on any
    lands in the City without having first obtained a Permit where a Permit is
    required, all operations shall cease, immediately stabilize the site and that
    person shall apply for a Site Alteration Permit pursuant to this By-law and
    shall be subject to fines and permit fees as per Sections 11 and 12, unless
    this By-law states it does not apply or that such a Permit is not required.

Permit is defined in s. 1.01.42 as a Site
    Alteration Permit issued pursuant to
this
By-law (emphasis added).

[36]

Part 11 deals with offences and penalties. A
    person, other than a corporation, who contravenes the provisions of this
    By-law is subject to a fine of up to $10,000 for a first offence and up to
    $25,000 for any subsequent offence. Corporations are subject to fines of up to
    $50,000 for a first offence and $100,000 for subsequent offences. Section 11.03
    provides for orders for remedial work:

In addition to any fine
    or any other penalty, any person who is convicted of contravening a provision
    of this By-law, the terms and conditions of a permit issued pursuant to this
    By-law, or an order issued pursuant to this By-law and Section 444(1) or 445(1)
    of the Municipal Act, 2001, may be ordered by a court of competent jurisdiction
    at the expense of the person to:

01 rehabilitate the land;

02 remove the fill placed or dumped;

03 restore the grade of the land to its original
    condition;

04 replace damaged trees, shrubs,
etc.

[37]

I note that all of these sanctions, including remedial
    work pursuant to s. 11.03, are specifically tied to contraventions of 
this
By-law and that no provision is made for sanctions for violation
    of the 2003 by-law.

[38]

In my view, there is nothing in the 2014 by-law that
    can justify requiring remediation of work conducted or a situation created
    before the by-law came into force. Nor does the language of the 2014 by-law
    support Burlingtons position that it can be applied to require Airpark to
    obtain a permit for work done before the 2014 by-law came into force. The
    entire thrust of the 2014 by-law is prospective. It is directed at requiring
    permits
before
work is undertaken. The
    provisions dealing with sanctions for conducting fill or site alteration work
    without a permit are all tied to failure to obtain a permit under the 2014
    by-law. No provision is made for remediating work done without a permit under
    the 2003 by-law. The conditions for obtaining a permit under the 2014 by-law
    are more stringent that those that existed under the 2003 by-law. One of
    Burlingtons principal concerns is with the quality of fill used by Airpark. As
    I have noted, s. 2.10, dealing with the quality of fill, sets the standard as
    that laid down in a January 2014 Guide for Best Management Practices. I fail to
    see how Airpark could be held to that standard for work that it conducted years
    earlier when a different standard prevailed under a different by-law.

(b)

Retroactivity

[39]

There is a distinction drawn between retroactive
    and retrospective legislation, as explained by Iacobucci J. in
Benner
    v. Canada (Secretary of State),
[1997] 1 S.C.R. 358, at
    para. 39:


The terms,
    retroactivity and retrospectivity, while frequently used in relation to
    statutory construction, can be confusing.  E. A. Driedger, in Statutes:
    Retroactive Retrospective Reflections (1978), 56
Can. Bar Rev.
264, at pp. 268-69, has offered these concise definitions which I find
    helpful:

A retroactive statute is one that operates as
    of a time prior to its enactment.  A retrospective statute is one that
    operates for the future only.  It is prospective, but it imposes new
    results in respect of a past event.  A retroactive statute
operates
    backwards
.  A retrospective statute
operates
    forwards
, but it looks backwards in that it attaches new
    consequences
for the future
to an event that took
    place before the statute was enacted.  A retroactive statute changes the
    law from what it was; a retrospective statute changes the law from what it
    otherwise would be with respect to a prior event.  [Emphasis in original.]

[40]

In my view, the order under appeal amounts to a
    retroactive application of the 2014 by-law. However, by its terms, the 2014
    by-law has neither retroactive nor retrospective application. The 2014 by-law
    does not operate retrospectively by attaching new consequences for the future
    with respect to a prior event. The purpose and effect of the 2014 by-law is to
    require a permit based upon standards set in 2014 for the dumping of fill or
    alteration of the grade of land. To require Airpark to obtain a permit in 2014
    based upon standards set in 2014 for work already conducted years ago in 2008
    and 2009 is plainly to change the law from what it was at the time the work was
    undertaken.

[41]

Airpark relies upon the presumption that
    legislation is not to be applied retroactively unless such a construction is
    expressly or by necessary implication required by the language of the Act:
Gustavson
    Drilling (1964) Ltd. v. Canada (Minister of National Revenue),
[1977] 1 S.C.R. 271, at p. 279. I see no language in the 2014
    by-law to suggest that it was intended to operate retroactively. As I have
    noted, the 2014 by-law does provide for remedial work where dumping or altering
    the grade took place without a permit. However, those provisions apply only to
    work conducted without a permit having been issued under the 2014 by-law. I see
    nothing in the by-law indicating an intention to reach back in time and apply
    the standards of 2014 to work done before the 2014 by-law was enacted.

[42]

A suggestion was made during oral argument that
some
    significance should be attached to the distinction between place and permit
in s. 2.02. Section 2.02 provides that 
no person shall
    place, dump, cut or remove any fill, or cause
or permit
the placing,
    dumping, cutting or removal of fill on, nor alter or cause
or permit
the alteration of the grade of any lands in the City without the required Site
    Alteration Permit [emphasis added]. It was suggested that, as the by-law
    forbids
permitting
the dumping of fill or the alteration of the grade,
    it might be applied to Airparks situation retrospectively rather than
    retroactively as Airpark has permitted the fill to remain and the grade to be
    altered after the 2014 by-law was enacted.

[43]

In my view, that reading of s. 2.02 cannot withstand analysis. The
    entire thrust and purpose of s. 2.02 is to require a Site Alteration Permit
before
any work is done. In that context, it seems to me that the words 
or permit
the placing, dumping, cutting or removal of fill and 
permit
the
    alteration of the grade are aimed at the situation where an owner or occupant
    allows someone else to dump fill or alter the grade. The intention, in my view,
    is to make owners and occupiers responsible for all work carried out on their
    lands, whoever actually performs the work, and not to extend the application of
    the by-law to the entire history of past dumping and grade alteration whenever
    it occurred.

(c)

The applicability of the
Legislation
    Act, 2006

[44]

Before the application judge and before this
    court, Burlington contends that the proceedings it commenced under the 2003
    by-law are continued by the
Legislation Act, 2006,
s. 52.

[45]

Section 52(3) provides that, if an Act or
    regulation is repealed, revoked, replaced or amended, 
[p]roceedings
    commenced under the former Act or regulation shall be continued under the new
    or amended one, in conformity with the new or amended one as much as possible.

[46]

In my view, Burlingtons argument that s. 52(3)
    continues the application of the 2003 by-law to Airpark is fatally flawed.

[47]

The
Legislation Act, 2006
, by its terms, does not apply to municipal by-laws. The
Legislation
    Act, 2006
applies to Acts and regulations. A municipal
    by-law is not an Act and the definition of regulation under the
Legislation
    Act, 2006
specifically excludes municipal by-laws. Section
    87 defines regulation as a regulation that is filed under Part III
    (Regulations). In Part III, s. 17(a) provides that regulation
does
    not include
a by-law of a municipality. Section 49 extends
    the definition of certain provisions of the Act to every document that is made
    under an Act but is not a regulation. However, none of those provisions assist
    Burlington in the context of this case.

[48]

Burlington relies on ss. 46 and 47, the opening
    provisions of Part VI of the Act dealing with interpretation, which is the Part
    of the Act containing s. 52. Sections 46 and 47 provide:

46.
Every provision of this
    Part applies to every Act and regulation.

47.
Section 46 applies
    unless,

(a) a contrary intention appears; or

(b) its application would give to a term or provision
    a meaning that is inconsistent with the context.

[49]

Burlington argues that the context includes the benevolent
    and broad purposive approach to the interpretation of municipal by-laws reflected
    in
Shell Canada Products Inc. v. Vancouver (City),
[1994] 1 S.C.R. 231. Burlington contends that this context justifies
    reading s. 52 so that it applies to by-laws. In my view, that submission
    misstates the effect of ss. 46 and 47. Section 46 provides that Part VI applies
    to every Act and regulation. The effect of s. 47, which states that s. 46
    applies
unless

a contrary intention appears or
    the context requires, can only be to
restrict
the application of s. 46 and Part VI. I fail to see how s. 47 can be read as
expanding
the reach of s. 46 to documents that are explicitly excluded from
    its reach.

[50]

The second problem with Burlingtons argument is
    that, even if s. 52(3) does apply to municipal by-laws, its effect is merely to
    continue proceedings commenced under the former Act or regulation. There is
    nothing in s. 52 that can be read as continuing the substance of a repealed
    provision. I agree with Airpark that there was no proceeding under the 2003
    by-law that is being continued in this proceeding. The application before the
    application judge was a fresh proceeding asking for relief under the 2014
    by-law, not the 2003 by-law.

(2)

Other issues

[51]

As this appeal can be disposed of on the basis
    of the retroactivity argument, I find it unnecessary to consider the other
    arguments advanced by Airpark.

E.

DISPOSITION

[52]

I recognize the public importance of enforcing
    standards designed to protect the public from environmental harm. Our task in
    this appeal, however, is limited to the determination of the application of a
    specific by-law. In carrying out that task, we  must respect important
    principles of our legal order, one of which is that, in the absence of clear
    legislative intention, to interpret an enactment as reaching into the past and
    declaring the law to be different from what it was is a serious violation of
    the rule of law (Ruth Sullivan,
Construction of Statutes
(Markham: LexisNexis Canada Inc., 2014), at para. 25.50; applied in
St. Jean v. Cheung
, 2008 ONCA 815, 94 O.R.
    (3d) 359 at para. 39).

[53]

For these reasons, I would allow the appeal, set
    aside the order of the application judge and dismiss Burlingtons application
    with costs fixed in the amount agreed to by the parties, $40,000 inclusive of
    disbursements and taxes. If the parties are unable to agree with respect to the
    costs of the application, they may make brief written submissions.

Released: KF MAY 24 2017

Robert J. Sharpe
    J.A.

I agree. K. Feldman
    J.A.

I agree. L.B.
    Roberts J.A.


