



COURT OF APPEAL FOR ONTARIO

CITATION: Burlington Airpark Inc. v. Burlington (City), 2014
    ONCA 468

DATE: 20140613

DOCKET: C57908

MacPherson, Simmons and Gillese JJ.A.

BETWEEN

Burlington Airpark Inc.

Applicant (Appellant)

and

The Corporation of the City of Burlington

Respondent (Respondent)

AND BETWEEN

The Corporation of the
    City of Burlington

Applicant (Respondent)

and

Burlington Airpark Inc.

Respondent (Appellant)

Peter E.J. Wells and Glenn Grenier, for the appellant

Ian Blue, for the respondent

Heard: June 11, 2014

On appeal from the order of Justice John C. Murray of the
    Superior Court of Justice, dated November 15, 2013.

ENDORSEMENT

[1]

The appellant Burlington Airpark Inc. (Airpark) appeals from the Order
    of Murray J. of the Superior Court of Justice dated November 15, 2013,
    providing:

THIS COURT ORDERS AND DECLARES that the City of Burlington
    Topsail Preservation and Site Alteration By-law (By-law 6-2003) is valid and
    binding upon Burlington Airpark Inc. in respect to its landfill activities at
    the Burlington Executive Airport.

[2]

Airpark operates an aerodrome in the City of Burlington.  The lands
    immediately abutting the aerodrome are described as agricultural and rural
    residential.

[3]

Airpark says that it has been undertaking a number of improvements to
    the aerodrome that involve the use of fill.  In Burlington, the use of fill is
    regulated by By-law 6-2003 (the by-law).  The by-law requires that a permit
    be obtained before fill is placed on land or the grade of any lands are
    altered.

[4]

Airpark refuses to comply with the by-law.  It says that because
    aerodromes fall under federal jurisdiction, and aspects of the construction of
    aerodromes fall within the core of federal jurisdiction over this matter, the
    by-law does not apply to it.

[5]

Airpark and the Corporation of the City of Burlington (the City)
    brought duelling applications to address this issue.  The application judge
    allowed the Citys application and dismissed Airparks application.

[6]

Airpark appeals on the basis that the application judge erred by not
    applying the doctrine of interjurisdictional immunity to remove its aerodrome
    from having to comply with the by-law.

[7]

In determining whether interjurisdictional immunity applies in a
    particular case, it is necessary (1) to identify the pith and substance of the
    impugned legislation (a municipal by-law is, for constitutional purposes, the
    same as a provincial law), and (2) determine whether there is existing jurisprudence
    that supports applying interjurisdictional immunity in the circumstances (i.e.,
    whether the matter the legislation impinges on has already been recognized as
    part of the core of a federal head of jurisdiction).  If such case law does
    not exist, the doctrine of interjurisdictional immunity should not be
    considered further: see
Marine Services International Ltd. v. Ryan Estate
,
    2013 SCC 44, at paras. 48-49.

[8]

If such case law exists, it becomes necessary (3) to determine whether
    the legislation trenches on the protected core of a federal competence, and (4)
    if so, whether the impugned legislations effect on the exercise of the
    protected federal power is sufficiently serious to invoke the doctrine: see
Quebec
    (Attorney General) v. Canadian Owners and Pilots Association
, [2010] 2
    S.C.R. 536, at para. 27; and
Ryan Estate
, at para. 54.

[9]

Finally, we observe that there is an important jurisprudential umbrella
    in this area of constitutional law.  As expressed by Binnie and Lebel JJ. In
Canadian
    Western Bank v. Alberta
, [2007] 2 S.C.R. 3, at para. 37 and 67:

[A] court should favour, where possible, the ordinary operation
    of statutes enacted by both levels of government.  In the absence of
    conflicting enactments of the other level of government, the Court should avoid
    blocking the application of measures which are taken to be enacted in
    furtherance of the public interest.



[N]ot only should the doctrine of interjurisdictional immunity
    be applied with restraint, but with rare exceptions it has been so applied.                                                                                  [Emphasis
    in original.]

[10]

The
    application judge faithfully applied this analysis.

[11]

On
    the first step of the analysis  characterizing the by-law  the application
    judge carefully reviewed some of the key provisions of the by-law.  He
    concluded that the by-law is designed to regulate the quality of fill and to
    prevent the use of toxic or contaminated fill in the municipality.  Later, he
    said that the by-law was designed to regulate the use of landfill for the
    protection of the environment and for the safety, health and welfare of
    municipal residents.

[12]

With
    respect to the third step of the analysis  whether the by-law trenches on the
    protected core of the federal aeronautics power  the trial judge reviewed the
    leading case,
Construction Montcalm v. The Minimum Wage Commission
,
    [1979] 1 S.C.R. 754 and reasoned:

The general statements made by Justice Beetz in Construction
    Montcalm do not compel a conclusion that the Burlington by-law is an
    unacceptable intrusion on the core aeronautics power.  First, the by-law is
    designed to regulate the quality of fill and to prevent the use of toxic or
    contaminated fill in the municipality.  It is not targeted legislation as in
Lacombe
. 
    There is little doubt that the runway construction must comply with federal
    specifications relating to slopes, surfaces of runways, runway shoulders and
    the slopes and strength of runway shoulders.  However, requiring Airpark to use
    clean fill regulated by the municipality for the benefit of other residents in
    the municipality will not be permanently reflected in the structure of the
    finished product in the sense meant by Justice Beetz.  The by-law is not an
    attempt by the municipality to regulate slopes or surfaces of runways, runway
    shoulders or the slopes and strength of runway shoulders.  While regulating the
    quality of fill may have an impact on the manner of carrying out a decision to
    build airport facilities in accordance with federal specifications, such
    regulation will not have any direct effect upon the operational qualities or suitability
    of the finished product which will be used for purposes of aeronautics.  As a
    result, the by-law does not impact or intrude on the core of the federal power
    which, as noted above, is the authority absolutely necessary to enable
    Parliament to achieve the purpose for which exclusive legislative jurisdiction
    was conferred.

[13]

The
    appellant challenges both components of the application judges reasoning.

[14]

The
    appellant contends that the application judge made a critical error in his
    characterization of the by-law.  According to the appellant, the subject matter
    of the by-law is not as narrow as stated by the application judge, namely, to
    regulate the quality of fill and to prevent the use of toxic or contaminated
    fill in the municipality.  Rather, the by-law, according to the appellant,
    concerns land use, planning and development, and further will lead to the
    regulation by the municipality of runway slopes, surfaces, shoulders, and other
    matters falling exclusively within federal jurisdiction.

[15]

We
    do not accept this argument.  The title of the by-law is to Protect and
    Conserve Topsoil, the main substantive section is titled PLACING/DUMPING FILL
     ALTERING GRADE  REMOVAL OF TOPSOIL, and the by-law is replete with
    provisions using the language of environmental protection (e.g. contaminants
    and testing).  Nothing in the by-law reveals an intention on the part of the
    municipality to regulate matters falling exclusively within federal
    jurisdiction.  In our view, the application judges characterization is
    supported by a careful reading of the by-law.

[16]

The
    real issue is not faulty characterization of the by-law but rather, as the
    appellant itself states in its factum, the issue is whether [the by-law]
    impermissibly trenches on the core of the federal aeronautic power (para.
    45).  On that issue, the appellant submits that the effect of the by-law is to
    improperly intrude into the development of the aerodrome
qua
an
    aeronautical enterprise.

[17]

We
    disagree.  We explicitly endorse the application judges reasoning in the
    passage set out in paragraph 12 above.

[18]

Finally,
    the appellant seeks to introduce fresh evidence designed to show that, after
    the application judge released his decision, certain contractors were not
    willing to deliver fill to the site for fear of negative reaction from the
    City.

[19]

We
    do not see the relevance of this evidence.  The courts order is carefully
    drafted to provide that the by-law is applicable in respect of [Airparks]
    landfill activities at the Burlington Executive Airport.  Moreover, we cannot
    see any link between a suppliers decision whether to supply fill and the
    determination of the constitutional question of whether a by-law applies to a
    particular entity and its activities.  This is apples and oranges.

[20]

The
    motion to admit fresh evidence is denied.  The appeal is dismissed.

[21]

The
    respondent is entitled to its costs of the appeal fixed at $22,000 inclusive of
    disbursements and HST.

J.C. MacPherson
    J.A.

Janet Simmons
    J.A.

E.E. Gillese
    J.A.


