Walker et al. v. Minister of Housing for Province of Ontario;
Walker v. City of Chatham
(1982), 37 O.R. (2d) 325
HIGH COURT OF JUSTICE
GALLIGAN, REID and TRAINOR JJ.
APRIL 30, 1982
Constitutional law -- Municipal airports -- Federal government refusing to impose height restrictions required for safe operation of airport -- Right of province to authorize exercise of statutory powers in relation to airports -- Planning Act, R.S.O. 1980, c. 379, s. 35.
In 1946, Chatham established a municipal airport and purchased land for that purpose. The law of Ontario at the time authorized the municipality to do so. At the time, the municipal council neglected to pass the authorizing by-laws which were contemplated by the statute. Until the mid-1970's Chatham operated the airport with appropriate licencing from the federal aviation authorities. In the early or mid-1970's, Chatham City Council decided to expand and improve the runway to accommodate more diversified aircraft and increasing traffic. The federal Department of Transport specified certain height restriction regulations required around the airport. The applicants, whose lands were located in townships adjacent to the City of Chatham, contended that the use of their lands would be affected by the proposed height restrictions. These townships initially passed zoning by-laws effecting the necessary height restrictions, but later repealed them, and the federal Minister of Transport refused to impose the necessary height restrictions under the zoning powers conferred by the Aeronautics Act, R.S.C. 1970, c. A-3, s. 6(1)(j).
On February 16, 1981, the Minister of Housing for Ontario, acting pursuant to powers conferred by s. 35 of the Planning Act, R.S.O. 1980, c. 379, imposed height restrictions over the relevant parts of the adjacent townships. Those restrictions were in all substantial respects identical to those which would have been imposed by the federal Minister of Transport had he exercised his zoning powers under the federal Aeronautics Act. On March 16, 1981, Chatham passed expropriating by-laws in order to acquire the applicants' lands upon which certain obstructions contrary to the height restrictions were located. This action was taken pursuant to s. 208, para. 10 of the Municipal Act, R.S.O. 1980, c. 302. Section 208 specifically made the rights ofthe municipality in relation to airports subject to federal regulatory authority. In late 1981, Chatham realized that the city had never passed by-laws authorizing the establishment of its airport or the purchase of lands for that purpose, and on December 7, 1981, passed by-laws to correct the situation. The applicants applied to the Divisional Court for judicial review. Before the Court, the applicants took the position:
(a) that because Chatham did not pass by-laws authorizing the establishment of the airport and the purchase of lands for the airport prior to passing its expropriating by-laws, it did not have power to expropriate lands for the purpose of improving the airport;
(b) that the exercise of power by the minister under the Planning Act was ultra vires and that s. 208, para. 10 of the Municipal Act which authorized expropriation for airport purposes was similarly ultra vires, in that the legislature of Ontario could not authorize the exercise of statutory powers in relation to airports, which were exclusively within federal jurisdiction.
the application should be dismissed.
Section 208, para. 10 of the Municipal Act authorizes municipalities to acquire land to improve its airports; therefore, the by-laws passed in late December of 1981 cured any technical defect in Chatham's jurisdiction to acquire property to improve the airport. The by-laws on their face showed clear legislative intent that they speak retroactively to 1946, and did not affect any vested rights.
With respect to the constitutional issue, there could be no doubt that the statutory powers found in the Planning Act and the Municipal Act were in this case exercised in relation to the improvement and operation of an airport. The operation and regulation of airports fell within the legislative competency of Parliament; however, it was a reasonable function of a municipal council to provide an airport for its inhabitants pursuant to s. 92(8) of the British North America Act, 1867 (U.K.), c. 3 (now Constitution Act, 1867). Given that the provincial legislature had the power to authorize the establishment and operation of an airport, it followed that the province had the right to authorize measures to promote the safe operation of the airport, so long as those measures did not conflict, infringe upon, or frustrate the right of Parliament to legislate in relation to aeronautics generally. This was a proper case for the application of the "aspect" doctrine as the mere fact that the airport fell within the legislative competence of Parliament of Canada did not make it a federal enclave immune from provincial statutory authority that was harmonious and compatible with the federal power.
[Johannesson et al. v. West St. Paul,  1 S.C.R. 292,  4 D.L.R. 609, 69 C.R.T.C. 105; Re Orangeville Airport Ltd. and Town of Caledon et al. (1976), 11 O.R. (2d) 546, 66 D.L.R. (3d) 610; Re Regulation and Control of Aeronautics in Canada,  A.C. 54; Re de Havilland Aircraft of Canada Ltd. and City of Toronto and two other applications (1980), 27 O.R. (2d) 721, 109 D.L.R. (3d) 269, 12 M.P.L.R. 151; Hodge v. The Queen (1883), 9 App. Cas. 117; Hamilton Harbour Commissioners v. City of Hamilton et al. (1978), 21 O.R. (2d) 459, 91 D.L.R. (3d) 353, 6 M.P.L.R. 183, consd; Quinn V. Leathem,  A.C. 495, refd to]
APPLICATION for judicial review of orders by the Minister of Housing made pursuant to s. 35 of the Planning Act, and for review of an expropriating by-law passed by the City of Chatham.
L. Paroian, Q.C., R. G. Colautti, and R. G. McLister, for applicants.
J. J. Robinette, Q.C., and J. B. Gee, Q.C., for City of Chatham.
D. Brown, Q.C., for Minister of Housing.
Lorraine E. Weinrib, for Attorney-General of Ontario.
The judgment of the Court was delivered by
GALLIGAN J.:-- There are three applications for judicial review before the Court. They were argued together and conveniently can be disposed of together. Unless I say otherwise, references to provisions of Ontario statutes will be to the sections contained in the 1980 revision of those statutes.
The first application challenges the legal validity of two orders of the Minister of Housing for Ontario dated February 16, 1981, made pursuant to s. 35 of the Planning Act, R.S.O. 1980, c. 379 and seeks consequential relief if successful.
The second application challenges the legal validity of an expropriating by-law passed by Chatham, expropriating a part of Mr. Walker's lands, and seeks consequential relief if successful.
The third application challenges the legal validity of a Chatham by-law that amended the by-law which is the subject of the second application, and seeks consequential relief if successful.
There was a second amending by-law which was passed after these applications were launched. It was before us as though an application had been launched in relation to it and I deem it to be included in the issues before us.
The heart of this dispute is the Chatham City airport. The circumstances giving rise to the dispute have caused strong feelings on the part of both sides in the dispute. We are told that the dispute has generated other legal proceedings and I would be surprised if it does not generate more proceedings as time goes on. Since I think that the issues before this Court are strictly legal, I do not propose to make any more reference to the circumstances than is absolutely necessary. Constitutional questions are raised and appropriate notices were served. The Attorney-General for Ontario appeared and participated. The Attorney-General for Canada did not appear.
In 1946 Chatham established a municipal airport and purchased land for that purpose. The law of Ontario at the time authorized the municipality to do so. (See R.S.O. 1937, c. 266, s. 404, para. 31). At the time, the Municipal Council neglected to pass the authorizing by-law or by-laws which were contemplated by the statute.
The airport is located in the Township of Raleigh which is adjacent to Chatham. From that time to this Chatham has operated the airport with appropriate licencing from the federal aviation authorities.
For many years only one runway has been in use. In the material it has been referred to without geographical precision as an east-west runway. For purists the correct description is 230 degrees or its reciprocal 50 degrees. I will use the imprecise geographical description of east-west.
Until the early or mid-1970's the airport was mainly used by small, light pleasure aircraft. By that time, traffic was apparently substantially increasing and it became apparent that people wished to operate larger, faster and heavier aircraft in and out of the airport. In accordance with this desire, Chatham Council decided to expand and improve the runway, to accommodate those aircraft and the increasing traffic. That is when the trouble began.
Among his substantial land holdings in the area, the applicant, Mr. Walker, owns a 100 acre farm immediately to the west of the airport property. The extension westerly of the runway beyond the west boundary of the airport crosses this farm. The other applicants are land owners in the vicinity of the airport and reside in either the Township of Raleigh or the Township of Harwich.
The predictable confrontation began. On the one side are the applicants who, for reasons that appear valid to them, do not want to see airport expansion. On the other side is Chatham Council, the members of which, for reasons that appear valid to them, acting in the interests of the municipality, think there should be expansion of the airport. It is no part of the task of this Court even to attempt to weigh the merits of the conflicting positions, or to pass judgment upon the steps taken by the opposing sides to advance their respective interests. This Court is only authorized to decide whether legally the minister's orders and the by-laws in question are valid.
In order to assist in the financing of the expansion, Chatham applied to the federal Department of Transport for a grant which was forthcoming upon condition that Chatham obtained height restriction easements around the airport.
It isa patently obvious that in order for there to be a useful airport there must be height restrictions surrounding it. The federal Department of Transport specified in precise detail what height restrictions its regulations required around this airport. I will not review those details because it will suffice to say that they were graduated. The closer the airport the lower the limit, and as the distance from the airport increased the limit became higher. The applicants all contend that their use of their lands would be affected by the proposed height restrictions.
It is clear that Chatham did not get the height restrictions by easements granted to it by the applicants. Much was said about whether realistic efforts were made to obtain those easements by agreement. In my view that is irrelevant. The fact is that the restrictions were not obtained by Chatham.
While the airport is located in the Township of Raleigh, it is located on the west boundary of the Township of Harwich, and a substantial part of the land which would be affected by the height restrictions is in that township.
Chatham approached Raleigh and Harwich and sought zoning legislation by by-law under the Planning Act containing the appropriate height retrictions. Both townships passed zoning by-laws affecting the necessary height restrictions, but later repealed them.
The federal Minister of Transport was then asked to impose the necessary height restrictions under the zoning powers conferred by s. 6(1)(j) of the Aeronautics Act, R.S.C. 1970, c. A-3. It appears that he considered doing so but ultimately declined.
On February 16, 1981, the Minister of Housing for Ontario, acting pursuant to the power conferred by s. 35 of the Planning Act, by two orders imposed height restrictions over the relevant parts of the Townships of Raleigh and Harwich. It was agreed by counsel in argument before us that while there are some slight differences in detail, those height restrictions are in all substantial respects identical with those which would have been imposed by the federal Minister of Transport had he exercised his zoning powers under the Federal Aeronautics Act. Those orders imposed the height restrictions required by the federal Department of Transport.
Between the repeal of the Raleigh township zoning by-law which had contained the height restrictions, and the time that the Minister of Housing's zoning was in place, the applicant, Mr. Walker, constructed a 75 ft. silo and some other farm buildings at the east edge of his farm, in line with the runway and very close to its westerly end. The situation is graphically depicted in the photographs at pp. 8 and 9 of the supplementary record, although they do not show the other building or buildings constructed since those pictures were taken. Also the silo has in fact been completed since those photos were taken.
In order for the airport to be operationally functional in its expanded form, it is necessary to remove the silo and the other buildings because they constitute a serious hazard to the full use of the runway. Consequently, on March 16, 1981, Chatham passed the first of its expropriating by-laws in order to acquire the land upon which the obstructions are located, and presumably to remove them.
For the purposes of these reasons for judgment the narrative can be concluded by saying that in late 1981 Chatham realized that it had never passed by-laws authorizing the establishment of its airport, or the purchase of lands for that purpose. On December 7, 1981, it passed by-laws 7990 and 7992 which respectively authorized the establishment of the airport and the purchases of land which forms the airport.
While the major attack upon the expropriating by-laws like that upon the zoning order is made upon constitutional grounds, there is an attack upon other grounds on the expropriating by-laws. I will deal with that attack before considering the constitutional issues.
As I understand the position taken by the applicant Walker, it is this. Because Chatham did not pass its by-laws authorizing the establishment of the airport and the purchase of lands for the airport, prior to passing its expropriating by-laws, it did not have power to expropriate his lands for the purpose of improving the airport.
The enabling legislation is found in 208, para. 10 of the Municipal Act, R.S.O. 1980, c. 302. That provision reads as follows:
208. By-laws may be passed by the councils of all municipalities:
. . . . .
Air Harbours and Landing Grounds
10. For establishing, operating, maintaining and improving aerodromes in compliance with the Air Regulations (Canada), and for entrusting the control and management of any aerodrome so established to a commission appointed by the council.
(a) For the purpose of this paragraph, the council of a local municipality may acquire land in the municipality or in any adjacent or adjoining municipality or in any adjacent or adjoining territory without municipal organization, or may acquire by lease or otherwise an existing aerodrome in any municipality or in territory without municipal organization.
The argument was that, because the by-laws authorized by that section have not been passed, legally no airport had been established and therefore Chatham could not acquire land to improve it. Whatever merit the technical niceties of that argument might have had, I am satisfied that by-laws 7990 and 7992 passed on December 7, 1981, cured any technical defect in Chatham's jurisdiction to acquire Mr. Walker's property to improve the airport.
The by-laws on their face, show the clearest legislative intent that they speak retroactively to 1946, when in fact the airport was established, and in fact the land for it was purchased. The by-laws do not affect any vested rights, and it is clear, not only from the face of each by-law, but from all of the circumstances leading up to and surrounding their passing, that they were intended to speak as of 1946.
The establishment and operation of an airport were proper functions of a municipal government in 1946. The airport has been in existence and had been operating for 35 years by December 7, 1981. No vested rights have been affected. The by-laws merely confirmed and ratified what Chatham in fact did, and what it was lawfully empowered to do.
In those circumstances I have no hesitation in holding that those by-laws ought to be given retrospective effect.
It is therefore my opinion that those by-laws cured any technical defect which may have existed in Chatham's jurisdiction to acquire land to improve its airport. I am satisfied that s. 208, para. 10 of the Municipal Act authorized Chatham to acquire land to improve its airport. Assuming the constitutional validity of that provision, I find the expropriating by-laws are authorized by law, because since the municipality is authorized by s. 208, para. 10 to acquire land for airport improvement, s. 5 of the Municipal Act authorizes it to expropriate.
That brings me to consider the constitutional issue which seems to me to be the only real point in these applications. The constitutional challenge to the Minister of Housing zoning orders and to the expropriating by-laws is bold and broadly based. There can be no doubt on all of the evidence that the fundamental purpose of the Minister's zoning orders, and of the expropriating by-laws is to permit the expansion, perhaps a more technically correct word, having regard to the language of s. 208, para. 10, is improvement of the airport, so that it can accommodate larger and faster aircraft, and enable the provision of regularly scheduled commercial passenger service to the community, instead of remaining a very minor airport accommodating small, light pleasure aircraft. In order to attain that status it is absolutely necessary that the height restrictions imposed by the Minister of Housing be in place, and that the land upon which the obstructing silo and buildings exist, be expropriated so that those obstructions can be removed. If the height restrictions are not in place, and if the obstructions are not removed, the airport simply cannot be improved to accommodate the type of aircraft traffic desired by the Council of Chatham. Therefore I have not the slightest doubt that the statutory powers under the Planning Act, and under the Municipal Act, are being exercised by the minister and council, respectively, for the primary, the fundamental purpose of substantially improving and upgrading this airport. Lest there be any doubt about the premise from which I examine the constitutional issue, I am completely satisfied that the statutory powers conferred by the Planning Act and the Municipal Act in this case were exercised in relation to the improvement and operation of an airport. They were exercised to promote the safe operation into and out of the airport by large, fast aircraft, and by commercial aircraft.
No one challenged in this Court the authority of the Minister of Housing to make the zoning orders he did, so long as he did so for a purpose contemplated by s. 92 of the British North America Act, 1867 (U.K.), c. 3 [now Constitution Act, 1867]. Likewise no one challenged the authority of the municipality to expropriate lands, so long as it was authorized by the Municipal Act to do so, and did so for a purpose within s. 92 of the British North America Act.
The contention of the applicants is that in this case those statutory powers were exercised in relation to an airport. With this contention I agree. It is next suggested that airports are inextricably connected with the larger subject of aeronautics. There is substantial jurisprudence which supports that suggestion. (See Johannesson et al. v. West St. Paul,  1 S.C.R. 292,  4 D.L.R. 609, 69 C.R.T.C. 105, and Re Orangeville Airport Ltd. and Town of Caledon et al. (1976), 11 O.R. (2d) 546, 66 D.L.R. (3d) 610).
It is now trite that legislation respecting aeronautics falls within the legislative competence of Parliament of Canada under s. 91 of the British North America Act. Johannesson et al. v. West St. Paul, supra; Re Orangeville Airport Ltd. and Town of Caledon et al., supra; Re Regulation and Control of Aeronautics in Canada,  A.C. 54; Re de Havilland Aircraft of Canada Ltd. and City of Toronto and two other applications (1980), 27 O.R. (2d) 721, 109 D.L.R. (3d) 269, 12 M.P.L.R. 151.
It is suggested on behalf of the applicants therefore, that the Legislature of Ontario could not authorize the exercise of statutory powers in relation to airports, and that the exercise of that power by the minister under the Planning Act was ultra vires, and that s. 208, para. 10 of the Municipal Act which authorized expropriation for airport purposes is ultra vires, and that the by-laws passed pursuant to that section are invalid.
The essential contention of the applicants is that legislation respecting or in relation to airports is exclusively a matter for the Parliament of Canada, and the provinces are without legislative competence in respect to them.
There are some strong statements in decided cases that support that contention. For example, in Orangeville Airport, supra, at p. 550 O.R., MacKinnon J.A., as he then was, made this statement:
The subject-matter of aeronautics is within the exclusive legislative authority of Parliament and a portion of the field is not vacant because it may not have legislated on that subject-matter in every one of its details.
Kellock, J., speaking for himself and Cartwright, J. (as he than was), used words that are relevant in this appeal, and which all members of the Court in the Johannesson case echoed in one form or another [at p. 311 S.C.R., pp. 623-4 D.L.R.]:
"It is no doubt true that legislation of the character involved in the provincial legislation regarded from the standpoint of the 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."
The headnote of Re Regulation and Control of Aeronautics in Canada, supra, makes the following statement:
The whole field of legislation in relation to aerial navigation in Canada belongs to the Dominion.
Those examples are not exhaustive, and are merely illustrative of the type of statements relied upon by the applicants, and which statements appear in a number of cases. I think in considering those statements it is worthwhile to remind oneself of the Earl of Halsbury's caution in Quinn v. Leathem,  A.C. 495 at 506 where he said this:
... every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.
It is worth remembering that in Re Regulation and Control of Aeronautics in Canada, supra, Johannesson case, supra, Orangeville case, supra, de Havilland case, supra, the courts were concerned with the problem of whether the provinces could regulate the location or use of airports in the exercise of s. 92 powers. In each of those cases it was contended that the province could authorize actions which would clearly impinge upon or frustrate the exercise of the federal power to legislate in relation to aeronautics. It is in that context that I think those strong statements must be read.
I do not read any of the aeronautics cases referred to by counsel, nor indeed any of the cases on this issue, as overruling the aspect theory enunciated almost one hundred years ago in Hodge v. The Queen (1883), 9 App. Cas. 117. In that case it was pointed out that subjects may in one aspect or for one purpose fall within s. 92, while in another aspect and for another purpose fall within s. 91.
I do not read the aeronautics cases as rendering inapplicable those cases which have recognized that there can be areas where there is overlapping of jurisdiction, and so long as there is no conflict between legislation the provincial legislation is valid and effective. If there is conflict, then it has been recognized that the federal jurisdiction prevails. These principles have recently been reviewed by Griffiths J. in a judgment described by the Court of Appeal when it approved it, as being lucid and comprehensive. (See Hamilton Harbour Commissioners v. City of Hamilton et al. (1978), 21 O.R. (2d) 459, 91 D.L.R. (3d) 353, 6 M.P.L.R. 183.
It is of course obvious that airports, their operation and regulation fall within the legislative competence of Parliament. It seems to me however that there is an aspect of airports that properly falls within s. 92 of the British North America Act.
The respondents contend that an airport can have a s. 92 aspect under heads 8, 10, 13 and 16. I do not think I have to go beyond head 8 -- Municipal Institutions -- to find a s. 92 aspect to airport. It seems to me that it is a reasonable function of a municipal council to provide an airport for its inhabitants. Indeed, in many cases there is no one else with the resources to provide that facility to local residents. An airport is a reasonable amenity to a municipality, and I cannot think of any reason why a provincial legislature, exercising its power under s. 92, head 8, could not authorize municipalities to establish and operate one.
Given the right to authorize the establishment and operation of airports, I can think of no reasonable bar to a province's right to authorize measures to promote safe operation of the airport, so long as those measures do not conflict with, impinge upon or frustrate the right of Parliament to legislate in relation to aeronautics generally.
In this case the federal authorities have declined to impose the height restrictions around this airport which they think are appropriate to it. It is clear from the material that the federal authorities have been encouraging and supportive of Chatham's desire and plans to improve its airport. For reasons which it would be idle for me to speculate upon, those authorities have declined to impose the height restrictions they think appropriate by exercising their own zoning powers. The imposing by the Minister of Housing of those restrictions, far from conflicting with the federal power to regulate, complements, abides by and is harmonious with it.
In the Hamilton Harbour case, supra, Griffiths J. at p. 485 O.R. appears to have tried to find a reasonable and practical solution to a constitutional law problem. I think there is a reasonable and practical solution to this problem, and I think it ought to be adopted.
The federal authorities have made it clear what height restrictions they think appropriate for the operation of this airport, but have, themselves, declined to impose them. Without them, the airport cannot be operated as desired. In order to assist one of its municipalities in the fulfilment of one of its legitimate functions, the provincial authorities acting under the province's legitimate power to control the use of land in the province, imposed the very height restrictions suggested by the federal authorities.
Since there is no conflict, and since there is an aspect of the operation of airports that falls within s. 92, it seems reasonable to me and not in discord with recent authority that the provincial legislative authority be held valid and effective, unless and until it comes into conflict with the federal legislative power.
I wish to use an expression of Griffiths J. in Hamilton Harbour, supra, at p. 483, in a slightly different context. I do not think that the fact that an airport falls within the legislative competence of Parliament of Canada makes it a federal enclave immune from provincial statutory authority that is harmonious and compatible with the federal power.
Section 208, para. 10 of the Municipal Act does not, and does not purport to conflict with the federal legislative authority over aeronautics. By its very terms it makes the right of a municipality to establish, operate, maintain and improve airports specifically subject to the federal regulatory authority.
I am satisfied that the power exercised by the minister under s. 35 of the Planning Act, and the power granted to Chatham under s. 208, para. 10 of the Municipal Act, are powers conferred on the province by s. 92 of the British North America Act, and that their exercise in this case did not conflict with, impinge upon, or frustrate any of the federal powers to regulate aeronautics. It is my opinion, therefore, that the orders of the Minister of Housing, dated February 16, 1981, are intra vires the provincial authority and are valid. It is also my opinion that s. 208, para. 10 of the Municipal Act is intra vires the Legislature of Ontario, and that the expropriating by-laws passed under that section are valid.
An issue was raised in the applicants' statement of fact and law about the constitutional validity of the Airports Act, R.S.O. 1980, c. 16. It could not be said that an attack was made upon it, but rather that a swipe was taken at it while the attack was made upon . 208, para. 10 of the Municipal Act. The Chatham airport is not governed in any way by that Act, and I decline to make any comment about its constitutional validity.
Before leaving the case there is an observation that I want to make. If the federal authorities had imposed the height restrictions by exercising its zoning powers conferred by section 6(1)(j) of the Aeronautics Act, these applicants would have been entitled to claim compensation against the federal Crown for injurious affection pursuant to s-s. (10) of that section. There is, of course, no similar right to claim compensation under the Planning Act. Since the zoning was imposed under the latter Act they have no right to claim compensation. That result is obviously and understandably a disappointing one for the applicants. While it is an anomalous result the solution is a political one, not a legal one, and this Cout is unable to remedy the anomaly.
In the result all three applications are dismissed.
There will be no costs to the Minister or to the Attorney-General seeing they have not asked for costs. The respondent City of Chatham will have its costs against the applicants.