Re

Walker et al. and Minister of Housing for Ontario*

Re Walker and City of Chatham

[1983] O.J. No. 2949

41 O.R. (2d) 9

144 D.L.R. (3d) 86

21 M.P.L.R. 249

19 A.C.W.S. (2d) 61

 Ontario

 Court of Appeal

Mackinnon A.C.J.O., Brooke and Zuber JJ.A.

March 2, 1983.

R. J. Rolls, Q.C., Leon Paroian, Q.C., and R. G. Colautti, for appellants.

J. J. Robinette, Q.C., and James B. Gee, Q.C., for respondent, City of Chatham.

Dennis W. Brown, Q.C., for respondent, Minister of Housing.

Lorraine Weinrib, for intervenant, Attorney-General of Ontario.

The judgment of the court was delivered orally by

1 MACKINNON A.C.J.O.:-- We felt it was appropriate to deliver our reasons promptly in this appeal as we hope they will encourage the officials of the Ministry of Transport to move with all dispatch to resolve the problems and difficulties that have arisen. The safety of the flying public and the property interests of citizens are very much involved in these proceedings and there should be no delay in seeking and securing a final resolution of the obvious problems and dangers.

2     The appellants secured leave to appeal three orders of the Divisional Court. Two of the appeals related to an attack on the validity of certain expropriation by-laws of the City of Chatham enacted for the purpose of the Chatham airport, a municipal airport. At the opening of the appeals we were advised that the city had repealed the by-laws and entered into an agreement, dated January 17, 1983, with the Minister of Transport whereby the Minister would attempt to acquire title to or an easement over the lands in issue by negotiation and purchase or by expropriation. It was agreed that the issues raised by these two appeals had become academic and there was no need for them to be argued. We, accordingly, dismissed the two appeals with costs of the appeals and of the applications for leave to appeal to the appellants payable forthwith after taxation. There was also leave to appeal the question of costs and we concluded that we would allow that appeal to the extent that there would be no costs of the applications for judicial review of the by-laws in the court below.

3     The third appeal involves the question of the validity of two orders of the Ontario Minister of Housing made on February 16, 1981, purportedly pursuant to s. 35 of the Planning Act, R.S.O. 1980, c. 379. These two orders imposed height restrictions on the lands of the appellants to the east and west of Chatham airport, opposite the ends of the airport runway which runs east and west. The issues in this appeal were not determined by any action of the municipality or of the Minister of Transport as was the case in the first two appeals and argument was accordingly heard. In view of the nature of the issues raised, a notice of constitutional question was given to the Ministry of the Attorney-General and to the Federal Department of Justice. The Attorney-General intervened in the court below and was represented before us and bore the brunt of the argument on behalf of the respondents. The Minister of Justice was not represented before us nor in the court below which is regrettable as we feel it would have been of considerable assistance to us and to the parties to the litigation to have had the submissions and clarifications on behalf of the Minister of Justice on the issues raised. Mr. Robinette, appearing for the City of Chatham, took the position that his client was not directly involved in this particular appeal and took no part in the argument.

4     The facts were thoroughly canvassed and summarized by Mr. Justice Galligan, speaking for the Divisional Court, and there is no need for a complete recital of all those facts, many of which were relevant only to the first two appeals now dismissed.

5     In 1945 and 1946 the City of Chatham purchased lands in the Township of Raleigh on which lands it has operated a federally- licensed airport for many years. Commencing in 1975, the east-west runway of the airport was graded, paved and extended to a length of 3,000 ft. and a width of 75 ft. The use of the existing north-south runway was discontinued. In 1979, the runway was again extended to 3,800 ft., and the level of air traffic greatly increased. It should be noted that the appellant Walker owns and operates a farm immediately west of and adjacent to the west end of the runway in the Township of Raleigh. The appellant Tomen owns and operates a farm which lies immediately east of the airport, in the Township of Harwich.

6     On March 12, 1979, the Minister of Transport and the City of Chatham entered into an agreement which contained the following provisions of some relevance to the issues in this appeal:

WHEREAS the Corporation has applied to Her Majesty for financial assistance in respect of the construction of a 3000' x 75' paved runway and taxiway and the improvement of the drainage system on an airport situated at or in the vicinity of Chatham in the Province of Ontario.

. . . . .

2. The Corporation shall, at its own cost and expense, acquire use of the land indicated coloured red on the drawing No. 30257 (hereinafter called "Drawing") annexed hereto as Schedule A and forming part hereof.

3. To ensure the continued usefulness and operation of the Airport the Corporation shall acquire the lands shown coloured brown on the Drawing and/or easements for rights-of- way and easements prohibiting the erection of structures thereon, and such other lands and/or easements therein as may from time to time be determined by the Minister and such acquisition to be by a form of agreement satisfactory to the Minister.

7     We are advised that the lands described as "coloured brown" in para. 3 are the lands owned by the appellant Walker.

5. The site for the Airport, approved by the Minister, shall be set aside and maintained by the Corporation for the purpose of establishing a licensed public airport consisting of not less than a 3000' x 75' paved runway and taxiway.

6. The Corporation shall undertake and complete the construction of a 3000' x 75' paved runway and taxiway and the improvement in the drainage system (hereinafter called "Work") all in accordance with the plans and specifications approved by the Minister.

7. The Corporation shall not at any time undertake any airport development work not in accordance with plans and specifications or any revisions thereof approved by the Minister, irrespective of whether such work is to be executed by the Corporation at its own cost and expense or under a grant of financial assistance from Her Majesty, and shall not make any alteration or change in the plans and specifications or consent to the erection or removal of any buildings or the installation of any lights, or make any improvements or change whatsoever, without the consent, in writing, of the Minister.

. . . . .

13. The Corporation shall not, without the consent, in writing, of the Minister being first had and obtained, assume any obligations or make any expenditures under the provisions of this Agreement in respect of the Work at the Airport, which is not in accordance with detailed plans and specifications approved by the Minister.

. . . . .

15. The Corporation shall abide by the Air Regulations, including any amendments thereto, and all other regulations that may be made from time to time by the Minister under the provisions of the Aeronautics Act, being Chapter A-3 of the Revised Statutes of Canada, 1970.

8     It can be seen that the Minister of Transport exercises very direct control over the airport as indeed is his responsibility under the Aeronautics Act, R.S.C. 1970, c. A-3. In the agreement there is no reference to or provision for the expansion of the airport by any provincial agency or authority apart from the municipality itself.

9     The city was unable to acquire lands or easements from Walker who, apparently, was the only landowner adjacent to the airport with whom the city sought to negotiate. Not having acquired the lands or easements as required by para. 3 of the 1979 agreement, the city approached the Townships of Raleigh and Harwich and requested them to amend their zoning legislation and impose the height and easement requirements of the Ministry of Transport. The city advised the townships if any by-laws were enacted that did not contain these restrictions, it would formally object.

10     In the fall of 1978 and early January, 1979, the Township of Raleigh amended its zoning by-law and gave effect to the height restrictions requested. On May 8, 1979, the Township of Harwich followed suit. An explanatory note to the Harwich by-law stated, in part: "Height limitations within lands opposite the runway are revised to bring them into conformity with the latest regulations requested by the City." The "City" is, of course, the City of Chatham.

11     Subsequently, on the advice of their solicitors, both townships revoked these particular by-laws. As the Township of Harwich had had its by-law approved by the Ontario Municipal Board, the board subsequently approved the revoking by-law. In the course of the original decision of the board approving the Harwich by-law, at which hearing the City of Chatham was represented, the board said this: "A major issue was that of the provisions in the by-law to protect the runway of the municipally owned Chatham Airport", and later: "The purpose of these provisions is the protection for aircraft proceeding into and from Chatham Airport on the only runway which runs in an east and west direction ...".

12     The height restrictions in its by-law having been repealed, Harwich granted to the appellant Tomen on August 14, 1980, a permit to build a grain silo on his farm. The appellant Walker, for his part, commenced construction of a silo on his farm in October, 1980, which was completed by the end of November, 1980, and which, apparently, obstructs the flight path of aircraft using the Chatham Airport. He subsequently commenced the construction of a hog barn.

13     The City of Chatham, understandably concerned about the activities of some of the appellants, made formal application to the Ministry of Transport to have the airport protected by federal airport restricted zoning regulations. The solicitor for the appellant Walker was advised by telegram on October 23, 1980, that such application had been made. On November 10th, a follow-up letter was sent to Walker's solicitor confirming the contents of the telegram and advising that Transport Canada was recommending to the Minister that zoning regulations be enacted under s-ss. 6(1)(j) and 6(10) of the Aeronautics Act. This was a clear indication that the responsible federal ministry had taken up the question of height restrictions. From later correspondence it was evident that the Minister hoped that negotiations would be continued between the city and the appellants and the matter settled amicably without the need for the imposition of federal controls or restrictions.

14     Counsel for the appellants takes issue with the statement in the reasons of the Divisional Court that: "In this case the federal authorities have declined to impose the height restrictions around this airport which they think are appropriate to it" [37 O.R. (2d) 325 at p. 334, 134 D.L.R. (3d) 117 at p. 126, 25 L.C.R. 84 at p. 93, 13 O.M.B.R. 490n]. From the correspondence, including the letter of the Minister, Mr. Pepin, of December 22, 1980, it is clear that the ministry hoped that negotiations would continue and indeed there was correspondence between the parties up until February 16, 1981, the day the now questioned orders were made. We do not think that as of February 16th it could be said that the federal authorities had declined to impose the necessary height restrictions.

15     Section 35(1)(a) of the Planning Act states:

35(1) The Minister may by order,

(a) with respect to any land in Ontario, exercise any of the powers conferred upon councils by section 39 without the approval of the Municipal Board ...

16     Section 39 falls under Part III of the Planning Act headed "Restricted Area and Building By-laws". Section 39(1), para. 4 reads:

39(1) By-laws may be passed by the councils of municipalities:

. . . . .

4. For regulating the cost or type of construction and the height, bulk, location, size, floor area, spacing, external design, character and use of buildings or structures to be erected within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway, and the minimum frontage and depth of the parcel of land and the proportion of the area thereof that any building or structure may occupy.

The side note to this paragraph reads: "Construction of buildings and structures".

17     We are advised that it is this paragraph, brought into play by s. 35(1), on which the Minister of Housing relies as authority for the two orders he made on February 16, 1981. The orders deal only with height of buildings or structures which may hereafter be erected on the appellants' lands located under the flight paths of the Chatham Airport. The height restrictions, it is agreed, are identical with those set by the Ministry of Transport. The orders are not concerned in their terminology with the use of land or the type of structure, only with limiting the height of any structure. One order applied to the appellants' lands at the east end of the runway and the other to the appellants' lands at the west end of the runway.

18     Counsel for the appellants agrees that simply because the airport exists it does not mean that it is immune or insulated from provincial or municipal laws of general application which do not interfere or deal with its operations as an airport. He gives as an example the requirement that vendors on airport lands must collect provincial sales tax. However, he argues, on the authorities, that the legislative activity must be classified or categorized as to subject-matter in order to determine its constitutional validity. If the subject-matter falls within the exclusive legislative jurisdiction of one Legislature the other cannot intermeddle in that jurisdiction or with that particular subject-matter.

19     Mr. Justice Galligan made the following findings with which factual findings we are in complete agreement [p. 331 O.R., p. 123 D.L.R., pp. 90-1 L.C.R.]:

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.

and [at p. 331 O.R., p. 124 D.L.R., p. 91 L.C.R.]:

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, [1952] 1 S.C.R. 292, [1951] 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.

20     Although counsel for the Attorney-General and the Minister of Housing agree that the subject of aeronautics is within the legislative authority of Parliament, they argue that the "double aspect" principle applies in the instant case and that the orders, although affecting the airport, are legislation with relation to land-use control, a subject-matter within the legislative jurisdiction of the province. When questioned as to the purpose of such land-use control, counsel suggested that it was to safeguard persons and property and to facilitate the use of the airport, not to regulate it. It is also said that the purpose of the height limitation is to provide compatible land use around the airport. However, there is not a hint of land-use control, as such, in the orders, and the history of the matter which we have recited makes it clear that the orders were to protect the flight paths as a necessary and integral part of the effective and safe use of the airport. It should be noted that under the federal aeronautics legislation when such height restriction regulations are enacted the persons affected may claim compensation. No compensation can be claimed by anyone affected by the present provincial orders although they have been put in place for the identical purpose and with the same result as federal legislation would be enacted.

21     That the field of aeronautics is a legislative subject-matter exclusively reserved to the Parliament of Canada was established by Re Aerial Navigation; A.-G. Can. v. A.-G. Ont. et al., [1932] 1 D.L.R. 58, [1932] A.C. 54 sub nom. Re Regulation & Control of Aeronautics in Canada, [1931] 3 W.W.R. 625 sub nom. Reference re Aeronautics in Canada. Counsel for the appellants points out that when the referral was before the Supreme Court of Canada that court was not prepared to hold that Parliament had exclusive legislative jurisdiction over aerial navigation, some members preferring to substitute "paramount" for "exclusive". The Judicial Committee had this view of the Supreme Court very much in mind when they held that there was no local field of jurisdiction in this particular subject-matter. Lord Sankey, for the Judicial Committee, summed up as follows (p. 70 D.L.R., p. 77 A.C.):

To sum up, having regard (a) to the terms of s. 132; (b) to the terms of the Convention which covers almost every conceivable matter relating to aerial navigation; and (c) to the fact that further legislative powers in relation to aerial navigation reside in the Parliament of Canada by virtue of s. 91(2), (5) and (7), it would appear that substantially the whole field of legislation in regard to aerial navigation belongs to the Dominion. There may be a small portion of the field which is not by virtue of specific words in the B.N.A. Act vested in the Dominion; but neither is it vested by specific words in the Provinces. As to that small portion it appears to the Board that it must necessarily belong to the Dominion under its power to make laws for the peace, order and good government of Canada. Further, their Lordships are influenced by the facts that the subject of aerial navigation and the fulfilment of Canadian obligations under s. 132 are matters of national interest and importance; and that aerial navigation is a class of subject which has attained such dimensions as to affect the body politic of the Dominion.

22     As was emphasized by Chief Justice Rinfret in Johannesson et al. v. Rural Municipality of West St. Paul et al., [1952] 1 S.C.R. 292 at p. 303, [1951] 4 D.L.R. 609 at pp. 610-1, 69 C.R.T.C. 105, Parliament has occupied the field:

In those circumstances it would not matter that Parliament may not have occupied the field. But, moreover, the convention on International Civil Aviation, signed at Chicago on December 7, 1944, has since become effective; and what was said in the Radio Reference, [1932] A.C. 304, by Viscount Dunedin at p. 313, applies here. Although the convention might not be looked upon as a treaty under s. 132 of the British North America Act, "it comes to the same thing''.

I fail however to see how it can be argued that the Dominion Parliament has not occupied the field. The Aeronautics Act, R.S.C. 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 the 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 airstations, etc."

23     Mr. Justice Kellock, speaking for himself and Mr. Justice Cartwright, said somewhat the same thing (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.

24     Mr. Justice Estey, at p. 319 S.C.R., p. 620 D.L.R., quoted with approval the definition of aeronautics found in Corpus Juris, 2 C.J.S. 900, namely: "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". He went on to state that it was impossible to separate the flying in the air from the taking off and landing and that it was "wholly impractical, particularly when considering the matter of jurisdiction, to treat them as independent one from the other". This seems to be a statement particularly apposite to this appeal.

25     The Divisional Court relied on Hamilton Harbour Com'rs v. City of Hamilton et al. (1978), 21 O.R. (2d) 459, 91 D.L.R. (3d) 353, 6 M.P.L.R. 183, as supporting their conclusion that the "aspect theory" applies here and that there is an overlapping of jurisdiction; so long as there is no conflict between the pieces of legislation, the provincial legislation is valid and effective. They came to the conclusion that the province was acting to control use of land in the province. It was in the aspect also of the operation of municipal airports and in order "to assist one of its municipalities in the fulfillment of one of its legitimate functions [that] 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" [p. 334 O.R., p. 126 D.L.R., p. 94 L.C.R.]

26     A private individual or corporation can own and operate an airport provided it is licensed by the responsible federal authorities. The fact that it is licensed, in our view, does not confer on it any legislative jurisdiction over the aerodrome or its environs for the purpose of its aeronautical operations, nor does such licence give such jurisdiction to a municipality or a province.

27     In Hamilton Harbour Com'rs v. City of Hamilton, supra, Mr. Justice Griffiths at pp. 485-6 O.R., pp. 379-80 D.L.R., quoted from Mr. Justice Aylesworth's reasons in Bramalea Consolidated Developments Ltd. v. A.-G. Ont. et al., [1971] 2 O.R. 570:

I regard lands owned by the Commissioners, not presently being used or developed for shipping and navigation purposes, as being in the same category as lands surrounding an airport but not being used directly for airport purposes. The jurisdiction of the municipality to exercise a land-use control over the latter was recognized by Aylesworth, J.A., in delivering the judgment in Bramalea Consolidated Developments Ltd. v. A.-G. Ont. et al., [1971] 2 O.R. 570 at pp. 570-1:

"... the federal jurisdiction [with respect to aerial navigation] stops short of and is not in conflict with the provincial jurisdiction concerning property and civil rights beyond the protection and interests of such navigation. In other words, the beneficial use of any lands surrounding an airport is a matter solely under the control of the provincial authorities save in the respect I have mentioned; any beneficial uses of the land which would not interfere with or affect aerial navigation are not the subject-matter of the Aeronautics Act; they remain solely within the jurisdiction of the Province."

(Emphasis added.)

28     The important words in that passage in relation to the issues raised in this appeal are "beyond the protection and interests of such navigation" and "would not interfere with or affect aerial navigation". Earlier in his reasons (p. 484 O.R., p. 378 D.L.R.) Mr. Justice Griffiths had said:

In my opinion, land-use control within a harbour has both provincial and federal aspects. I conclude that the City pursuant to s. 35 of the Planning Act may validly pass a zoning by-law affecting land use within the harbour so long as it does not explicitly attempt to prohibit or regulate the use of land for purposes related to navigation and shipping. Similarly, the Commissioners, pursuant to s. 15 of the Commissioners' Act, 1912, may validly pass by-laws to regulate and control the use and development of land within the harbour for purposes related to navigation and shipping. Only if conflict arises with respect to the use of a parcel of land within the limits of the harbour, will the paramountcy of the federal power cause the operation of the by-law of the City to be suspended.

29     Once again the words to be emphasized are "does not explicitly attempt to prohibit or regulate the use of land for purposes related to navigation and shipping" (emphasis added).

30     As we see it the whole and sole purpose of the orders in question is to affect or regulate the use of the airspace or flight paths adjacent to the airport for aerial navigation and the use of the airport, a legislative subject-matter, as we have said, reserved exclusively to Parliament. As was pointed out by this court in Re Orangeville Airport Ltd. and Town of Caledon et al. (1976), 11 O.R. (2d) 546 at p. 550, 66 D.L.R. (3d) 610 at p. 614: "Whether the Dominion has wholly occupied the field is ... irrelevant, although when one examines the present Aeronautics Act and its Regulations, a powerful argument can be made that it has occupied the field."

31     Section 6(1)(j) of the Aeronautics Act reads as follows:

6(1) Subject to the approval of the Governor in Council, the Minister may make regulations to control and regulate air navigation over Canada, including the territorial sea of Canada and all waters on the landward side thereof, and the conditions under which aircraft registered in Canada may be operated over the high seas or any territory not within Canada, and, without restricting the generality of the foregoing, may make regulations with respect to

. . . . .

(j) the height, use and location of buildings, structures and objects, including objects of natural growth, situated on lands adjacent to or in the vicinity of airports, for purposes relating to navigation of aircraft and use and operation of airports, and including, for such purposes, regulations restricting, regulating or prohibiting the doing of anything or the suffering of anything to be done on any such lands, or the construction or use of any such building, structure or object;

32     If evidence were needed that such controls are considered essential by Parliament to the safe and proper operation of airports, this subsection supplies that evidence. In the instant case in the most recent agreement of January 17, 1983, between the Minister of Transport and the City of Chatham, referred to earlier, the recitals state:

AND WHEREAS certain structures have been erected on the said lands adjacent to the Chatham Municipal Airport, which the Minister of Transport has determined to be a threat to safe aerial navigation in the vicinity of the said Airport;

AND WHEREAS pursuant to the Aeronautics Act the Minister of Transport is required to supervise all matters connected with aeronautics including, inter alia, the licensing of all land used as an aerodrome;

AND WHEREAS the Minister is desirous of acquiring the fee simple in certain lands adjacent to the Chatham Municipal Airport in order to ensure the safe ingress and egress of aerial navigation;

Paragraph 13 covers the possible enactment of zoning regulations and reads:

13. The Corporation shall reimburse to Her Majesty, forthwith upon demand, all costs incurred should the Minister, in his absolute discretion, enact zoning regulations pursuant to the Aeronautics Act at the Chatham Municipal Airport including, without limiting the generality of the foregoing, the costs incurred in the enactment of the said zoning regulations relating to surveys, appraisals, title searches and registration fees and for any monies paid in satisfaction of claims made for injurious affection pursuant to the Aeronautics Act, whether such monies are paid pursuant to a negotiated settlement or a judgment of a court of competent jurisdiction.

33     If the provincial orders are valid there would, of course, be no need for para. 13.

34     We have come to the conclusion that no question of the aspect doctrine or of applying the paramountcy principle arises in this case. The orders attacked are orders in relation to aeronautics, a subject-matter reserved to the exclusive legislative jurisdiction of the Parliament of Canada. The whole history of the orders and their factual background establish that purpose and legislative subject-matter and we are not persuaded that we should now do some ex post facto rationalizing in an attempt to support their validity.

35     The appeal is, accordingly, allowed with costs, the order of the court below is set aside and in its place will go an order quashing the orders of the Minister of Housing of February 16, 1981, designated as O. Reg. 69/81 and O. Reg. 70/81, with costs.

Appeal allowed.