Re

Vanderschot et al. and Corporation of the Township of

North Easthope et al.

[Indexed as: Vanderschot v. North Easthope (Township)]

24 O.R. (3d) 286

[1995] O.J. No. 4820

 Ontario Court (General Division), Divisional Court

White, Moldaver and McDermid JJ.

June 20, 1995

Constitutional law -- Distribution of legislative authority -- Aeronautics -- Delegation -- Federal government having authority to delegate its exclusive power over aeronautics to allow municipality to pass zoning by-laws regulating airspace near airport -- Airports Act, R.S.O. 1990, c. A.15, s. 2 -- Planning Act, R.S.O. 1990, c. P.13, s. 38 -- Aeronautics Act, R.S.C. 1985, c. A-2, s. 5.81.

Planning -- By-laws -- Zoning -- Validity -- Aeronautics -- Federal government having authority to delegate its exclusive power over aeronautics to allow municipality to pass zoning by-laws regulating airspace near airport -- Aeronautics Act, R.S.C. 1985, c. A-2, s. 5.81 -- Airports Act, R.S.O. 1990, c. A.15, s. 2 -- Planning Act, R.S.O. 1990, c. P.13, s. 38.

Pursuant to s. 38 of the Planning Act, the Township of Ellice passed Interim Control By-law 2-94 and the Township of North Easthope passed Interim Control By-law 3-94. These by-laws imposed height restrictions on structures erected on land in an area surrounding the Stratford Airport. Pursuant to agreements entered into with the Minister of Transport in accordance with s. 5.81 of the Aeronautics Act, and registered in accordance with the Statutory Instruments Act, R.S.C. 1985, c. S-22, the Township of Ellice passed Interim Control By-law 26-94 and the Township of North Easthope passed Interim Control By-law 16-94. These by-laws also imposed height restrictions on structures erected on land in an area surrounding the Stratford Airport. Under the respective agreements with the Minister, each township was permitted to pass interim control by-laws "in the same manner and to the same extent as it may pass an interim control by-law respecting the use of land". The constitutional validity of all the by-laws was questioned by way of a stated case referred to the Divisional Court under s. 94 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28.

Held, Township of Ellice By-law 2-94 and Township of North Easthope By-law 3-94 were ultra vires; Township of Ellice By-law 26-94 and Township of North Easthope By-law 16-94 were intra vires.

Because the regulation of airspace adjacent to airports is a subject-matter within the exclusive legislative jurisdiction of the Parliament of Canada, the by-laws passed pursuant only to the provincial Planning Act were ultra vires to the extent that they regulated airspace. The by-laws passed pursuant to the agreements under s. 5.81 of the Aeronautics Act, however, were constitutionally valid. This section of the Aeronautics Act, with the agreements, delegated to the municipalities the authority to exercise the federal power over aeronautics in accordance with the procedural requirements and temporal restrictions contained in the Planning Act. The federal Parliament has the capacity to delegate powers within its exclusive jurisdiction to a municipality and a municipality has the capacity to receive those delegated powers. In the immediate case, s. 2 of the Airports Act by necessary implication bestowed upon the townships the right to enter into the agreements and to accept and to exercise the delegated authority validly delegated by Parliament.

Cases referred to

R. v. Furtney, [1991] 3 S.C.R. 89, 8 C.R.R. (2d) 160, 66 C.C.C. (3d) 498

, 129 N.R. 241, 48 O.A.C. 21, 8 C.R. (4th) 121

Statutes referred to

Aeronautics Act, R.S.C. 1985, c. A-2, ss. 4.3(1) [enacted R.S.C. 1985, c. 33 (1st Supp.), s. 1], 5.81 [enacted 1992, c. 4, s. 11]

Airports Act, R.S.O. 1990, c. A.15, s. 2

Constitution Act, 1867, ss. 91, 92

Ontario Municipal Board Act, R.S.O. 1990, c. O.28, s. 94

Planning Act, R.S.O. 1990, c. P.13, s. 38

Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 5

Authorities referred to

Driedger, E.A., "The Interaction of Federal and Interprovincial Laws" (1976), 54 Can. Bar Rev. 695, pp. 700-01

STATED CASE pursuant to s. 94 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28.

Raymond G. Colautti and Paul J. Courey, for applicants.

Michael E. Mitchell and Michael A. Jaeger, for respondents.

C.D. Johnston, for Attorney General of Canada.

No one appearing for Attorney General of Ontario.

BY THE COURT: -- This stated case arises from a proceeding before the Ontario Municipal Board and is referred to this court under s. 94 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28. The stated question is as follows:

Are the following by-laws constitutionally valid and within the authority of the Township of North Easthope and the Township of Ellice; namely By-laws 2-94 and/or 26-94 of the Township of Ellice, By-laws 3-94 as amended by by-law 7-94 and/or 16-94 of the Township of North Easthope?

The applicants own land in the vicinity of the Stratford Airport. The by-laws in question seek to impose height restrictions on any new building or structure erected on land in a specified area surrounding the Airport. The applicants challenge the constitutional validity of the by-laws.

The history of the by-laws and the agreements between the townships and the Minister of Transport pursuant to s. 5.81 of the Aeronautics Act, R.S.C. 1985, c. A-2, are reviewed in the factums before us.

The pith and substance of these by-laws is the regulation of airspace by the imposition of height restrictions in respect of lands adjacent to airports, which is a subject-matter that falls within the exclusive legislative jurisdiction of the Parliament of Canada. Therefore, Interim Control By-law 2-94 of the Township of Ellice and Interim Control By-law 3-94 of the Township of North Easthope (as amended by By-law 7-94), being passed pursuant to s. 38 of the Planning Act, R.S.O. 1990, c. P.13, a provincial statute, are ultra vires each township to the extent that they attempt to regulate airspace.

The second set of by-laws was passed by the townships pursuant to agreements entered into with the Minister of Transport under s. 5.81 of the Aeronautics Act and both have been registered in accordance with the provisions of the Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 5. The applicants submit with respect to these by-laws that:

1. interim control by-laws made pursuant to s. 38 of the Planning Act cannot validly impose height restrictions because they deal with a subject matter that falls within the exclusive legislative jurisdiction of Parliament; and

2. because Article 2.01 of each agreement with the Minister of Transport permits the Townships to pass interim control by-laws only "in the same manner and to the same extent as it may pass an interim control by-law respecting the use of land", it follows that interim control by-laws passed by the Townships pursuant to their agreements with the Minister of Transport cannot impose height restrictions.

Section 5.81(1) of the Aeronautics Act, R.S.C. 1985, c. A-2, reads as follows:

5.81(1) The Minister may enter into an agreement with a provincial authority to authorize the provincial authority to regulate, in the same manner and to the same extent as it may regulate the use of lands within its jurisdiction, the use of lands adjacent to or in the vicinity of an airport or airport site that are not the subject of regulations made pursuant to subsection 5.4(2), for the purpose of ensuring that the use is not incompatible with the safe operation of an airport or aircraft.

The "conditional authorization" contained in para. 2.01 of the agreement between Her Majesty the Queen in Right of Canada, represented by the Minister of Transport, and the respective municipalities reads as follows:

2.01 The Minister authorizes the Township to pass an interim control by-law, in the same manner and to the same extent as it may pass an interim control by-law respecting the use of lands within its jurisdiction, respecting the use of lands adjacent to or in the vicinity of the Stratford Municipal Airport for the purpose of ensuring that that use is not incompatible with the safe operation of an airport or aircraft, on condition that such by-law is carried out in compliance with the terms of this agreement.

In our opinion, s. 5.81 of the Aeronautics Act does not purport to enlarge the powers granted by the provincial legislature to municipalities in s. 38 of the Planning Act, but rather purports to allow a provincial authority (in this case a municipality), to exercise a power in relation to a subject-matter that falls within the exclusive legislative jurisdiction of the Parliament of Canada. Paragraph 2.01 of the agreement simply gives the municipality the authority to exercise that federal power in accordance with the procedural requirements and temporal restrictions contained in s. 38 of the Planning Act. In passing the interim control by-laws in question, the municipalities were not exercising provincial powers under s. 38 of the Planning Act, but rather the delegated federal power under the Aeronautics Act. However, they were required to exercise the delegated federal power as if they were passing an interim control by-law under s. 38.

The words "in the same manner" refer to the procedural requirements of s. 38. The words "to the same extent" refer to the temporal restrictions of s. 38, i.e., under s. 38(1) of the Planning Act an interim control by-law shall not be in effect for a period exceeding one year from the date of its passage, but pursuant to s. 38(2) of the Act it may be extended provided that the total period during which it is in effect does not exceed two years from the date it was passed.

Accordingly, we are unable to accept the applicants' position on this issue.

The applicants also submit that Parliament cannot delegate powers to a municipality and that a municipality lacks the capacity to receive delegated powers to legislate with respect to a matter within the exclusive legislative jurisdiction of Parliament.

The position of the respondents and the Attorney General for Canada is that although Parliament cannot delegate its powers to a provincial legislature (because it would alter the division of powers set out in ss. 91 and 92 of the Constitution Act, 1867), it may delegate its powers to a municipality. They rely in part on the following portion of the judgment of Stevenson J. in R. v. Furtney, [1991] 3 S.C.R. 89 at p. 104, 8 C.R.R. (2d) 160:

I agree with Driedger in "The Interaction of Federal and Provincial Laws" (1976), 54 Can. Bar Rev. 695, when he concludes that inter-delegation is constitutionally impermissible because there is a constitutional prohibition founded upon the granting of exclusive powers to the Parliament on the one hand, and the provincial legislatures on the other.

The prohibition is against delegation to a legislature. There is no prohibition against delegating to any other body . . .

(Emphasis in original)

Therefore, we conclude that there is no impediment to Parliament delegating to the townships the power to pass by-laws that impose height regulations in order to regulate airspace around an airport and we agree that Parliament has the power to delegate that power to the townships in the instant case.

The next question is whether the townships had the capacity to receive the delegated power to legislate with respect to a matter within the exclusive legislative jurisdiction of Parliament.

The applicants' position on this issue is that:

1. a municipality is a creature of the provincial legislature and can exercise only those powers conferred upon it by that legislature; and

2. a municipality cannot stand in a higher position than the body that confers powers upon it (the provincial legislature), when it comes to receiving delegated powers from Parliament that purport to give it the power to legislate in relation to a subject-matter within the exclusive legislative jurisdiction of Parliament; and

3. the provincial legislature has not bestowed upon the townships expressly or impliedly the power to receive the delegated federal power to regulate height under the Aeronautics Act.

Anomalous as it may seem, it is our opinion that, following the above-quoted principle in Furtney, once a municipal corporation is created, there is no bar to its receiving and exercising the powers delegated by Parliament in the circumstances before us. In Furtney, the Lieutenant Governor does not appear to have been authorized to receive the delegated federal power but was found to have the capacity to receive it. Also, we adopt the following passage from E.A. Driedger, Q.C., "The Interaction of Federal and Interprovincial Laws" (1976), 54 Can. Bar Rev. 695, at pp. 700-01:

If Parliament cannot delegate to a legislature, it does not follow that Parliament cannot delegate to a provincial board. The provincial board is not the legislature or an agent of the legislature. The corporation of the city of Ottawa is not the legislature of Ontario or an agent of the legislature, and there is no reason why Parliament could not, for example, delegate power to the city of Ottawa to regulate navigation on the Rideau Canal within city limits; that the legislatures have exclusive jurisdiction and control over municipal institutions is irrelevant. The legislature could not control or direct the exercise of this federal power. Legislatures can speak only by statutes and if in the example cited the legislature were to attempt by statute to regulate the exercise of this legislative power received from Parliament, that statute would be ultra vires as being in relation to federal property or navigation or shipping.

The proposition was also advanced that even if Parliament can delegate federal power to a municipality, before the municipality can exercise the delegated power, it must have been authorized by the provincial legislature that created it to do so. The question then becomes, "Did the Ontario Legislature, either expressly or by necessary implication, bestow upon the Townships the right to enter into the agreements in question with the Minister of Transport and to accept and exercise these delegated powers?"

We believe that s. 2 of the Airports Act, R.S.O. 1990, c. A.15, provides a complete answer to that question. It reads as follows:

2(1) The Crown in right of Ontario, represented by the Minister, may enter into agreements with the Government of Canada, any municipality, corporation or individual, or any one or more of them, with respect to any matter in relation to the acquisition, establishment, extension, improvement, construction, operation, or maintenance of airports to serve any one or more areas in Ontario, and the Minister may provide funds to the municipality, corporation or individual for such purposes.

(2) Any municipality may enter into agreements under subsection (1).

The section specifically gives a municipality the power to enter into an agreement with the Government of Canada "with respect to any matter in relation to the acquisition, establishment, extension, improvement, construction, operation, or maintenance of airports to serve any one or more areas in Ontario". The enumerated matters are broad enough to encompass the agreements in question. The express powers granted to municipalities by s. 2 of the Airports Act, must fairly be implied to carry with them the ancillary power to accept and exercise delegated federal powers and to pass such by-laws as are necessary to give full effect to agreements between the municipalities and the Government of Canada relating to the enumerated matters.

Therefore, in passing the second set of by-laws, the townships were not exercising powers within the exclusive legislative jurisdiction of the provincial legislature. Rather, they were exercising federal powers validly delegated by Parliament that they were impliedly authorized by the Province of Ontario to receive.

The fact that the agreements between the Minister of Transport and the townships were not signed by the Minister is not fatal in light of s. 4.3(1) of the Aeronautics Act, which permits the Minister to authorize any person to exercise or perform any of his or her powers or duties. We are satisfied from paras. 15 and 16 and ex. "G" to the affidavit of Dean Broadfoot, sworn April 21, 1995, that the person who executed the agreements held the necessary authority and that they were validly executed on behalf of the Minister.

Accordingly, the answer to the stated case is that:

1. Interim Control By-law 2-94 of the Township of Ellice and Interim Control By-law 3-94 of the Township of North Easthope (as amended by By-law 7- 94), being passed pursuant to s. 38 of the Planning Act, R.S.O. 1990, c. P.13, a provincial statute, are ultra vires each Township to the extent that they attempt to regulate airspace.

2. Interim control By-law 26-94 of the Township of Ellice, and Interim control by-law 16-94 of the Township of Easthope are constitutionally valid and intra vires said Townships.

The applicants shall pay the costs of this stated case to the respondents fixed in the amount of $4,500.

Order accordingly.