After COPA won at the Supreme Court of Canada (SCC) in 2010 on the issue of federal jurisdiction over aerodromes, our legal counsel warned that our job may not be done because there would likely be continuing challenges concerning what is in the core of aeronautics. An explanation of the issues and what was at stake is provided in our Guide to Private Aerodromes www.copanational.org/GuidePrivateAerodrome.cfm
We have been reporting in several articles since that time about the importance of continuing to contribute to our Freedom to Fly Fund www.copanational.org/specialaction.cfm to ensure that we have the resources to meet any challenge. Well, because of a recent decision on a case at Burlington Airpark (CZBA) now is the time for you to consider stepping up to the plate and contribute to the Fund.
In summary, the constitutional issue raised at Burlington was to further define the line as to what is within and what is outside the “core” of the aeronautics power. Specifically, the issue is whether or not filling operations necessary for the construction of runways, taxiways, aprons and hangars is also included within the “core” of the aeronautics power. If it is not in the core then municipalities can use their site alteration bylaws to prevent any improvements, such as grading of a runway, to prevent an aerodrome from being established and developed. This is not simply an issue for this aerodrome; it can have a significant impact on all in Canada, including ones that are already in place.
The City of Burlington asserted that their bylaws regarding site alteration should apply to the airpark. The owners of the airpark responded that federal jurisdiction applies and therefore the City has no right to interfere. Even though the airpark management tried to quell concerns by conducting tests on ground water #mce_temp_url#and soil samples and consulting with government officials on environmental impact to prove that the fill operation was not detrimental, the City took measures to stop the airpark, including threatening to cut power to the entire airpark, so the matter ended up in court on 4 October. After that time, COPA was approached for financial support for any appeal that may occur. It was felt at that time that no matter what the judge decided, one or the other side would appeal. The COPA Board of Directors has approved financial support from your Freedom to Fly Fund for the appeal.
The judge rendered a decision in favour of the City on 13 November 2013 (click here) and the airpark filed an appeal on 15 November. Until this matter is resolved, work has stopped at the airpark.
At odds with the judge’s decision are several decisions that confirmed federal jurisdiction including:
The location of aerodromes (and whether or not to have one) is exclusively federal (Johannesson – 1951 SCC, COPA – 2010 SCC) www.copanational.org/files/Johannesson%20v%20West%20St.%20Paul.pdf
The construction of hangars is also exclusively federal (Re Orangeville Airport – 1976 Ont. C.A.) www.copanational.org/files/Orangeville%20Airport%20v%20Town%20of%20Caledon.pdf
The Ontario Building Code and Mississauga Development Charge by-law did not apply to the construction of aerodromes (GTAA v. City of Mississauga – 2000 Ont C.A. – leave appeal to SCC refused) www.copanational.org/files/GTAA%20v%20City%20of%20Mississauga%20Appeal.pdf
The judge in the Burlington case used an Ontario Divisional Court decision in the Earthworx (2011) case (click here) to decide in favour of the City of Burlington. The court opined that a municipality’s site alteration and fill by-law could apply to aerodromes as the Divisional Court did not see how compliance with those by-laws could impact on the aeronautics power. Since that decision, municipalities have seen this as a possible inroad into gaining control over aerodromes.
As with other challenges, the federal government has not stepped in to defend their jurisdiction. When we were engaged in the battle in Quebec that led to the SCC decisions, the feds refused to step in until the appeal reached the SCC. So, without federal support, individuals are left on their own to defend what should be a federal responsibility. That reason, above all, is why the Freedom to Fly Fund exists. Without our Fund, individuals may not have the funds to do this important work.
COPA’s Freedom to Fly Fund has spent over $1 million to date in defending your freedom to fly. The goal of fund raising is to maintain a war chest of $1 million to make it clear to challengers that we have the resources to resist challenges and we would like to exceed that amount so that there are funds available to employ without impacting on the war chest. At the present time the fund is at $1 million but commitments for current cases, including the Burlington case, take the war chest below the $1 million mark. Your help is needed to maintain the $1 million war chest. Make a contribution now. Flights should organize fund raising events such as donating excess of revenue over expenses from events.
August 2014 Update
Earlier this year COPA reported on a court decision against the airpark, giving the city control over certain development at the airpark, including the altering of the site to accommodate an expansion.
COPA financially supported (with our Freedom to Fly Fund) an appeal of the decision because of the potential for significant damage to the concept of federal jurisdiction. The appeal was heard on 11 June 2014. Unfortunately, the Court of Appeal upheld the lower court decision.