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Update on federal jurisdiction cases

By Kevin Psutka

July 14, 2009

 

There are two cases before the Supreme Court of Canada as a result of COPA’s efforts to uphold the principle of federal jurisdiction over aeronautics and the consequent freedoms that we have to, for example, build an aerodrome, and in support of consistent regulation of aviation across Canada.

The cases are known as Laferriere v. CPTAQ (concerning a private aerodrome) and Lacombe v. Sacre Coeur (concerning a commercial sight-seeing operation). COPA has been a major player in these cases thanks to our member-funded Special Action Fund and we were successful in convincing the Quebec Court regarding federal jurisdiction. The Province of Quebec decided to appeal the decisions.

As COPA prepares for the upcoming Supreme Court hearing concerning federal jurisdiction (now tentatively scheduled for Oct. 14, 2009), there have been three developments of note since the last update.

In the previous update it was mentioned that the Attorney General for Canada has chosen to intervene in both cases in defense of federal jurisdiction and they are taking the position that the federal government has exclusive jurisdiction over aeronautics.

It certainly helps COPA’s arguments to have the federal government there to defend this position. However, following the decision of the feds to intervene, the Attorney’s General for B.C., Ontario and New Brunswick have also chosen to intervene and participate in both cases.

These interventions are in support of Quebec’s assertion that a distinction should be drawn between airports (certified aerodromes) and aerodromes (registered and unregistered). The Attorney General of Quebec argues that airports should continue to be under exclusive federal jurisdiction, but that aerodromes should be subject to municipal and provincial regulation.

Another development is that Bernard Laferriere, owner of the private aerodrome in question,  recently died in an aircraft accident. His common law partner, Sylvie Gervais, who was also a respondent in the case, separated from Laferriere and no longer has an interest in the property. As a result, there were no party respondents to the Laferriere case.

So, COPA asked the Supreme Court of Canada to permit COPA to be substituted in the action to replace Bernard Laferriere and Sylvie Gervais. We have been granted that status.

A third development is that the Greater Toronto Airports Authority (GTAA) filed an application to the Supreme Court of Canada seeking to also intervene in both of these cases. The GTAA has chosen to do this in an effort to support the decision of the Ontario Court of Appeal that was rendered in the GTAA v. City of Mississauga case, where the court agreed with the GTAA that Mississauga had no right to interfere in the development of Terminal 3 because this is federal jurisdiction.

The appeal to the Supreme Court of Canada has grown in terms of parties interested in the issues and it is clear that the decision of the Court is crucial to the future of our sector of aviation. At risk is interference by provinces and municipalities in the establishment and operation of aerodromes.

The Special Action Fund is taking a significant hit to prepare and present our arguments. It needs to be replenished, not only to ensure that there are sufficient funds for this battle but to continue to act as a deterrent for future challenges. Your contribution is needed now.