Ontario Court of Appeal Rejects Appeal, City of Burlington Can Enforce Fill By-law and Protect the Environment

Burlington Airpark Inc. (“Airpark”) is the owner and operator of the Burlington Executive Airport, an aerodrome, located in the City of Burlington within the Protected Countryside Area of the Greenbelt Plan and adjacent to the Niagara Escarpment Plan Area. For over five (5) years, Airpark has been bringing substantial quantities of fill onto their property to build up their runway.

In the spring of 2013, the City of Burlington issued an order to Airpark to comply with fill by-law 6-2003. The City of Burlington by-law 6-2003 states:

"No person shall place or dump fill on or alter the grade of any lands in the City without having first obtained a Site Alteration Permit. A person applying for a Permit must certify that the fill contains no contaminants within the meaning of the Environmental Protection Act. An applicant for a permit must submit a Control Plan, certified by an Ontario professional engineer. The City may also require random testing of any fill before it is placed on the site or removed on it."

The City of Burlington had concerns with the amount of fill deposited, adverse drainage effects from the imposition of gradient and slope changes, and possibility for contamination by pollutants entering area groundwater.

Airpark refused to comply with City of Burlington by-law 6-2003 arguing that they fell under federal jurisdiction and thus were not obligated to comply with municipal by-laws.

In the fall of 2013 the City of Burlington filed an application with the Ontario Superior Court of Justice requesting:

a)An order determining Burlington’s rights under the Municipal Act 2001, SO 2001c. and the Constitution act, 1867 to enforce by-laws relating to fill operations at an aerodrome operated by the respondent;

b)A declaration that Burlington’s by-law 6-2003 is valid and binding upon the respondent in respect to its activities at the airport; and

c)An order requiring the respondent to comply with the by-law forthwith.

The Ontario Superior Court held that municipal by-laws regarding fill do not intrude onto Parliament’s core jurisdiction over aeronautics and are thus applicable. In Justice Murray’s November 13, 2013 decision he states at paragraph 19:

"There is little doubt that the runway construction must comply with the federal specifications relating to slopes, surfaces of runways, runway shoulders and the slopes and strength or runway shoulders. However, requiring Airpark to use clean fill regulated by the municipality for the benefit of other residents in the municipality will not be permanently reflected in the structure of the finished product in the sense meant by Justice Beetz. The by-law is not an attempt by the municipality to regulate slopes or surfaces of runways, runway shoulders or the slopes and strength of runway shoulders. While regulating the quality of fill may have an impact on the manner of carrying out a decision to build airport facilities in accordance with federal specifications, such regulations will not have any direct effect upon the operational qualities or suitability of the finished product which will be used for purposes of aeronautics."

On June 11, 2014 the Superior Court of Justice heard argument regarding the appeal from Burlington Airpark Inc. of the decision of Justice Murray of the Superior Court of Justice. Donnelly Law attended the hearing.

The Superior Court decision in the Burlington Airpark Inc. matter was rendered on November 13, 2013 by Justice Murray. In his decision, Justice Murray states that compliance with the Burlington by-law will not impair federal aeronautics power or create an operational conflict between the provisions of the by-laws and federal aeronautics power. The appeal raised the question whether the City of Burlington fill by-law is a significant and serious intrusion into Parliament’s core jurisdiction over aeronautics.

Burlington Airpark Inc.’s lawyer, Mr. Peter Wells, presented his case addressing the following main points:

1.Justice Murray failed to properly apply inter-jurisdictional immunity;

2.Making the City of Burlington By-law applicable to the Airpark would effectively prevent or control the airport construction which is outside of the jurisdiction of the municipality.

Mr. Wells then argued a motion for leave to adduce additional evidence. This evidence was deemed to be irrelevant to the issue before the Court and was dismissed.

Once Mr. Wells completed his submission to the Court, the court recessed for 10 minutes. Upon returning, Counsel for the City of Burlington, Mr. Ian Blue, was informed that the Court did not need to hear oral submission from him but merely wanted to ask him one question. Justice Simmons asked Mr. Blue what the intention of the by-law was. Mr. Blue answered that the intention of the City of Burlington has always been the monitoring of fill on the site with respect to contamination. The City of Burlington has not nor is it interested in regulating the slopes grade or other aspects of the construction of the Airpark runway.

The Court recessed for another 10 minutes and returned with its final decision. The decision was rendered orally by Justice McPherson who first thanked counsel for their helpful and well written facta. Justice McPherson rendered an oral decision stating that the Court did not agree with Mr. Well’s argument and would uphold the decision of Justice Murray dismissing the appeal.

David Donnelly, Margaret Atwood and Midhurst Ratepayers’ Association to Premier Wynne: Stop the Midhurst Development

Anishnawbe Health Toronto: Report reveals large number of Aboriginal Torontonians die prematurely