Parkland Airport Development Corporation v. Parkland (County), 2013 ABQB 641

Court of Queen ’ s Bench of Alberta Citation: Parkland Airport Development Corporation v. Parkland (County), 2013 ABQB 641 Date: 20131029 Docket: 1303 14319 Registry: Edmonton Between: Parkland Airport Development Corporation and CPL6 Holdings Ltd. Applicants - and - Parkland County Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice R.

Paul Belzil _________________________________________ ______________ [ 1 ] Parkland Airport Development Corporation and CPL6 Holdings Ltd. (Parkland Airport) are developing an airport in Parkland County. [ 2 ] A dispute has arisen respecting the extent to which, if any, the County can regulate the development of the airport within its boundaries. [ 3 ] Parkland Airport has filed two applications. [ 4 ] The first, filed on October 7, 2013, seeks an injunction enjoining the County from attempting to enforce a purported Stop Order. [ 5 ] The second, filed on October 17, 2013, seeks an order that the County correct an error in a haul permit and also seeks a declaration that the County has no jurisdiction to refuse a haul permit on the basis that a development permit is required to construct the aerodrome runway. [ 6 ] On October 11, 2013, the County filed an application seeking a declaration that Parkland Airport is breaching the Stop Order

and also seeks an order requiring Parkland Airport to cease and desist all stripping and grading activity and requiring it to apply for a development permit. [ 7 ] On September 18, 2013, the County issued a Stop Order pursuant to

Part 17 of the Municipal Government Act , RSA 2000 c.

M-26 (as am) (MGA) which purported to require immediate cessation of stripping and grading work on site and restoring the land to its pre-development state by October 10, 2013. [ 8 ] Parkland Airport argues that this work is critical to the construction of its aerodrome and would have the effect of precluding the location and operation of the aerodrome on these lands, which matters are within the exclusive jurisdiction of Parliament. [ 9 ] The County has refused to issue a valid haul permit to the site unless a development permit is first obtained. [ 10 ] It is common ground between the parties that no development permit was ever requested for this project as it is the position of Parkland Airport that no development permit is required. [ 11 ] Counsel for Parkland Airport concedes that

Part 17 of the MGA under which Stop Orders are issued, is valid provincial legislation but disputes that the County has any authority to request a development permit as a condition to issuing haul permits or for any other purpose. [ 12 ] On October 18, 2013, Moreau J. issued an Interim Order preventing paving of the runway at the aerodrome pending the hearing of this application. [ 13 ] The Supreme Court of Canada in the decision of Attorney General of Quebec v.

Canadian Owners and Pilots Association , 2010 SCC 39 , (COPA) dealt with the issue of to what extent, if any, provincial law operates respecting the location and construction of aerodromes. [ 14 ] The court applied the doctrine of interjurisdictional immunity which is invoked to prevent otherwise valid provincial law from operating to the extent that the law’s application would impair core federal powers (paras. 25-27). [ 15 ] At paras. 29-30 the court confirmed that Parliament has exclusive jurisdiction to determine the location of aerodromes and at para. 37 held that this jurisdiction lies within the core federal aeronautics power. [ 16 ] The test for determining whether provincial law improperly intrudes on the federal power is described at para. 43: 43 After a period of inconsistency, it is now settled that the test is whether the provincial law impairs the federal exercise of the core competence: Canadian Western Bank , per Binnie and LeBel JJ. . . [ 17 ] Impairment will be found where the provincial law amounts to a “significant or serious intrusion on the exercise of federal power” but it need not be established that the federal power is paralyzed.

There is no need to establish that the provincial power paralyzes the federal power but the impact must be serious. (para. 45) [ 18 ] Counsel for the County agrees that the COPA decision sets out the applicable law but argues that COPA is distinguishable on its facts. Firstly, she argues that this aerodrome is not yet registered and secondly, as there is no federal oversight of this aerodrome project, federal jurisdiction is not yet engaged. [ 19 ] I do not accept these arguments and hold that COPA is binding legal authority on me.

The parties agree that this airport development project is an aerodrome as defined in s. 3(1) of the Aeronautics Act RSC 1985, c. A-2. Parkland Airport has applied for registration of the aerodrome but it cannot be granted until the airport development project is completed. [ 20 ] Furthermore, the argument about the lack of federal oversight arises directly from the Aeronautics Act and the Canadian Aviation Regulations passed pursuant to it. [ 21 ] I do not accept that the federal power over aeronautics is not yet engaged.

COPA clearly establishes that the federal power is engaged once a development of a genuine aerodrome project commences. There can be no suggestion based on this evidentiary record that this aerodrome development project is anything but genuine and bona fide . [ 22 ] The County also argued that Parkland Airport should have pursued an appeal to the Subdivision Development Appeal Board prior to bringing these applications. [ 23 ] This argument cannot succeed.

If the County has no constitutional jurisdiction to deal with aerodromes then it necessarily follows that the SDAB does not either and has no authority to create jurisdiction where none exists. [ 24 ] COPA is clear authority for the proposition that the demand by the County that Parkland Airport obtain a development permit does constitute a significant intrusion of the exercise of federal power and amounts to an impairment of it. [ 25 ] Accordingly, the County lacks the jurisdiction to demand a development permit for this project. [ 26 ] The County then argues that its Traffic Bylaw applies so as to require Parkland Airport to obtain haul permits. [ 27 ] Counsel for Parkland Airport readily concedes that his client must apply for the appropriate haul permits and pay the appropriate fees. [ 28 ] However, the County has no jurisdiction to demand a development permit as a precondition to obtaining haul permits or indeed for any other purpose.

[ 29 ] In the result, the applications of Parkland Airport are granted and the County’s application dismissed. [ 30 ] The Interim Order of Moreau J. of October 18, 2013, is set aside. [ 31 ] Parkland Airport is entitled to a declaration that the County has no jurisdiction to demand a development permit as a precondition to issuing haul permits or for any other purpose. [ 32 ] In addition, it is entitled to an Order that the County issue appropriate haul permits upon completion of the necessary application forms and payment of applicable fees. [ 33 ] Costs, if requested, may be spoken to.

Heard on the 24 th day of October, 2013. Dated at the City of Edmonton, Alberta this 28 th , day of October, 2013. R. Paul Belzil J.C.Q.B.A. Appearances: Frederick A. Laux, Q.C. and Ian L. Wachowicz Parlee McLaws LLP for the Applicants Kelsey L. Becker Brookes Reynolds Mirth Richards & Farmer LLP for the Respondent