CL Ranches Ltd v Rocky View, 2021 ABQB 504

Court of Queen’s Bench of Alberta Citation: CL Ranches Ltd v Rocky View, 2021 ABQB 504 Date: 20210630 Docket: 2101 04994 Registry: Calgary Between: CL Ranches Ltd. and 1707300 Alberta Ltd. Applicants - and - Rocky View County, Raymond Nicoll and Patricia Nicoll Respondents Corrected judgment: A corrigendum was issued on August 18, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on September 29, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment.

Corrected judgment : A corrigendum was issued on December 22, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. ______________________________________________________ Reasons for Decision of the Honourable Mr. Justice D.A. Labrenz _______________________________________________________

This is a written version of my decision delivered orally to the parties on June 28, 2021. The Court’s assessment of the strength of thearguments made by the applicants in seeking an interlocutory injunction, as set out below, is not intended to be a final determination onthe merits of the applicant’s pending application for judicial review.

Introduction [1] CL Ranches Ltd [“CLR”] and 1707300 Alberta Ltd [“170” Ltd] [ when referring to both, “the applicants”], by originatingapplication seek to quash a decision made by the Municipal Planning Commission [“the MPC”] of Rocky View County [“theMunicipality”] by way of judicial review.

The parties anticipate scheduling the judicial review application sometime later in the year,likely in November. [2] Pending the hearing of the judicial review application, the applicants seek a preliminary interlocutory injunction enjoiningthe Municipality from constructing a proposed road along a statutory road allowance that runs between the

section of land owned byCLR and the

section of land owned by 170 Ltd. The proposed road would be built to provide ingress and egress to land owned byRaymond Nicoll and Patricia Nicoll [“the Developers”] who sought and obtained permission from the MPC to subdivide their land forthe purpose of building a house upon the land for their son. [3] The proposed road, described as the Range Road 45 Allowance [“the road allowance”], connects to Township Road 244 (inthe north) and runs in a north/south direction.

Overhead aerial views demonstrate that the road allowance, as I have just described, fitsgeometrically within the well-defined system of range and township roads that can be found throughout Alberta. [4] The applicants seek an interlocutory injunction prohibiting the Developers from constructing the proposed road along thestatutory road allowance (with the approval of the MPC) because the development of the road would destroy an existing aerodrome thatwas constructed over the parcel of land owned by 170 Ltd, across the road allowance and into and the land owned by CLR.

Theapplicants argue that completion of the proposed road would have the practical effect of permanently closing the constructed aerodromesuch that it would be impossible or implausible to restore to its existing state.

In short, referencing the tripartite test endorsed by theSupreme Court of Canada in RJR-MacDonald v Canada (Attorney General), (SCC), [1994] 1 SCR 311, the applicantsargue that there is a serious issue to be tried, that the applicants will suffer irreparable harm if an injunction is not granted (with acorresponding lack of evidence that the respondents will suffer harm), and that the balance of convenience favours granting aninjunction. [5] The respondents oppose the application for an injunction.

Background [6] The background facts are not in material dispute and I propose to briefly summarize them for the purpose of providingnecessary context. [7] The applicants are two family businesses located just west of Calgary, which own the two sections of land that I havealready referred to, amongst other business interests.

The aerodrome, which I understand to be essentially a runway or a landing strip wasconstructed more than 50 years ago in the early 1970’s and the steps involved in its construction involved levelling the ground andtaking such steps as were required to ensure that the undersurface of the grass strip was suitably hardened, along with ensuring that therunway was the proper length and direction for the purpose of aeronautical activities (essentially the landing and take off of aircraft). Asmight be obvious, the landing strip was constructed with due consideration to the prevailing winds.

A fence was also constructed toseparate the aerodrome from the rest of the applicants’ respective lands. There is no readily known or available alternate location wherethe aerodrome could be constructed. [8] The directors of CLR are Marshall R. Copithorne (Teresa Copithorne’s husband), Ryan P. Copithorne (Teresa Copithorne’sstep-son) and Cheryl also known as Cherie M. Copithorne-Barnes (Teresa Copithorne’s step-daughter). [9] The sole director and shareholder of 170 Ltd is Teresa Copithorne.

Both CLR and 170 Ltd share the same mailing addressfor the directors at Alberta Corporate Registries and both utilize that same address for service of municipal documents. [10] The road allowance is held in the name of the Province of Alberta, but the direction, control and management of all roads arevested in the Municipality: ss 16, 18 Municipal Government Act, RSA 2000, c M-26. [11] Neither 170 Ltd nor CLR have ever received any permission from the Municipality to build the aerodrome over the roadallowance.

Since December of 1969, CLR has entered into four road licence agreements with respect to the road allowance, none ofwhich have anything to do with a landing strip or an aerodrome however defined. Instead, the road allowance agreements are for grazingpurposes only.

The road licence agreements include a requirement for CLR to remedy/rectify any improper activity on the roadallowance upon ten days written notice, and the terms of the agreement permit the Municipality to terminate the agreement, on a no-faultbasis, if the Municipality, in its sole opinion, determines that any activity is occurring outside of the permitted uses. [12] In June of 2020, the Developers filed a development application seeking permission to subdivide the parcel of land owned bythem into two 80-acre lots.

As a consequence of the subdivision application the Developers proposed two road possibilities to permitaccess to the new subdivision, both of which involved construction of a road over the existing aerodrome. [13] The MPC held its first meeting in relation to the proposed subdividing of the land on September 3, 2020. At the time theMPC discussed the existing aerodrome and decided that the application for subdivision should be tabled sine die pending someinvestigation into the potential difficulties posed by the aerodrome.

[ 14 ] The subdivision application was circulated to four aviation agencies for comment and review. Transport Canada indicated that it does not approve or issue licencing authority to construct an aerodrome, but the MPC was told that Transport Canada would likely not support an aerodrome being developed over an existing road allowance or other clearly marked transportation corridor.

The MPC was also advised that (based upon a similar situation in the Foothills County) if a County has ownership of land or care and control of a road, they have full jurisdiction on private airstrips unless a formalized agreement is in place. Transport Canada also noted that the Aeronautics Act, RSC 1985, c A-2 and the Canadian Aviation Regulations , SOR/96-422 do not inherently permit an individual to make a declaration that any place is now an aerodrome.

Transport Canada went on to say that would not likely support an aerodrome being developed over an existing road allowance and there are no requirements or regulations that would govern the Municipality’s relationship with the airstrip. [ 15 ] After considering the Municipal Government Act and the relevant regulations, along with the available options for the road access, the MPC determined that the subdivision was consistent with statutory policy, and conditional approval was granted.

The Developers were required to enter into a development agreement pursuant to s655 of the Municipal Government Act to construct a road, to municipal standards, on the road allowance. On October 30, 2020 the MPC decision was provided to the Developers. [ 16 ] The MPC on July 14, 2020 circulated a letter to all concerning the Developers’ Parcel (i.e. all abutting quarter sections), which correspondence indicated that an application had been received by the MPC and identified the land involved and the proposed subdivision.

The letter also stated that any written comments could be sent to the planning service department by August 5, 2020. No letters were received in response by the August 5 th deadline. [ 17 ] There was, however, fairly extensive email correspondence between the Municipality and the applicants following the August 5 th deadline. Cherie Copithorne-Barnes emailed the Municipality August 31, 2020 with respect to the upcoming September 3 MPC meeting scheduled to consider the subdivision application, copying Marshall Copithorne and Teresa Copithorne.

The email said that there was no objection to the subdivision but an objection to the proposed access road. [ 18 ] On September 4, 2020, Ms. Copithorne-Barnes again emailed, copying Teresa Copithorne, and acknowledged that the subdivision application of the Developers was tabled at the September 3 rd meeting. [ 19 ] On September 8, 2020, a senior planner with the Municipality emailed Ms. Copithorne-Barnes, copying Teresa Copithorne, and advised that the Municipality had reached out to Transport Canada and others to confirm the status of the aerodrome.

The email goes into detail about the questions raised and concludes by inviting contact should there be any questions about the application. No further written communications, letters or emails were provided by Cherie Copithorne-Barnes or Teresa Copithorne to the Municipality about the subdivision application. [ 20 ] The subdivision application was approved at a meeting held on October 29, 2020.

At that time the MPC confirmed that no lease or licence was ever granted to the applicants to use the road allowance for any purpose other than grazing, and based upon comments made by Transport Canada that they would not likely support an airport being developed over an existing road allowance or clearly marked transportation corridor. [ 21 ] For the reasons that follow, the application for an interlocutory injunction is dismissed.

Law and Analysis [ 22 ] Counsel for the Developers argue as a matter of preliminary objection that the respondents do not have standing to bring an application for judicial review as the applicants have not demonstrated that they are an aggrieved party.

For the purposes of my decision, I propose, without deciding, to assume that the applicants have standing to bring the present application for judicial review. [ 23 ] As I stated earlier, RJR-McDonald suggests that the applicants demonstrate (1) a serious question to be tried, in the sense that it is not frivolous or vexatious; (2) that it will suffer irreparable harm; and (3) that the balance of convenience supports granting the injunction. [ 24 ] When addressing the serious issue standard, the Supreme Court of Canada in RJR-MacDonald at p. 337 emphasized that the threshold is a low one and that the judge must make a preliminary assessment of the merits.

Beyond that, the Court said that a prolonged examination of the merits is generally not advisable. There are two exceptions, when the result of the interlocutory application will be a final determination, or when a question of constitutionality presents itself as a simple question of law alone.

Both of these considerations arguably present themselves here given that the development of the road would render the airstrip unusable, likely not capable of being reconstructed, and because of the constitutional arguments made by the applicants. [ 25 ] The Supreme Court in RJR-McDonald described the irreparable harm test as follows at p 241: At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application.

"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. [ 26 ] Justice Jeffrey aptly described the concept of irreparable harm in Embedia Technologies Corporation v Blumell, 2018 ABQB 222 at para 26 : Irreparable harm means “harm for which no fair and reasonable redress would be available after trial”: Ominayak et al v Norcen Energy Resources Ltd. et al , 1985 ABCA 12 at para 32 .

In that decision the Court of Appeal adopted the following fuller wording for the test, that “no fair and reasonable redress may be had in a court of law and that to refuse the injunction would be a denial of justice”: at para

31, citing High on the Law of Injunction, 4th ed., Vol 1, at p.36). This has since been repeated by the Court of Appeal as the test inAlberta: Noise Solutions v Commercial Insulation Contracting, 1998 ABCA 257 at para 6; May v 1986855 Alberta Ltd, 2018 ABCA94 at para 14. [27] On the balance of convenience test, the Supreme Court in RJR-MacDonald observed that the factors which must beconsidered are numerous and will vary in each individual case.

The Court did say at p.343 in constitutional cases, however, a specialfactor in the balance of convenience must be a weighing of the public interest. [28] The notion that a judge must weigh the public interest when considering the balance of convenience test has been endorsed bythe Alberta Court of Appeal. For example, in 360Ads Inc v Okotoks (Town), 2018 ABCA 319 at para 13, Justice O’Ferrall stated thatRJR-MacDonald test supports the notion that a court must assume harm to the public if the actions of government are restrained giventhat governmental authorities are charged with promoting the public interest.

At para 14, Justice O’Ferrall said, as a consequence, “it isthe applicant for the stay who must offset those presumed public interest considerations by demonstrating a more compelling public orprivate interest in staying the municipality’s actions”. Have the Applicants Demonstrated that there is a Serious Issueto be Tried? [29] In these circumstances, I accept that the applicants have satisfied, on balance, the deliberately low threshold of demonstratingthat there are serious issues to be tried.

Having come to this conclusion, however, I am of the view that the arguments made by theapplicants are not strong and I propose to review those arguments in some detail as their relative strength. I will do so, in part, becausethe strength of the applicants’ arguments is a factor that I must consider when weighing the balance of convenience.

Procedural Fairness [30] As a starting point, the applicants argue that procedural unfairness arises from the fact that 170 Ltd received no notice of thesubdivision application, combined with an argument that CLR did not receive notification of the meeting resulting in the decision topermit the subdivision, including the necessarily incidental decision to develop the road allowance. [31] When considering the applicant’s arguments as to procedural fairness, I acknowledge the guidance provided by the SupremeCourt of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, a decision which did not expresslyconsider the standard of review for procedural fairness issues. [32] In Moreau-Bérubé c Nouveau-Brunswick, 2002 SCC 11 , [2002] 1 SCR 249 at para 74, Justice Arbour said that noassessment of the standard of review was required in determining whether there had been a breach of procedural fairness: ...Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of theprocedures and safeguards required in a particular situation. [33] Beyond this helpful observation, I accept that the standard of review applicable to issues of procedural fairness in one ofcorrectness.

The Supreme Court of Canada in Mission Institution v Khela, 2014 SCC 24 , [2014] 1 SCR 502 at para 79described the applicable standard of review as follows: ...For instance, the standard of determining whether the decision maker complied with the duty of procedural fairness will continue to be“correctness”. [34] The Alberta Court of Appeal described what is meant by “correctness” in the context of considering issues as to proceduralfairness in Armstrong v International Brotherhood of Boilermakers Local 146, 2010 ABCA 326 at para 15, that is, “correctness”means that the Court decides whether the proceedings met the level of fairness required by law. [35] The standard of fairness is measured in a particular context by five factors: (1) the nature of the decision being made andprocess followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates: (3)the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging thedecision; (5) the choices of procedure made by the agency itself: Baker v Canada Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817. [36] When considering the statutory scheme, the Municipal Government Act requires notice of a subdivision application be givenonly to the owners of adjacent land (the notice must include the municipal address if any, and the legal address of the parcel of land and amap showing the location of the parcel of land).

It is worth noting, at this stage, that 170 Ltd is not an adjacent landowner as statutorilydefined. Under s. 653(5) the notice must describe the nature of the application, the method of obtaining further information, and themanner and timing of the submission of written submissions for the consideration of the subdivision authority. Under s. 653(6) theMunicipality is not required to hold a hearing.

Of equal importance, the Muncipal Government Act does not provide a right of personalaudience for those wishing to oppose subdivision approval. [37] In other contexts, the Municipal Government Act, affords greater procedural protections to adjacent landowners and, at times,to landowners whose property is further afield.

The amendment of land use bylaws provides a relevant example: s.692 and s.606 of theMunicipal Government Act. [38] Subdivision approvals, in contradistinction, do not require public hearings (s.653(6)) (although written submissions may besubmitted by adjacent landowners (s.653(5)); there is no right of appeal to the appeal tribunal by the owners of adjacent lands (s.678(1));

the MPC is only obliged to provide reasons if the application for subdivision is refused (s.656(2)). Notably, the MPC may deliberate and make decisions in meetings closed to the public (s.197 (2.1)). [ 39 ] When it comes to developing roads or highways, the Province of Alberta, and in some cases a municipality that is a city, have broad jurisdiction concerning the public interest.

Section 16 of the Municipal Government Act provides that the title to all roads in a municipality, other than a city, are vested in the Crown in right of Alberta. Under s.18 of the Municipal Government Act , the Crown in right of Alberta grants municipalities the direction, control and management of all roads within the municipality.

As Slatter JA stated in St Paul (County) No 19 v Belland, 2006 ABCA 55 at para 18 , s. 18 should be interpreted as having been intended to give municipalities wide-ranging control of the roads in a municipality, with all rights, short of the ability to alienate the title to the road or unilaterally close it. [ 40 ] To prevent interference with highways or roads, including land used or surveyed for use as a public highway or road, a person who obstructs or deposits material in a highway or interferes with, breaks, or cuts or otherwise injures a highway may be guilty of an offence: ss 1(i), s.43 of the Public Highways Development Act, RSA 2000, c P-38 . [ 41 ] Notably, there is no legislative requirement for a municipality to give notice to adjacent landowners or to hear from adjacent landowners, when making the decision to develop an undeveloped road allowance.

On the other hand, if an individual wished to close an undeveloped road allowance for the purpose of consolidating the road allowance into the lands of the requesting landowner, an application to and approval from the Crown in Right of Alberta would be required. [ 42 ] Road allowances, developed or otherwise, also cannot be acquired by adverse possession.

Under s.4 of the Public Lands Act, RSA 2000 c P-40 , no person can acquire by prescription an estate or interest in public land, or as against the Crown, in any other land. [ 43 ] I agree with the respondents, that the statutorily streamlined process contemplated in the subdivision approval process means that consultation is not legislatively required before developing an undeveloped road allowance for the purpose of providing access to the subdivision, and procedural fairness is not implicated when undertaking the development of a previously undeveloped road. [ 44 ] I say this because here the Municipal Government Act was complied with in its entirety. “Adjacent land” is defined in s.616 of the Municipal Government Act as meaning land that is “contiguous to a parcel of land that is being subdivided and includes land that would be contiguous if not for a highway, road, river or stream”, and any other land identified as adjacent in a land use bylaw. [ 45 ] The Municipalities’ written policy provided, in addition, that it would advise all assessed owners within a ½ mile.

The Municipality complied with both the legislative requirements and its own policy. The adjacent landowners were given written notice on July 14, 2020, which contained a deadline of August 5, 2020 for the adjacent landowners to provide any written submission to the Municipality. No written submissions were received. [ 46 ] No notice was required to be given to 170 Ltd as the corporation does not fall within the statutory notice requirements.

However, it is notable that Teresa Copithorne as a director and shareholder of 170 Ltd was well aware of the proposed subdivision and the possibility that the road allowance would be developed. [ 47 ] Although the Municipality was not required to provide 170 Ltd with formal notice of the Subdivision Application, 170 Ltd shared a mailing address with CLR. Teresa Copithorne is married to Marshall Copithorne who is a director of CLR. Teresa Copithorne has a familial relationship with the other two directors.

Teresa Copithorne was copied on the August 31, 2020 and September 4th emails between Cherie Copithorne-Barnes and the Municipality. There is no dispute on the evidence that Teresa read the emails, including the consideration of access over the road allowance. [ 48 ] Although 170 Ltd did not have formal notice of the subdivision application it was aware of the application and aware that the Municipality invited a written submission.

Notably, nobody, including CLR who had formal notice, decided to provide written submissions. [ 49 ] Cherie Copithorne-Barnes and Teresa Copithorne were aware of the September 3, 2020 meeting; were aware that the MPC had tabled consideration of the subdivision application on September 3, 2020; and were privy to communications from the senior planner inviting contact if there were further questions about the application.

No further steps were taken in response that that invitation. [ 50 ] When considering the issue raised by the applicants as to procedural fairness, it is also relevant to my consideration that none of the applicants are actually concerned about or feel aggrieved by subdivision approval per se ; rather, the applicants object to the development of the existing road allowance – the development of which did not require notice to the adjacent landowners or anyone else. [ 51 ] When it comes to issues raised by the applicants concerning the development of the road allowance, it is also important to note that the applicants were well aware of the road allowance as evidenced by the licensing agreements that had permitted the applicants to graze cattle on the road allowance since 1969. [ 52 ] As I have already discussed, municipal roads are exempt under s.618(1) (

a) of the Municipal Government Act from the planning and development provisions. I agree with the comment made by Professor Frederick Laux, Q.C. in Planning Law and Practice in Alberta, 4 th ed., at p 4-40: As for roads owned or controlled by the provincial government, s.616 does little more than confirm that Crown immunity attaches to subdivisions and developments effected for those road purposes.

As to highways and roads owned or controlled by municipalities, s.618 modifies the general rule that municipalities are bound by Pt. 17 by giving them the right to effect developments or subdivisions for road purposes without having to meet the requirements of Pt. 17, the Subdivision and Development Regulation, or their own land use bylaws, for that matter. [ 53 ] In my view the applicants do not have a strong argument when suggesting that they were owed a greater audience than they were provided by the Municipality in all of the circumstances.

The legislative framework would not suggest one, and an argument as to

procedural unfairness cannot easily be mounted upon the failure to provide the applicants a greater opportunity to be heard when it was the applicants who constructed an aerodrome over land that they did not own and in so doing deliberately commandeered an existing statutory road allowance. The Constitutionality of the decision made by the MPC [ 54 ] The applicants next argue that the Municipality’s decision improperly impinges upon or interferes with the exclusive federal jurisdiction over aviation.

The applicant’s note that the Aeronautics Act , RSC 1985, c A-2 at s.3(1) broadly defines an aerodrome as: any area of land or water (including the frozen surface thereof), or other supporting surface used, designed, prepared, equipped, or set apart for use either in whole or in part for the arrival, departure, movement or servicing of aircraft and includes any buildings, installations and equipment situated thereon or associated therewith. [ 55 ] The applicants further argue that there is no requirement that an aerodrome be registered and until 2016 there was no requirement for federal approval of any kind, such as the consulting process envisioned by the 2016 Canadian Aviation Regulations. [ 56 ] The applicants, in support of their argument of interjurisdictional immunity, point out that the aerodrome will be destroyed if the Court should permit the development of the road allowance, and note that the aerodrome has existed since the early 1970’s. [ 57 ] I accept that the applicants have created an aerodrome within the meaning of the Aeronautics Act . [ 58 ] Briefly speaking, the interjurisdictional immunity cases arise out of situations where a provincial law of general application is considered to be valid as a matter of provincial jurisdiction under s.92 of the Constitution Act 1867 , except insofar it applies to the jurisdiction of the federal government under s.91 of the constitution. [ 59 ] In such circumstances, rather than declaring the provincial law to be invalid, the law is found to be inapplicable to the extra- jurisdictional matter.

This is what is meant by interjurisdictional immunity. [ 60 ] The applicants rely in making this argument concerning interjurisdictional immunity upon the Supreme Court of Canada decisions in Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39 and Quebec (Attorney General) v Lacombe, 2010 SCC 38 . [ 61 ] In the Canadian Owners case a grass strip, hangar and associated structures were placed on land for private use.

A provincial land commission, acting on the authority of provincial legislation prohibiting the land for uses other than agricultural, ordered stoppage of the aeronautics use.

Applying the doctrine of interjurisdictional immunity, the majority of the Supreme Court held that although the provincial legislation was valid as a matter of provincial jurisdiction under the Constitution Act, 1867 , the doctrine of interjurisdictional immunity meant that the legislation was inapplicable to the extent that it impacts the federal power over aeronautics, which is supported by the federal power to make laws for the peace, order, and good government of Canada. [ 62 ] In coming to this conclusion, the Court said that the test is whether the provincial law impairs the federal exercise of its core powers.

The Supreme Court noted at paragraph 45 that impairment is a higher standard than “affects” because a finding of impairment means the provincial legislation “seriously or significantly trammels the federal power”. [ 63 ] In the circumstances of Canadian Owners , the Supreme Court found such impairment because the effect of the legislation was to remove all agricultural land from consideration as potential aerodromes, which by its scope significantly restricts or impairs Parliament’s power to determine where aerodromes may be constructed.

While the Supreme Court of Canada noted that paramountcy would permit Parliament to override the provincial legislation, to require Parliament to do so on a case-by-case basis would significantly impair the legislative freedom of Parliament to permit aerodromes to be constructed. As the Supreme Court of Canada noted, the provincial legislation removed 63,000 square kilometres from the territory that Parliament had designated for aeronautical uses. [ 64 ] In Lacombe , a Quebec municipality passed a bylaw that prohibited the use of lakes in parts of the municipality as aerodromes.

The validity of the bylaw was challenged by the operators of a commercial air taxi service that used one of the lakes as a water aerodrome for its float planes. The Aeronautics Act required the operators to have a federal Department of Transport licence, and they had the licence. [ 65 ] The majority of the Supreme Court rejected that the bylaw was in relation to the zoning of land with an incidental effect on aeronautics. The Court held that the bylaw was in pith and substance in relation to aeronautics and was unconstitutional for that reason.

McLachlin CJ said that even if the bylaw was for a valid purpose, the law would have been inapplicable to a water aerodrome by reason of interjurisdictional immunity. [ 66 ] Canadian Owners was applied by Justice Belzil of this Court in Parkland Airport Development Corporation v Parkland (County), 2013 ABQB 641 wherein Justice Belzil granted, inter alia, an injunction enjoining the County from attempting to enforce a purported stop order, which was issued by the County because of its insistence that Parkland Airport apply for a development permit.

Justice Belzil upon issuing the injunction found a significant or serious intrusion upon the federal power and rejected the arguments that Canadian Owners was distinguishable because the aerodrome is not yet registered and because there was no federal oversight of the aerodrome.

The injunction was granted because the County had no jurisdiction to demand a development permit as precondition to obtaining haul permits or for any other purpose. [ 67 ] The difficulty faced by the applicants in pursuing this argument is that they are arguing that the federal power over aeronautics may be utilized to permit individuals to build over existing statutory road allowances and in effect expropriate the lands for the federal purpose. [ 68 ] Canadian Owners , in my view, does not stand for the broad proposition that an aerodrome can be constructed over property owned by the Province and commandeered for that federal purpose, thereby circumventing federal expropriation legislation.

[ 69 ] As the respondents properly argue, public and municipal lands are immune to claims of adverse possession: Oro-Medonte (Township) v Warkentin , 2013 ONSC 1416 at para 114 .

Section 4 of the Public Lands Act, RSA 2000, c P-40 provides that no person may acquire by prescription an estate or interest in public land or, as against the Crown, in any other land. In addition, s.609 of the Municipal Government Act , provides that no person can acquire an estate or interest in land owned by a municipality by adverse or unauthorized possession, occupation, enjoyment or use of land.

These statutory provisions were present in previous iterations of the Public Land and the Municipal Government Acts . [ 70 ] To illustrate, the respondents referred me to Malmberg v Cardston (Muncipal District) No. 6, 1997 ABCA 33 . In that case the claimants asserted that they were entitled to compensation when the municipality built a road on an undeveloped road allowance because they were in historical possession of it.

The Alberta Court of Appeal at para 43 acknowledged s.4 of the Public Lands Act as preventing the claimants from acquiring an estate or interest in these lands by prescription. [ 71 ] I do not take Canadian Owners to mean that land can be effectively expropriated by deliberately and intentionality building an aerodrome over land owned by another.

Interjurisdictional immunity cannot be invoked to effectively permit such a trespass or expropriation because it cannot be seriously argued that provincial law of land ownership must cede in every case to the proposed construction of an aerodrome no matter where it might be located or who might own the land.

Provincial law respecting the right of ownership of land does not and cannot impair the federal power over aeronautics. [ 72 ] I agree with the respondents that the fact that an aerodrome comes within the federal power concerning aeronautics under the Constitution Act 1867 does not mean that the applicants are entitled to put the landing strip, or retain the aerodrome, on provincial land.

The Municipality here, unlike for example the municipality in Parkland Airport Development Corporation , has not attempted to establish land use or planning legislation that would prohibit airports, or that would attempt to regulate airports by the imposition of requirements relating to development permits or the like. Nor does the valid purpose the Crown has in establishing and maintaining roadways been used to effectively prohibit the establishment of aerodromes over vast areas of land as was the case in Canadian Owners . [ 73 ] I also do not find that Lacombe is of assistance to the applicants.

Lacombe was not an appeal that concerned itself with the ownership of the lake in the sense that the use of the lake by private individuals did nothing in and of itself to prohibit the use of the lake by others or to alter the use of the lake qua lake.

Additionally, the civil law status of water in Quebec is such that water in not owned by the Crown per se , but instead the lake in question confers broad rights of enjoyment by all in the furtherance of the public good. [ 74 ] In sum, the applicants do not have a strong argument when suggesting that the federal power over aeronautics prevents the Municipality to develop the road allowance.

The stronger argument suggests that the applicants cannot build an aerodrome across a road allowance and then assert because of the federal power over aeronautics, the Province and Municipality have lost their ownership interests in the statutory road allowance. This, of course, is not to say that the applicants could not have built a landing strip or an aerodrome upon lands for which the applicants have ownership. Was the MPC’s decision reasonable? [ 75 ] The applicants also challenge the reasonableness of the decision made by the MPC.

In making this argument, the applicants submit that there is nothing preventing a road to be constructed from the proposed house location traveling south to Township Road 242 instead of one traveling north to Township Road 244. As the applicants point out, both township roads run parallel to each other, and connect to the east with Cowboy trial.

During questioning of a Municipality official, it was revealed that this option was not seriously considered notwithstanding the road would not destroy the aerodrome or potentially interfere with wetlands. [ 76 ] While, arguments of admissibility of the evidence given by the official of the Municipality aside, it is concerning on the face of things that the MPC did not consider the suggested alternative of constructing a road south to Township Road 242.

This is because as the Supreme Court stated at para 87 of Vavilov a judge conducting a reasonableness review is concerned with both the outcome of the decision and the reasoning process. I say this recognizing that a reasonableness review takes its colour from its context and factual constraints (para 90). [ 77 ] In my view, however, the difficulty with the argument made by the applicants is that what they are objecting to in this particular case is not the subdivision of the property per se; rather, the applicants are complaining because they built an aerodrome over an existing statutory road allowance.

The applicants having created the very problem that they now complain about, are in effect arguing that the Municipality had a duty to reasonably consider and act upon alternatives that would not involve upon the Municipality acting upon its ownership of the land. [ 78 ] The road allowance, undeveloped as it is, was in existence as statutorily defined at the time that the aerodrome was built over it.

The applicants, having created the problem they now face, are in effect arguing that the Municipality justify the reasonableness of the decision to assert it rights of property ownership over the road allowance by building upon it.

In my view this argument is not open to the applicants. [ 79 ] In my view the strongest argument suggests that the MPC in these circumstances owed no duty to the applicants to consider alternative routing of the road access. [ 80 ] I must also remind myself that I am not simply to reweigh the decision made by the Municipality to determine on the additional evidence before me if I would have come to the same decision.

The applicants were well aware that they could raise their concerns with the Municipality and chose not to do so. [ 81 ] I will go on to consider the second and third branches of the test laid down by the Supreme Court in RJR-MacDonald. Have the Applicants Demonstrated Irreparable Harm?

[ 82 ] For the purposes of this application, I accept that the applicants have demonstrated irreparable harm. I say that fully recognizing that the suggested implausibility of moving the aerodrome is a fact disputed by the respondents. Assuming, however, that there is not an easily accessible or practical potential alternative for the Aerodrome, the resulting loss of the air strip and the use of aircraft associated with the aerodrome would not be compensable in damages.

Damages would simply not be adequate. [ 83 ] While I accept that the applicants have been slow in commencing this review (almost 6 months later) and that the Developers have incurred $15,000 in expenses including by obtaining engineering drawings, I do not infer from the suggested laches that it is demonstrative of a lack of urgency by the applicants or something from which I can easily infer that an injunction is not required.

The Balance of Convenience [ 84 ] I am of the view that the balance of convenience does not support the granting of an injunction in this case. [ 85 ] I must consider not only the harm to the Municipality in being prohibited from the legitimate goals of exercising its statutory powers, including those which favour the development of lands and the provincial system of road allowances, but this must be balanced with the fact that the applicants knowingly became the authors of their own misfortune.

In a very real sense, the applicants come before the court having created the very problem that they now complain of, and it must not be forgotten in this regard that an injunction is a remedy fashioned upon principles of equity. [ 86 ] The road license agreements entered into by the applicants are for grazing purposes only and the licenses did not authorize the applicants to construct an aerodrome or a landing strip on the road allowance.

When the landing strip was constructed, the applicants knew that they were doing so at their own risk because the lease contemplated only temporary use, at will, and only for the purpose of grazing. [ 87 ] I am of the view when assessing the balance of convenience that the applicants cannot create their own unauthorized or unlawful problem by first building the aerodrome and then using it, and then come to the court seeking an injunction to prevent its destruction because the Municipality wishes to pursue the perfectly valid public goal of constructing a road. [ 88 ] To grant an injunction in these circumstances would have the illogical effect of permitting the applicant’s trespass to continue combined with prohibiting the Developer’s from proceeding with the development of the access road because of the applicant’s wrongdoing.

Viewed in this manner, the balance of convenience is abundantly clear and does not favour the granting of an injunction. [ 89 ] I am of the view that the applicant’s arguments are without sufficient strength such that when balanced against the irreparable harm to the legitimate goals or pursuits of the Municipality as to the subdivision of land, or the development of the road allowance, the balance of convenience does not favour the ordering of an injunction. [ 90 ] The application for an interim or interlocutory injunction is therefore dismissed. Heard on the 23 rd and the 28 th days of June, 2021.

Dated at the City of Calgary, Alberta this 30 th day of June, 2021. D.A. Labrenz J.C.Q.B.A. Appearances: Andrew Stead and Preet Sani- McMillian LLP for the Applicants

Michael C. Kwiatkowski, Nicholas Lo and H. Hunter-Loubert- McLeod Law LLP for the Respondents (Raymond Nicoll and Patricia Nicoll) Jeneane Grundberg, Q.C. and Brendan Dzioba- Brownlee LLP for the Respondent (Rocky View County) _______________________________________________________ Corrigendum of the Decision of The Honourable Mr. Justice D.A. Labrenz _______________________________________________________ Corrected the name in the citation to: CL Ranches Ltd v Rocky View _______________________________________________________ Corrigendum of the Decision of The Honourable Mr. Justice D.A.

Labrenz _______________________________________________________ Paragraph 52 is corrected from by Professor Frederick Laux, Q.C. in Planning Law and Practise in Alberta, 4 th ed., at p 4-40 Planning Law and Practice in Alberta, 4 th ed. _______________________________________________________ Corrigendum of the Decision of The Honourable Mr. Justice D.A. Labrenz _______________________________________________________

[1] Correction to paragraph [39] above to now read “ As Slatter JA stated in St Paul (County) No 19 v Belland , 2006 ABCA 55 at para 18 ... ”. [2] Correction to paragraph [67] above to now read “The difficulty faced by the applicants in pursuing this argument...”.