Focus On


Tuesday, July 11, 2017 @ 10:11 AM  

Lexis Advance® Quicklaw®
Appeal by Burlington Airpark Inc. (Airpark) from an order requiring it to file an application for a permit under the respondent City’s 2014 bylaw for fill work and site alteration carried out before the bylaw was passed and while an earlier bylaw was in effect. Airpark owned an aerodrome located in the City. The appellant’s fill and site alteration work commenced in 2008. In 2013, it applied for a severance to obtain land needed to extend the main runway. At that point, the City determined that the appellant was conducting a commercial fill operation and that a 2003 bylaw applied. The appellant took the position that, as an aerodrome, it was not subject to the 2003 bylaw. A 2014 court order determined that the appellant was subject to the 2003 bylaw. Meanwhile, the City passed a more stringent 2014 bylaw with no transitional provision to continue the 2003 bylaw. After the 2014 bylaw was passed and the 2003 bylaw was repealed, it made several requests of the appellant to file an application under the new bylaw. Airpark refused, maintaining that the 2014 bylaw could not be applied retroactively. The City then applied for a mandatory order requiring the appellant to remove all fill deposited since 2008 or for an order requiring the appellant to submit an application under the 2014 by-law for all work performed since 2008. The application judge granted an order requiring the appellant to submit a complete application under the 2014 bylaw with respect to the work it had already performed.

HELD: Appeal allowed. The application judge erred by giving the 2014 bylaw retroactive effect and requiring the appellant to apply for a permit for work already done before that bylaw was enacted. There was nothing in the 2014 bylaw that could justify requiring remediation of work conducted or a situation created before the bylaw came into force. The language of the 2014 bylaw could not support the City’s position that the bylaw could be applied to require the appellant to obtain a permit for work done before the 2014 bylaw came into force. The 2014 bylaw was directed at requiring permits before work was undertaken. No provision was made for remediating work done without a permit under the 2003 bylaw. The 2014 bylaw had neither retroactive nor retrospective application. Nothing in the bylaw indicated an intention to reach back in time and apply the standards of 2014 to work done before the 2014 bylaw was enacted.

Burlington Airpark Inc. v. Burlington (City), [2017] O.J. No. 2682, Ontario Court of Appeal, K.N. Feldman, R.J. Sharpe and L.B. Roberts JJ.A., May 24, 2017. Digest No. TLD-July102017006