When Is An Aerodrome Not An Aerodrome?

A recent decision of the Ontario Superior Court of Justice, Seguin (Municipality) v. Bak, 2013 ONSC 5788, represents both a win for local government, and a sound application of common sense by the court.  The municipality sought an injunction requiring a landowner to demolish a structure built at and over the edge of a lake.  The municipality alleged that the structure was a boathouse, a type of structure not permitted under the applicable zoning bylaws.

In response, the owner took the position that the structure was a “water aerodrome” subject to federal jurisdiction, that it was registered as such, and that based on the constitutional doctrine of inter-jurisdictional immunity, municipal bylaws did not apply to the construction and use of the structure.

It is well settled in Canadian law that federally regulated undertakings enjoy a large degree of immunity from the application of provincial and local laws.  Among such undertakings are aerodromes (which includes both licensed airports and small, unlicensed air strips), interprovincial railways, ports, and telecommunications systems, to name but a few.

The municipality did not challenge the argument that the doctrine of inter-jurisdictional immunity would apply if the structure in question were indeed a water aerodrome.  What the municipality argued, and the court ultimately accepted, was that the structure was in reality a boathouse, and was only masquerading as a water aerodrome in an effort by the owner to circumvent the application of zoning bylaws.  The court based its decision on a number of facts, several of which are worth noting.  The owner did not own a plane and did not have a pilot’s licence.  The evidence showed that when the owner purchased the property, he intended to build a new cottage and a boathouse.  In fact, the owner applied for a zoning amendment to permit a future boathouse.  That amendment was refused by the municipality.  After the municipality issued a stop work order, the owner first began to assert that the structure was a water aerodrome.  Rather than incurring the expense of appealing the zoning amendment refusal to the Ontario Municipal Board, the owner persisted in characterizing the structure as a water aerodrome, and continued construction despite the stop work order.

Once complete, the structure was not large enough to accommodate an ordinary small airplane.  On just one occasion, the owner was able to push an amateur-built ultralight aircraft into the structure.  There was no evidence before the court that the structure was ever used for aeronautical purposes, but there was clear evidence of it being used as a boathouse.

The owner attempted to rely on the fact that he had registered the structure as a water aerodrome with Transport Canada.  However, the court held that such registration was not determinative, particularly since Transport Canada’s registration of the structure as a water aerodrome was simply a bureaucratic exercise, not based on any substantive review of the structure or its intended use.  The evidence before the court was that Transport Canada is obliged to register an aerodrome as long as the applicant provides the required aeronautical data and confirms that there are not any known hazards.

In the result, the court concluded that the structure was indeed a boathouse, and that it was in violation of the municipality’s zoning bylaws.  The court ordered the owner to demolish and remove the structure.  In refusing to favour form over substance, the court in this case took an approach similar to the one taken by the British Columbia Court of Appeal in Salt Spring Island Local Trust Committee v. B & B Ganges Marina Ltd, 2008 BCCA 544.  In that case, the court ruled that a barge being used as an office and reception area was a “structure” subject to zoning bylaws, not a “ship” even though it was registered in the Canadian Register of Ships.

Both cases demonstrate that mere registration of a structure under a federal scheme may not be determinative of its legal status.  Where the application of local bylaws is concerned, it is important to look at the totality of the evidence, because sometimes what an owner claims a structure to be, and what the law considers it to be, are two different things.