Federal jurisdiction goes to Supreme Court of Canada

By Kevin Psutka and Dan Cornell, COPA General Counsel

A very important legal battle is about to take place, the outcome of which will have a profound effect on everyone who is involved in general aviation.

On May 2, 2008, the Attorney General for the province of Quebec filed an Application for Leave to Appeal to the Supreme Court of Canada in connection with two decisions which have been recently rendered by the Quebec Court of Appeal.

These cases affect everyone involved in general aviation as they go to the very heart of that activity, namely the ability to establish and operate an airport or aerodrome.

In the case of Commission du Protection du Territoire Agricole du Quebec v. Laferriere/Gervais, the Commission (CPTAQ) had refused to grant Mr. Laferriere permission to establish an aerodrome on his rural property. This decision was based on a 1990 decision of the Quebec Court of Appeal which held that the CPTAQ had the ability to regulate or prohibit the establishment of an airport or aerodrome on agricultural property.

Since that time, COPA has received many calls from individuals in the province of Quebec saying that the CPTAQ had also refused to grant permission for the establishment and operation of any form of airstrip. Given the importance of this issue, the COPA Special Action Fund was used to ensure that the issue received a thorough review at the time the matter was argued before the Quebec Court of Appeal.

After considering the matter at some length, the Quebec Court of Appeal adopted the legal position put forward by COPA and issued written reasons on March 4, 2008 in which they reversed the previous decision made by such court in 1990.

In doing so, the court held that the CPTAQ had no ability to prevent the establishment of an airport or aerodrome as this power is reserved exclusively to the federal government.

The second case involves the Municipality de Sacre-Coeur v. Lacombe et. al. In this case, the municipality had successfully applied to the Quebec Superior Court to obtain an injunction to prevent Lacombe from continuing operations from Lake Gobeil despite the fact that Lake Gobeil was listed as a base of operations on the Operating Certificate which had been granted by Transport Canada.

In granting the injunction, the Superior Court of Quebec held that the local zoning by-law applied to Lacombe’s operation and therefore the court had the authority to grant the injunction to stop them from flying from that lake.

Given the importance of the issue involved in this case, COPA applied for and received Intervenor Status and was permitted to make full argument before the Quebec Court of Appeal.

On March 4, 2008, the Quebec Court of Appeal once again accepted the legal arguments put forward by COPA, lifted the injunction and held that the municipal by-law had no application to the aeronautical activity of Lacombe.

These cases are of the utmost importance to personal and general aviation in Canada as there can be no doubt that if provincial land use agencies and municipalities are able to regulate or prohibit the establishment of airports or aerodromes or to regulate aeronautical activity, the risk exists that such activity will be seriously curtailed.

Given the importance of these cases, COPA has once again seen fit to provide funding from the Special Action Fund so that every effort can be made to meet this final challenge before the Supreme Court of Canada.

These land use issues have arisen across the country for a number of years. COPA’s member donations to the Special Action Fund provided funding and successfully met these challenges in Ontario (Venchiarutti v. Longhurst, 1992), British Columbia (British Columbia Regional District of Comox-Strathcona v. Hansen et. al. 2005) and Quebec (Laferriere and Air Mauricie, 2008).

Now that the issue is before the Supreme Court of Canada, a final and definitive answer will be provided.

With the support of the Special Action Fund, COPA members can rest assured that everything that can be done will be done to protect our freedom to fly. Without this Fund, our freedom to fly would have been significantly affected in these and other cases.

The Special Action Fund is now at a critical level due to increased demand and lower interest rates. Members are responding to our appeal for donations but the amount donated so far is not sufficient to sustain the $1 million principle, especially with the anticipated expenditure for the Supreme Court hearings and other challenges facing our freedom to fly.

Please visit our website or look in the newspaper for donation forms. Hold events to raise money or contribute whatever you can. Our freedom is at stake.