by Glenn Grenier, Counsel to COPA

On May 23, 2019, the Supreme Court of Canada rendered a short decision denying leave to the City of Lévis to appeal the decision of the Quebec Court of Appeal in the case of A.G. Quebec v. Leclerc. In that decision, the Quebec Court of Appeal held that skydiving was an inseparable part of ‘air navigation as a whole’. Citing the decision in Quebec AG v. COPA by analogy, the Quebec Court of Appeal held that the place where skydiving can be practiced is an essential part of the federal aeronautics power protected by the constitutional doctrine of interjurisdictional immunity. Accordingly, charges of conducting skydiving training and skydiving activities upon lands the city zoned exclusively for agricultural purposes were dismissed. With the Supreme Court of Canada denying the city leave to appeal, that decision stands and that dismissal is permanent.

“We are pleased with the decision of the Supreme Court of Canada to dismiss the appeal in the case of Ville de Lévis v. Albertine Leclerc,” said Max Sénécal, president of Parachutisme Atmosphair (a skydiving company and COPA corporate member) who operates out of that field. “We will continue to operate in accordance with the laws and regulations that apply to us, as has been the case for the last 26 years. We congratulate Mrs. Leclerc for defending her rights, but also the rights of all aviation operators across the country. We thank COPA for their support and commitment to the interests of aviation in Canada.”

While a denial of leave to appeal by the Supreme Court of Canada is not the same as a ruling affirming the decision, the fact that leave was denied is often viewed as the next best thing. The Supreme Court of Canada does not have to explain why leave has been denied, and such denial can be for reasons other than approval of the earlier decision.

One troubling aspect of the Quebec Court of Appeal’s decision however was its finding that Leclerc still needed to obtain a municipal building permit for the new skydiving centre. Although the local building permit regime only allowed building permits to be issued for buildings that complied with local use restrictions, the Quebec Court of Appeal ruled those restrictions did not apply, a building permit could not be denied on that basis and thus there would be no interference in the federal aeronautics power. Leave to appeal to the Supreme Court of Canada was also sought by the responding parties for this aspect of the decision. Such leave was also denied. Accordingly, this aspect of the Quebec Court of Appeal’s decision also stands.

In rendering its decision concerning the building permit, the Quebec Court of Appeal did not reference any of the three decisions of the Ontario Court of Appeal (decided in 1976, 2000 and 2018) which found that municipal building permits based upon provincial building codes and standards were not applicable to hangars/airport buildings.

Two of those decisions have been cited with approval by the Supreme Court of Canada. The failure of the Quebec Court of Appeal to refer to this well established line of cases arguably weakens that aspect of its decision. Unfortunately, this ruling may have thrown into doubt this previously well settled question of law, at least for the time being in Quebec. It appears the Quebec Court of Appeal was understandably concerned about airport structures meeting building standards in terms of safety, but did not consider nor cite the Federal Building Code which has been and is used for such purposes.