June 14, 2017

Burlington Airpark Appeal Successful


The Ontario Court of Appeal has ruled in favour of the Burlington Airpark and overturned an earlier decision which ordered the Airpark to comply with a 2014 city bylaw with respect to work done between 2008-2013. The appeal court ruled that the City of Burlington could not retroactively apply its new, more stringent bylaw to the airport improvement project. The Court of Appeal was of the view that the City’s attempt to do so was an example of “reaching into the past and declaring the law to be different from what was” which was a “serious violation of the rule of law.”

The airpark owners began moving fill to improve the airport in 2008 and did so without permits from the City as the City advised at that time the construction was considered to be under federal jurisdiction pursuant to the Constitution Act, 1867 and that the City’s bylaws did not apply.

In 2013 the airpark applied to the City for a severance to obtain land to the north to extend the main runway. At that point, the City changed its mind, issued a stop-work order in respect of the airport improvement work  and further ordered the Airpark to comply with a 2003 bylaw that regulated importing soil. In 2013, the City won a court challenge that ruled the 2003 bylaw did apply to the Airpark, but that court did not make a ruling as to whether it could apply to work already completed. At that point, the City repealed the old bylaw in favour of a new, tougher bylaw in 2014 and told the airpark owners they had to comply with the new bylaw in respect of the work already completed in 2008-2013, before the 2014 bylaw had been enacted. The City again took the Airpark to court and the first Judge ordered the Airpark to file an application with the City under the 2014 bylaw for the 2008-2013 work. The appeal court overruled that earlier decision and said the 2014 bylaw could not be applied retroactively. It Court of Appeal set aside the earlier decision, dismissed the City’s court application and ordered the City to pay legal costs to the Airpark.