By Glenn Grenier, Co-Chair Aviation, McMillan LLP

On April 26, 2021, the Ontario Superior Court of Justice released its decision in Collingwood Aviation Partners Ltd. v. Winterland Airfield Holdings. At issue was whether the new owner of the Collingwood Airport could impose access fees upon an adjacent land owner, which had enjoyed unfettered access to the airport since 1968, and whether the new owner could erected fencing to restrict such access. In the circumstances of the case, the Court concluded: “no”.

In 1968, the Town of Collingwood, which had no airport, was approached with a proposal to build one. The proponents offered to build a runway on vacant land owned by the Town. In exchange for that construction, and a further payment of $3,500, the Town agreed to sever a portion of the new airport lands and transfer them to the proponents. From the severed lands, the proponents agreed they would provide air services, including the operation of a flight school. Although the runway was built and a portion of the new airport was severed and transferred to the proponents, the original agreement was actually silent as to the issue of access to the new airport.

From 1968 onwards, the proponents and their successors in title, had unfettered access to the airport from the severed parcel now abutting the airport. They also maintained an air service and flight school (or had tenants that did so). That severed parcel was eventually purchased by Collingwood Aviation Partners Ltd. (“CAPL”). In 2014, CAPL requested that the longstanding arrangements be put in writing. The Town obliged. The new “Operating Agreement” also included arrangements which effectively resulted in CAPL (or its tenants) purchasing their fuel from the airport. The Operating Agreement was registered on title to both the airport lands and the severed lands.

I pause to note that I have used the word “airport” loosely. Collingwood Airport was, at one time, a certified aerodrome or an “airport”. The Town allowed that certification to lapse a number of years ago. At the time of this case, Collingwood Airport was in fact, a registered aerodrome but not a certified “airport”.

In 2018, the Town sold the airport to Winterland Airfield Holdings (“Winterland”), including an assignment of the Operating Agreement. It appears Winterland attempted to renegotiate the Operating Agreement, including a 6 month termination clause, but CAPL rejected such amendments.

In July 2019, Winterland delivered a schedule of fees to CAPL concerning aircraft access, landing and movement, indicating CAPL was obligated to pay such fees under the Operating Agreement in the same manner as all other users of the airport facilities. Winterland characterized the fees as modest, but also claimed the amount of such fees were within its discretion. CAPL resisted. In December 2019, Winterland erected fencing between the CAPL parcel and the airport, including along the boundary between the CAPL apron and the airport’s bravo taxiway. Among other things, the fence reduced the existing access from 240 feet down to 90 feet. That fence was then replaced by concrete barriers (which were then removed on an interim basis as the litigation ensued). Winterland claimed that the fencing would enhance safety. Each party launched an Application to the Court to determine their respective rights. Both Applications were heard together.

The Court concluded that CAPL had a contractual right of unrestricted access to the airport lands further to the Operating Agreement. It further agreed with CAPL’s submissions that even absence the contract, CAPL had proven all the elements needed to establish a common intention easement over the airport lands which had existed since the time the abutting lands were severed in 1968. How else could the original proponents provide a flying service and flying school if they did not have access to the airport lands and the runway they had just built for the Town?

The Court found that since CAPL had both contractual and common law easement rights of access, CAPL could not be charged an access or user fee. It could not be charged a fee for a right of access it already had.

The Court also concluded that while a property owner usually has a right to fence its lands, that does not include fencing to restrict access from a neighbouring parcel that has a right of access. Further, the evidence showed that the fencing did not increase safety as claimed by Winterland, but was itself a safety hazard. In this regard, it is noteworthy that the Court was referred to TP-312 (5th)(Aerodrome Standards and Recommended Practices) which included standards for the width of taxiways. The Court concluded that the fencing reduced the taxiway below the best practices recommended in TP-312. The Court also, (quite correctly in my view), concluded that the facilities on CAPL’s lands (hangars and aprons for the servicing and movement of aircraft) were themselves an “aerodrome” as defined under the Aeronautics Act to which TP-312 also applied. The results: no fees, no fence. Winterland has filed an appeal.

The reader should understand that this case is very fact specific. The case does not stand for the general proposition that airport and aerodrome operators can never unilaterally impose access or user fees. They often can. But in some cases, “it ain’t necessarily so”.

(Photo: Adobe Stock)