Constitutional Law – Division of Powers –
This is the first of two decisions released concurrently by the
Supreme Court of Canada assessing the constitutional authority of
provincial regulation (and municipal land-use by-laws) impacting
the field of aeronautics through the division of powers
In 1995, the municipality amended its zoning by-law to address
aviation activity. The pre-amble of this amending by-law stated
that it was passed to balance serenity for vacationers with
commercial interests. The amendment divided Gobeil Lake's
existing planning zone into two regions. A newly-created region,
which did not include Gobeil Lake, was provided with the explicit
authorization to have structures related to float planes. By
contrast, the remaining zone, which contained Gobeil Lake,
implicitly prohibited aerodrome activity. This implicit prohibition
applied to most of the municipality through the by-law
In 2005, a properly-licensed numbered company started operating
flight excursions from Gobeil Lake. In 2006, the municipality
obtained an injunction based on the 1995 amending by-law ordering
the numbered company to cease its activity on Gobeil Lake. The
Quebec Court of Appeal overturned the lower court on division of
A 7-2 majority of the Supreme Court dismissed this further
appeal. McLachlin C.J.C., writing for the majority, held that the
municipal by-law was, in pith and substance, related to aerodromes,
a matter exclusively within Parliament's power to legislate for
"peace, order and good government". The by-law was
invalid as ultra vires provincial jurisdiction and should
be read down so as to not effect aerodromes.
The Court went on to consider the application of the ancillary
powers doctrine. This doctrine is applicable where a law is, in
pith and substance, outside the jurisdiction of the enacting
legislature but, by virtue of the rational functional connection
test, a jurisdictional overhang of an impugned, invalid law may be
saved because the impugned law's operation is
"necessary" or "functional" to the overarching
purpose of an otherwise intra vires legislative scheme.
The degree of connection required to save a jurisdictional breach
is determined relative to the degree of jurisdictional
This analysis is to begin by determining the purpose of the
legislative scheme that the impugned law is said to further. In
this case, the legislative scheme was land-use planning. The
purpose and effect of the amendment by-law did not follow the
general principles of land-use planning or further the zoning
by-law for the municipality specifically. The amendment blatantly
acted as a prohibition on aviation in the region. As a result,
there was no redeeming connection that could be found to
resuscitate the by-law through the ancillary powers doctrine.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In two unanimous decisions released October 19, 2007, the Supreme Court has reversed the majority position of the Ontario Court of Appeal in Herbison and Vytlingam and concluded that the use of the words directly or indirectly; in section 239 (1) of the Insurance Act and the Family Protection Endorsement OPCF 44R does not eliminate the requirement of an unbroken chain of causation.
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