Supreme Court of Canada
Johannesson
v. Municipality of West St. Paul, [1952] 1 S.C.R. 292
Date:
1951-10-12
Konrad Johannesson And Holmfridur Johannesson, Appellants;
and
The Rural Municipality of West St. Paul, Respondent;
and
The Attorney General of Manitoba, Intervenant;
and
The Attorney General of Canada, Intervenant.
1951: February 22, 23; 1951: October 12.
Present: Rinfret C.J. and Kerwin, Taschereau, Kellock, Estey,
Locke and Cartwright JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA.
Constitutional
Law—Aeronautics—Airports—Aerodromes—Licensing and Regulation thereof—Within
Parliament's exclusive jurisdiction—Beyond Provincial Legislature's
competence—The British North America Act—The Municipal Act (Manitoba) R.S.M.
1940, c. 141, s. 921—The Aeronautics Act, R.S.C. 1927, c. 3, s. 4.
Section 921 of The Municipal Act (Manitoba) R.S.M.
1940, c. 141, provides that any municipality may pass by-laws for licensing and
within defined areas preventing the erection of aerodromes or places where
aeroplanes are kept for hire or gain. The appellants, holders of an air
transport license from the Air Transport Board of Canada, secured an option on
land within the respondent municipality for the purpose of a licensed air
strip. Before the transaction was completed the respondent under authority of
s. 921 passed a by-law prohibiting the establishment of an aerodrome within
that part of the municipality in which the optioned lands were situate.
Held: The subject of aeronautics is within the
exclusive jurisdiction of Parliament consequently section 921 of The
Municipal Act and the by-law in question passed thereunder are ultra
vires.
In re The Regulation and Control of Aeronautics in Canada
[1932] A.C. 54; In re Regulation and Control of Radio Communication in
Canada [1932] A.C. 304; Attorney General for Ontario v. Canada
Temperance Federation [1946] A.C. 193, referred to.
Judgment of the Court of Appeal for Manitoba [1950] 1 W.W.R.
856, reversed.
APPEAL from the judgment of the Court of Appeal for
Manitoba dismissing (Coyne J.A. dissenting) the
appellants' appeal from the judgment of Campbell J. of
[Page 293]
their application for a declaration that s. 921 of The
Municipal Act, R.S.M., 1940, c. 141, and by-law No. 292 of West St. Paul
R.M. are ultra vires.
F. P. Varcoe K.C., A. G. Eggertson, K.C. and D. W.
Mundell, K.C. for the Attorney General of Canada, Intervenant. The trial
judge erred in holding that the authority of Parliament in relation to
"aeronautics" arose only under s. 132 of the B.N.A. Act. He and the
judges in the majority in the Court of Appeal erred in holding (a) that
control of the selection or location of aerodromes and the rights of persons to
engage in aeronautical activities are not part of the subject matter of
"aeronautics" within the authority of Parliament and outside s. 92; (b)
that even if these are within the subject matter of "aeronautics" the
legislature of a province may legislate in relation to them from the aspect of
property and civil rights and the legislation will be operative so long as it
is not overridden by federal legislation; (c) that s. 921 is not
overridden by the Aeronautics Act.
S. 921 of The Municipal Act, R.S.M. 1940, c. 141 is ultra
vires. If a provincial statute is not authorized under any legislative head
of s. 92 of the B.N.A. Act, (or ss. 93 and 95 not relevant here), then it is ultra
vires. Citizens Insurance Co. v. Parsons . S. 921 is
not legislation in relation to "Municipal Institutions," but to a
power of control and regulation conferred on them. It is not legislation in
relation to any other head in s. 92. The decision in the Aeronautics
Reference, that Parliament may enact legislation in
relation to "aeronautics" is a decision that as a legislative subject
matter "aeronautics" does not fall in s. 92. The heads of s. 92 must,
therefore, be interpreted as not including any part of "aeronautics"
within the enumeration in s. 91. John Deere Plow Co. Ltd. v. Wharton
;
Great West Saddlery Co. v. The King ; A.G.
of Alta. v. A.G. of Can. (Debt Adjustment case), ; A. G.
of Can. v. A.G. of Que. (Bank Deposits Case) ; Postal
Reference . Further, since it was held that
Parliament's authority also rests on the opening words of s. 91, this is a
decision that the subject matter "aeronautics" as
[Page 294]
a whole falls outside s. 92 since authority to legislate under
these words is "in relation to all matters not coming within the classes
of subjects by this Act assigned exclusively to the legislatures of the
provinces". Moreover, it was expressly stated that "aeronautics"
does not fall within either head 13 or head 16. Further, as a matter of fact,
"aeronautics" as a subject matter of legislation is clearly one that
from its inherent nature is of national concern Re Canada Temperance Act
.
Control and regulation of the use of the air for transportation and control of
the earth's surface for the use of the air for transportation is indivisible.
Regulation for local purposes cannot be separated from regulation for the
purposes of the heads of s. 91 or for interprovincial or international
purposes, which are clearly of national concern. The Attorney General also
relies on the judgments of the judges in the Court of Appeal that
"aeronautics" is a subject matter for which Parliament may legislate
under s. 91. Since "aeronautics" is a subject matter on which
Parliament can legislate it falls outside s. 92 and the authority of the
province. S. 921 must therefore be outside the authority of the Legislature of
Manitoba since it is legislation in relation to the subject matter of "aeronautics".
To ascertain the "matter" in relation to which legislation is
enacted, regard must be had to the "pith and substance" or "the
true nature and character" of the legislation. To determine this, regard
is to be had to the effect and the object or purpose of the legislation. The
question is—At what subject matter is the legislation "aimed" or
"directed"? A.G. of Ont. v. Reciprocal Insurers ;
A.G. for Alta. v. A.G. for Canada (Bank Taxation case) ;
A.G. for Can. v. A.G. for Que. (Bank Deposits case) .
The purpose and effect of s. 921 are to control and regulate the use of part of
the surface of the earth for the landing and taking off of aircraft and to
abrogate rights and liberties of persons to use their property for aeronautical
activities. It is, therefore, directed at "aeronautics". These are
matters that fall within "aeronautics". It was so held in the Aeronautics
Reference. Moreover, apart from authority, "aeronautics" must
necessarily include control of use of the earth's surface in connection with
the use of the air
[Page 295]
and of rights of persons for such purposes and the control and
regulation of the use of the air and of the means of using it as a mode of
transport. Control in every respect of the places where airplanes may land and take
off, including the location of such places, is quite as essential a part of the
control of aeronautics as control of where and the conditions under which
airplanes may fly. In legal terms, this means that Parliament may legislate to
vary or abrogate existing rights, powers or liberties or to create new rights,
powers or liberties with respect to the ownership or operation of aircraft in
the air or on the ground with respect to the use of property in connection with
the operation of aircraft and aeronautical activities. This is the legal
content of the subject matter "aeronautics". It follows that these
rights, powers and liberties are not within the rights of "Property"
and "Civil Rights" in the Province as these terms are used in s. 92.
The trial judge and the judges in the majority in the Court of Appeal erred in
holding that control of the location of aerodromes is not included in the
subject matter "aeronautics" and in holding that the use of property
for an airport is a "Civil Right" in the Province that falls in s.
92. The Provincial Legislature cannot enact legislation to control or regulate
for any purpose the use of the earth's surface for aeronautical activities or
the rights and liberties of persons to engage in aeronautical activities even though
it might appear that the legislation is enacted from an aspect other than
"aeronautics". Such legislation deals with an essential part of the
subject matter "aeronautics". It is therefore wholly outside s. 92. Postal
Reference . The judges in the court below erred in
holding that control of locations for airports or of the right to use property
for airports is not an essential part of the subject matter
"aeronautics". Even if s. 921 could be enacted by the Legislature
from some aspect other than aeronautics, it is overridden by s. 4 of the Aeronautics
Act, which is valid federal legislation. A.G. for Alta. v. A.G.
for Can. (Debt Adjustment Reference) since s.
921 confers power to obstruct and interfere with the powers conferred by s. 4
of the Aeronautics Act. The judges in the Court of Appeal erred in
holding that the powers conferred by s. 921 are not overridden by s. 4. They
relied on cases where it had been held that there might be
[Page 296]
a dual requirement under provincial and federal legislation
for obtaining licenses. In such cases, however, the licenses were not directed
at exercising a control for the same purpose or to achieve the same effects,
but were required for different purposes and the discretions, if any, to grant
or refuse the licenses involved different considerations. The Aeronautics
Act and the Regulations made pursuant to its authority are valid federal
legislation, within the authority of Parliament in relation to the subject
matter "aeronautics". Even if Parliament had no authority in relation
to "aeronautics" as a subject matter outside of s. 92, the Aeronautics
Act is valid legislation for the carrying out of the International Civil
Aviation Convention of 1944. Parliament has authority to carry out this
Convention under s. 91. Radio Reference .
Conventions of this kind, including the International Civil Aviation
Convention, are distinguishable from the very exceptional type of conventions
under consideration in the Labour Conventions Reference . The
International Civil Aviation Convention, falls under the decision in the Radio
Reference. Parliament has, therefore, legislative authority to carry out
its terms. This being so, the Aeronautics Reference is an authority showing
that the Aeronautics Act is within Parliament's authority to carry out
the Convention.
C. I. Keith K.C. for the appellants. The importance of
this appeal is that the power to prohibit the creation of aerodromes which the
judgment appealed from holds is possessed by the Province of Manitoba will be a
serious obstacle to the development of aeronautics if allowed to stand, and
particularly if similar legislation is passed by the other provinces. It has
been assumed that the effect of the judgment in the Aeronautics Reference
(supra) was to place every phase of aeronautics as dealt with in the Aeronautics
Act in the exclusive jurisdiction of the Parliament of Canada. On no
reported judgment prior to this case has doubt been cast on this conclusion and
in at least three subsequent judgments of the Privy Council, it has been
commented on as having this effect. The Radio case, the Labour
case and the Canada Temperance Federation case (supra). Once it
is acknowledged that aeronautics is within the exclusive power of Parliament,
the principles
[Page 297]
which have been applied to railways within the Dominion
jurisdiction are applicable to the subject of aeronautics. C.P.R. v. Notre
Dame de Bonsecours Parish . The appellants rely generally on the
dissenting judgment of Coyne J.A. and the authorities there cited.
W. J. Johnston, K.C. for the Attorney General of
Manitoba, Intervenant. There are two points in issue (a) Does the
decision in the Aeronautics Reference place the subject of
aeronautics in all its aspects within the legislative competence of the
Dominion? (b) Assuming that such is the case, is the Province precluded
from enacting and enforcing zoning regulations with respect to the location of
airports? Coyne J.A. in his dissenting judgment erred in
finding that the Aeronautics Reference placed the subject matter of
aeronautics solely and exclusively within the legislative competence of the
Dominion. The correct interpretation is to be found in the judgment of the
trial judge, Campbell J. —In the alternative, even if the Dominion
derives legislative power from sources other than s. 132 it is not such a power
as would preclude the Province from dealing with the location of airports as a
zoning regulation since that could hardly be classed as legislation on aerial
navigation. The Intervenant relies upon the reasons of Dysart and Adamson
J.J.A. concurred in by McPherson C.J.M. and Richards J.A. and
submits that the appeal should be dismissed.
The Aeronautics case goes no further than to hold that
the Dominion's power to pass the aeronautics legislation then under review was
derived from s. 132 of the B.N.A. Act and not under an express delegation of
legislative power over the subject "aeronautics." The Province relies
upon subsequent decisions of the Privy Council in which the judgment in the Aeronautics
case has been explained and clarified. The first case was the Radio case
.
The judgment delivered by Viscount Dunedin, a member of the Board in the Aeronautics
case, gave the chief ground of the decision in the latter case as s. 132 of the
B.N.A. Act.
[Page 298]
In A.G. Can. v. A.G. Ont
(Reference re labour legislation). Lord Atkin, a member of the Board in the Aeronautics
case, also confined it to s. 132 (pp. 350 A.C.; p. 309 W.W.R.). In the Labour
Legislation Reference the conventions under review were made by Canada
under its new status as a Sovereign State and s. 132, which relates to treaties
made by Great Britain, did not apply. It was therefore contended by the
Dominion that the subject matter of the legislation had become one of national
concern and, in support of the contention, the Radio and Aeronautics
cases were relied on. The contention was rejected by the Board, (p. 352 A.C.
and p. 311 W.W.R.). In Reference re Natural Products Marketing Act,
accepted as the locus classicus on the "peace, order and good
government" clause, Duff, C.J.C. at p. 425 pointed out that the Aeronautics
case did not hold that the Dominion's jurisdiction over aeronautics came within
the above clause. In making this submission the decision in A.G. Ont. v.
Canada Temperance Federation where a casual reference is made to the
decisions in the Aeronautics and Radio cases, has not been
overlooked. The legislation there under review was the Canada Temperance Act as
re-enacted in 1924. The original 1878 Statute was considered by the Privy
Council in Russell v. The Queen, and
upheld under the "peace, order and good government" clause as being
legislation, the subject matter of which had attained national concern as
affecting the body politic of the nation. The Canada Temperance Act survived on
the pronouncement in the Russell case and its constitutional validity
was not again challenged until the Temperance Federation case. While the
Russell case has stood as the basis for Dominion competence in the
temperance field, the reasoning behind the decision based on the "peace,
order and good government" clause has undergone a marked change in
subsequent judgments of the Board. The Board of Commerce case ;
Snider's case . The Temperance case cannot be
considered as over-ruling the well established principles on the interpretation
of the "peace, order and good government" clause. The present
interpretation to
[Page 299]
be placed on that clause still remains the pronouncement of
Lord Atkin previously referred to in A.G. Can. v. A.G. Ont. at
pp. 352-3. The law on that matter as pronounced by Duff C.J. and adopted by
Lord Atkin is to be found in the Marketing Act case that,
except in those instances where the subject matter of legislation has under
extraordinary circumstances acquired aspects of such paramount significance as
to take it into the national field, the "peace, order and good
government" clause can have no application in a field assigned exclusively
to the Province under s. 92. The clause can usurp the provincial field only
where the subject matter is one of paramount national importance or in case of
emergency. Lord Atkin's pronouncement was adopted and reaffirmed as late as
1949 in C.P.R. v. A.G. of B.C. .
The effect of the decision in the Aeronautics case is
to give to the Dominion an overriding power to enact such legislation as may be
necessary to fulfill an obligation under the Aerial Navigation Treaty and hence
to encroach on the Provincial Legislative field for such purpose. The grounds
of the decision having been reduced to this single proposition it can no longer
be taken to have overruled the judgment of the Supreme Court insofar
as the judges of that Court may have assigned legislative jurisdiction to the
Dominion or to the Provinces.
The Dominion's power to license and regulate airports cannot
be supported as incidental or ancillary to any of the enumerated heads of s. 91
of the B.N.A. Act. Montreal v. Montreal Street Railway ;
L'Union St. Jacques de Montreal v. Belisle . Even
assuming that licensing and regulation of commercial airports is incidental or
ancillary to the legislative power of the Dominion under s. 132; as licensing
and regulation of airports, particularly with respect to location, clearly
falls within s. 92 the double aspect rule will apply and unless the Dominion
has occupied the field, provincial legislation is competent. A.G. Ont. v.
A.G. Can. ; Forbes v. A.G. Man. .
Under s. 4 of the Aeronautics Act regulations have been passed relating
to airports, (See Part II of Air Regulations 1948), but the
[Page 300]
Dominion has not occupied the field in so far as location of
airports is concerned and in so far as it has dealt with licensing and
regulation of airports, it has not exceeded the limited power referred to by
Duff J. in his judgment in [1930] S.C.R. 663 at 690. The licensing and
regulatory provisions of the Regulations are merely to enforce compliance with
those regulations which have been enacted to carry out treaty obligations and
are not an occupation of the whole field to the exclusion of the Province.
S. 921 of The Municipal Act which deals with location
does not clash with Dominion legislation in respect to licensing and
regulation. It has not been superseded by Dominion legislation and is therefore
valid and existing legislation under the Province's licensing powers contained
in s. 92(9), raising revenue, and as ancillary to its legislative powers under
s. 92 (13), property and civil rights, and 92(16), matters of local interest. Hodge
v. The Queen ; R. v. Cherry ;
Shannon v. Lower Mainland Dairy Products Board .
Assuming that the Dominion has jurisdiction over the subject
of aeronautics generally by virtue of the "peace, order and good
government" clause, the Province is not precluded from enacting s. 921,
since in pith and substance it is nothing more than a zoning regulation, within
the legislative competence of the Province under 92(13), property and civil
rights, or 92(16), matters of local or private nature.
Under the "peace, order and good government" clause
the Dominion derives legislative power under two propositions: 1. That matter
is not within any of the enumerated heads of s. 92; or 2. That the matter has
attained such paramount national importance as to affect the body politic of
the nation. Leaving aside the question of aeronautics generally and dealing
only with the subject matter of s. 921, what is there dealt with is directly
within 92(13) or (16) and the Dominion could therefore acquire no authority
under the first proposition. Dealing with the second proposition, jurisdiction
under it can arise only when Parliament has legislated on a matter and thus by
inference indicated that it has acquired such proportions as to be of paramount
[Page 301]
national importance. Therefore, where there is no Dominion legislation
and the matter is otherwise within s. 92, provincial legislation must be intra
vires. McLean v. Pettigrew , per Taschereau J. at 79.
That a particular operation is subject to Dominion control
does not mean that it is never subject to provincial legislation. Both may
legislate on the same subject matter in different aspects and so long as there
is no clash both may stand side by side. Hodge v. The Queen ;
Reg. v. Wason ; G.T.R. v. A.G. Can. ;
R. v. Magid .
S. 921 of The Municipal Act is legislation which in
pith and substance is zoning regulation and hence a local matter dealing with
property and civil rights. It is not in pith and substance legislation on
aerial navigation.
W. P. Fillmore, K.C. for the Respondent. The respondent
relies upon the judgment of the trial judge and the majority judgments in the
Court of Appeal. There is nothing in the Aeronautics Act or in the
Regulations, or in the Convention discussed in the Aeronautics case,
which either expressly or by necessary implication takes away or restricts the
right of the Province to authorize a local body to pass by-laws relating to
health or safety or any other matter of a local or private nature which is a
proper subject of municipal by-law. Encroachment on provincial rights in this
case cannot be justified as a measure of peace, order or good government in
Canada or otherwise.
The Minister may exercise the widest control over aerial
navigation and the licensing, inspection and regulation of aerodromes
consistently with the right of the Province to designate where they may or may
not be located. In any event until the Dominion invades this field a Province
may continue to do so. It cannot be assumed by the Court that a municipality
would pass by-laws in bad faith or with an ulterior motive. A.G. for Ont.
v. A.G. for Can. ; City of Montreal v. Beauvais
;
Stengel v. Crandon et al , (Florida S.C. 1945),
annotation at p. 1232.
The questions involved in this appeal are to a certain extent
academic in that the appellants had not obtained a license from the Minister,
and the Minister might not
[Page 302]
grant a license where the aerodrome is located in defiance of
local by-laws. The Aeronautics Act does not purport to give any person
or company the right to locate an airport in breach of local by-laws. Assuming
that the Dominion has ample power in this regard, it has not exercised the
power. In the case of railways the Railway Act gives the railway power,
subject to the approval of the Board of Transport Commissioners, to locate the
line of a railway and to expropriate property. In City of Toronto v. Bell
Telephone Co. , it was held that the scope of the
respondent's business contemplated by the Act involved its extension beyond the
limits of any one province, and was therefore within the express exception made
by s. 92(10) (a) of the B.N.A. Act from the class of local works and
undertakings assigned thereby to provincial legislatures. It is obvious from
the facts here that the aerodrome contemplated by the appellants is designed and
is only suitable for operations of a very local and private nature.
As the constitutional problems and cases are carefully
reviewed in the appeal of the A.G. for Manitoba the respondent will not cover
that ground.
The Dominion has not invaded, and cannot, and need not, invade
the whole field: The Provincial Secretary v. Egan ;
Reference re Validity of s. 31 of the (Alta.) Municipal District Act Amendment
Act, 1941 . There is nothing in the Aeronautics Act
or the Regulations which intereferes with provincial jurisdiction over property
and civil rights or matters of a local or private nature in the province. The
right of the Province to legislate in respect of zoning regulations is also an
exercise of the right of control over municipal institutions in the province.
Ladore v. Bennett ; The King v. Eastern Terminal Elevator
Co. ;
Reference re Dairy Industries Act .
Varcoe K.C. and Keith K.C. replied.
The Chief Justice—Notwithstanding
that the International Convention under consideration in the Aeronautics
case , was denounced by the Government of
Canada
[Page 303]
as of April 4, 1947, I entertain no doubt that the decision
of the Judicial Committee is in its pith and substance that the whole field of
aerial transportation comes under the jurisdiction of the Dominion Parliament.
In the language of their Lordships at p. 77:—
Aerial navigation is a class of subject which has attained
such dimensions as to affect the body politic of the Dominion.
In those circumstances it would not matter that Parliament may
not have occupied the field. But, moreover, the convention on International
Civil Aviation, signed at Chicago on December 7, 1944, has since become
effective; and what was said in the Radio Reference by
Viscount Dunedin at p. 313, applies here. Although the convention might not be
looked upon as a treaty under s. 132 of the British North America Act, "it
comes to the same thing".
I fail however to see how it can be argued that the Dominion
Parliament has not occupied the field. The Aeronautics Act, R.S.C. 1927,
c. 3, as amended by c. 28 of the Statutes of 1944-45, c. 9 of the Statutes of
1945, and c. 23 of the statutes of 1950, makes it the duty of the Minister
"to supervise all matters connected with aeronautics * * * to prescribe
aerial routes * * * to prepare such regulations as may be considered necessary
for the control or operation of aeronautics in Canada * * * and for the control
or operation of aircraft registered in Canada wherever such aircraft may be * *
* for the licensing of navigation and the regulation of all aerodromes and
air-stations, etc."
Such regulations have been passed under the authority of the
Aeronautics Act by P.C. 2129, part of which deals with the subject
matter of airports and provides for the issuing of licenses by the Minister. In
the circumstances, the Dominion legislation occupies the field, or at least so
much of it as would eliminate any provincial legislation, and, more
particularly, that here in question.
I think, therefore, that the provincial legislation under
discussion is ultra vires and the by-law adopted by the respondent, the
Rural Municipality of West St. Paul, falls with it.
[Page 304]
The appeal, therefore, should be allowed with costs in this
Court against the respondent, but without costs to either intervenant. As the
parties had agreed that there would be no costs awarded in the Courts below,
this agreement, of course, should stand.
Kerwin J.
:—This is an appeal by Mr. and Mrs. Johannesson against a judgment of the Court
of Appeal for Manitoba affirming an order of Campbell J. dismissing their
application for an order declaring that s. 921 of The Municipal Act,
R.S.M. 1940, c. 141, was ultra vires as not being within the legislative
competence of the Legislature, and that by-law 292 of the rural municipality of
West St. Paul, passed May 27, 1948, in pursuance of such section, was,
therefore, null and void.
Section 921 of The Municipal Act appears in Division
II "Public Safety and Amenity" under the sub-head
"Aerodromes" and reads as follows:
921. Any municipal corporation may pass by-laws for
licensing, regulating, and, within certain defined areas, preventing the
erection, maintenance and continuance of aerodromes or places where aeroplanes
are kept for hire or gain.
This section first appeared in 1920, being enacted by s. 18
of c. 82 of the statutes of that year as paragraph (y) of s. 612 of The
Municipal Act, R.S.M. 1913, c. 133. That s. 612 was one of a group of
sections appearing in Part IX of the Act "Legislative Powers of
Councils", under the sub-head "Various Trades and Occupations."
It next appeared in s. 97 of the Consolidated Amendments to the Municipal Act,
1924, and then, in 1933, as s. 910 in Division II of The Municipal Act,
1933, c. 57, "Public Safety and Amenity" under the sub-head
"Aerodromes" the same relevant position that the present s. 921 now
occupies.
The enacting parts of By-law No. 292 of the rural
municipality of West St. Paul provide :
1. No aerodrome or place where aeroplanes are kept for hire
or gain shall be erected or maintained or continued within that part of The
Rural Municipality of West St. Paul, in Manitoba, bounded as follows: All those
portions of River Lots One (1) to Thirty-three (33) both inclusive, of the
Parish of Saint Paul, in Manitoba, according to a plan of same registered in
the Winnipeg Land Titles Office as No. 3992, which lie to the East of the
Eastern Limit of the Main Highway as said Highway is shewn on said Plan No.
3992.
[Page 305]
2. No aerodrome or place where aeroplanes are kept for hire
or gain shall be erected or maintained or continued in any other part of the
said Rural Municipality of West St. Paul, unless and until a license therefor
shall first have been obtained from the said Municipality.
3. No building or installation of any machine shop for the testing
and/or repairing of air-craft shall be erected or maintained or continued in
that part of The Rural Municipality of West St. Paul in Manitoba described in
paragraph One (1) hereof.
4. No building or installation of any machine shop for the
testing and/or repairing of air-craft shall be erected or maintained or
continued in any other part of the said Municipality unless and until a license
therefor shall first have been obtained from the said Municipality.
Section 921 of The Municipal Act does not confer
powers to provide generally for zoning, or for building restrictions; the
powers are specifically allotted with reference to "aerodromes or any
places where aeroplanes are kept for hire or gain." The by-law follows the
section so that, if the latter is ultra vires the Provincial
Legislature, the former cannot be upheld.
The circumstances which give rise to the present dispute are
important as showing the far-reaching effect of the provisions of the section.
The appellant Johannesson had been engaged in commercial aviation since 1928
and held an air transport licence, issued by the Air Transport Board of Canada,
to operate an air service at Winnipeg and Flin Flon. The charter service which
he operated under this licence covers territory in central and northern
Manitoba and northern Saskatchewan, and had substantially increased in volume
over the years. This service was operated with light and medium weight planes,
which in the main were equipped in summer with floats and in winter with skis
in order to permt landing on the numerous lakes and rivers in this territory,
and these planes had to be repaired and serviced in Winnipeg, which was the
only place within the territory where the necessary supplies and any facilities
were available for that purpose. The use by small planes of a large airfield,
such as Stevenson Airport near Winnipeg which was maintained for the use of
large transcontinental airplanes, was impractical and would eventually be
prohibited. No facilities existed on the Red River in Winnipeg for the
repairing and servicing of planes equipped with floats, and repairs could only
be made to such planes by dismantling them at some private dock and
transporting them, by truck, through Winnipeg to Stevenson Airport.
[Page 306]
After a long search by Johannesson in the suburbs of
Winnipeg for a site that would combine an area of level land of sufficient area
and dimensions and location to comply with the regulations of the Civil
Aviation Branch of the Canadian Department of Transport relating to a licensed
air strip with access to a straight stretch of the Red River of sufficient
length to be suitable for the landing of airplanes equipped with floats, he
found such a location (but one only) in the rural municipality of West St. Paul
and acquired an option to purchase it but, before the transaction was completed
By-law 292 was passed. Title to the land was subsequently taken in the name of
both appellants and these proceedings ensued. The Attorney General of Canada
and the Attorney General of Manitoba were notified but only the latter was
represented before the judge of first instance and the Court of Appeal. Leave
to appeal to this Court was granted by the latter.
On behalf of the appellants and the Attorney General of
Canada, reliance is placed upon the decision of the Judicial Committee in the Aeronautics
case . Irrespective of later judicial
comments upon this case, in my view it is a decision based entirely upon the
fact that the Dominion Aeronautics Act there in question had been enacted
pursuant to an International Convention of 1919 to which the British Empire was
a party and, therefore, within s. 132 of the British North America Act, 1867:
132. The Parliament and Government of Canada shall have all
Powers necessary or proper for performing the obligations of Canada or of any
Province thereof, as part of the British Empire, towards foreign countries
arising under treaties between the Empire and such foreign countries.
However, in the subsequent decision in the Labour
Conventions case (A.G. for Canada v. A.G. for Ontario ),
Lord Atkin, who had been a member of the Board in the Aeronautics case,
said with reference to the judgment therein:
The Aeronautics case
concerned legislation to perform obligations imposed by a treaty between the
Empire and foreign countries. Sect. 132, therefore, clearly applied, and but
for a remark at the end of the judgment, which in view of the stated ground of
the decision was clearly obiter, the case could not be said to be an authority
on the matter now under discussion.
[Page 307]
The remarks of Viscount Simon in A.G. for Ontario v. Canada
Temperance Federation , must be read when considering the words
of Lord Sankey in the Aeronautics case in another connection. At the
moment all I am concerned with emphasizing is that the Aeronautics case
decided one thing, and one thing only, and that is that the matter there
discussed fell within the ambit of s. 132 of the British North America Act.
At this stage it is necessary to refer to a matter that was
not explained to the Courts below. According to a certificate from the
Under-Secretary of State for Foreign Affairs, the Convention of 1919 was
denounced by Canada, which denunciation became effective in 1947. This was done
because on February 13, 1947, Canada had deposited its Instrument of
Ratification of the Convention on International Civil Aviation signed at
Chicago December 8, 1944, and which Convention came into force on April 4,
1947. With the exception of certain amendments that are not relevant to the
present discussion, the Aeronautics Act remains on the statute books of
Canada in the same terms as those considered by the Judicial Committee in the Aeronautics
case. Section 132 of the B.N.A. Act, therefore ceased to have any efficacy to
permit Parliament to legislate upon the subject of aeronautics.
Nevertheless the fact remains that the Convention of 1919
was a treaty between the Empire and foreign countries and that pursuant thereto
the Aeronautics Act was enacted. It continues as c. 3 of the Revised
Statutes of Canada, 1927, as amended. Under s. 4 of that Act, as it stood when
these proceedings were commenced, the Minister, with the approval of the
Governor in Council, had power to regulate and control aerial navigation over
Canada and the territorial waters of Canada, and in particular but not to
restrict the generality of the foregoing, he might make regulations with
respect to * * * (c) the licensing, inspection and regulation of all
aerodromes and air stations. Pursuant thereto regulations have been promulgated
dealing with many of the matters mentioned in the section, including provisions
for the licensing of air ports. If, therefore, the subject of aeronautics goes
beyond local or provincial concern because it has attained such dimensions as
to affect the body politic
[Page 308]
of Canada, it falls under the "Peace, Order and Good
Government" clause of s. 91 of the B.N.A. Act since aeronautics is not a
subject-matter confined to the provinces by s. 92. It does not fall within head
8, "Municipal Institutions", as that head "simply gives the
provincial legislature the right to create a legal body for the management of
municipal affairs * * * The extent and nature of the functions" the
provincial legislature "can commit to a municipal body of its own creation
must depend upon the legislative authority which it derives from the provisions
of s. 92 other than No. 8": Attorney General for Ontario v. Attorney
General for Canada . Nor, on the authority of the same
decision is it within head 9: "shop, saloon, tavern, auctioneer, and other
licences in order to the raising of a revenue for provincial, local, or
municipal purposes." Once it is held that the subject-matter transcends
"Property and Civil Rights in the Province" (head 13) or
"Generally all matters of a merely local or private nature in the
Province" (head 16), these two heads of s. 92 have no relevancy.
Now, even at the date of the Aeronautics case, the
Judicial Committee was influenced (i.e. in the determination of the main point)
by the fact that in their opinion the subject of air navigation was a matter of
national interest and importance and had attained such dimensions. That that is
so at the present time is shown by the terms of the Chicago Convention of 1944
and the provisions of the Dominion Aeronautics Act and the regulations
thereunder referred to above. The affidavit of the appellant Johannesson, from
which the statement of facts was culled, also shows the importance that the
subject of air navigation has attained in Canada. To all of which may be added those
matters of everyday knowledge of which the Court must be taken to be aware.
It is with reference to this phase of the matter that
Viscount Simon's remarks in A.G. for Canada v. Canada Temperance
Federation , must be read. What was there under
consideration was the Canada Temperance Act, originally enacted in 1878, and
Viscount Simon stated: "In their Lordships' opinion, the true test must be
found in the real subject matter of the legislation: if it is such
[Page 309]
that it goes beyond local or provincial concern or interests
and must from its inherent nature be the concern of the Dominion as a whole
(as, for example, in the Aeronautics case and the Radio
case , then it will fall within the competence
of the Dominion Parliament as a matter affecting the peace, order and good
government of Canada, though it may in another aspect touch on matters
specially reserved to the provincial legislatures." This statement is
significant because, while not stating that the Aeronautics case was a
decision on the point, it is a confirmation of the fact that the Board in the Aeronautics
case considered that the subject of aeronautics transcended provincial
legislative boundaries.
The appeal should be allowed, the orders below set aside,
and judgment should be entered declaring s. 921 of the Act ultra vires
and By-law 292 of the rural municipality of West St. Paul null and void. By
agreement there are to be no costs in the Courts below but the appellants are
entitled to their costs in this Court against the municipality. There should be
no order as to costs for or against either intervenant.
The judgment of Kellock and Cartwright, JJ. was delivered
by:
Kellock J.:—The
question in this appeal is as to the constitutional validity of the following
section of The Municipal Act, R.S.M. 1940, c. 141, namely,
921. Any municipal corporation may pass by-laws for
licensing, regulating, and, within certain definite areas, preventing the
erection, maintenance and continuance of aerodromes or places where aeroplanes
are kept for hire or gain.
Purporting to act under this legislation, the respondent
municipality enacted a by-law prohibiting aerodromes in a defined area in the
municipality and permitting aerodromes elsewhere in the municipality only upon
license. The appellant, who holds an air transport license issued by the Air
Transport Board of Canada to operate an air service at both the City of
Winnipeg and the town of Flin Flon, has been operating a charter aeroplane
service in Manitoba and Saskatchewan for some years, using mainly float and ski
planes. For the purposes of his business, the appellant acquired an area in the
respondent municipality having
[Page 310]
access to a stretch of the Red River. These premises were
acquired having in view the requirements of the Department of Transport with
respect to aerodromes, and it was subsequent to the appellant's acquisition
that the by-law in question was passed. The appellant's motion for an order
declaring the above legislation and by-law ultra vires was dismissed by
the judge of first instance, and this order was affirmed by the Court of
Appeal, Coyne J. A. dissenting.
In this court, we were informed on behalf of the Attorney
General of Canada that the convention under consideration in the Aeronautics
case , was denounced by the Government of
Canada as of April 4, 1947, on which date also the convention on International
Civil Aviation, signed at Chicago on December 7, 1944, became effective.
Insofar, therefore, as the above decision depends for efficacy upon s. 132 of
the British North America Act, that foundation has ceased to exist.
In the Aeronautics case, the Privy Council held that
the "whole field of legislation in regard to aerial navigation belongs to
the Dominion" by virtue of s. 132, s. 91 heads 2, 5 and 7, and the residuary
power in s. 91 to make laws for the peace, order and good government of Canada.
Their Lordships expressed the view also, at p. 73, that aeronautics was not a
class of subject within property and civil rights, and at p. 77, that it was
not a subject vested by specific words in the provinces. On the latter page,
their Lordships went on to say:
Further, their Lordships are influenced by the facts that
the subject of aerial navigation and the fulfilment of Canadian obligations
under s. 132 are matters of national interest and importance; and that aerial
navigation is a class of subject which has attained such dimensions as to
affect the body politic of the Dominion.
It is true, as the judgment itself shows, and as later
pronouncements of the judicial committee have repeated, that s. 132 was the
leading consideration in the judgment. In the Radio Reference ,
the convention there in question was not one to which s. 132 was applicable,
but, as pointed out by Lord Atkin in 1937 A.C. at p. 351, that convention dealt
with classes of matters which did not fall within s. 92 but entirely within
subject matters of Dominion jurisdiction under s. 91. In these circumstances,
their Lordships said in the Radio case that, although the convention
there in
[Page 311]
question was not such a treaty as fell
within s. 132, it came to the same thing. At p. 313 Viscount Dunedin said:
The result is in their Lordships' opinion clear. It is
Canada as a whole which is amenable to the other powers for the proper carrying
out of the convention; and to prevent individuals in Canada infringing the
stipulations of the convention it is necessary that the Dominion should pass
legislation which should apply to all the dwellers in Canada.
To the extent, therefore, to which the subject matter of the
Chicago convention of 1944 falls within s. 91, the language of Viscount Dunedin
is equally apt. In my opinion, that subject matter is exclusively within
Dominion jurisdiction.
In my opinion, the subject of aerial navigation in Canada is
a matter of national interest and importance, and was so held in 1932. In the Canada
Temperance Federation case , Viscount Simon said at p. 205:
In their Lordships' opinion, the true test must be found in
the real subject matter of the legislation: if it is such that it goes beyond
local or provincial concern or interests and must from its inherent nature be
the concern of the Dominion as a whole (as, for example, in the Aeronautics
case and the Radio case ),
then it will fall within the competence of the Dominion Parliament as a matter
affecting the peace, order and good government of Canada, though it may in
another aspect touch on matters specially reserved to the provincial
legislatures.
This statement is a recognition of the situation which is
well known and understood in this country. It was quite frankly and quite
properly admitted by Mr. Fillmore for the respondent, whose argument was merely
that the Dominion had not in fact legislated in the field of s. 921 of the
provincial statute.
It is no doubt true that legislation of the character
involved in the provincial legislation regarded from the standpoint of the use
of property is normally legislation as to civil rights, but use of property for
the purposes of an aerodrome, or the prohibition of such use cannot, in my
opinion, be divorced from the subject matter of aeronautics or aerial
navigation as a whole. If that be so, it can make no difference from the
standpoint of a basis for legislative jurisdiction on the part of the province
that Parliament may not have occupied the field.
Once the decision is made that a matter is of national
interest and importance, so as to fall within the peace,
[Page 312]
order and good government clause, the provinces cease to
have any legislative jurisdiction with regard thereto and the Dominion
jurisdiction is exclusive. If jurisdiction can be said to exist in the Dominion
with respect to any matter under such clause, that statement can only be made
because of the fact that such matters no longer come within the classes of subject
assigned to the provinces. I think, therefore, that as the matters attempted to
be dealt with by the provincial legislation here in question are matters
inseparable from the field of aerial navigation, the exclusive jurisdiction of
Parliament extends thereto. The non-severability of the subject matter of
"aerial navigation" is well illustrated by the existing Dominion
legislation referred to below, and this legislation equally demonstrates that
there is no room for the operation of the particular provincial legislation in
any local or provincial sense.
The Aeronautics Act, R.S.C. 1927, c. 3, as amended by
c. 28 of the statutes of 1944-45, c. 9 of the statutes of 1945, and c. 23 of
the statutes of 1950, provides in part as follows:
3. It shall be the duty of the Minister
(a) to supervise all
matters connected with aeronautics.
* * *
(f) to prescribe aerial
routes.
* * *
(1) to consider, draft and prepare for approval by the
Governor in Council such regulations as may be considered necessary for the control
or operation of aeronautics in Canada or within the limits of the territorial
waters of Canada and for the control or operation of aircraft registered in
Canada wherever such aircraft may be.
* * *
4. (1) Subject to the approval of the Governor in Council,
the Minister may make regulations to control and regulate air navigation over
Canada and the territorial waters of Canada and the conditions under which
aircraft registered in Canada may be operated over the high seas or any
territory not within Canada, and, without restricting the generality of the
foregoing, may make regulations with respect to
* * *
(c) licensing, inspection
and regulation of all aerodromes and air-stations.
(d) the conditions under
which aircraft may be used or operated.
(e) the conditions under
which goods, mails and passengers may be transported in aircraft and under
which any act may be performed in or from aircraft or under which aircraft may
be employed.
(f) the prohibition of
navigation of aircraft over such areas as may be prescribed, either at all
times or at such times or on such occasions only as may be specified in the
regulation, and either absolutely or subject to such exceptions or conditions
as may be so specified.
[Page 313]
(g) the
areas within which aircraft coming from any places outside of Canada are to
land, and the conditions to be complied with by any such aircraft.
(h) aerial routes, their
use and control.
(i) the institution and
enforcement of such laws, rules and regulations as may be deemed necessary for
the safe and proper navigation of aircraft in Canada or within the limits of
the territorial waters of Canada and of aircraft registered in Canada wherever
such aircraft may be.
* * *
(3) Every person who violates the provisions of a regulation
is guilty of an offence and is liable on summary conviction to a fine not
exceeding five thousand dollars, or to imprisonment for a term not exceeding
one year or to both fine and imprisonment.
(4) Every person who violates an order or direction of the
Minister made under a regulation is guilty of an offence and is liable on
summary conviction to a fine not exceeding one thousand dollars or to
imprisonment for a term not exceeding six months or to both fine and
imprisonment.
12. (1) Subject to the approval of the Minister, the Board
may issue to any person applying therefor a license to operate a commercial air
service.
* * *
(5) In issuing any license the Board may prescribe the
routes which may be followed or the areas to be served and may attach to the
license such conditions as the Board may consider necessary or desirable in the
public interest, and, without limiting the generality of the foregoing, the
Board may impose conditions respecting schedules, places of call, carriage of
passengers and freight, insurance, and subject to the Post Office Act, the
carriage of mail.
* * *
15. (1) No person shall operate a commercial air service
unless he holds a valid and subsisting license issued under section twelve.
Regulations were passed under the authority of the above
statute by P.C. 2129 of May 11, 1948. Part III deals with the subject matter of
"airports." The following paragraphs are pertinent:
1. No area of land or water shall be used as an airport
unless it has been licensed as herein, provided.
2. Licenses to airports may be issued by the Minister and
may be made subject to such conditions respecting the aircraft which may make
use of the airport, the maintenance thereof, the marking of obstacles in the
vicinity which may be dangerous to flying and otherwise, as the Minister may
direct.
4. The license of an airport may be suspended or cancelled
by the Minister at any time for cause and shall cease to be valid two weeks
after any change in the ownership of the airport, unless sooner renewed to the
new owner.
5. Every licensed airport shall be marked by day and by
night as may be from time to time directed by the Minister.
[Page 314]
7. (1) No person shall without authority of the Minister—
(a) mark any unlicensed surface or place with any
mark or display any signal calculated or likely to induce any person to believe
that such surface or place is a licensed airport;
(b) knowingly use or permit the use of an airport for
any purpose other than those for which it has been licensed.
(2) The onus of proving the existence of any authority or
license shall be upon the person charged.
8. No water-craft shall cross or go upon that part of the
water area forming part of any airport which it is necessary to keep clear of
obstruction in order that aircraft may take off and alight in safety, having
regard to the wind and weather conditions at the time, and every person in
charge of a water-craft is guilty of a breach of these regulations if such
craft crosses or goes upon such area after reasonable warning by signal or
otherwise.
9. There shall be kept at every licensed airport a register
in which there shall be entered immediately after the alighting or taking off
of an aircraft a record showing the nationality and registration marks of such
aircraft, the name of the pilot, the hour of such alighting or taking off, the
last point of call before such alighting and the intended destination of the
aircraft.
10. (1) Every licensed airport, and all aircraft and goods
therein shall be open to the inspection of any customs officer, immigration officer,
officer or person holding or named in any Writ of Assistance or any officer of
or other person authorized by the Minister, but no building used exclusively
for purposes relating to the construction of aircraft or aircraft equipment
shall be subject to inspection except upon the written order of the Minister.
(2) All state aircraft shall have at all reasonable times,
the right of access to any licensed airport, subject to the conditions of the
license.
In my opinion, just as it is impossible to separate
intra-provincial flying from inter-provincial flying, the location and
regulation of airports cannot be identified with either or separated from
aerial navigation as a whole. The provincial legislation here in question must
be held, therefore, to be ultra vires, and the by-law falls with it.
The appeal should therefore be allowed. By agreement, no
costs were asked or awarded in the courts below. I think, however, that the
appellant should have his costs in this court as against the respondent, but
that there should be no other costs.
[Page 315]
The judgment of Taschereau and Estey, JJ. was delivered by:—
Estey J.:—The
appellants submit that s. 921 of the Municipal Act (R.S.M. 1940, c. 141) is
legislation in relation to aeronautics and, therefore, beyond the competency of
the Legislature of Manitoba to enact.
921. Any municipal corporation may pass by-laws for
licensing, regulating, and, within certain defined areas, preventing the
erection, maintenance and continuance of aerodromes or places where aeroplanes
are kept for hire or gain.
The facts out of which this issue arises are as follows:
The appellant, Konrad Johannesson, has been engaged in
commercial aviation in northern Manitoba and Saskatchewan since 1928. He
desired an airport at Winnipeg and on September 27, 1947, obtained an option
upon, and on April 20, 1948, purchased a portion of River Lot 33 Pl. 3992 in
the respondent municipality for the purpose of equipping and maintaining it as
an aerodrome.
The respondent municipality, under date of May 27, 1948,
passed By-law No. 292, by virtue of the foregoing s. 921. The effect of this
by-law may be briefly expressed: (a) As to lots 1 to 33, Pl. 3992, in
the respondent municipality, the erection or maintenance of any aerodrome or
machine shop for testing or repairing aircraft is entirely prohibited; (b)
in the remaining portion neither of the foregoing may be erected or maintained
without a licence from the respondent municipality.
The appellants, on October 22, 1948, asked the Court to
declare s. 921 ultra vires of the Legislature of Manitoba and the
enactment of By-law 292 by the respondent municipality a nullity.
Mr. Justice Campbell held that the Provincial Legislature
had jurisdiction to enact s. 921 and that the by-law was valid. His judgment
was affirmed by a majority of the Court of Appeal in Manitoba, Mr. Justice
Coyne dissenting.
The Attorneys-General for Manitoba and the Dominion (the
latter for the first time in this Court) have intervened and contended
respectively that the Province has and has not competent authority to enact s.
921.
The judgments in the Court below proceed upon the basis that
the Aeronautics Convention in Paris, ratified on behalf of the British Empire
on June 1, 1922, was still
[Page 316]
in effect. Mr. Varcoe, on behalf of the Attorney General of
Canada, however, informed the Court that this convention had been abrogated by
the Civil Aviation Convention in Chicago in 1944, and became binding on Canada
on April 4, 1947. This is important as the Chicago Convention, unlike the Paris
Convention, is signed by Canada in her own right and, therefore, s. 132 of the
British North America Act has no application in determining the jurisdiction of
the Parliament of Canada and the Provincial Legislatures in relation thereto. Radio
case ; Labour Convention case .
This does not, however, mean that the Aeronautics case , is of
no importance in a consideration of the present issue. In that case the
Judicial Committee considered three questions:
(1) Have the Parliament and Government of Canada exclusive
legislative and executive authority for performing the obligations of Canada,
or of any province thereof, under the convention entitled "Convention
relating to the Regulation of Aerial Navigation?"
(3) Has the Parliament of Canada legislative authority to
enact, in whole or in part, the provisions of s. 4 of the Aeronautics Act,
c. 3, R.S.C. 1927?
(4) Has the Parliament of Canada legislative authority to
sanction the making and enforcement, in whole or in part, of the regulations
contained in the Air Regulations, 1920, respecting: * * * (c) the
licensing, inspection and regulation of all aerodromes and air stations?
The Paris Convention, drawn up at the Peace Conference in
Paris and dated October, 1919, was ratified by His Majesty on behalf of the
British Empire June 1, 1922. Canada already had enacted in 1919 the Air Board
Act (S. of C. 1919, c. 11, 1st Session), amended it in 1922 (S. of C. 1922, c.
34) and styled it the "Aeronautics Act" (R.S.C. 1927, c. 3). It will
be observed that the Air Board Act was enacted in the same year that the Paris
Convention was drawn up, no doubt with the convention in mind, but the latter
is not mentioned and the comprehensive language of the statute deals with
aeronautics in all its phases. This is evident from the following provisions:
3. It shall be the duty of the Air Board—
(a) to supervise all matters connected with
aeronautics;
* * *
(f) to prescribe aerial routes;
* * *
[Page 317]
(k) to investigate,
examine and report on all proposals for the institution of commercial air
services within or partly within Canada or the limits of the territorial waters
of Canada;
(l) to consider, draft,
and prepare for approval by the Governor in Council such regulations as may be
considered necessary for the control or operation of aeronautics in Canada or
within the limits of the territorial waters of Canada; and,
(m) to perform such other
duties as the Governor in Council may from time to time impose.
It was this legislation that the Privy Council had before it
in the Aeronautics case. Moreover, it should be noted that while
question (1), as submitted by the Governor in Council, dealt with the
legislative jurisdiction of Canada in relation to the Paris Convention,
questions (3) and (4) concerned the legislative jurisdiction of the Parliament
of Canada to enact s. 4 of the Aeronautics Act and the regulations thereunder
without regard to the Convention.
In the course of the judgment itself their Lordships sated
at p. 64:
The determination of these questions depends upon the true
construction of ss. 91, 92 and 132 of the British North America Act.
Their Lordships suggest that it may come under s. 91(2), (5)
and (9), but expressly state that it does not come under (10) (Navigation and
Shipping). They also point out that it does not come under Property and Civil
Rights (92 (13)) and then state:
* * * transport as a subject is dealt with in certain
branches both of s. 91 and of s. 92, but neither of these sections deals
specially with that branch of transport which is concerned with aeronautics.
Then, after discussing s. 132, they conclude :
To sum up, having regard (a) to the terms of s. 132;
(b) to the terms of the Convention which covers almost every conceivable
matter relating to aerial navigation; and (c) to the fact that further
legislative powers in relation to aerial navigation reside in the Parliament of
Canada by virtue of s. 91, items 2, 5 and 7, it would appear that substantially
the whole field of legislation in regard to aerial navigation belongs to the
Dominion. There may be a small portion of the field which is not by virtue of
specific words in the British North America Act vested in the Dominion; but
neither is it vested by specific words in the provinces. As to that small
portion it appears to the Board that it must necessarily belong to the Dominion
under its power to make laws for the peace, order, and good government of
Canada. Further, their Lordships are influenced by the facts that the subject
of aerial navigation and the fulfilment of Canadian obligations under s. 132
are matters of national interest and importance; and that aerial navigation is
a class of subject which has attained such dimensions as to affect the body
politic of the Dominion.
[Page 318]
Their Lordships, apart from s. 132, and in support of their
answers to questions (3) and (4), were of the opinion that legislation in
relation to aeronautics was within the competence of the Parliament of Canada.
The remark of Viscount Dunedin, in the Radio case supra, (at 311)
that
the leading consideration in the judgment of the Board was
that the subject fell within the provisions of s. 132 of the British North
America Act, 1867,
and that of Lord Atkin in the Labour Convention case supra
(at 351) that
The Aeronautics case concerned legislation to perform
obligations imposed by a treaty between the Empire and foreign countries,
particularly when read in relation to their context, do
not detract from the foregoing, while the observations of Viscount Simon in the
Canada Temperance Federation case , would appear to support
the foregoing view when, at p. 205, he states :
In their Lordships' opinion, the true test must be found in
the real subject matter of the legislation: if it is such that it goes beyond
local or provincial concern or interests and must from its inherent nature be
the concern of the Dominion as a whole (as, for example, in the Aeronautics
case and the Radio case), then it will fall within the competence of the
Dominion Parliament as a matter affecting the peace, order and good government
of Canada, though it may in another aspect touch on matters specially reserved
to the provincial legislatures.
The Judicial Committee having decided that legislation in
relation to aeronautics is within the exclusive jurisdiction of the Dominion,
it follows that the province cannot legislate in relation thereto, whether the
precise subject matter of the provincial legislation has, or has not already
been covered by the Dominion legislation.
It is then submitted that if aeronautics is within the
legislative competence of the Parliament of Canada, including the power to
license and regulate aerodromes, it would not include the location and
continuation of aerodromes, which would be a provincial matter under Property
and Civil Rights. With great respect, it would appear that such a view
attributes a narrower and more technical meaning to the word
"aeronautics" than that which has been attributed to it generally in
law and by those interested in
[Page 319]
the subject. Indeed, the definition adopted by Mr. Justice
Dysart, as he found it in Corpus Juris, 2 C.J.S. 900,
The flight and period of flight from the time the machine
clears the earth to the time it returns successfully to the earth and is
resting securely on the ground,
contemplates the operation of the aeroplane from the
moment it leaves the earth until it again returns thereto. This, it seems, in
itself makes the aerodrome, as the place of taking off and landing, an
essential part of aeronautics and aerial navigation. This view finds support in
the fact that legislation in relation to aeronautics and aerial navigation, not
only in Canada, but also in Great Britain and the United States, deals with
aerodromes, as well as the conventions above mentioned. Indeed, in any
practical consideration it is impossible to separate the flying in the air from
the taking off and landing on the ground and it is, therefore, wholly
impractical, particularly when considering the matter of jurisdiction, to treat
them as independent one from the other.
The submission that in the granting of the licence the
sufficiency of the location will always be considered and might even be the
controlling factor in the granting or refusing of a licence, in so far as it
may be of assistance, emphasizes the importance of the location of the aerodrome
and of the essential part the aerodrome plays in any scheme of aeronautics.
Legislation which in pith and substance is in relation to the aerodrome is
legislation in relation to the larger subject of aeronautics and is, therefore,
beyond the competence of the Provincial Legislatures.
It is submitted that s. 921 is zoning legislation, as that
term is now understood in municipal legislation. The general provisions for the
enactment of zoning by-laws are contained in ss. 904, 905 and 906 of this
statute. As notwithstanding this general provision such legislation may be
enacted under other sections, it is necessary to determine the nature and
character of the provisions of s. 921. The foregoing ss. 904, 905 and 906 are
typical of legislation authorizing zoning by-laws. The end and purpose of
zoning legislation, as the name indicates, is to authorize the municipality to
pass by-laws in respect of certain areas and make those areas subject to
prohibitions and restrictions designed to provide uniformity within those
particular
[Page 320]
areas. The Legislature, in enacting s. 921, provided that,
without regard to the nature and character or the use and purpose made of the
area, the municipality may prohibit entirely, or permit only under a licence
issued by it, an aerodrome within certain areas. Such legislation is in pith
and substance in relation to aerodromes and, therefore, in relation to
aeronautics rather than to zoning.
The appeal should be allowed with costs to the appellants,
Konrad Johannesson and Holmfridur M. E. Johannesson, against the respondent
municipality.
Locke J.:—The
proceedings in this matter were initiated by notice of a motion to be made in
the Court of King's Bench for an order declaring s. 921 of The Municipal Act
(R.S.M., 1940, c. 141) to be ultra vires and the respondent
municipality's by-law No. 292, enacted in part under the authority of that
section, to be of no effect. On the hearing before Campbell J., the
Attorney-General for Manitoba appeared and supported the position for the
municipality and the application was dismissed.
Section 921 provides that any municipal corporation may pass
by-laws for licensing, regulating, and, within certain defined areas,
preventing the erection, maintenance and continuation of aerodromes or places
where airplanes are kept for hire or gain. The terms of the by-law are quoted
verbatim in other judgments delivered in this matter and need not be repeated.
On the appeal, Dysart, J.A. considered that s. 921 in so far
as it authorizes a municipal corporation to prohibit the erection, within a
described area, of an aerodrome intended for other than Dominion Government
use, was intra vires and that the by-law was valid to that extent. He
decided also that the requirement that a licence (in the sense of a building
permit) should be obtained was within provincial powers and the by-law,
accordingly, effective to this further extent. As to the remainder of the
by-law, he considered it to be ultra vires.
Adamson J.A. was of the opinion that s. 921 of the Municipal
Act would be within provincial powers if the words "licensing and
regulating" and the words "continu-
[Page 321]
ance and maintenance" were deleted. With these
amendments, the section would read :
Any municipal corporation may pass by-laws within certain
defined areas preventing the erection of aerodromes or places where airplanes
are kept for hire or gain.
As to the by-law, he considered paragraphs 1 and 3 to be intra
vires if the words "and continued" were eliminated but that
paragraphs 2 and 4 in their present form, were ultra vires as requiring
a licence from the municipality to operate an aerodrome after location. He
expressed the further view that if these paragraphs were amended to require
merely a building permit prior to licensing by the Minister under the Aeronautics
Act, they would be valid. Coyne J.A. dissented, considering s. 921 to be ultra
vires the province. The formal certificate of the Registrar of the Court of
Appeal says that the Chief Justice of Manitoba and the late Mr. Justice
Richards concurred in the result. While two members of the Court thus
considered both the section and the by-law to be in part ultra vires,
since neither the learned Chief Justice nor the late Richards J.A. expressed
their views on these matters, the appeal was dismissed in toto. In the
result, both the section and the by-law have been found intra vires the
province and the municipality respectively.
The material filed by the appellants on the motion shows
that Konrad Johannesson, described as a flying service operator, has been
engaged in commercial aviation since 1928 and holds a licence issued by the Air
Transport Board of Canada to operate an air service at Winnipeg and Flin Flon:
that the service which he operates under this licence covers territory in
central and northern Manitoba and northern Saskatchewan, and is conducted with
light and medium planes mainly equipped in summer with floats and, in the
winter, with skis in order to permit landing on the numerous lakes and rivers
in this territory and that these planes have to be repaired and serviced at
Winnipeg, the only place within the territory where the necessary supplies and
facilities are available for that purpose. It is said that there are no
existing facilities on the Red River in Winnipeg for the repairing and servicing
of planes equipped with floats and that repairs can only be made for such
planes by dismantling them at some private dock and transporting them by trucks
to the Stephenson Airport.
[Page 322]
According to Johannesson's affidavit, he searched the areas
surrounding Winnipeg for an area of level land having access to a straight
stretch of the Red River of a sufficient length for the landing of airplanes
equipped with floats, which would comply with the regulations of the Civil
Aviation Branch of the Department of Transport relating to a licensed air
strip, and the only portion of land which he had found was that purchased by
him and his wife in the rural municipality of West St. Paul. The material does
not state, and it was apparently assumed, that the Court would take judicial
notice of the fact that there is no body of water in the area between Emerson
on the south and Selkirk on the north, other than the Red River, on which
planes equipped for alighting on water could land or take off. The material further
discloses that, due to the lack of suitable facilities for their servicing and
repair, float-equipped planes from the United States and other provinces of
Canada are by-passing Winnipeg.
The question to be determined is one of far-reaching
importance. Johannesson apparently contemplated the establishment of an
aerodrome, within the meaning of that term as defined by the Air Regulations
hereinafter referred to, where light and medium weight planes not equipped with
radio but with suitable equipment for alighting either upon land or water,
could land and take off and where they could be repaired and otherwise
furnished with service.
The control of aeronautics in Canada was first dealt with by
statute by Parliament, by c. 11 of the Statutes of 1919. During the sittings of
the Peace Conference in Paris at the close of the Great War, a convention
relating to the regulation of aerial navigation was drawn up which was
subsequently ratified by His Majesty on behalf of the British Empire and it was
with a view to performing the obligations of Canada as part of the Empire under
this convention, then in course of preparation, that the Air Board Act of 1919
was passed. That statute set up a board whose duties included that of
supervising all matters connected with aeronautics, constructing and
maintaining all government aerodromes and air stations, prescribing aerial
routes, licensing and regulating all aerodromes and air stations and
prescribing the areas within which aircraft coming from any places outside of Canada
were to land.
[Page 323]
By c. 34 of the Statutes of Canada 1922 the Act of 1919 was
repealed and all the powers and functions vested by it in the Board were
directed to be exercised by or under the direction of the Minister of National
Defence. The duties and powers of the Minister were further defined by c. 3,
R.S.C. 1927, and include duties similar to those of the Air Board under the Act
of 1919. Under powers contained in the statute as originally enacted, Air
Regulations dealing in detail with the control of aerial navigation were
enacted, and the right of Parliament to sanction the making of certain of these
regulations and the matter of the exclusive legislative and executive authority
of Parliament to perform the obligations of Canada or of any province thereof
under the convention and the matter of its legislative authority to enact, in
whole or in part, the provisions of s. 4 of the Aeronautics Act, c. 3,
R.S.C. 1927, were referred to this Court by the Governor-General in Council
under s. 55 of the Supreme Court Act. An appeal was taken to the
Judicial Committee from the answers made in this Court to the questions
submitted. The judgment of the Board allowing the appeal found that exclusive
legislative and executive authority for performing the obligations of Canada or
of any province under the convention was in the Parliament of Canada, that s. 4
of the Act was intra vires and that it was within the power of
Parliament to sanction the making and enforcement of the said Air Regulations
(1932 A.C. 54).
We were informed upon the argument of this matter that the
Convention, the terms of which were considered on the appeal to the Privy
Council, had been denounced by Canada and a new International Convention
entered into by this country with other States in the year 1944, by which
substantially similar international obligations were assumed. This fact was not
drawn to the attention of the Court of Appeal but, in my opinion, it does not
affect the questions to be determined here. Apart from the fact that, as I
understand the arguments addressed to us, it is not contended on behalf of any
of the respondents that the Aeronautics Act is ultra vires the
Parliament of Canada or that it was without authority to sanction the Air
Regulations in force at the time of the commencement of this litigation, if, as
was found by the Judicial Committee, it
[Page 324]
was within the legislative competence of Parliament to enact
c. 3, R.S.C. 1927, it would not become invalid by this circumstance (A.G.
Ontario v. Canada Temperance Federation .
Parliament had thus dealt generally with the matter of
aeronautics when in the years following the Great War the Manitoba Legislature,
by s. 18 of c. 82 of the Statutes of 1920 of Manitoba, passed an amendment to
s. 612 of The Municipal Act, R.S.M. 1913, c. 133, assuming to empower
municipal councils to make by-laws:
for licensing, regulating and within certain defined areas,
preventing the erection, maintenance and continuance of aerodromes and places
where airplanes are kept for hire or gain.
With a slight change in the phraseology which does not
affect the present matter, the present s. 921 of c. 141, R.S.M. 1940, is to
this effect. Neither the word "aerdromes", as it was spelled in the
statute of 1920, or the word "aerodromes" as it appears in the
present statute, were defined. Neither word appears in the Oxford English
Dictionary, but in the shorter Oxford Dictionary the word "aerodrome"
is defined as:
A course for the use of flying machines: a tract of level
ground from which airplanes or airships can start.
In the Supplement to Murray's New English Dictionary issued
in 1933 the word is defined as:
A course for practice or contest with flying machines: a
tract of level ground from which flying machines (airplanes or airships) can
start.
The area within which the prohibition of the erection, or
maintenance, or continuation of an aerodrome is contained in the by-law is the
portions of river lots 1 to 33 lying to the east of the main highway running to
the west of the Red River and includes property such as Johannesson's fronting
upon the river. Whether in view of the decision in Patton v. Pioneer
Navigation & Sand Co. , dealing with the rights of the owners
of lands fronting upon the Assiniboia River, also a navigable non-tidal
stream, it was intended by the by-law to prevent planes equipped with floats
from alighting upon and taking off from the waters of the Red River adjoining
Johannesson's property, does not appear. Since, however, the right to alight
and take off without the right to maintain facilities upon the shore
[Page 325]
where the planes might be serviced and repaired would be
presumably valueless, the prohibition in the by-law against the building or
installation of any machine-shop for the testing or repairing of aircraft in
the defined area is effective in preventing the operation by Johannesson of a
commercial airport or aerodrome for planes designed to alight upon the water.
In my opinion, the position taken by the province and by the
municipality in this matter cannot be maintained: Whether the control and
direction of aeronautics in all its branches be one which lies within the
exclusive jurisdiction of Parliament, and this I think to be the correct view,
or whether it be a domain in which Provincial and Dominion legislation may
overlap, I think the result must be the same. It has been said on behalf of the
respondents that the by-law is merely a zoning regulation passed in exercise of
the powers vested in the municipality elsewhere in the Municipal Act and I
understand the section referred to is that portion of section 896 which, under
the heading "Zoning trades", empowers a municipal corporation to pass
by-laws for preventing the erection of certain specified buildings and the
carrying on of certain occupations within defined areas, these including the
erection, establishment or maintenance of machine shops which would presumably
cover those designed for the repair of aircraft. The by-law, in so far as it
prohibits the erection, maintenance or continuation of aerodromes, must depend
for its validity upon s. 921: subsec. 3 is apparently based upon subsec. (h)
of s. 896. The inclusion of the prohibition of the erection or maintenance of a
machine-shop, however, is obviously for the purpose of preventing the use
either of the strip of land fronting upon the river or the surface of the river
adjoining to the east as an effective aerodrome. Section 921 was undoubtedly
passed for the purpose of enabling municipal corporations to prohibit or to
license or regulate the activity of aeronautics in and upon the lands and the
waters within their boundaries, and not merely as an addition to the powers of
zoning trades assumed to be given by s. 896. Had this been intended and
irrespective of any question as to its validity, no doubt it would have been
done by amendment to subsec. (f) or (h) of s. 896. The powers
sought to be conferred upon the Municipal Council appear to me
[Page 326]
to be in direct conflict with those vested in the Minister
of National Defence by the Aeronautics Act. Section 3(a) of that
statute imposes upon the Minister the duty of supervising all matters connected
with aeronautics and prescribing aerial routes and by s. 4 he is authorized,
with the approval of the Governor in Council, to make regulations with respect
to, inter alia, the areas within which aircraft coming from any place
outside of Canada are to land and as to aerial routes, their use and control.
The power to prescribe the aerial routes must include the right to designate
where the terminus of any such route is to be maintained, and the power to
designate the area within which foreign aircraft may land, of necessity
includes the power to designate such area, whether of land or water, within any
municipality in any province of Canada deemed suitable for such purpose.
If the validity of the Aeronautics Act and the Air
Regulations be conceded, it appears to me that this matter must be determined
contrary to the contentions of the respondent. It is, however, desirable, in my
opinion, that some of the reasons for the conclusion that the field of
aeronautics is one exclusively within Federal jurisdiction should be stated.
There has been since the First World War an immense development in the use of
aircraft flying between the various provinces of Canada and between Canada and
other countries. There is a very large passenger traffic between the provinces
and to and from foreign countries, and a very considerable volume of freight
traffic not only between the settled portions of the country but between those
areas and the northern part of Canada, and planes are extensively used in the
carriage of mails. That this traffic will increase greatly in volume and extent
is undoubted. While the largest activity in the carrying of passengers and
mails east and west is in the hands of a government controlled company, private
companies carry on large operations, particularly between the settled parts of
the country and the North and mails are carried by some of these lines. The
maintenance and extension of this traffic, particularly to the North, is
essential to the opening up of the country and the development of the resources
of the nation. It requires merely a statement of these well recognized facts to
demonstrate that the field of aeronautics
[Page 327]
is one which concerns the country as a whole. It is an
activity, which to adopt the language of Lord Simon in the Attorney General
for Ontario v. Canada Temperance Federation , must
from its inherent nature be a concern of the Dominion as a whole. The field of
legislation is not, in my opinion, capable of division in any practical way.
If, by way of illustration, it should be decided that it was in the interests
of the inhabitants of some northerly part of the country to have airmail
service with centres of population to the south and that for that purpose some
private line, prepared to undertake such carriage, should be licensed to do so
and to establish the southern terminus for their route at some suitable place
in the Municipality of West St. Paul where, apparently, there is an available
and suitable field and area of water where planes equipped in a manner enabling
them to use the facilities of such an airport might land, it would be
intolerable that such a national purpose might be defeated by a rural
municipality, the Council of which decided that the noise attendant on the
operation of airplanes was objectionable. Indeed, if the argument of the
respondents be carried to its logical conclusion the rural municipalities of
Manitoba through which the Red River passes between Emerson and Selkirk, and
the City of Winnipeg and the Town of Selkirk might prevent the operation of any
planes equipped for landing upon water by denying them the right to use the
river for that purpose.
It is true that the decision in the Aeronautics Reference
,
really turned upon the point that by virtue of s. 132 of the British North
America Act it was within the power of Parliament to enact s. 4 of the Aeronautics
Act, c. 3, R.S.C. 1927, and to authorize the adoption of the Air
Regulations referred to in the questions submitted to the Court. There were,
however, expressions of opinion on other aspects of the matter in the judgment
delivered by Lord Sankey L.C. which are of assistance. At page 70 of the report
His Lordship, in referring to the respective field assigned to Parliament and
the Legislatures, said in part:
While the Courts should be jealous in upholding the charter
of the Provinces as enacted in s. 92 it must no less be borne in mind that the
real object of the Act was to give the central government those high
[Page 328]
functions and almost sovereign powers by which uniformity of
legislation might be secured on all questions which were of common concern to
all the provinces as members of a constituent whole.
Again, in the conclusions of the judgment, it is stated that
their Lordships were influenced by the facts that the subject of aerial
navigation and the fulfilment of Canadian obligations under s. 132 are matters
of national interest and importance and that aerial navigation is a class of subjects
which has attained such dimensions as to affect the body politic of the
Dominion. In A.G. for Ontario v. A.G. for Canada , Lord
Watson, referring to the authority given to Parliament by the introductory
enactment of s. 91 to make laws for the peace, order and good government of
Canada in relation to all matters not coming within the class of subjects
assigned exclusively to the legislatures of the provinces, said that the
exercise of these powers ought to be strictly confined to such matters as are
unquestionably of Canadian interest and importance. This passage from Lord
Watson's judgment is incorporated in the second of the four propositions stated
by Lord Tomlin in A.G. for Canada v. A.G. for British Columbia .
The passage from the judgment of Lord Simon in A.G. for Ontario v. Canada
Temperance Federation , reads:—
In their Lordships' opinion the true test must be found in
the real subject matter of the legislation: if it is such that it goes beyond
local or provincial concern or interests and must from its inherent nature be
the concern of the Dominion as a whole (as, for example, in the Aeronautics
case , and the Radio case ,
then it will fall within the competence of the Dominion Parliament as a matter
affecting the peace, order and good government of Canada, though it may in
another aspect touch on matters specially reserved to the provincial
legislatures.
While the statement of Lord Sankey in the Aeronautics
Reference that aerial navigation is a class of subjects which has attained
such dimensions as to affect the body politic of the Dominion as a whole, and
that of Lord Simon in the Canada Temperance matter in referring to that case
and the Radio case, were perhaps unnecessary to the decision of those
matters, they support what I consider to be the true view of this matter that
the whole subject of aeronautics lies within the field assigned to Parliament
as a matter affecting the peace, order and good government of
[Page 329]
Canada; S. 921 of The Municipal Act
(R.S.M. 1940 c. 141) clearly trespasses upon that field and must be declared ultra
vires the province. As to the by-law I am unable, with
respect, to agree with the contention that it is a mere zoning regulation or
that, even if it were, it could be sustained. On the contrary, I consider it to
be a clear attempt to prevent the carrying on of the operation of commercial
aerodromes within the municipality. As the right to do this must depend upon s.
921, the by-law must also be declared ultra vires.
If this matter were to be considered as dealing with a
legislative field where the powers of Parliament and of the Provincial
Legislature overlap, I think the result would necessarily be the same since for
the reasons above stated it appears to me that the Aeronautics Act, and
in particular s. 4, is legislation in this field with which s. 921 of The
Municipal Act clearly conflicts.
The appeal should be allowed with costs and a declaration
made that s. 921 of The Municipal Act and the municipal by-law are each ultra
vires. There should be no order as to costs in the proceedings before
Campbell J. and the Court of Appeal.
Appeal allowed.
Solicitors for the appellants: Andrews, Andrews,
Thorvaldson, & Eggertson.
Solicitors for the respondent: Dysart &
Dysart.
Solicitor for the Intervenant, The
Attorney-General for Manitoba: A. A. Moffat.
Solicitor for the Intervenant, The
Attorney General of Canada: F. P. Varcoe.
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