Ville de Lévis v. Albertine Leclerc, et al.
(Que.) (Civil) (By Leave)
Constitutional law - Interjurisdictional immunity - Constitutional law — Interjurisdictional immunity — Federal aeronautics power — Skydiving — Municipal by laws prohibiting skydiving on agricultural lands and requiring permit to build aerodrome — Whether doctrine of interjurisdictional immunity could apply in absence of specific precedent or exceptional reasons — Whether skydiving falls within core of federal power — Whether definition of aircraft in Aeronautics Act, R.S.C. 1985, c. A 2, can be used to circumscribe core of federal power — Whether permit was required to build hangar intended exclusively for skydiving activities, storage and maintenance of aircraft — Whether Court of Appeal’s analysis concerning absence of impairment was consistent with prior case law — Règlement RV 2011 11 23 sur le zonage et le lotissement, s. 15 — Règlement RV 2011 11 28 sur les permis et les certificats, s. 12.
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The respondent, Ms. Leclerc, owned three lots in the applicant municipality that were limited to agricultural uses under the applicable zoning by law. Ms. Leclerc operated an aerodrome on the lots and leased part of the lots for the operation of a skydiving centre. In 2012, the applicant municipality issued several statements of offence against Ms. Leclerc for violating the applicable zoning and building by laws. She was charged, among other things, with engaging in an unauthorized use, namely [TRANSLATION] “skydiving or a skydiving training centre”, and building a second aerodrome without first obtaining the building permit required for that type of structure. Relying on the doctrine of interjurisdictional immunity, Ms. Leclerc took the view that the municipal by laws could not be set up against her. She argued, in other words, that the defendant municipality could not regulate her activities because they fell within the core of the federal aeronautics power. The Municipal Court found the doctrine inapplicable in the circumstances on the ground that skydiving was not within the core of the federal power absent any precedent to that effect. The Superior Court overturned that conclusion and allowed the appeal in part. In its view, there was a precedent from the Alberta Court of Appeal that made it possible to apply the doctrine to skydiving. The Court of Appeal rejected the Superior Court’s reasoning concerning the existence of a precedent, but it nonetheless found the doctrine applicable to the [TRANSLATION] “new field” of skydiving. It was of the view that skydiving is an activity that makes use of airspace and cannot be sepa¬rated from aerial navigation as a whole. By prohibiting it, the applicant municipality was impairing a power that was held exclusively by Parliament. The Court of Appeal declared the provision of the zoning by law inapplicable, but not the provision of the permits by law. In the latter case, it found that compliance with building standards does not encroach on the federal power in the sense of a constitutional impairment.
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