The Corporation of the City of Burlington v.
Burlington Airpark Inc.
[Indexed as: Burlington (City) v. Burlington Airpark Inc.]
2017 ONCA 420
Court of Appeal for Ontario, K.N. Feldman, Sharpe and L.B. Roberts JJ.A.
May 24, 2017
Municipal law — By-laws — Retroactivity — Municipality passing
by-law in 2014 which replaced less stringent 2003 by-law and which prohibited any dumping or removal of fill or altering of grades without permit — 2014 by-law providing that it was to come into force on date it was
passed and containing no transitional provision — Application judge
ordering company to file application for permit for fill work and site
alterations carried out before 2014 by-law came into effect — Application
judge erring in giving by-law retrospective effect — Application of 2003
by-law to company not continued by s. 52(3) of Legislation Act as Act did not
apply to municipal by-laws — Legislation Act, 2006, c. 21, Sch. F, s. 52(3).
The appellant started performing fill and site alteration work at its airport in
2008. Until 2013, the respondent municipality accepted that the work was part of
an airport improvement and therefore not subject to regulation by a municipality.
After a 2013 investigation, the respondent decided that the appellant was conducting a commercial fill operation. In 2014, the respondent passed a by-law
which prohibited any dumping or removal of fill or altering of grades without a
permit. That by-law replaced a less stringent 2003 by-law. The respondent
applied successfully for an order requiring the appellant to file an application for
a permit for the fill work and site alterations carried out before the 2014 by-law
came into force. The appellant appealed.
Held, the appeal should be allowed.
The application judge erred by giving the 2014 by-law retroactive effect and
requiring the appellant to apply for a permit for work already done before that
by-law was enacted. The 2014 by-law repealed the 2003 by-law and provided that
the 2014 by-law was to come into effect on the date of its passing. There was no
transitional provision to bridge the repeal of the 2003 by-law and the enactment
of the 2014 by-law. The entire thrust of the 2014 by-law was prospective. The
purpose and effect of the 2014 by-law was to require a permit based upon standards set in 2014 for the dumping of fill or alteration of the grade of land. To
require the appellant to obtain a permit based upon standards set in 2014 for
work already performed in 2008 and 2009 was plainly to change the law from
what it was at the time the work was undertaken.
Section 52(3) of the Legislation Act, 2006 did not continue the application of the
2003 by-law to the appellant. The Act does not apply to municipal by-laws.
Cases referred to
Benner v. Canada (Secretary of State),  1 S.C.R. 358,  S.C.J. No. 26,
143 D.L.R. (4th) 577, 208 N.R. 81, J.E. 97-493, 42 C.R.R. (2d) 1, 37 Imm. L.R. (2d)
195, 69 A.C.W.S. (3d) 233; Burlington Airpark Inc. v. Burlington (City), 
O.J. No. 2835, 2014 ONCA 468, 23 M.P.L.R. (5th) 1, 241 A.C.W.S. (3d) 106, affg
 O.J. No. 5165, 2013 ONSC 6990, 17 M.P.L.R. (5th) 254, 234 A.C. W.S. (3d)
896 (S.C.J.); Gustavson Drilling (1964) Ltd. v. M.N.R.,  1 S.C.R. 271, 
S.C.J. No. 116, 66 D.L.R. (3d) 449, 7 N.R. 401,  C. T.C. 1, 75 D. T.C. 5451;