issued pursuant to this By-law, or an order issued pursuant to this By-law
and Section 444(1) or 445(1) of the Municipal Act, 2001, may be ordered by
a court of competent jurisdiction at the expense of the person to:
01 rehabilitate the land;
02 remove the fill placed or dumped;
03 restore the grade of the land to its original condition;
04 replace damaged trees, shrubs, etc.
[37] I note that all of these sanctions, including remedial work
pursuant to s. 11.03, are specifically tied to contraventions of
“this By-law” and that no provision is made for sanctions for violation of the 2003 by-law.
[38] In my view, there is nothing in the 2014 by-law that can
justify requiring remediation of work conducted or a situation
created before the by-law came into force. Nor does the language
of the 2014 by-law support Burlington’s position that it can be
applied to require Airpark to obtain a permit for work done
before the 2014 by-law came into force. The entire thrust of
the 2014 by-law is prospective. It is directed at requiring permits
before work is undertaken. The provisions dealing with sanctions for conducting fill or site alteration work without a permit
are all tied to failure to obtain a permit under the 2014 by-law.
No provision is made for remediating work done without a
permit under the 2003 by-law. The conditions for obtaining a
permit under the 2014 by-law are more stringent than those
that existed under the 2003 by-law. One of Burlington’s principal
concerns is with the quality of fill used by Airpark. As I have
noted, s. 2.10, dealing with the quality of fill, sets the standard
as that laid down in a January 2014 guide for best management
practices. I fail to see how Airpark could be held to that standard
for work that it conducted years earlier when a different standard prevailed under a different by-law.
(b) Retroactivity
[39] There is a distinction drawn between retroactive and ret-
rospective legislation, as explained by Iacobucci J. in Benner v.
Canada (Secretary of State), [1997] 1 S.C.R. 358, [1997] S.C.J.
No. 26, at para. 39:
The terms, “retroactivity” and “retrospectivity”, while frequently used in
relation to statutory construction, can be confusing. E. A. Driedger, in “Stat-
utes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264,
at pp. 268-69, has offered these concise definitions which I find helpful:
A retroactive statute is one that operates as of a time prior to its
enactment. A retrospective statute is one that operates for the future
only. It is prospective, but it imposes new results in respect of a past
