When is an aerodrome not an aerodrome? When it’s really a boathouse.Seguin (Township) et al v. Bak, 2013 ONSC 5788 (CanLII)
Originally published on March 14, 2014 on the Alexander Holburn Beaudin + Lang LLP Aviation Law Blog: http://aviationlawblog.ahbl.ca/
Author: Alexander Holburn Beaudin + Lang LLP
On January 9, 2014, the Ontario Court of Appeal dismissed the appeal of Mr. Bak, a former real estate developer (click here for decision).
The appeal arose from the owner Bak’s desire to build a boathouse to complement his cottage on Lake Rosseau’s environmentally protected shoreline. Bak’s application to the Township was rejected. Initially, Bak appealed that decision through the municipal process. He later withdrew the appeal, preferring his chances at reclassifying the structure as a federally regulated aerodome, and therefore exempt from the municipal bylaws. He registered the structure as an aerodrome and continued with its construction, notwithstanding a stop work order from the municipality.
Subsequently, the municipality (Seguin) applied to the Court for an order requiring Bak to remove the structure. Bak argued that the structure was a water aerodrome and was exempt from the municipality’s bylaws on the basis that aerodromes are only regulated by federal law. Seguin, however, argued that the structure was a boathouse and that it ought to be demolished.
Following a review of relevant case law and sections in the COPA guide, the Court explained that the determination rested on an assessment of whether the structure was “essential or integral to aeronautics or aviation”.
Applying this test, the Court rejected Bak’s argument that registration and regulation of the structure by the Federal Government was determinative of the issue. The evidence of Transport Canada indicated that it granted registration liberally.
However, there was significant evidence that the structure had not been built to be used as an aerodrome. Bak did not own a plane and did not have a pilot’s license. The structure had been built without the involvement of an aviation consultant and could only fit a small ultra-light plane. The only time it had been used to house such an aircraft the owner was heard to have said: “No, that’s all I need right now. The lawyers wanted…” – indicating that the aircraft was being housed for staging purposes only. On the other hand, Bak advertised the rental of his cottage with an associated “boathouse”, and indeed the structure was consistently observed in use as a boathouse.
The Court concluded that Bak’s registration of the structure as an aerodrome was really an attempt to evade and circumvent the applicable zoning and planning by-laws. Though the structure may someday be used as an aerodome, it was not currently essential to aeronautics or aviation.
The Seguin case demonstrates that the Court will delve beyond the registration of a structure as an aerodrome, and will not allow the use of such registration to merely avoid the application of provincial and municipal regulations.