Johannesson v. Municipality of West St. Paul

Johannesson v. Municipality of West St. Paul
Collection
Supreme Court Judgments
Date
1951-10-12
Report
[1952] 1 SCR 292
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
Manitoba
Subjects
Constitutional law
Decision Content
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 1 dismissing (Coyne J.A. dissenting) the appellants' appeal from the judgment of Campbell J. 2 of 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 3. 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, 4 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 5; Great West Saddlery Co. v. The King 6 ; A.G. of Alta. v. A.G. of Can. (Debt Adjustment case), 7; A. G. of Can. v. A.G. of Que. (Bank Deposits Case) 8; Postal Reference 9. 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 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 10. 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 11; A.G. for Alta. v. A.G. for Canada (Bank Taxation case) 12; A.G. for Can. v. A.G. for Que. (Bank Deposits case) 13. 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 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 14. 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) 15 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 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 16. 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 17. 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 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 18. 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 19 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 20 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. 21—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. 20 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 22. 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. In A.G. Can. v. A.G. Ont 23 (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, 24 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 25 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, 26 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 27; Snider's case 28. 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 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 29 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. 30.
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 31 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 32; L'Union St. Jacques de Montreal v. Belisle 33. 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. 34; Forbes v. A.G. Man. 35. Under s. 4 of the Aeronautics Act regulations have been passed relating to airports, (See Part II of Air Regulations 1948), but the 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 36; R. v. Cherry 37; Shannon v. Lower Mainland Dairy Products Board 38.
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 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 39, 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 40; Reg. v. Wason 41; G.T.R. v. A.G. Can. 42; R. v. Magid 43.
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. 44; City of Montreal v. Beauvais 45; Stengel v. Crandon et al 46, (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 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. 47, 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 48; Reference re Validity of s. 31 of the (Alta.) Municipal District Act Amendment Act, 1941 49. 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 50; The King v. Eastern Terminal Elevator Co. 51; Reference re Dairy Industries Act 52.
Varcoe K.C. and Keith K.C. replied.
The Chief Justice—Notwithstanding that the International Convention under consideration in the Aeronautics case 53, was denounced by the Government of Canada 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 54 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. 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. 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. 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 55.. 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 56), Lord Atkin, who had been a member of the Board in the Aeronautics case, said with reference to the judgment therein:
The Aeronautics case 57 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. The remarks of Viscount Simon in A.G. for Ontario v. Canada Temperance Federation 58, 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 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 59. 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 60, 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 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 61 and the Radio case 62, 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