September 26, 2018
Bélanger, Hogue, Gagné
Appeals from a judgment of the Superior Court allowing in part an appeal against a Municipal Court decision and declaring s. 15 of By-law RV-2011-11-23 on zoning and subdivision and s. 12 of By-law RV-2011-11-28 on permits and certificates constitutionally inapplicable to the respondent. Allowed in part.
The respondent owns three lots on which a private aerodrome is operated. Under By-law RV-2011-11-23 on zoning and subdivision of the Ville de Lévis, these immovables are located in an agricultural zone. In 2012, the respondent leased two of its lots to a company for the purpose of operating a parachuting centre. In 2013 and 2014, the Ville issued several statements of offence to the respondent. The statements alleged in particular an unauthorized use, being the “parachuting or parachuting training centre”, and the construction of a second dome without first having obtained the requisite building permit. The Municipal Court judge rejected the respondent’s defence based on the doctrine of interjurisdictional immunity because she held that parachuting is not part of the core of federal jurisdiction over aeronautics. The Superior Court allowed the appeal in part and declared s. 15 of the zoning by-law and s. 12 of the permit by-law constitutionally inapplicable to the respondent.
It is true that no precedent applies the doctrine of interjurisdictional immunity to a parachuting centre. It is false, however, to state that it cannot apply in the absence of any precedent and that this reason alone suffices to overturn the Superior Court judgment. While the courts should be reluctant to extend the application of this doctrine to a new area, this is not determinative. The doctrine of interjurisdictional immunity may therefore apply to a parachuting centre.
The core of a legislative power is the authority that is absolutely necessary to enable the legislator to achieve the purpose for which jurisdiction was conferred. Parachuting is an aeronautic activity that cannot be dissociated from air navigation as a whole. The training and practice of that activity therefore forms part of the basic, minimum, and unassailable content of federal jurisdiction over aeronautics.
In this case, the zoning by-law, to the extent it prohibits parachuting, substantially impairing the aerodrome’s activities and, by this very fact, the core of the federal power. It is therefore inapplicable to the respondent according to the doctrine of interjurisdictional immunity. The same cannot be said for the permit by-law, because the fact of having to comply with building standards does not necessarily impair the aerodrome’s activities or the core of the federal power.
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