Court File and Parties

Ontario Court of Justice Date: 2021 07 15 Court File No.: 6280605B Municipality of Brockton Offence Number: 1060 999 00 6280605B-00

Between: Municipality of Brockton

— AND —

Phillip M. Englishman

Before: Justice of the Peace James Ziegler

Heard on: April 29th and April 30th, 2021 Reasons for Judgment released on: July 15, 2021

Counsel: Suzanne Coles......................................................... agent [paralegal] for the prosecution Alexandra Ferrier.............................. counsel for the defendant Phillip M. Englishman

Justice of the Peace Ziegler:

[1] On August 29th, 2019 at 3:25 p.m. the Defendant Phillip Englishman was charged with the Offence of “Enter premises when entry prohibited” contrary to section 2(1)(a)(i) of the Trespass to Property Act at the Saugeen Municipal Airport, 34 Saugeen Airport Road, Brockton.

[2] On the morning of August 29th, 2019, the Airport Interim Manager Mr. Robert Olds called the OPP to attend the Airport when he saw Englishman preparing for takeoff. Englishman had been warned by a registered letter dated August 14th 2019 that if he used the airport facilities without first addressing the outstanding issues in that letter he would be trespassing when he accesses the taxiway and the runway.[Exhibit # 6: August 14th, 2019 letter Tab 9 Defendant’s Exhibits]. A ticket for trespass was issued later that afternoon when Englishman returned to the Airport.

[3] The three main issues raised by the defense are (1) does the manager or the commission of the Saugeen Municipal Airport [SMA] have the right to issue or have a ticket issued for trespass in the circumstances of this case or is it exclusively Federal Jurisdiction; and (2) if SMA has the right to issue the ticket was the Defendant Englishman in breach of his agreement with the Saugeen Municipal Airport at that time which made him subject to a charge of Trespass; or (3) notwithstanding any allegation of breach can the Defendant Englishman establish a defence of colour of right.

[4] The Court was provided with extensive case law regarding jurisdiction and as well, case law in respect to charges of Trespass by both counsels. Seven [7] witnesses testified, three for the prosecutor and four for the defense. There were numerous objections by the prosecutor to some of the evidence provided by the defence and two attempts by the prosecutor to have the proceeding stopped by requesting a mistrial.

Exclusion of Witnesses & Motion for Mistrial

[5] The first motion for mistrial was made by the Prosecutor midway in the afternoon of the first day, April 29th, 2021, when the prosecutor realized that the witnesses had not been excluded from hearing other witnesses before testifying. I acknowledged that this is the first zoom trial I have conducted and reminded her that she had not requested the witnesses be excluded.

[6] I was satisfied that the testimony heard would not have influenced subsequent testimony. I ruled the trial should continue and in the totality of submissions by both sides on the second day there were no concerns raised about the testimony of any witness being tainted or affected by what they heard from other witnesses testifying.

[7] The second motion for a mistrial was requested by the Prosecutor on April 30th, at the commencement of the second day of trial. The Prosecutor asked that the court should declare a mistrial because the audience in the zoom trial were talking and interfering with the proceedings throughout the first day and this may have affected testimony of witnesses or some how have biased the Court. I dismissed this request on the basis that while I heard some background noise from viewers I could not discern anything that was being said and in fact I had more difficulty with the quality of the audio affecting my understanding the testimony of the witnesses and counsel throughout the proceedings, which prompted me to ask many times for witnesses or counsel to repeat what they just said. We lost audio connection with the prosecutor twice on the second day of trial which required us to pause until reconnected and then have anything missed repeated for her.

[8] In my opinion an open trial in a zoom hearing raises challenges for everyone, the Court, the prosecutor and defense, the accused, witnesses and interested public viewers. It requires procedures to be revised or adjusted to address new technical and procedural issues. It is however not a reason to declare a mistrial for every difficulty encountered. On this occasion, I saw no merit in the request. Nor was anything raised later in submissions alleging any irregularity that affected or would affect the outcome.

Exhibits

[9] Exhibit Number 1 contains some of the documents provided by the defence witness Rebecca Hergert a Brockton municipal councillor and former vice-chair of the Airport Commission until her removal after an integrity commission hearing. While I am not relying on her testimony, Exhibit #1 has a copy of the Airport Right of Access agreement between the Englishman and SMA from October 2002 which when compared to the current agreement from December 2017 encompasses substantially the same terms and conditions, and I will accept this Exhibit in that respect.

[10] Exhibit #1 also has a copy of the Presentation made by Englishman to the Airport Commission on April 17th, 2019. And in the middle portion of Exhibit #1 there is part of the Airport Operations Manual for the Saugeen Municipal Airport, and I will refer to this Exhibit if needed in respect to those documents.

[11] Exhibit #2 is a copy of the Integrity Commissioner report respecting Councillor Hergert dated September 10th, 2020 and minutes of the Council decision on October 6, 2020 resulting in her removal as Vice Chair of the SMA.

[12] Exhibit #3 was provided by the Prosecutor relating to a rebuttal witness respecting the prior testimony of Steve Tanner [an individual whose company operates out of the SMA] and is a copy of the agreement between SMA and Flight Academy signed by Steven Tanner on November 16th 2017 for his company “Flight Academy”; as well is attached two letters each dated March 3rd 2021 from the SMA one to Glen Tanner and one to Kevin Tanner who apparently are the father and brother of Steve Tanner, and the letters advise those two individuals not to appear on the premises and surrounding area of the SMA as a result of their recent behavior or they will be charged under the Trespass to Property Act.

[13] In respect to Exhibit # 3 the copy of the agreement between Steve Tanner’s company “Flight Academy” helps establish the fact that the agreements between owners of adjacent hangars and the SMA are identical in all material provisions.

[14] In respect to the two letters from SMA dated March 3rd 2021 attached to Exhibit #3, to the brother and father of Steve Tanner, Glen and Kevin Tanner not to enter upon the premises and “surrounding area” of the SMA [the court does not understand how the SMA can threaten trespass to the “surrounding area” but that issue is immaterial to this hearing other than to demonstrate a lack of clarity on the part of SMA], these letters are immaterial and have no bearing on anything to be decided in this hearing.

[15] Exhibit # 4 was provided by the Prosecutor relating to the defendant Phillip Englishman and is a letter dated March 16th 2021 from SMA to Englishman and purports to be a notice under the Trespass to Property Act prohibiting Englishman from entering onto the property of the SMA; and a notice that the Access Agreement is no longer in force for failure to pay annual fees for 2019, 2020 & 2021.

[16] In respect to Exhibit # 4, the Court will disregard this letter dated March 16th, 2021 from the Chair of SMA in its entirety. The time frame of concern for this action is up to and including August 29th, 2019 and the background leading up to the event.

[17] Subsequent actions and or communications between the parties after August 29th, 2019 do not and should not impact this decision. Certainly, a letter almost one- and one-half years later is irrelevant.

[18] Exhibit # 5 is the Agreed Statements of Facts provided by the parties and numbered 1 through 16. I am making this Exhibit # 5 as they help establish facts and background and thereby form part of the evidence in this hearing.

[19] Exhibit # 6 is the Defendant’s Exhibits under Tabs 1 through 14. I am making these documents Exhibit # 6 for the purpose of this decision as they provide material information in an easily reviewed format.

Background

[20] Englishman is a pilot and has been a member flying out of the Saugeen Municipal Airport since 1994. He owns land adjacent to the taxi ways and runway where he built his hangar in 1996. He has raised money by holding events for the Airport, which is a private non-profit airport, throughout his tenure there and he served as secretary to the commission on the airport board for approximately 8 years ending in 2017.

[21] Englishman briefly outlined his involvement with aviation and the Saugeen Municipal Airport [Airport] over the years. He introduced over 450 youngsters to aviation, he founded a flight school at the Airport, he brought the Snowbirds to the Airport in 2017. Helped raise money for the airport thorough his organization of these events and encouraged community support for the Airport.

[22] Englishman provided his Aviation Document and Pilots licence valid from September 2017 to October 2024. The Aviation Document states his date of birth as August 5th, 1941 [Tab 13 Defendant’s Exhibit # 6].

[23] This background is important to understand as it helps evaluate subsequent events and actions by the two opposing parties. The prosecutor objected to the presentation of Englishman’s background. The Court overruled her objection as it is material to understanding the dynamics at play; and the fact that the defendant is a licenced pilot is a prerequisite for him to legally access taxiways and runways at any Canadian Airport.

Englishman Presentation to SMA Commission April 17th, 2019

[24] On April 17th, 2019 he appeared as a delegation before the Airport Commission and questioned what he was getting for paying his yearly access fees of $409.00.

[25] I will now refer to the copy of Englishman’s Airport Access Presentation that he read to the Commission on April 17th, 2019. This document was apparently prepared by Englishman for his April 17th,2019 delegation before the AirPort Commission, and was provided to the Court by Hergert.

[26] In this presentation Englishman asked whether other owners of property with hangars were paying the same fees and outlined how he spent money to create a link to join his hangar to the taxiway which also benefited one of the other tenants of the Airport. He outlined his significant contributions in raising funds and awareness for the Airport. He stated that other privately owned airports do not charge access fees to hangar owners and asked them to consider rescinding access fees.

[27] Englishman then presented a cheque to the Commission in the amount of $409 as payment for his 2019 fees, on April 17th, 2019.

[28] Englishman was emailed on April 29th 2019 by the SMA Bookkeeper Susan, advising him that the Commission requested she not cash his Access Fee cheque until matters surrounding the Access agreement have been settled [Tab 2, Defence Exhibit # 6].

[29] Englishman testified that after he appeared as a delegation on April 17th 2019 things began to negatively change for him in respect to his relationship with the Airport Commission, starting with the letter dated May 17th 2019 from the Chair of the Airport, Dan Gieruszak [Tab 3, Defence Exhibit # 6].

[30] The Chair’s letter of May 17th, 2019 raised six concerns. (i) no burning of items on airport property. (ii) keep land tidy & remove the woodpile (iii) proof of liability insurance (iv) provide parking spaces on his own property (v) proper storage/disposal of all waste material (vi) not bring equipment on the runway which might damage the taxiway or airport property & no parking on Emergency access road or North Runway

[31] In the same letter of May 17th, the Chair said the cheque would not be cashed until all aspects of the Agreement are adhered to, and they would require proof of liability insurance.

[32] Englishman sent a letter dated May 26th, 2019 to the Chair and asked them to send someone to discuss concerns with him and not chastise him in a letter. He asked his previous questions to be answered and told them not to cash his cheque until they answered his questions, raised on April 17th [Exhibit #6, Tab 4].

[33] A letter from the Chair dated July 9th, 2019 stated to be partly in response to Englishman’s letter of May 26th appears to clarify the outstanding concerns that the SMA has raised in their May 26th letter; and a follow up letter from the Chair dated July 30th 2019 repeats many of the same concerns and states “if you plan to comply with the Airport Right of Access Agreement you signed December 5th 2017, please let us know along with your cheque for your 2019 Access Fee. The previous cheque, now months old will be returned to you or destroyed.” [Exhibit # 6 Tab 4]

[34] The Court notes that the SMA never destroyed nor returned the cheque for the 2019 Access Fee cheque. The Court notes Englishman did not let them know verbally that he intended to comply with the agreement except by the actions he undertook concurrently [meeting with Chief Building Inspector Terry Tuck on July 30th 2019: Exhibit # 6 Tab 5] and subsequent completion of the parking area by August 2nd 2019 [pictures Exhibit # 6 Tab 8], and the removal of the woodpile by mid-August 2019.

Testimony of OPP CST. Bobby MacDonald:

[35] OPP Constable Bobby MacDonald testified the OPP was called by the Airport the morning of August 29th 2019 and he was dispatched at approximately 11:40 a.m. At 11:52 a.m. he was in the presence of the Airport manager Robert Olds who confirmed he was in care and control of the Airport. The officer said he viewed Englishman, stopped on the runway preparing for takeoff. He asked the Airport manager to call him when and if the plane operated by Englishman returned so he could issue a ticket.

[36] Cst MacDonald testified that he saw the defendant on the runway during the original call just before takeoff [11:52 a.m.] on August 29th, 2019. He could recognize the man as the man in the airplane just as he was getting ready for takeoff at 11:52a.m, when he saw him later at 3:01p.m. that same day. His view of the pilot was not obstructed.

[37] When Cst MacDonald was dispatched back at 2:25p.m. and arrived at 3:01 p.m. on August 29th, 2019. He spoke to the Interim Airport Manager Robert Olds again, to confirm he wanted Englishman charged, at which time he then attended Englishman’s hangar and had him prove his ID through his Aviation licence and his Ontario Driver’s licence and talked with him before issuing the ticket. In cross examination he testified that the act of trespass was being on a taxi way or runway. He stated he had reviewed the letter of August 14th, 2019 which stated what things the defendant had to fix to use the runway and he was aware of the Access Agreement through another constable [Thorpe] on a previous occurrence.

[38] Cst. MacDonald testified that he provided Englishman an opportunity to vent his anger, then explained his options and the procedures in addressing the ticket. Englishman apologized for venting and thanked him for his explanation.

Jurisdiction to Issue Trespass on Airport Taxiway or Runway

[39] At this time, I intend to review the law submitted to me by the parties to determine whether the SMA or its interim manager had the right to issue or charge for trespass under provincial Trespass to Property Act with reference to federal jurisdiction, legislation and case law.

[40] Defence Counsel Ms. A. Ferrier provided two significant Supreme Court of Canada cases which she states establishes the jurisdiction over aviation and the operation of flights to and from airports to be exclusively federal jurisdiction.

[41] In the Supreme Court of Canada case of Johannesson v. Municipality of West St. Paul, [1952] 1 S.C.R. 292 Date: 1951-10-12, it was held that the subject of aeronautics is within the exclusive jurisdiction of Parliament. The decision was authored by Chief Justice Rinfret and at page 303 he states: “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.

… “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…as amended…1944-1955…1945…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.”

[42] In the more recent SCC case of Quebec (Attorney General) v. Canadian Owners and Pilots, 2010 SCC 39, in a decision authored by Chief Justice McLachlin it outlines jurisdiction of the Federal government and reference can be made to paragraphs 2, 11 & 12, 28 to 31 as the relevant paragraphs in this decision.

[43] In summary this recent SCC decision of 2010 re-affirmed the 1951 SCC case of Johannesson and establishes that the federal aeronautics jurisdiction “encompasses not only the regulations of the operation of aircraft, but also the regulation and operation of airports” and this aspect of federal jurisdiction extends to the location and design of airports [paragraph 31 p5].

[44] In respect to private aviation, people are permitted to construct private aerodromes without applying for permission. Owners and operators have the option of registering their aerodromes with the Minister of Transport. Though privately operated, these registered aerodromes must maintain federal standards and are available to anyone who needs to land. As such, they function as a part of a nationwide aviation system. [paragraph 12 p3]

[45] Based on the testimony of OPP Cst. Bobby MacDonald I find that the defendant was in the process of taking off from a runway on August 29th 2019 at the Saugeen Municipal Airport, which is a registered aerodrome subject to federal standards and it being part of the nationwide aviation system, the jurisdiction for the taking off and landing of aircraft is exclusively Federal jurisdiction and not subject to The Ontario Trespass to Property Act.

[46] Certificate of offence number 6280605B dated August 29th, 2019 is therefore quashed as being outside of the authority of the Saugeen Municipal Airport to issue in these circumstances.

Contract or Colour of Right to use the Saugeen Airport facilities

[47] I now intend to address the status of the Access Agreement and the Issue of colour of right, as there is evidence in respect to both these issues.

[48] The Defendant Englishman and The Saugeen Municipal Airport have had an “AIRPORT RIGHT-OF-ACESS” agreement since 1996 renewed every 5 years the most recent version is the agreement dated December 5th 2017 with an expiry date of five years [December 5th 2022 ]. This agreement is located at Tab #1 of Exhibit # 6.

[49] The aforesaid agreement contains provisions Englishman must abide by in order to permit Englishman to move aircraft from his property [hangar] to and from the taxiway, paragraph #1.

[50] The court was provided with a copy of a similar agreement signed by Steven Tanner on November 16th, 2017 for his company “Flight Academy”

[51] After Englishman’s presentation to the Airport Commission as a delegation before them on April 17th 2019, see attached last page Exhibit # 1; Englishman was notified by letter dated May 17th 2019 by Commission Chair Dan Gieruszak [Chair D.G.] of six concerns noted previously that they wanted Englishman to address regarding physical conditions around and abutting his hangar and use of the taxiway by a vehicle, not his airplane, before they would cash his cheque for “Annual Fees”, see last paragraph of Agreement dated December 2017 which is 5 year agreement. The May 17th letter is Tab 3 in Exhibit # 6.

[52] Englishman responded with a letter dated May 26th, 2019 where Englishman addressed some of the concerns Chair D.G. raised and said words to the effect: don’t cash my cheque until you answer my three questions, I asked in my delegation of April 17th, 2019. Tab 4 Exhibit # 6.

[53] Englishman’s letter of May 26th, 2019 appears to the Court to be a challenge to the authority of the SMA commission, when he says don’t cash my cheque until you answer my April 17th questions.

[54] Chair D.G. responded with a letter dated July 9th, 2019, repeating a lot of what was said in the May 17th letter from himself and clarified what the concerns were. This letter in the Courts view re-affirms to Englishman that the SMA board has legal authority to run the airport. [Tab 4 Exhibit # 6.]

[55] Chair D.G. letter dated July 30th, 2019 repeats the demands made in the letters dated May 17th and July 9th and highlights that the deadline of 60 days has passed for completion of those outstanding issues; as well he requests another cheque to replace his “previous cheque, now months old [which] will be returned to you or destroyed”. Exhibit # 6, Tab 4.

[56] The Court is of the view that the decision not to deposit or cash a valid cheque by the party to whom it is being offered [SMA], as payment under an agreement with another party [Englishman], does not amount to a breach of a contract by the payer [Englishman]..

[57] Chair D.G. states in the letter dated July 30th, 2019 that “the SMAC is obligated for the safety of all those who use the airport facilities to notify Transport Canada of improper use of Airport runways and taxiways”. Exhibit # 6 Tab 4. [This acknow­ledgement by Chair D.G. supports the finding I made in paragraph 45 above and makes it appear that the SMA were aware or ought to have been aware of the lack of provincial jurisdiction on taxiways and runways.].

[58] Terry Tuck is the Chief Building Official/Zoning Administrator for the Brockton Municipality. I would like to refer to the email dated July 31, 2019 sent by the Chief Building Official/Zoning Administrator Terry Tuck to Sonya Watson which addresses his findings regarding many of the outstanding issues on Englishman’s hangar. It is found at Tab 5 Exhibit #6.

[59] Tuck established that the history of the shed on Englishman’s property makes it a legal non-conforming use, he discusses the location of the parking area is constrained by the septic system location between his hangar and Airport Road and discusses a solution. He is hopeful the discussions between himself and Englishman will satisfy the Airport Commission. Tab 5 Exhibit # 6.

[60] Mr. Tuck met with Englishman and discussed the various concerns raised by the SMA. He addressed the shed [legal non-conforming] the woodpile which Englishman agreed to remove, and the location of the parking area regarding its location to the septic system at Englishman’s hangar and came up with a solution.

[61] Tuck’s email helps establish compliance by Englishman with the property concerns raised by the SMA. It supports the finding that those property issues were addressed and complied with by August 2nd, 2019 and before the SMA/ Chair DG letter of August 14th, 2019.

[62] Englishman provided proof of liability insurance in the amount of $2 million on his property at 4 Saugeen Road policy # 1005319643 by a letter dated July 9th 2019 on letterhead of the Co-operators General Insurance Company and signed by Rhonda Ernewein, addressed to the Saugeen Municipal Airport at 34 Saugeen Airport Road. Ernewein testified that she initialed the address correction. Her initial’s RE can be seen above the corrected street address number. Tab 6 Exhibit # 6.

[63] The Interim Airport Manager Robert Olds testified when asked by the Court that the SMA keeps the records of insurance coverage from the previous years. He testified in chief that he did not “trust” the initialled change on the proof of liability letter from the cooperators.

[64] Notwithstanding that the SMA keeps a record of the prior liability confirmations from Englishman or other aviators with an agreement with the SMA, proof of the format or standard established in those prior liability confirmations was never offered or provided by the prosecution to challenge the sufficiency of the Cooperators confirmation letter. I find the legislated requirements for the detail and the format in liability slips for automobile insurance is not established as a standard and is not required here.

[65] I find that this Letter dated July 9th, 2019 from The Cooperators satisfies the requirements for proof of liability insurance notwithstanding that it does not specify the start and end date. I find that information, and/or clarification about the initialled change, if required, could have been addressed by Olds telephoning Rhonda Ernewein at the local office, as the phone number for the Walkerton office is only a google away.

[66] The testimony of Rhonda Ernewien satisfies me that she wrote the letter and initialled the change and it verified liability coverage of $2 million dollars by Englishman through his household insurance policy # 1005319643.

[67] I have the testimony of Englishman who took pictures of his hangar on August 2nd, 2019 showing a gravel parking lot in front of his hangar which he stated was just completed and I am satisfied with his testimony that the outside storage of wood on his hangar property was removed in mid August.

[68] In a letter dated August 14th 2019 Chair D.G. the chair has now reduced the outstanding concerns from 6 in the May 17th letter to three specific matters which he claims have not been addressed by Englishman: “Specifically: 3.a) …no bulk storage or sale of fuel…Storage of firewood – a combustible material is a safety hazard….The storage shed fixed to the ground with straps, firewood and trailer stored …do not comply with Access agreement…3.e) Phillip Englishman will provide parking space on their property…that comply with municipal bylaws….and 3.g) Phillip Englishman will not bring equipment or vehicles on taxiways or runways which might damage taxiways or any other airport property. As you are aware all access to taxiways and runways are restricted. Unnecessary access to taxiways and runways is a Transport Canada Offense and has been reported to Transport Canada.”

[69] I have the testimony of Chris Peabody who is the Mayor of Brockton. He said the Chief Building Official worked with Englishman to bring about compliance with the SMAC. He said there was a complaint about a fence, a burn barrel, parking and a shed. He testified the fence SMAC wanted removed was not on Englishman’s property, the shed was determined to be a legal non-conforming use, the wood pile was removed the burn barrel was not being used and the parking was installed.

[70] Englishman testified that once he had completed all of the matters addressed in the letter dated May 17th 2019 by August 2nd 2019 and the woodpile removed by mid-August, he believed he had complied with the Access agreement and he ignored the letter dated August 14th 2019 from the SMA “because everything had been completed”. I found Englishman to be a credible witness.

[71] Based on Englishman’s testimony, the pictures in Tab 8 Exhibit #6, the liability confirmation letter of July 9th 2019, the email from the Chief Building inspector dated July 31st 2019 in Tab 5 and the testimony of Chris Peabody, I am satisfied Englishman had a reasonable belief that he had complied with his Access Agreement and therefore I find Englishman had an interest in the land that entitled him to do the act complained of.

[72] I find that all matters of concern [except for the liability confirmation which had been submitted previously and dated July 9th 2019] could have been addressed by a visual inspection by anyone from the SMA driving by Englishman’s hangar, as it is adjacent to the airport and is visible from either the runway or the roadway.

[73] The Court finds that the interim manager Robert Olds ought to have known that the physical complaints raised by the SMAC were addressed, yet in the letter dated August 14th 2019 by Chair DG, the Chair is apparently not aware of the progress made by the Chief Building Official Tucker and Chair DG raises the same issues notwithstanding all but one having been addressed as early as August 2nd, 2019, and the one [woodpile] was addressed shortly after, as per the testimony of the Mayor Peabody, Englishman, his pictures, and the email of the Chief Building official that the issues were being addressed.

[74] The only matter that needed clarification on August 14th, 2019 was the payment of the Annual fees. I find that the Cheque provide April 17th, 2019 was not “old” as stated by Chair DG in his letter of July 30th, 2019 and was not stale dated. His testimony that the SMAC did not want to cash the cheque for fear of additional costs if it is dishonoured was in my opinion a disingenuous explanation.

[75] Had the cheque been dishonoured after deposit, then those costs would be added to the outstanding fee owed by Englishman and in that circumstance, there might have been a breach, if a dishonoured cheque was not quickly addressed by Englishman.

[76] In my view except for the letter dated May 17th, 2019, the subsequent letters on the part of the SMAC Chair on July 30th and the letter of August 14th threatening a charge of trespass, were made without any prior verification of the work done by Englishman, without any discussion with the Chief building official Tucker and without viewing the property beforehand.

[77] In the Courts opinion the August 14th letter in these circumstances was inaccurate. Had the SMA viewed the property through its interim manager Olds then it ought to have acknowledged that the work that had already been completed. By not confirming what had been done by first conducting an inspection, the letter of the 14th added confusion, and showed disregard to fair process or good faith to a long-standing member who has an access agreement with the SMA.

[78] Based on the evidence I have accepted and the exhibits before me, I find the SMAC has not on the balance of probabilities established a breach of the agreement on August 29th, 2019 to justify the charge of Trespass to Property to be initiated in the circumstances at that time.

Colour of Right

[79] Section 2 (2) of the Trespass to Property Act, under the heading “Colour of Right as a Defence” states : (2) It is a defence to a charge under subsection (1) in respect of premises that is land that the person charged reasonable believed that he or she had title to or an interest in the land that entitled him or her to do the act complained of.

[80] I have reviewed the court decisions provided by counsel in respect to trespass and colour of right and they helped me understand the issues respecting trespass and colour of right, but I do not intend to reference them specifically.

[81] I find that Englishman had an agreement with the SMA to use the airport taxiway and runway based on an agreement dated December 6th, 2017.

[82] I find that the SMA had raised concerns about the condition and uses of Englishman’s hangar including adequate parking, burning of debris, shed location, fence location, wood pile and proof of liability insurance.

[83] I find that all of these issues were addressed by Englishman with the help of the chief building Official Terry Tuck who clarified the responsibility for the fence [SMA erected the fence, shed was legal nonconforming ] and obtained compliance with creation of a parking lot, removal of the wood pile and stopped burning rubbish in the barrel. I find proof of liability insurance and policy number was provided by the Co-operators.

[84] I find the fee was paid by cheque April 17th, 2019 and not cashed by the SMA was not stale dated on August 14th, 2019 and, unless it was dishonoured, disentitled them to use that as a breach of contract.

[85] I find that the SMA did not first ascertain the current state as of August 14th or 29th, 2019 in respect to compliance by the defendant in respect to his hangar property in regard to the issues they raised in their letters dated May 17th and August 14th, 2019.

[86] In these circumstances I find the defendant Englishman had taken all reasonable steps to comply with the issues of concern and he had a reasonable belief that he had a valid agreement or an interest or right to use the land that entitled him to do the act complained of.

Released: July 15th, 2021 Signed: Justice of the Peace J.J. Ziegler