Court File and Parties

Court File No.: CV-25-00002780-0000 Date: 2026-02-04

Ontario Superior Court of Justice

Between:

THE CORPORATION OF THE TOWNSHIP OF CLEARVIEW, Applicant

-- and --

12966344 CANADA INC. and ANGELINA WILLIAMS, Respondents

Matthew Hodgson, for the Township Christine Carter, for 12966344 Canada Inc. and Angelina Williams

-- and --

12966344 CANADA INC., Applicant by Counterclaim

-- and --

THE CORPORATION OF THE TOWNSHIP OF CLEARVIEW, Respondent by Counterclaim

Christine Carter, for 12966344 Canada Inc. Matthew Hodgson, for the Township

Heard: November 11, 2025 and December 1, 2024

Reasons for Decision

Casullo J.

Overview

[1] The Corporation of the Township of Clearview (the "Township") brings this application seeking a permanent injunction restraining 12966344 Canada Inc. ("129") and Angelina Williams ("Ms. Williams") (collectively, the "Respondents") from placing, dumping or otherwise depositing fill on the subject property, except in strict compliance with the Township's By-Law 02-62 (the "By-Law").

[2] The Respondents bring a separate application seeking, inter alia, a declaration that the By-Law is invalid. In the alternative, the Respondents seek a declaration pursuant to s. 440 of the Municipal Act 2001, S.O. 2001, c. 25, that 129 has complied with s. 6 of the By-Law, and a permit should be issued forthwith. The By-Law provides for "the regulation of the dumping on, filling of, and grading of lands within the municipality." In support of their position that the Township has contravened the By-Law, the Respondent has characterized the Township's actions as ultra vires.

[3] While there is both an application and a counterapplication, such that each party wears the mantle of both applicant and respondent, I will refer to the Township as the Applicants, and 129 and Ms. Williams as the Respondents.

Background

[4] Ms. Williams is the president of 129.

[5] 129 purchased the property located at Part Lot 15 Conc 10, Sunnidale, municipally known as 1180 15/16 Sideroad South, Stayner, Ontario (the "Property") in 2021.

[6] The Property comprises 172.38 acres of vacant land zoned as airport industrial, with a small portion located at the rear zoned as environmentally protected.

[7] The Property is adjacent to the Edenvale Aerodrome ("Edenvale"). Edenvale has two paved runways. While Edenvale is not an airport, it is used commercially for aviation. There are large hangars in which pilots store their commercial aircraft.

[8] Edenvale is an unregulated aerodrome and has not registered any zoning by-laws under the Aeronautics Act, R.S.C. 1985, c. A-2. Thus, 129, as an adjoining property, is not restricted by any regulations under the Aeronautics Act concerning the uses 129 could make of the Property.

[9] Since 2018, Edenvale's property has also been used for the importation of fill. The Respondents estimate that this fill operation has imported over 3.2 million cubic meters of fill from developers. This operation is noisy and unsightly. There are photographs of a 100-foot berm, with an attached ramp, and large transport trucks hauling fill.

[10] 129 intends to develop the Property. The first step on that journey was to build a privacy berm to shield the Property from the fill operations being carried on at Edenvale.

[11] On June 28, 2024, as 129 prepared the site to construct the berm, Township staff learned that fill was being hauled and deposited, and heavy grading was underway.

[12] A Stop Work Order was issued, and 129 was notified that a fill permit was required before proceeding with the work. This was contrary to Ms. Williams' understanding that a permit was not required.

[13] 129 retained consultants to assist with the initial fill application, which was quite involved. 129 also retained the services of Crozier Consulting Engineers to prepare a site plan demarcating the location and details of the berm.

[14] On November 19, 2024, 129 submitted the following to the Township:

a. Application for Permission for Filling or Grading;

b. Engineering drawings;

c. Proposed truck haul route; and

d. Emails from the Simcoe Muskoka District Health Unit, the Township's Building Department, the Niagara Escarpment Commission, and the Nottawasaga Valley Conservation Authority, all indicating they either had no jurisdiction, or had no comments to make in respect of the application.

[15] R.J. Burnside, retained by the Township to peer review the application, provided drainage and grading comments on the Crozier site plan. The Burnside report also indicated that 129 should review the "requirements in respect of land use in the vicinity of aerodromes" policy (TP 1247E 2013/12 Transport Canada) and confirm that the proposed works would be in accordance with Transport Canada's requirements. The Burnside report confirmed that the Township recognized this "ask" was not under the Township's jurisdictional control.

[16] Counsel for the Respondents reviewed TP 1247E 2013/12, and determined that it was inapplicable, as the document provided that "[t]he Minister of Transport may exercise authority only over lands that are included in an Airport Zoning Regulation made pursuant to the Act", being the Aeronautics Act. The Respondents advised the Township that there were no zoning regulations under the Aeronautics Act regulating the property adjoining the Edenvale aerodrome, being the Property. As noted at the outset, there were no zoning restrictions applicable to the Property vis-a-vis the aerodrome.

[17] Given Mr. Burnside's comments on the location and details of the berm, 129 submitted amended drawings, along with supporting documentation, on December 5, 2024.

[18] On December 10, 2024, the Township advised 129 that additional information was required regarding the berm's construction, and the source of the fill. Pursuant to O. Reg. 406/19, the Township asked 129 to confirm the proposed qualified person and the development company supplying the fill. This information was required before a permit would be issued.

[19] On December 11, 2024, Ms. Williams provided two additional soil reports in response.

[20] After reviewing the additional material, the Township advised 129 that certain proposed soils were unsuitable for importation, and a completed Fill Management Plan was required before the application would be considered.

[21] On January 16, 2025, 129 submitted a Fill Management Plan as requested, authored by Bioforj Environmental.

[22] On February 5, 2025, the Township advised counsel for 129 that the Fill Management Plan had been referred for peer review.

[23] On February 7, 2025, the Township provided 129 with peer review comments prepared by Mr. Burnside.

[24] On March 25, 2025, 129 submitted a comprehensive, revised Fill Management Plan authored by Bioforj Environmental.

[25] On April 16, 2025, the Township advised 129 that a permit could not be issued until outstanding matters were resolved, including revisions to the Fill Management Plan, confirmation of a haul route, and execution of a Fill Permit Agreement with security. The Township also required confirmation from a qualified person that the berm's siting and elevation would not create a safety risk, given its proximity to active aerodrome runways.

[26] It appeared to 129 that the airport at Edenvale posed a barrier to obtaining the fill permit. To address the issue squarely, on June 3, 2025, 129 provided the Township with an aviation safety report authored by HM Aero Aviation Consultants, as well as correspondence from NAV CANADA, and amended engineering drawings from Crozier. To be clear, 129 did this despite believing it was under no obligation to provide the first or the second document pursuant to the By-Law.

[27] The HM Aero report acknowledged that there were no applicable zoning standards to apply in this case, because the Edenvale aerodrome was unregulated. However, and out of an abundance of caution, HM Aero applied the most recent Obstacle Limitation Surfaces ("OLS") Guidelines (Transport Canada's TP312 -- Aerodrome Standards and Recommended Practices, 5th Ed.) to demonstrate that the proposed berm would not interfere with flight patterns of planes using Edenvale. OLS standards ensure safe airport operations during takeoff and landing by defining surfaces that must be kept clear of obstacles.

[28] The letter from NAV CANADA confirmed it had evaluated the airport proposal, namely, the HM Aero aviation safety report, (entitled Aerodrome Airside: Noise Attenuation Berm & Equipment) and had no objection to the project as submitted.

[29] On June 20, 2025, the Township provided 129 with a draft Fill Permit Agreement and advised that further peer review comments were anticipated in respect of the HM Aero report.

[30] On July 14, 2025, the Township provided peer review comments authored by Avia NG Airport Consultants. Avia identified matters requiring clarification and analysis. The Township asked that 129's experts address the concerns set out in the peer review through revisions or supplemental information, before resubmitting their material.

[31] The Township also directed 129 to approach its neighbour, being Edenvale, and ask what zoning standards it felt should apply to the Edenvale uncertified aerodrome. It bears repeating that such zoning standards only apply to regulated aerodromes.

[32] Following a meeting between the two consultants, being HM Aero and Avia, 129 thereafter abandoned its efforts with the Township and appealed to the Ontario Land Tribunal. The Notice of Appeal was dated July 17, 2025.

[33] On August 19, 2025, the Ontario Provincial Police notified the Township By-Law Enforcement Officer that fill was being placed on the Property.

[34] On August 20, 2025, a compliance officer with the Ministry of the Environment, Conservation and Parks attended the Property, observed the fill operations, and instructed that caution tape be placed across the entrance to the Property.

[35] The Township issued a Notice of Contravention under s. 18 of the By-Law, and a Stop Work Order under s. 444 of the Municipal Act, 2001. 129 was served, and the documents were posted at the Property.

[36] The Township was advised that the fill operation continued to August 21, 2025. The Township's solution was to attend at the Property, remove the culverts and open the ditches at four entrances to the Property, thereby preventing anyone from entering or leaving. The rationale for taking such drastic action was to "protect the integrity and safety of the public roadway", as no security to repair any potential damage to Township infrastructure had been posted.

[37] Following a letter from the Respondents' counsel advising that blocking access to the Property was illegal, the Township reinstalled three of the four culverts. No security was required to be posted.

[38] The Respondents continued to build the berm in violation of the Notice of Contravention and the Stop Work Order.

[39] On August 27, 2025, the Township issued certificates to three Township staff members, designating them as inspectors. This was done after counsel for the Respondents pointed out, during a Notice Hearing attended by counsel for both sides and Ms. Williams, that none of the Township employees who conducted inspections on the Property were empowered to do so under s. 14 of the By-Law.

Issues

[40] There are five questions the court must address, namely:

1. Is the By-Law invalid?
2. Are the Township's actions ultra vires the municipality?
3. Has 129 complied with the permit requirements and should the permit issue?
4. Was notice of constitutional question required to be served?
5. Should an injunction be issued restraining the Respondents?

Analysis

Issue One -- The By-Law is not invalid.

[41] The Respondents submit that the By-Law is invalid and unenforceable because it is not signed by the Mayor and Clerk, and is not under seal.

[42] Counsel for the Township satisfactorily addressed this issue, advising that the copy contained in the Respondents' motion material was downloaded from the Township's website, which omitted signatures for security reasons. The Township provided a certified copy of the signed By-Law in its materials. While the stamp is not visible, I am satisfied that the By-Law has validly been in place since it was signed on December 18, 2002.

Issue Two -- The Township's actions are ultra vires the municipality.

[43] On July 14, 2025, the Township advised 129 with Avia's technical peer review comments on the HM Aero report. Specifically, Avia found that:

a. the proposed berm's apex was virtually identical to the OLS elevation, leaving no clearance buffer for construction tolerances, vegetation or maintenance activities.

b. Avia further noted that no evidence had been provided confirming that the berm's slope complied with transitional surface requirements, and that the application did not demonstrate how the berm could safely remain below the OLS.

c. Avia recommended a topographical survey, and consultation with Edenvale's operator to obtain official OLS specifications before approval.

[44] As set out above, based on Avia's comments, the Township was not prepared to grant the fill permit until 129 demonstrated that the proposed berm would be constructed in accordance with proper engineering practices and would not pose a risk to aviation safety.

[45] The Respondents submit that the Township is seeking information that goes beyond its jurisdiction.

[46] Pursuant to s. 4.2(1) of the Aeronautics Act, the Federal Minister of Transport is responsible for the regulation of aeronautics:

The Minister is responsible for the development and regulation of aeronautics and the supervision of all matters connected with aeronautics and, in the discharge of those responsibilities, the Minister may:

(f) establish aerial routes;

[47] The Constitution Act, 1867, gave the federal government exclusive jurisdiction over navigation and shipping. The Constitution Act, 1867, also gave the federal government the ability to legislate for the peace, order, and good governance of Canada. The Supreme Court of Canada interpreted this power to include aeronautics and air navigation. Into this category falls flight paths, approaches, and take offs/landings at aerodromes: *Quebec (Attorney General) v. Lacombe*, 2010 SCC 38, [2010] 2 S.C.R. 453, at paras. 26-27.

[48] The Supreme Court continued, at para. 28, "[i]t is thus beyond dispute that laws that relate in pith and substance to aeronautics fall outside provincial jurisdiction."

[49] In other words, aviation safety falls within the sole purview of the federal government.

[50] The Township does not have the authority to regulate the height placement or scope of the Property's proposed berm. That authority falls to Transport Canada.

[51] In its letter of June 2, 2025, NAV CANADA, the body with the operational authority with respect to aeronautics and air navigation, clearly indicated that the berm poses no safety risk. Full stop.

[52] In *Burlington Airpark v. City of Burlington*, 2013 ONSC 6990, 17 M.P.L.R. (5th) 254, aff'd 2014 ONCA 468, 23 M.P.L.R. (5th) 1, the applicant, the Burlington aerodrome, took the position it could expand its facilities, and the municipality had no jurisdiction to regulate fill operations related to the improvement of airport facilities. Murray J. disagreed, finding that the municipality did have the right to regulate the quality of fill proposed. As the Township does in the case at bar. However, Murray J. also held that the fill by-law was not an attempt by the municipality to regulate slopes or surfaces of runways, runway shoulders, or the slopes and strength of runway shoulders. In other words, such an attempt would be ultra vires the municipality.

[53] I find that the Township's requirement that 129 verify the OLS used by Edenvale is ultra vires its authority.

Issue Three -- 129 has complied with the permit requirements and the permit should issue.

[54] The By-Law provides that the Township shall provide a permit where the owner, applicant, and the permit holder have fulfilled all requirements as set out in the By-Law.

[55] 129 has complied with its obligations under the By-Law. The application fee has been paid, and a detailed Fill Management Plan filed. Yet the Township has still not issued the fill permit.

[56] Counsel for the Township argued that by July 14, 2025, there was just one final step for 129 to complete -- consult Edenvale's operator to obtain OLS specifications. Once this information was provided, the permit would likely have been granted.

[57] Based on the evidence before me, I do not believe that to be the case. Rarely have I seen an applicant go to the lengths 129 has to satisfy the Township. However, each effort was met with further demands.

[58] Section 440 of the Municipal Act provides that if a by-law is contravened, the contravention may be restrained by application of a taxpayer.

[59] 129 brings this application to require the Township to issue the fill permit.

[60] As I found the Township has contravened the By-Law by requiring information outside of its authority, and 129 has met all other requirements under the By-Law, the Township shall forthwith issue a fill permit to 129.

Issue Four -- Notice of constitutional question was not required.

[61] Section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, requires that the Attorneys General of Canada and Ontario be provided notice whenever "the constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question."

[62] This motion was heard over two days. In its reply to 129's submissions, the Township raised for the first time the fact that the Respondents are barred from raising the ultra vires argument because they failed to provide s. 109 notice. I confirmed with counsel for the Respondents that this was the first time this position was being put forward.

[63] In light of this late-breaking submission, I asked counsel to provide me with written submissions. I have now received and reviewed them.

[64] I am satisfied that the Respondents are in fact not seeking a determination of the constitutional validity of the By-Law. During the Respondents' submissions I recall specifically asking what section of the By-Law the Respondents were asking to be "read down." At that juncture, Ms. Carter confirmed that the Respondent was not asking the court to find that any specific section of the By-Law was ultra vires the Township's powers. Rather, the Respondents were seeking a determination that the Township has exceeded its jurisdiction by refusing to issue the permit over concerns about flight paths.

[65] On the facts of this application, the Respondents were not required to serve notice of a constitutional question on the Attorneys General of Canada and Ontario.

Issue 5: An injunction will not be ordered.

[66] Given my decision on 129's application, I need not make a determination on the Township's application for an injunction.

Order

[67] 129's application is granted, and the Township shall forthwith issue the fill permit to 129.

[68] The Township's application for an injunction is hereby dismissed.

Costs

[69] 129, as the successful party, is presumptively entitled to its costs. If the parties cannot resolve the issue of costs, written submissions may be submitted to the court through my judicial assistant (BarrieSCJJudAssistants@ontario.ca), limited to no more than three pages in length. The Respondents' submissions are to be received no later than fifteen days following the release of these reasons, with the Applicants' submissions to be received no later than thirty days following release of these reasons.

[70] If submissions are not received by thirty days following the release of these reasons, the court will assume that the issue of costs have been resolved between the parties.

CASULLO J.

Released: February 4, 2026