Visha Nankumarie Sukdeo

The City of Oshawa appealed a trial justice's decision quashing an Information charging a corporation with failing to obtain a building permit for renovations to an aircraft hangar at the Oshawa Airport.

The trial justice found that the doctrine of interjurisdictional immunity applied, immunizing the respondent from provincial building code enforcement because the property was integral to federal jurisdiction over aeronautics.

The appellate court dismissed the appeal on the merits, finding the trial justice correctly applied the doctrine.

However, the court set aside a costs award of $111,000 plus HST against the prosecution, finding insufficient evidentiary foundation for such an award and palpable and overriding error in the trial justice's reasoning regarding the conduct of the prosecutors and the City of Oshawa.

This is a costs decision following the quashing of a provincial offence charge against the defendant for failing to obtain a building permit for construction to its hangar at the Oshawa Airport complex.

The court found that the constitutional doctrine of interjurisdictional immunity applied, rendering the charge void ab initio.

The court subsequently determined that the City of Oshawa, as prosecutor, had displayed marked and unacceptable departure from reasonable prosecution standards, warranting a costs award.

The court awarded costs on a substantial indemnity basis, finding the prosecutor had acted in self-serving interests rather than the public interest, had failed to disclose relevant materials, had breached prosecutorial responsibilities by using settlement discussions against the defendant, and had proceeded despite clear jurisprudence establishing federal exclusive jurisdiction over aeronautics.

The defendant corporation was charged with failing to obtain a building permit for modifications to a hangar at Oshawa Airport, contrary to the Building Code Act, 1992.

The defendant raised a constitutional challenge based on federal exclusive jurisdiction over aeronautics under the doctrine of interjurisdictional immunity.

The court found the Building Code Act provisions invalid as applied to the defendant's hangar and dismissed the charge.

Subsequently, the court awarded costs against the City of Oshawa as prosecutor, finding the prosecution exhibited flagrant departure from reasonable standards, including tunnel vision, witness bias, failure to disclose relevant documents, and refusal to accept established jurisprudence on federal aeronautics jurisdiction.

A corporation charged with failing to obtain a building permit under the Ontario Building Code Act, 1992 for modifications to an aircraft hangar at the Oshawa Airport successfully defended the charge on constitutional grounds.

The court found that the hangar, located within the airport complex and used for aviation purposes, falls within the exclusive federal jurisdiction over aeronautics.

The doctrine of interjurisdictional immunity applied, rendering the provincial building code requirement inapplicable to the federally regulated facility.

The court also dismissed a section 11(b) Charter application regarding trial delay, finding the delay, though significant, was within acceptable bounds given the complexity of the constitutional issues and societal interest in the matter.