AVIATION NOISE LAW
Sutherland v. Attorney General of Canada
Cite as: 2002 BCCA 416


COURT OF APPEAL FOR BRITISH COLUMBIA

WILFRED SUTHERLAND, SHERRYL SARA STEWART SUTHERLAND, HILDEGARD ANGLET, ALNOOR AZIZ, AMINA AZIZ, KASHMIR BAINS, NARINDER KAUR BAINS, H. ELAINE BARNES, ANITA BAYAZIT, SHABINDER BHOPARAI, MAKHAN BHOPARAI, BJORN BJORNSON, ELIZABETH BJORNSON, ROBERT BOAL, CHRISTL BOAL, DARRELL BREMER, GAIL BREMER, CHRISTINE BROWNELL, TAK WAH CHAN, SU-HAW CHANG, TREVOR CHARLES, SUSAN CHARLES, NORMAN CHENG, NGAI- SIM CHUI, DOROTHY CHOQUER, TESSA D'AGUIAR, FRANK DeGIORGIO, MARIA DeGIORGIO, PAUL DOYLE, WAYNE EKLOF, MARION EKLOF, ABDUL JAMAL ESMAIL, SHIRIN JAMAL ESMAIL,KEITH GINTER, SHARON GINTER, BALVINDER GOSAL, PAUL GREWAL, BALJIT GREWAL, YASEEN GREWAL, ROSS GREYVAL, WALTER HARDER, LAURA HARDER, KEVIN HARRIS, AUDREY HARRIS, TODD HARRIS, Y. MARIE HASTINGS, HOWARD HASTINGS, RONALD HERMAN, ANITA HERMAN, STEPHANE HOURIE, ROBERT HOURIE, JIM IP, ELLEN IP, AXIX JAMAL, FARZANA JAMAL, EDITH JEROMINSKI, LINDA JOHNSON, HELEN KAETHLER, GURJANT KANDA, SARITA KANDA, THEA KEMPE, EDUARD KEMPE, PETER KORAC, DENIS LAFERRIERE, DELIA LAFERRIERE, JOHN LAING, LAURIE LAING, ANNE LEECH, VICTOR LEECH, MICHAEL LEONG, BETTY LEONG, JAMES LI, CHRISTINE LI, AMRIK LILLY, TOMMY LIU, CLARA MCFADYEN, STANLEY MCFADYEN, NEIL MCLEOD, MORTIMER MARTIN, THEODORA MARTIN, MICK MARTIN, DAVID MARTIN, DAVID MULHOLLAND, PAULINE MUSGRAVE, NORMAN MUSGRAVE, LOUISE NAKANO, SHINICHI NAKANO, LUCY NG, SAMMY NGAI, JOHN NGUI-YEN, JOYCELYN NGUI-YEN, SATVIR NIJJAR, SUKHVIR NIJJAR, ZELJKA NOVAK, HAZOORI OKAK, KAMALJIT OLAK, POMMY OLAK, MAJOR OLAK, MOHAN OLAK, CAROLE ANN ORTH, ROBERT ORTH, RICHARD PADVAISKAS, LINDA PADVAISKAS, NARINDER PAHL, LEHMBER PAHL, GAIL PEARCE, RICHARD C. PEARCE, ROBYN PURI, EDWIN QUINLAN, SHELLIE RACHEL, MARTIN RACHEL, ARMANDO REYES, SUSANA REYES, SUSAN SAHOTA, HANS SARGHIE, GLORIA SCHUNTER, GERHARD SCHUNTER, SUZANNE SEAGRAVE, THOMAS SEAGRAVE, SUKDEV SETHI, MEHNGA SETHI, SITLA SHARMA, HEMEMDRA SHARMA, MANGAL SINGH, JIT SINGH, MICHAEL SOLTICE, INGRID THORSEN, JOHN THORSEN, KITTY TONG, PATRICIA S. TONKS, TANGERINE TWISS, BIMAL VERMA, ARUN VERMA, DES VERMA, BARRY WALSH, SYLVIA WELLS, CASEY WICKHAM, MARYANNE WICKHAM, PETER WOLFF, MARTHA WOLFF, TELMA WOOD, HABIBA YEUNG

 

RESPONDENTS

(APPELLANTS BY CROSS-APPEAL)

(PLAINTIFFS)

 

AND:

 

ANDREA JONES, ROBIN JONES, HELEN PAGE, LISA LIVINGSTONE, GLEN LIVINGSTONE, BRETT LIVINGSTONE, AN INFANT BY HIS GUARDIAN AD LITEM GLEN LIVINGSTONE, and LAURA LIVINGSTONE, AN INFANT BY HER GUARDIAN AD LITEM GLEN LIVINGSTONE

 

RESPONDENTS

(APPELLANTS BY CROSS-APPEAL)

(PLAINTIFFS)

 

AND:

 
THE VANCOUVER INTERNATIONAL AIRPORT AUTHORITY  

APPELLANT

(RESPONDENT BY CROSS-APPEAL)

(DEFENDANT)

 

AND:

 
THE ATTORNEY GENERAL OF CANADA  

RESPONDENT

(RESPONDENT BY CROSS-APPEAL)

(APPELLANT BY CROSS-APPEAL)

(DEFENDANT)

 

AND:

 
CANADIAN AIRPORTS COUNCIL  

INTERVENOR

 


Before:

The Honourable Chief Justice Finch

 

The Honourable Madam Justice Prowse

 

The Honourable Mr. Justice Hall

 

A.P. Seckel

A.D. Borrell

Counsel for the Appellant

Vancouver International Airport Authority

G.C. Carruthers

G.D. Rosenfeld

Counsel for the Respondent

Attorney General of Canada

D.W. Roberts, Q.C.

J.R. Shewfelt

Counsel for the Respondents

Wilfred Sutherland et al.

B. Morgan

M. Jamal

Counsel for the Intervenor

Canadian Airports Council

Place and Dates of Hearing:

Vancouver, British Columbia

May 14 to 17, 2002

 

Place and Date of Judgment:

Vancouver, British Columbia

July 3, 2002

 

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Hall

Reasons for Judgment of the Honourable Chief Justice Finch:


I.

FACTS

[1]    The defendants appeal a judgment of the Supreme Court of British Columbia holding them liable in nuisance for the noise from aircraft using the Vancouver International Airport's North Runway, which opened on 4 November 1996. Both defendants say that no nuisance was created. The Attorney General of Canada says that if there was a nuisance, it was a public nuisance for which no action lay without the intervention of the Attorney General of British Columbia. Both defendants, supported by the intervenor, say that if there was a nuisance, it was authorized by statute. The Airport Authority also appeals the trial judge's awards of damages as inordinately high, and the plaintiffs cross-appeal on several issues relating to the awards and to the assessment of damages.

[2]    I have concluded that the learned trial judge did not err in holding that the noise resulting from the operation of the North Runway constituted a private nuisance for which the plaintiffs can sue in their own names. However, in my respectful opinion, the learned trial judge erred in holding that the defendants had not met the onus of establishing the defence of statutory authority. In my view, that defence must succeed and is a complete answer to the plaintiffs' claims.

[3]    In the circumstances, I do not find it necessary to address the damage issues.

II.

BACKGROUND

[4]    The plaintiffs all reside in the Tait Subdivision, part of Bridgeport, in the northeast area of the City of Richmond. The Tait neighbourhood lies to the east of Sea Island. Vancouver's Airport has been located on Sea Island since 1931. The new North Runway, which opened in 1996, is located on the north part of Sea Island and lies in an east-west orientation. Flight paths to the east of the North Runway pass directly over the plaintiffs' properties.

[5]    The learned trial judge held that when the runway was operated to its fullest potential capacity in its existing location, the nuisance to the residents of Tait Subdivision from noise of aircraft approaching from, and taking off to, the east was inevitable. He held that the nuisance was a "private" one, for which the plaintiffs could seek redress without the assistance of the Attorney General of British Columbia.

[6]    The learned trial judge reviewed the evidence concerning noise created by aircraft using the North Runway, and the effect of that noise on the plaintiffs, and on the use and enjoyment of their properties, in considerable detail. His finding of nuisance is, in my view, supported by an overwhelming body of evidence. I do not propose to review that evidence, or the trial judge's findings on nuisance, in any detail. The only issue of law arising on this aspect of the case is whether the nuisance is private, or public, as argued by the Attorney General of Canada. The real issue in this case, as I see it, is whether the nuisance was authorized by statute. I will therefore address the facts briefly with those issues in mind.

[7]    The airport on Sea Island was established in 1931. At that time, the City of Vancouver owned the land. The City of Vancouver operated the airport from 1931 to 1962. In 1962, Vancouver sold the land and the airport facility to the Government of Canada. From 1962 to 1992, Canada operated the airport. In 1992, the Vancouver International Airport Authority was created and the Government transferred to it the responsibility for operating the airport. At the same time, Canada entered into a lease with the Authority for a term of 60 years. It issued a certificate for operation of the airport in accordance with the "Airport Operations Manual". The lease required, and the certificate and the manual contemplated, the construction and operation of the North Runway.

[8]    Since 1931, when the airport was first established on Sea Island, the character of Richmond has changed dramatically. What was essentially a rural farming area, with little industry and few residences, has become a substantial urban area of several hundred thousand full-time residents, many of whom work in Vancouver and commute to the City over bridges constructed in the interim.

[9]    The South Runway was built in 1952. Since then, noise from its use and operation has affected the residents of adjacent areas in both Richmond and Vancouver. The construction of a second runway was contemplated from about that time.

[10]   In 1980 the YVR Zoning Regulations, SOR/80-902, were adopted by the Minister of Transport. These regulations replaced earlier regulations passed in 1960. The 1980 regulations were published in Vancouver and Richmond newspapers, filed on 10 February 1981 in the New Westminster and Vancouver Land Registry Offices, and registered against thousands of titles in Vancouver County and New Westminster County, including those of the plaintiffs' properties.

[11]   The 1980 Regulations inform property owners that they may be affected by aircraft noise. All of the plaintiffs except Mrs. Page acquired their properties after registration of the 1980 Regulations. She acquired her property in 1947, but demolished the original home and built a new house in 1987.

[12]    The proposed North Runway was the subject of a comprehensive federal public environmental assessment by an Environmental Assessment Review Panel ("EARP"), which in 1991 issued its report to the Ministers of Transport and of the Environment. The EARP report considered the precise location, configuration and operation of the proposed North Runway. The EARP report also considered the option of satellite airports or diversion of aircraft from Vancouver International Airport to alternative airports. In particular, Boundary Bay, Abbotsford and Pitt Meadows received "detailed attention".

[13]    The EARP report concluded that "more runway capacity is needed in the Lower Mainland Region", and that "capacity can best be provided by a new parallel runway". The EARP report also found that the operation of the proposed new runway would inevitably result in permanent new noise over the Bridgeport neighbourhood for which compensation should be paid.

[14]   In June 1992, the Minister of Transport issued a press release in response to the EARP report, announcing "Federal government approval to proceed with a third runway at Vancouver International Airport". The press release noted that the federal government had accepted most of the EARP report's recommendations, except the recommendation to provide compensation. The federal government specifically rejected compensation stating that it would "focus on the implementation of effective [noise] reduction and mitigation measures rather than compensation". The federal government also stated that it would direct the newly formed Vancouver International Airport Authority to provide noise mitigation measures and that the Authority "will respond to the federal directions".

[15]   The Crown admitted that the Authority had a discretion under the terms of the lease whether to build the North Runway or not. This admission was not made by the Authority. The Authority says the lease required it to construct the North Runway. The Crown's admission is not binding on the defendants, as it was an admission of law, involving the interpretation of the lease, rather than an admission of fact.

[16]   The plaintiffs, along with many of their neighbours, commenced their action by writ of summons issued in March 1997. They applied to have the proceedings certified as a class action under the Class Proceedings Act, R.S.B.C. 1996, c.50. That application was dismissed.

[17]   The learned trial judge tried the claims of the owners of three properties, Mr. and Mrs. Livingstone, Mr. and Mrs. Jones, and Mrs. Page, as "test cases". Their claims were thought to raise issues that were common to the claims of more than 300 other plaintiffs. Mrs. Page has lived in the Tait Subdivision continuously since 1945. In 1987 she subdivided her land, sold half of it, and built a new home on the remainder. The Livingstones purchased their home in 1987, and the Joneses purchased their home in 1994.

[18]   The learned trial judge summarized his conclusions on the issue of nuisance this way:

[210] Following consideration and weighing of the many relevant factors, I conclude that the plaintiffs have succeeded in proof of their claim that the defendants have created a nuisance from aircraft noise that affects the use and enjoyment of their properties in the Tait subdivision.

[211] Certainly, each of the plaintiffs has suffered a substantial interference with the enjoyment of their land. I find in the context of all the relevant surrounding circumstances that interference is unreasonable.

[212] The plaintiffs have in common the substantial loss of amenity in respect of their outside patios, gardens, and grounds. All plaintiffs spent a good deal of time in the use and enjoyment of the outdoor amenities of their property. All enjoyed the recreational aspect of their properties. All plaintiffs entertained friends and family in outdoor settings. The effect of the frequency of flights, the noise levels and proximity of the noise source directly overhead has now effectively destroyed the pleasurable outdoor use of their property in good weather.

[213] I am satisfied the noise levels experienced when one is outside the plaintiffs' houses can interfere with speech. The frequency of flights make the interference more than nominal and has the effect upon reasonable persons of making them highly annoyed and frustrated that their normal conversation is so often interrupted.

[214] In my view it is deceptive and unhelpful to consider the noise of aircraft overhead that interferes with speech in an accumulative sense occupying, in sum, but a few minutes of each hour. One cannot isolate and collect the few seconds for which each passing aircraft produces noise at a level that causes interference and then control it so large uninterrupted segments of time can be preserved for uninterrupted speech.

[215] The most significant interference has been caused by the impact of aircraft noise occurring outside the plaintiffs' homes. The landings, however, have been occurring mainly at times corresponding to good weather. Therefore, almost the total time the plaintiffs have to enjoy the outside amenities of their property is lost to the nuisance.

[216] There is no question the nuisance sound is attenuated inside the plaintiff's houses. The attenuation varies in degree because of physical factors like insulation, building materials, areas of glass, and any openings in the structure. What is of great importance is the use and function the plaintiffs make of their homes.

[217] Each of the plaintiffs here spend a significant amount of time in their homes. Mrs. Page is retired, at home both day and night. Mr. Livingstone, a fire fighter, is a shift worker who needs to sleep at home during the day several times a month.

[218] Mr. Jones spent a good deal of time working from his home. Ms. Jones, a lawyer, also spent significant time at home working.

[219] All plaintiffs engaged in activities at home requiring concentration with which the frequent and repetitive noise of aircraft interfered to a degree transcending annoyance. All plaintiffs, to varying degrees, listened to music, radio, television or watched movies for relaxation. I accept that all plaintiffs experienced interference within their homes in respect of listening volume for radio, television, and stereo. Speakerphones could not be used. Aircraft noise interfered with sleep patterns.

[19]   As I have said, the learned trial judge's findings of fact are well supported by the evidence, and I do not think it open to this court to interfere with those conclusions.

III.

PUBLIC OR PRIVATE NUISANCE

[20]   The learned trial judge set out the general principles on the law of nuisance, both public and private, at paras. 15 to 18 of his reasons. He said:

[15] Nuisance may be either a private nuisance or a public nuisance. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at p.523, defines the former as "an unreasonable interference with the use and enjoyment of land by its occupier" and the latter as "an unreasonable interference with the use and enjoyment of a public right to use and enjoy public rights of way."

[21]   Counsel for the Attorney General of Canada contends that the learned trial judge erred in applying an overly restrictive interpretation of what constituted public nuisance. He says that if the noise associated with the use of the North Runway is a nuisance at all, it is a public nuisance, because it affects a sufficiently large class of persons in the same way. He says that if the noise amounted to a public nuisance, the plaintiffs' claims should have been dismissed because they did not prove "special" damage - that is, damage particular to the use and occupation of their lands - in contrast to the other property owners of Richmond.

[22]   Counsel says a public nuisance is one which materially affects the reasonable comfort and convenience of life of a class of persons. A public nuisance is established where a representative cross section of the class has been affected. Although a public nuisance may be shown by establishing a sufficiently large collection of private nuisances, the learned trial judge did not consider in this case whether there was a sufficient number of private nuisances so as to constitute a public nuisance.

[23]   In the absence of proof of "special" damage, the Attorney General of Canada says an individual plaintiff may only sue for public nuisance with the consent of the Provincial Attorney General, who must bring the action on the individuals' behalf as a "relator".

[24]   In sum, the Attorney General says the plaintiffs comprise a sufficiently large class that any nuisance must have been a public nuisance, that they did not have the consent of the Attorney General to sue, and that they did not plead or prove special damage. The Attorney General says the plaintiffs' claims should therefore have been dismissed.

[25]   The effect of the Attorney General's submission on this issue is that a private nuisance affecting more than one property can become a non-actionable public nuisance if it affects a sufficiently large number of private properties and the Attorney General, or special damages, is not involved.

[26]   Counsel for the plaintiffs says that a public nuisance may also constitute a private nuisance, actionable by individuals where the plaintiff is the occupier of land and where the nuisance causes damage to the occupier's use and enjoyment of that land.

[27]   It is settled law that the same conduct may constitute both public and private nuisance. In Stein v. Gonzales (1984), 31 C.C.L.T. 19 (B.C.S.C.) McLachlin J., as she then was, said at 23:

The first question is whether, notwithstanding its public character, the conduct of the defendants of which the plaintiffs complain is a private nuisance. A public nuisance may also constitute a private nuisance where the plaintiff is the occupier of land and the nuisance causes damages to his use and enjoyment of the land: John P.S. McLaren, "Nuisance in Canada", in Studies in Canadian Tort Law, Allen M. Linden, editor (1968).

[28]   She explained the policy behind the rule requiring civil actions for public wrongs to be brought in the name of the Attorney General, at 22:

The policy behind this rule is that the public and criminal jurisdiction of the Court is not to be usurped in a civil proceeding. As long as the suffering or inconvenience is general, there is no place for independent intervention by private citizens. This rule, which prevents individuals from taking upon themselves the role of champions of the public interest, has been said to be established "for the purpose of preventing oppression by means of a multiplicity of civil actions for the same cause": Salmond & Heuston on the Law of Torts, p.83.

[29]   And in Armstrong v. Langley (1992) 69 B.C.L.R. (2d) 191, Rowles J.A. said at p.202:

The appellant did not seek the consent of the Attorney General to lend his name to relator proceedings. A private person has standing to sue for declaratory or injunctive relief in respect of a matter of public interest without the Attorney General being a party if the person is able to satisfy one of the two conditions set out by Buckley, J. in Boyce v. Paddington Borough Council, [1903] 1 Ch.109 at 114:

A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such that some private right of his is at the same time interfered with ; and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

[30]   In this case, the defendants can have no complaint about a "multiplicity of civil actions for the same cause". The plaintiffs applied to have their action certified as a class proceeding. When that application failed, the trial of these three property owners was advanced as a test case, with a view to resolving those issues common to all remaining plaintiffs.

[31]   No one has suggested that the proceedings would have been any more efficiently conducted if done so in the name of the Attorney General. Nor can it reasonably be said that "the public and criminal jurisdiction of the court [has been] usurped in a civil action" in this case.

[32]   In A.G. v. P.Y.A. Quarries Ltd., [1957] 2 Q.B. 169, [1957] 1 All E.R. 894 (C.A.), Lord Denning described the difference between public and private nuisance in this way (at 190-91):

I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.

[33]   Here, many plaintiffs have pooled their efforts and resources in an attempt to stop the nuisance. A few plaintiffs have advanced the case for all, so far as possible. In my view, that course of action cannot be said to be unreasonable from any plaintiff's perspective, and it cannot be said to be unfair to the defendants.

[34]   In my opinion, the plaintiffs succeeded in establishing the elements of private nuisance: unreasonable and substantial interference with the use and enjoyment of their lands. They are not to be denied a remedy because the defendants' conduct in the circumstances also amounts to a public nuisance.

[35]   I would not give effect to this ground of appeal raised by the Attorney General of Canada.

THE LEGISLATION, ORDERS-IN-COUNCIL AND REGULATIONS

[36]   The nuisance to the plaintiffs caused by the noise of aircraft using the North Runway is the result of its location, construction and operation. The central issue in this appeal is whether the runway's location, construction and operation are authorized by statute so as to render the defendants immune from suit.

[37]   Three federal statutes, and a number of pieces of subordinate legislation - regulations and orders-in-council - are relevant. The statutes are: the Aeronautics Act, R.S.C. 1985, c.A-2 (as amended), the Public Lands Grants Act, R.S.C. 1985, c.P-30 (repealed 1991, c.50, s.50) and the Airport Transfer (Miscellaneous Matters) Act, S.C. 1992, c.5.

[38]   The Aeronautics Act provides in part:

4.2 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

(a)promote aeronautics by such means as the Minister considers appropriate;

(b)construct, maintain and operate aerodromes and establish and provide other facilities and services relating to aeronautics;

. . .

(o) undertake such other activities in relation to aeronautics as the Minister considers appropriate or as the Governor in Council may direct.

. . .

4.9 The Governor in Council may make regulations respecting aeronautics and, without restricting the generality of the foregoing, may make regulations respecting

. . .

(e) activities at aerodromes and the location, inspection, certification, registration, licensing and operation of aerodromes;

(f) noise emanating from aerodromes and aircraft;

. . .

6.71(1) The Minister may refuse to issue a Canadian aviation document, where the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the applicant or of any principal of the applicant warrant it.

[39]   The Public Lands Grants Act (since repealed but in force at all material times) provided in part:

4(1) The Governor in Council may,

(a) authorize the sale, lease or other disposition of any public lands that are not required for public purposes and for the sale, lease or other disposition of which there is no other provision in the law[.]

[40]    This Act authorized the Governor in Council to designate as a designated airport authority, by order-in-council, a corporation or other body to which the Minister of Transport may sell, lease or otherwise transfer an airport.

[41]   The Airport Transfer (Miscellaneous Matters) Act reads in part:

2.(2)For the purposes of this Act, the Governor in Council may, by order,

(a) designate any corporation or other body to which the Minister is to sell, lease or otherwise transfer an airport as a designated airport authority; and

[42]    I will summarize the effect of various pieces of subordinate legislation. On 19 March 1992, the Governor in Council authorized the Minister of Transport to enter into an Agreement to Transfer with the Authority to transfer to it the management, operation and maintenance of the airport by Order-in-Council No. P.C. 1992-18/501. This Order-in-Council was authorized by the Aeronautics Act, s.4.2(o).

[43]    On 21 May 1992 the Governor in Council issued Order-in-Council No. P.C. 1992-1130 under the Airport Transfer (Miscellaneous Matters) Act, designating the Authority as the corporation to which the Minister was authorized to transfer the airport.

[44]   On 18 June 1992 the Governor in Council issued Order-in-Council P.C. No. 1992-1376 authorizing the Minister, on behalf of the Crown, to enter into a lease with the Authority in the terms and conditions of a document annexed as a Schedule to the Order-in-Council. That document was a draft Ground Lease between the Minister of Transport and the Authority for a lease of the airport. The provisions of the draft Ground Lease are identical to the Ground Lease ultimately executed on 30 June 1992.

[45]   Order-in-Council 1992-1376 was made pursuant to the Public Lands Grants Act.

[46]   Section 4.10.01 of the draft Ground Lease expressly requires the Authority to "plan, design and construct the third runway", defined under the Lease to be the specific runway considered by the Environmental Assessment Review Panel. (See paragraph 12 above.) Section 4.10.01 states that the rent under the Ground Lease had been determined on the basis that the Authority had the obligation to construct the new runway by December 31, 1997. Section 4.10.13 further provides that if the Authority failed to construct the new runway as required under s.4.10.01, then the Authority would pay to the Minister additional rent of up to $101,795,000.

[47]   Section 8.01.01 of the draft Ground Lease requires the Authority to use the leased lands as a Major International Airport. Sections 8.02.01 and 8.02.02(a) further require the Authority to manage, operate and maintain the airport at a level of service that meets the capacity demands at the airport.

[48]   The Canadian Aviation Regulations, SOR/96-433, passed under s.4(9)(e) of the Aeronautics Act, set out the requirements for the issuance of an "airport certificate". An airport certificate provides the statutory authority to operate an airport in a specific location. The regulations provide that a person is prohibited from operating an aerodrome except in accordance with an airport certificate (s.302.10). Sections 302.01 to 302.11 apply to airports "within the built up area of a city or town" (s.302.01(1)(a)) and require an applicant for an airport certificate to submit a proposed "Airport Operations Manual" to the Minister of Transport for approval, which must contain many precise details for the airport's configurations specified by the regulations (s.302.08(4)).

[49]   Section 302.03(1) provides that, subject to s.6.71(1) of the Aeronautics Act, "the Minister shall issue an airport certificate to an applicant authorizing the applicant to operate an aerodrome as an airport if the proposed airport operations manual is approved by the Minister ". In making this determination, the Minister may consider whether the issuance of an airport certificate is in the public interest and not detrimental to aviation safety (s.302.03(1)). This is also subject to s.6.71(1) of the Aeronautics Act, which provides that the Minister may refuse to issue an airport certificate if "the Minister is of the opinion that the public interest and, in particular, the record in relation to aviation of the applicant or of any principal of the applicant warrant it".

[50]   Supplementing the regulatory requirements for the Authority to hold an airport certificate and to comply with the Airport Operations Manual, s.8.02.02(f) of the draft Ground Lease also requires the Authority to obtain and maintain an airport certificate for the airport and to comply with its terms. Section 8.02.02(g) requires the Authority to comply with all the mandatory terms of the Airport Operations Manual.

[51]   The Authority applied for an airport certificate in respect of the airport based on its proposed Airport Operations Manual. The Minister of Transport approved the Authority's Airport Operations Manual and granted it an airport certificate on 1 July 1992. As required by the regulations, the Authority's Airport Operations Manual provides precise details as to the location and specifications for each of the runways at the airport. This includes the North Runway, designated as "26R", and the Manual specifies its elevation to the nearest foot, linear dimensions to the nearest half metre, geographic coordinates (latitude and longitude to the nearest second), and bearings to the nearest one-tenth of a degree.

THE TRIAL JUDGE'S REASONS ON THE DEFENCE OF STATUTORY AUTHORITY

[52]   The learned trial judge held that the defendants had failed to establish the defence of statutory authority. He referred to Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181, Ryan v. City of Victoria, [1999] 1 S.C.R. 201 and other authorities. He also referred to the Aeronautics Act, the Canadian Aviation Regulations, the relevant Orders-in-Council and the Ground Lease.

[53]   With respect to the Ground Lease, he reached the following conclusions:

[267] In summary the ground lease between the Crown and the Authority:

1. negatives any relationship of agency between the Crown and the Authority,

2. gives the Authority discretion whether to build the third runway or not,

3. makes the third runway the separate property of the Authority during the currency of the lease, and

4. provides the Authority manage, operate, and maintain YVR entirely on its own behalf.

The north runway was therefore neither constructed nor operated by the Minister nor on behalf of the Minister, under s.4.2 of the Aeronautics Act, and the Authority has no basis for a statutory defence.

[268] The Aeronautics Act did not mandate the construction of a third runway as located, constructed and operated. The statute appears targeted at the Minister and not intended to extend to private facilities operated by private contractors. The wording of the lease, the Authority's interest in the improvements, and the essential independent operation of YVR all indicate this is more than the Minister contracting with others to fulfil his duties. The Authority remains a separate and distinct entity from the Minister and does not have his jurisdiction under the Act.

[269] I conclude there is no factual connection between the construction and operation of the north runway and the Minister's power under s.4.2 or power of delegation pursuant to s.4.3 of the Aeronautics Act.

(my emphasis)

[54]   As to the Canadian Aviation Regulations he said:

[271] The airport certificate process has its focus on safety. I do not see that it was ever intended to confer a legislative authority to commit a nuisance as has occurred here. I agree with the comments of Robins J. in Schenck v. The Queen in Right of Ontario (1981), 131 D.L.R. (3d) 310 at 322 (Ont.H.C.):

that the creation of the nuisance suffered by these plaintiffs cannot be treated as the inevitable result of the exercise of a statutory duty and the defence of legislative authority cannot be successfully invoked in this fact situation. As a matter of legislative intent, the statutory provisions relied on do not appear, expressly or impliedly, to authorize or contemplate a nuisance of the kind involved in these proceedings and cannot be so interpreted;

[272] There is a large body of federal law and regulations which impose controls on all aspects of aviation including allocation of airspace, traffic control and aircraft noise. This tight cloak of law and regulation is focused, like airport certification, on public safety.

[273] It is obvious that once the location of a runway is set the flight paths accessing it are fixed. Landings follow a prescribed 3-degree descent path. The height above ground of landing aircraft is determined accordingly. The speed of the landing aircraft on descent is controlled and the configuration of power and trim determines the noise that results.

[274] It is the orientation of the runway which predetermines the area that will experience the noise of user aircraft. As was repeatedly emphasized in evidence, once an aircraft is on approach, centred in the flight path, powered and trimmed for the prescribed descent rate, there is nothing the pilot of the aircraft can do to abate the noise that aircraft creates except to land the plane.

[274A] I do not find the airport certification process nor the air traffic control regulations can be said to authorize the nuisance that has occurred. The purpose of these regulations is safety. The certification process and regulations do not expressly preclude liability for nuisance, and indirectly, although some noise is necessarily produced by compliance with them, I cannot find that the only reasonable inference from such regulations is that they were intended to authorize nuisance.

[275] In this case, no legislation has expressly authorized the nuisance that has occurred. In such circumstances, Sopinka J.'s analysis at p.1225 of Tock, supra, limits the application of the defence of statutory to circumstances "[w]here the only reasonable inference from the legislation" is that interference with private rights is authorized.

[276] From the evidence, I am not satisfied that the only reasonable interpretation of the Aeronautics Act and Regulations is that they authorize nuisances like the ones experienced by the plaintiffs. As a result, the defence of statutory authority cannot apply.

[55]   As an alternative finding, the learned trial judge said that if the Authority was acting with statutory authority, the nuisance was not the "inevitable result" of performing the statutorily authorized operations. He said:

[281] The nuisance suffered by the plaintiffs has had a serious impact on the plaintiffs' use and enjoyment of their homes, for which no compensation has been paid. It is equivalent in effect to expropriation of a property interest without compensation. Transport Canada, by purchase or exercise of federal powers of expropriation, could have acquired any affected property under the flight path.

[282] Purchase, expropriation, or negotiated releases from persons with property interests would undoubtedly increase the expense in creating increased runway capacity, but it has not been shown that such an expense would be beyond the bounds of the standard the law requires when a statutory defence is raised. Expropriated property could of course be modified and resold for a different type of residential use or for purposes more compatible with the runway operation. The cost would then be much reduced to the expropriating authority. The loss attributable to any diminution in value on resale would fall upon the entity responsible for the nuisance and not the property owners. The EARP considered a fund for payment of noise compensation was an appropriate factor to consider as part of the cost of constructing the runway at issue.

[284] The Crown did acquire land on Sea Island known as the McDonald subdivision years previously in anticipation of a possible need for runway expansion by purchase and expropriation, and acquiring further properties under the flight path could be considered an extension of that process.

[285] The Aeronautics Act did not mandate the construction of a third runway as located, constructed and operated. The nuisance in issue cannot be said to be the inevitable consequence of the exercise of any specific statutory power or in response to any particular required statutory duty.

(my emphasis)

[56]   And further:

[291] I accept that no other singular location for a new runway facility could operate to the capacity of the chosen location for the north parallel runway at Sea Island. However, expansion of facilities at satellite locations in combination with a new runway at YVR operated to lesser capacity were possible alternatives, although not as economical or functionally desirable.

[292] I am also not satisfied on the evidence that a third parallel runway extending west into the ocean was not a viable alternative. Such a runway likely would have avoided or lessened the nuisance in issue. It appears that a long-standing proposal to extend a runway into the ocean was abandoned because of environmental concerns.

[293] From the evidence, I am not able to find that there was no solution to those environmental concerns. It appears more likely it was the costs of remediation that led to a preference for a runway located within the confines of the existing Sea Island dykes. It raises an uneasy question in the context of this action as to whether concern for the effects of nuisance visited on some nearby residents was treated with less concern than environmental concerns.

[294] The defendant Authority called a good deal of evidence to the effect that, given the location of the north runway, it is not possible to operate it to capacity and avoid the noise nuisance of which the plaintiffs complain. The evidence supports that view. Once the runway is placed the die is cast on how aircraft must approach and depart the runway over the plaintiffs' properties.

. . .

[302] In my view it is only if the new runway must be located on Sea Island, in its existing location, and that it must be operated to its fullest potential capacity, that the complained of nuisance to residents of the Tait subdivision becomes inevitable. The onus has not been met.

[303] I do not accept the defendants have met the standard of the test delineated in Tock and Ryan and reached a point where the consequences may be said to be inevitable and a statutory defence available.

[304] Alternatives to locating a new runway within the dyke on Sea Island, although not as desirable or economical, did exist. The threat of the government in the lease and operating agreements to expand and operate other facilities should the Authority breach the lease is itself an indication that alternatives exist.

[305] In summary, I do not accept that the defendant Authority, that both constructed and operates the north runway, is entitled by virtue of its lease and operating agreement with the Crown to a statutory defence to the nuisance created.

[306] The defendant Authority was not required to construct the runway and could have chosen alternatives. The penalty if they did not construct the third runway ironically appears to be that they would face competition from the Minister operating satellite or de-centralized airports.

[307] Nor do I find the substantial extra expenses of building or operating alternate facilities to achieve equivalent capacity to the existing new north runway alone gives rise to the nuisance at issue being an inevitable consequence of the exercise of any statutory power of the Crown.

(my emphasis)

[57]   The judge held the Crown was liable as landlord for the nuisance created by its tenant, the Authority, and that both had failed to establish the defence of statutory authority.

VI.

THE PLAINTIFFS' POSITION

[58]   Counsel for the plaintiffs supports the reasoning and conclusions of the trial judge. He says the defendants must establish a factual connection between the construction and operation of the North Runway, and the powers given to the Minister of Transport under the Aeronautics Act. The plaintiffs say this connection has not been established because the Ground Lease creates an arm's length relationship between Canada and the Authority. He says the Ground Lease does not confer or delegate any statutory powers, either expressly or by implication.

[59]   The plaintiffs say the Ground Lease does not mandate construction of the North Runway in the location in which it was built. They say the Authority had a discretion not to build the runway, and to instead pay an agreed sum of about $100 million dollars as liquidated damages. This sum appears to bear a relationship to the cost of constructing the North Runway.

[60]   The plaintiffs also argue that the Minister is not a party to the Ground Lease. Rather, he signed as the agent of Canada and as an agent could neither assume nor confer any rights, powers or duties.

[61]   Counsel for the plaintiffs argues that none of the statutes relied upon by the defendants give any express authority to create a nuisance. He says the learned trial judge was correct in holding that authority for the nuisance could not be found by necessary implication.

[62]   The plaintiffs also support the trial judge's conclusion that the nuisance was not the inevitable result of constructing a new north runway. They say the defendants failed to meet the onus of proving that the runway had to be located on Sea Island at its existing location, and that it must necessarily be operated to its fullest potential capacity. The plaintiffs say the learned trial judge's factual findings on these issues are not open to review on appeal.

VII.

THE LAW

[63]   The defence of statutory authority was most recently considered by the Supreme Court of Canada in Ryan, supra. At para.54, Mr. Justice Major for the court said:

Statutory authority provides, at best, a narrow defence to nuisance. The traditional rule is that liability will not be imposed if an activity is authorized by statute and the defendant proves that the nuisance is the "inevitable result" or consequence of exercising that authority.

(my emphasis)

[64]   The court reaffirmed the traditional test for the defence as expressed by Mr. Justice Sopinka in Tock, supra, at 1226:

The defendant must negative that there are alternate methods of carrying out the work. The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance. It is insufficient for the defendant to negative negligence. The standard is a higher one. While the defence gives rise to some factual difficulties, in view of the allocation of the burden of proof they will be resolved against the defendant.

(my emphasis)

[65]   In Liability of the Crown (3rd ed.) Hogg and Monahan, the authors state at p.136:

The general rule is that no act or omission of the Crown, its servants or any other person, gives rise to liability in tort unless it is committed without legal authority, and is a tort.

And further:
If a statute authorizes an act that causes injury to a private person, and is silent respecting compensation for the injury, the general rule is that no compensation is payable in respect of the injury.

. . .

An exception to the general rule of no compensation is the case where a statute takes private property. . . . (my emphasis)

[66]   In his Canadian Bar Review comment on the Tock case, Professor Hogg expressed the views (at p.595) that: "It is a fundamental principle of our law that an act that is authorized by statute cannot be tortious", and that "in every case where it is alleged that a public body has committed a tort, the first inquiry must be whether the act was committed without statutory (or prerogative) authority". He argued for the "relatively well settled rule of law that had been accepted prior the Supreme Court of Canada judgment in Tock". He said:

The role of the inevitable result rule is to determine when a statute should be taken to authorize implicitly a tortious act. If the commission of a tort is the inevitable result of exercising the statutory power, then the statutory power must be taken to have authorized implicitly the commission of the tort. In such a case, where the statutory power cannot be exercised without interfering with private rights, the only reasonable inference is that the statute has authorized the interference with private rights.

[67]   The "well settled" rule accepted prior to Tock was re-established in Ryan. These authorities and comments make clear what the law requires when the defence of statutory authority is pleaded. The statute must authorize the work, conduct or activity complained of, either expressly or by necessary implication. The test focuses on what work, conduct or activity is authorized by statute, rather than on the person or body upon whom the authority is conferred.

[68]   To understand what work, conduct or activity has been authorized in this case, one must have regard not only for the relevant statutes, but also for the Orders-in-Council and the Regulations.

[69]   Driedger refers to "subsidiary laws", known by a variety of expressions including regulations, rules, orders, by-laws, and ordinances or, collectively, as "subordinate or delegated legislation". He then divides subsidiary laws into categories, including Orders-in-Council in the first category, which includes "laws made by the executive or by some body or person that is subject to some degree of control by the executive". He says that, although it is not identical to a statute, "all subordinate legislation constitutes law". Accordingly, to the extent that the Order-in-Council was within the authority granted in the over-arching legislation, its validity cannot be questioned: E.A. Driedger, The Construction of Statutes, Appendix IV, Subordinate Legislation, p.274-277.

[70]   It is clear that statutory authority may be conferred by subordinate legislation. In In the Matter of a Reference as to the Validity of Regulations in Relation to Chemicals, [1943] S.C.R. 1, Chief Justice Duff said:

One observation of a general character remains. It is possible that in what has been said above it has not been sufficiently emphasized that every order in council, every regulation, every rule, every order, whether emanating immediately from His Excellency the Governor General in Council or from some subordinate agency, derives its legal force solely from the War Measures Act, or some other Act of Parliament. All such instruments derive their validity from the statute which creates the power, and not from the executive body by which they are made. (The Zamora [1916] 2 A.C. 77 at 90.)

[71]   Orders-in-Council are also considered Regulations under the Interpretation Act, R.S.C. 1985, c.I-21. Section 2(1) defines "regulation" as including an "order made or established (a) in the execution of a power conferred by or under the authority of an Act, or (b) by or under the authority of the Governor in Council".

[72]   Orders-in-Counsel are "official Cabinet decisions, signed by Her Majesty's representative and usually made pursuant to a power granted by statute". They are instruments through which "specific responsibilities conferred upon the government under [an] Act are carried out"; they may be the means by which the government passes, approves or adopts a regulation, or may be the means by which the government confers jurisdiction upon an authority to exercise particular powers: L. Dussault & L. Borgeat, Administrative Law, A Treatise, vol.1 (2nd ed.), (1985), p.268. Indeed, Proudfoot J., as she then was, stated that Orders-in-Council are "the general medium by which many statutory powers conferred on the [Governor] in Council are exercised" in Coyle v. Minister of Education of British Columbia, [1978] 6 W.W.R. 279 at p.286.

[73]   Halsbury's Laws of England, Volume 44(1) (4th ed. re-issued 1995, paras.1499-1500) also recognizes Orders-in-Council as a type of subordinate legislation which has "the full force and effect of an Act".

[74]   In Ryan, supra, the Supreme Court of Canada accepted that subordinate legislation in the form of regulations under the Railway Act could confer statutory authority (at paras.8 & 56).

[75]   Leases authorized by statute have also been recognized as providing statutory authority for nuisance: see Jagtoo v. 407 ETR concession Co., [1999] O.J. No. 4944 at para.30.

[76]   In the case at bar the learned trial judge accepted (paras.243-245) that statutory authority could be conferred by subordinate legislation, but he held that neither the statutes, regulations, orders-in-council or the lease provided authority in this case.

VIII.

DISCUSSION

[77]   As the learned trial judge correctly noted (para.275), there is no express authority in the legislation or subordinate legislation for the noise nuisance of which the plaintiffs complain. The question is whether such an authority is implicit in the statutory scheme.

[78]   The first question is whether the statutory scheme authorized the construction of the North Runway in the location it occupies. There can be no doubt that it did. Order-in-Council 1992-1376, issued on 18 June 1992, attached a draft of the Ground Lease identical to the lease subsequently executed. The lease required the Authority to construct the North Runway as specified in the EARP report. The precise location and configuration of the North Runway is identified in the Ground Lease. The Order-in-Council was authorized by the Public Lands Grants Act, and by s.4.2(o) of the Aeronautics Act. There is no suggestion that the Order-in-Council is invalid, or beyond the powers granted by the statute.

[79]   The location of the airport is further identified in the Airport Operations Manual. The Airport Operations Manual is a prerequisite for issuance of an airport certificate, which provides statutory authority to operate an airport in a specific location. The Airport Operations Manual described the operation of the North Runway, including precise details of the North Runway's location and configuration. The airport certificate was issued pursuant to the Canadian Aviation Regulations, which were authorized by s.4(9)(e) of the Aeronautics Act.

[80]   There is no suggestion that those regulations are invalid, or beyond the powers granted by statute.

[81]   I am therefore of the view that the construction of the North Runway, in its precise location on Sea Island and with its exact configuration, was authorized by the statutory scheme.

[82]   The location of the North Runway determines the flight and glide paths that aircraft must follow in landing and taking off from that runway. As the learned trial judge said:

[273] It is obvious that once the location of a runway is set the flight paths accessing it are fixed. Landings follow a prescribed 3-degree descent path. The height above ground of landing aircraft is determined accordingly. The speed of the landing aircraft on descent is controlled and the configuration of power and trim determines the noise that results.

[274] It is the orientation of the runway which predetermines the area that will experience the noise of user aircraft. As was repeatedly emphasized in evidence, once an aircraft is on approach, centred in the flight path, powered and trimmed for the prescribed descent rate, there is nothing the pilot of the aircraft can do to abate the noise that aircraft creates except to land the plane.

[83]    Flight and glide paths are governed by the Canadian Aviation Regulations.

[84]   It is therefore clear that the use and operation of the North Runway was authorized by the statutory scheme.

[85]   The plaintiffs argue, and the learned trial judge said, that the Vancouver Airport Authority could not rely on the defence of statutory authority. The learned trial judge held (para.267) that there was no relationship of agency between the Authority and the Crown, and that the North Runway was neither constructed nor operated by, or on behalf of, the Minister. The plaintiffs argue, and the trial judge also said (para.269), that there is no factual connection between the construction and operation of the North Runway and the Minister's powers under the Aeronautics Act, and that the Minister was not a party to the Ground Lease.

[86]   With respect, I do not consider that those arguments or that reasoning answer the defence of statutory authority. The question of agency is not relevant. The proper question is what work, conduct or activity was authorized by statute, not who was authorized to carry it out. It cannot be disputed that private parties can rely on the defence of statutory authority, if the work in question was authorized by statute: see Jagtoo v. 407 ETR Concession Co., supra; Allan v. Gulf Oil Refining Ltd. [1981] A.C. 1001; Solloway v. Okanagan Builders Land Development Ltd. (1976), 71 D.L.R. (3d) 102 (B.C.S.C.); and Ryan v. City of Victoria, supra.

[87]   For the same reason, it does not matter whether there is a "factual connection" between the construction and operation of the North Runway and the Minister's powers under the Aeronautics Act. This argument also focuses on who is authorized, rather than on what was authorized.

[88]   The learned trial judge said (para.267) that the Ground Lease gave to the Authority a discretion as to whether to build the North Runway or not. This conclusion is based on s.4.10.13 of the Ground Lease which provides that if the Authority failed to construct the new runway as required by s.4.10.01, the Authority would have to pay additional rent of up to $101,795,000.

[89]   With respect, the learned trial judge erred in interpreting the lease provisions as giving the Authority a discretion whether to build the North Runway or not. Section 4.10.01 of the Lease expressly required the Authority to "plan, design and construct the third runway" as defined. The Authority was required to build the new runway by 31 December 1997, and if it failed to do so, the additional rent became payable. Therefore, if the Authority failed to construct the new runway as specified within the time limited, it would have been in breach of contract. Although the law does not prohibit a breach of contract, that fact does not create a discretion to avoid a contractual obligation. The section providing for additional rent is simply a specified remedy clause, similar to a provision for liquidated damages.

[90]   The learned trial judge held (para.267) that the Ground Lease had the effect of making the North Runway the separate property of the Authority. He reasoned from this that the defence of statutory authority could not be raised. This conclusion is based on s.3.08.01 of the Ground Lease, which provided that as between the Federal Crown and the Authority, new construction is "deemed" to be the "separate property" of the Authority.

[91]   With respect, I do not consider this provision of the Lease relevant to the question of whether the construction, location and operation of the North Runway was authorized by statute. Once again, the question is what did the statutory scheme authorize, not who owns the property where the work or activity is to take place. In support of this conclusion is a recent case dealing with an identical provision to s.3.08.01 in the Ground Lease for the Pearson Airport in Toronto. In Greater Toronto Airport Authority v. Mississauga (2000), 50 O.R. (3d) 641, Laskin J.A. for a unanimous court at para.73 said:

The deeming provision between the landlord (the federal Crown) and the tenant (the GTAA) affects certain rights of the parties between themselves. However, this provision cannot affect the right of third parties, nor, more importantly, can it affect the legal status of new buildings as federal property for constitutional purposes. Buildings constructed on leased land become part of the property of the landlord leased to the tenant. The parties cannot by agreement change this result. By law, this result occurs automatically: see Anger and Honsberger, Law of Real Property, 2d ed. (1985), vol.2, at pp.1011-12; and Melluish (Inspector of Taxes) v. B.M.I. (No.3) Ltd., [1996] 1 A.C. 454 (H.L.).

[92]   Leave to appeal to the Supreme Court of Canada was refused.

[93]   All of the airport lands on Sea Island were, and continue to be, owned by the Federal Crown, who lease them to the Authority. That, as between the Crown and the Authority, the North Runway may be deemed to be the Authority's separate property cannot affect the question of whether the statutory scheme authorized the North Runway to be built where it is.

[94]   The learned trial judge held (para.267) that under the Ground Lease the Authority must manage, operate and maintain the airport entirely on its own behalf. This is another element in the underlying premise that the statutory scheme gave no authority to the Vancouver Airport Authority, but rather gave it to the Minister. I do not consider this a relevant issue, because it speaks to the question of who, rather than what, was authorized.

[95]   As I said at the beginning of this part of my reasons, so far as the location of the North Runway is concerned, there can be no doubt that it was authorized by the statutory scheme.

[96]   In my view, statutory authority for the operation of the North Runway is equally clear. The Ground Lease requires the Authority to use the leased lands as a major international airport, and to manage, operate and maintain the airport at a level of service to meet the capacity demands at the airport. The North Runway was constructed specifically because the airport could not serve demands with its previous physical facilities.

[97]   The learned trial judge held that the Canadian Aviation Regulations, and the airport certificate, did not provide statutory authority for the noise nuisance caused by the operation of the North Runway. He held (para.271) that the airport certificate had its focus on safety. In my respectful opinion, the learned trial judge erred because he looked to a purpose of the airport certificate, rather than to its legal effect. The legal effect of the certificate is to authorize the operation, in a specific location, of the airport, including the North Runway. It is quite true that the Canadian Aviation Regulations are designed to protect and enhance aviation safety. They, together with the Airport Operations Manual, provide a comprehensive network of rules for the safe and efficient operation of aircraft and airports. However, to look only at the many safeguards inherent in the regulations is to ignore the activities that they authorize. Those activities include landing at and taking off from the North Runway.

[98]   Section 3.02.03 of the Canadian Aviation Regulations provides that "the Minister shall issue an airport certificate to an applicant authorizing the applicant to operate an aerodrome as an airport" if the Minister approves the applicant's Airport Operations Manual. Here, the Authority issued the airport certificate under the regulations based on the Authority's Airport Operations Manual describing the North Runway's location and specifications with great precision, and the Airport Operations Manual was itself approved by the Minister as required by s.3.02.03. It is beyond question that the operation of the North Runway is authorized by statute.

[99]   Because the correct question is whether the work, activity or conduct is authorized by the airport certificate, it is irrelevant whether the purpose of the airport certificate is safety, as the trial judge found, or whether it has other purposes. However, the learned trial judge also erred in finding that the purpose of the certificate was simply safety. On its face, s.3.02.03(1)(b) of the Canadian Aviation Regulations directs the Minister to consider both "aviation safety" and the broader "public interest" in issuing an airport certificate. Section 6.71(1) of the Aeronautics Act similarly provides that the Minister may refuse to issue a Canadian aviation document (which includes an airport certificate) where the Minister is of the opinion that "the public interest warrants it".

[100]   I am therefore of the view that there is ample statutory authority for the operation of the North Runway.

[101]   Once the location and operation of the North Runway have been found to be authorized by statute, the next question is whether the noise nuisance associated with the runway's operation is its inevitable result, and therefore implicitly authorized by statute as well.

[102]   The learned trial judge said:

[294] The defendant Authority called a good deal of evidence to the effect that, given the location of the north runway, it is not possible to operate it to capacity and avoid the noise nuisance of which the plaintiffs complain. The evidence supports that view. Once the runway is placed the die is cast on how aircraft must approach and depart the runway over the plaintiffs' properties.

. . .

[302] In my view it is only if the new runway must be located on Sea Island, in its existing location, and that it must be operated to its fullest potential capacity, that the complained of nuisance to residents of the Tait subdivision becomes inevitable. The onus has not been met.

[103]   He held, in effect, that the operation to capacity of the North Runway, as located, inevitably caused noise nuisance to the plaintiffs.

[104]   He concluded, however, that the defendants could have avoided creation of the nuisance by constructing the new runway in a different location. In my respectful view, it was an error to embark on an inquiry into other possible locations for the new runway. The precise location and configuration of the North Runway was authorized by statute as noted above. The inevitable result test should have been applied to the newly constructed North Runway in its authorized location, and where it was in fact built.

[105]   In Tock, supra, Sopinka J. said at p.1224:

The defence of statutory authority which is applied in Canada is based on the statement of Viscount Dunedin in City of Manchester v. Farnworth, [1930] A.C. 171, at p.183:

When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.

[106]   This view of the law has been re-affirmed by the Supreme Court of Canada in Ryan, supra.

[107]   In this case, the location of the North Runway is specifically authorized by the Ground Lease and the airport certificate, and location was therefore not a justiciable issue. The decision as to where to locate the new runway involved many issues of public policy. The decision was made after receipt of the EARP report and lengthy public consultations and hearings concerning environmental impact of the project. Resulting noise was specifically considered in this process. Alternate locations were also considered. The choice of where best to locate the new runway was not a legal question. It was a "political" issue to be resolved through appropriate public procedures.

[108]   The EARP report set out a number of recommendations on the issue of noise abatement, which Transport Canada responded to in writing, making various commitments. The commitments were assumed first by Transport Canada, and then by the Vancouver Airport Authority once transfer was complete.

[109]   Transport Canada struck a Noise Management Committee to continuously monitor, evaluate, and report on the noise environment at the Vancouver International Airport. The Noise Management Committee was also to investigate and recommend ways to abate noise to Airport management, which was to implement the recommendations. In the EARP report response paper, Transport Canada set out the composition and powers of the Noise Management Committee. It agreed to use technological means to record whether planes were conforming to the noise abatement measures. It agreed to operate the North Runway as an arrival runway as much as possible, restricted the North Runway to a less noisy class of aircraft, restricted operations on the North Runway to 7 a.m. to 10 p.m., and restricted landings on the North Runway to those in the least noisy configuration and with minimal reverse-thrust for braking, all subject to emergency situations.

[110]   The regulations summarized as the Procedures Governing Aeronautical Noise at Canadian Airports are observed at the Vancouver International Airport, as well as at Canadian airports generally. These include YVR's particular Noise Abatement Procedures (below) as well as prescribed minimum altitudes, the requirement for noise certification at the time of plane manufacture and the phasing out of a noisier class of aircraft.

[111]   The origins and status of the Airport Operations Manual are discussed above, inter alia, at para.77. Included in the Airport Operations Manual is Appendix I, entitled "Noise Abatement Procedures", which are stated to apply to jet aircraft. The Procedures set out particular guidelines for departures and arrivals, including the minimization of thrust on particular runways at particular times, particular power or draft profiles to conform to, and related matters. The Procedures also set out time of day restrictions, so that some types of aircraft cannot use particular runways at night, as well as a preferential runway determination, so that particular runways are used only when there is no other choice. There are also established restrictions on engine run-ups as well as on minimum altitude.

[112]   The learned trial judge said (para.293) that he was unable to find that there were no solutions to environmental concerns posed by the location of the North Runway elsewhere on Sea Island, or further to the west extending into Georgia Strait. With respect, these considerations were not relevant to the question before him, which was whether the noise nuisance was the inevitable result of building the North Runway where it was located.

[113]   The learned trial judge also said (paras.281-282) that the nuisance was not inevitable because Canada could have purchased or expropriated the properties of those residents affected by the aircraft noise. In my respectful view, this was also an irrelevant consideration. In Tock, supra, Sopinka J. said at 1225-1226:

The rationale for the defence is that if the legislature expressly or implicitly says that a work can be carried out which can only be done by causing a nuisance, then the legislation has authorized an infringement of private rights. []

[The term "inevitable consequence] is the expression of the factual conclusion that the necessary causal connection exists between the work authorized and the nuisance. If the necessary connection exists, then it follows that the legislature authorized that which is the inevitable consequence of the work described in the statute.

[114]   Once the necessary factual connection exists between the nuisance and the authorized work, it follows that the nuisance was authorized by statute. A power to expropriate forms no part of that inquiry (see Dunne v. The Company of the Proprietors of the Birmingham Canal Navigation (1872) VIII. L.R. 42 (Ex.Ch.). Whether compensation could have been paid is not relevant to whether there was a nuisance, or whether the nuisance is inevitable.

[115]   In any event, there was no legal authority for the Minister to expropriate lands under the flight path to an airport not specifically required for airport purposes. Under the Aeronautics Act, lands can only be expropriated for airport purposes.

[116]   The learned trial judge said (para.281) that the uncompensated nuisance suffered by the plaintiffs was equivalent to expropriation of a property interest without compensation. It this case, there is direct evidence of a statutory intention to authorize an interference with private rights by the construction and operation of the North Runway without compensation. The EARP report specifically concluded that the new runway would inevitably "cause new permanent noise impact" for which compensation should be paid. The federal government was aware of this conclusion of the report. In spite of this knowledge, the government expressly rejected compensation, and authorized the Authority to construct and operate the North Runway under statutory authority.

[117]   The plaintiffs' answers to the inevitable result test, namely, relocation, compensation or expropriation, do not fit within the legal framework laid down by the Supreme Court of Canada. In my opinion, there was clear statutory authority for the location, construction and operation of the North Runway, and the noise nuisance suffered by the plaintiffs was the inevitable result.

[118]   In Ryan, supra, Major J. said for the court that "Statutory authority provides, at best, a narrow defence to nuisance". By that, I understand that the onus is upon the defendant asserting the defence to establish clear and unambiguous statutory authority for the work, activity or conduct complained of, in the place where that work, activity or conduct takes place, and express or implied authority to cause a nuisance as the only reasonable inference from the statutory scheme. In my respectful view, the defendants have met that test. As noise nuisance is the inevitable consequence of what the statutory scheme authorized, Parliament must be taken, by implication, to have authorized the nuisance as well.

[119]   I conclude that the defence of statutory authority provides a complete defence for both defendants. I would allow the appeal, and dismiss the plaintiffs' action.


The Honourable Chief Justice Finch


I AGREE:

The Honourable Madam Justice Prowse


I AGREE:

The Honourable Mr. Justice Hall