Executive Summary: Key Legal and Evidentiary Issues

• Scope of municipal authority to impose permit conditions for a fill and grading permit, including requirements arguably beyond the four corners of the by-law.
• Interaction between municipal regulation of a berm and federal jurisdiction over aeronautics, particularly whether aviation safety and obstacle limitation surfaces (OLS) can be considered for non-airport land.
• Dispute over whether all technical and security requirements under the Township’s fill by-law were satisfied such that a permit “shall” issue.
• Evidence concerning alleged illegal dumping of fill, damage to municipal infrastructure, and the Township’s use of self-help measures to block access to the property.
• Application of the RJR-MacDonald test for a stay pending appeal, focusing on serious issue, irreparable harm (including mootness), and balance of convenience.
• Reliance on the “clean hands” doctrine by the respondents to try to bar the Township’s stay motion and strike its appeal, assessed against the conduct of both parties.

Background and property setting

The case arises from a dispute between The Corporation of the Township of Clearview (the Township) and 12966344 Canada Inc. (129 Canada), whose president is Angelina Williams, over the placement of fill to construct a privacy and noise berm on a large parcel of land. The property comprises 172.38 acres of vacant land within the Township, zoned as airport industrial, with a smaller rear portion zoned as environmentally protected. It sits adjacent to the Edenvale Aerodrome (Edenvale), an unregulated aerodrome that has not registered any zoning by-laws under the federal Aeronautics Act. Because no aeronautics-based zoning bylaws were registered for Edenvale, 129 Canada’s use of its adjoining property was not directly restricted by Aeronautics Act regulations at the time. Edenvale itself, while not an “airport,” is used commercially for aviation and has also been used as a site for importing fill. 129 Canada sought to develop its land and, as part of that plan, intended to build a berm along the boundary to provide noise and privacy screening from Edenvale’s fill operations.

Municipal by-law framework and the initial stop work

The Township’s By-Law 02-62 regulates the placement of fill and prohibits placing or dumping fill without first obtaining a permit. In June 2024, Township staff discovered that fill was being hauled and deposited on the property and that substantial grading work was underway. Township officials responded by issuing a Stop Work Order and notifying 129 Canada that a fill permit would be required before work on the berm could continue. The by-law, although not reproduced clause by clause in the decision, operates as a regulatory scheme that requires an application, technical documentation, and security to protect municipal infrastructure before permission is granted to import and place large volumes of fill.

Permit application, technical review, and aviation safety concerns

In November 2024, Ms. Williams, on behalf of 129 Canada, filed a Fill and Grading Permit application with supporting materials. The stated purpose was to obtain approval to construct the privacy and noise berm in order to facilitate the subdivision and eventual development of the property. The Township retained an engineering consultant to peer review the application. From December 2024 through March 2025, the Township and its consultant raised various technical and procedural issues to be resolved before a permit would issue. In response, 129 Canada provided amended drawings, a Fill Management Plan, and later a revised Fill Management Plan.
On 16 April 2025, the Township advised that several matters remained outstanding and that a permit could not yet issue. These outstanding requirements included: revisions to the Fill Management Plan; confirmation of an appropriate haul route; execution of a Fill Permit Agreement; and posting of security to cover possible damage to municipal infrastructure. In addition, the Township required confirmation from a qualified person that the siting and elevation of the berm would not pose a safety risk given its proximity to active aerodrome runways. This latter requirement brought aviation safety concerns into the municipal permitting process.
In June 2025, 129 Canada submitted an aviation safety report, a letter from Nav Canada, and amended engineering drawings. The aviation report acknowledged that there were no applicable zoning standards under federal aeronautics regulation because Edenvale is unregulated, but the report nonetheless applied Transport Canada’s Obstacle Limitation Surfaces (OLS) Guidelines (TP312 – Aerodrome Standards and Recommended Practices, 5th Ed.) to show that the proposed berm would not interfere with flight patterns at Edenvale. The OLS standards are designed to promote safe airport operations during takeoff and landing by defining zones that must be kept clear of obstacles. Nav Canada’s letter indicated that it had no objection to the project as submitted.

Further peer review and breakdown of the permit process

On 20 June 2025, the Township sent 129 Canada a draft Fill Permit Agreement and indicated that additional peer review comments addressing the aviation safety report would follow. On 14 July 2025, those peer review comments were delivered, and 129 Canada was asked to have its experts respond through revisions or supplemental information and to resubmit. The Township also directed 129 Canada to approach Edenvale to determine what zoning standards Edenvale believed should apply to its uncertified aerodrome. At this point, facing additional information requests tied to aeronautical considerations, 129 Canada abandoned its efforts to secure the fill permit through the Township’s process.

Renewed fill activity, enforcement, and self-help measures

By late August 2025, Township officials again observed fill being deposited on the property without a permit. The Township issued a Stop Work Order under section 444 of Ontario’s Municipal Act, 2001, which allows municipalities to order cessation of activities that contravene bylaws. A municipal by-law enforcement officer then laid charges against Ms. Williams under Part III of the Provincial Offences Act for contraventions of the fill by-law. In addition, to prevent further unpermitted fill operations, the Township removed culverts at the property’s entrances, thereby effectively blocking access. The Township justified this self-help measure as necessary to protect the integrity and safety of the roadway given that no security had been posted to cover possible damage to municipal infrastructure. After counsel for the respondents complained that blocking access to the property was unlawful, the Township restored the culverts.

Competing applications in the Superior Court

In September 2025, both sides turned to the Superior Court of Justice. On 9 September 2025, the Township commenced an application seeking an order restraining the respondents from placing, dumping, or otherwise depositing fill on the property except in strict compliance with the by-law. Ten days later, on 19 September 2025, the respondents brought their own application. They asked for a declaration that the by-law was invalid. In the alternative, relying on section 440 of the Municipal Act, 2001, they sought an order requiring the Township to comply with its own by-law and “forthwith” issue a fill permit to 129 Canada.

Findings of the application judge (first-level decision)

After a two-day hearing, Justice Casullo issued an order on 4 February 2026. She dismissed the Township’s application and granted 129 Canada’s application in significant part. The judge concluded that the by-law itself was valid, rejecting the argument that it should be struck down. However, she found that the Township’s insistence that 129 Canada verify the OLS used by Edenvale was ultra vires its authority because aeronautics lies exclusively within the federal domain. On this reasoning, the Township could not regulate the height, placement, or scope of the berm by requiring compliance with aviation-related standards or by effectively enforcing perceived flight-path safety constraints.
The judge further held that by requiring information beyond its jurisdiction, and in circumstances where 129 Canada had otherwise satisfied the requirements of the by-law, the Township had contravened its own by-law. As a result, she ordered that the Township forthwith issue a fill permit to 129 Canada. She also concluded that a Notice of Constitutional Question was unnecessary because the respondents were not attacking the constitutional validity of the by-law itself, but rather asking for a determination that the Township had exceeded its jurisdiction by refusing to issue the permit based on concerns about flight paths and OLS rather than valid municipal criteria.

Post-judgment impasse over what remained outstanding

Following Justice Casullo’s order, the Township informed the respondents that it intended to appeal but would still be prepared to issue the permit if the outstanding by-law requirements—other than the aviation-related requirement found to be beyond its authority—were met. Those outstanding matters included execution of the Fill Permit Agreement, posting of security, and other technical conditions. The respondents took the opposite view, asserting that the permit should have been issued immediately and unconditionally in accordance with the judge’s directive that it be issued “forthwith,” and they contended that they had already met all valid by-law requirements. According to the Township, it continued to observe fill being deposited on the property as recently as late February 2026 despite the ongoing dispute over conditions and the absence of a formally issued permit.

The motion for stay pending appeal in the Court of Appeal

The Township sought to challenge Justice Casullo’s order in the Court of Appeal and, in the interim, brought a motion for a stay of that order pending appeal. The motion was heard by Miller J.A. The Township relied on Rule 63.02 of the Rules of Civil Procedure, and the court applied the familiar RJR-MacDonald test for a stay: (1) whether there is a serious question to be tried on appeal; (2) whether the moving party would suffer irreparable harm if a stay were refused; and (3) where the balance of convenience lies.
On the “serious question” branch, the Township argued that the application judge erred in finding its OLS verification requirement ultra vires and in concluding that the respondents had met all other conditions under the by-law such that a permit should issue. The Court of Appeal held that these issues were clearly not frivolous or vexatious. In particular, the suggestion that a municipality could not even consider whether the placement of a berm on non-federally regulated land might create a risk to aircraft operations—simply because aeronautics is federal—was described as “open to question.” Additionally, the correctness of ordering a permit to issue without security being posted, and the proper interpretation of the by-law’s conditions, were seen as arguable questions appropriate for appellate review.
On irreparable harm, the Township identified two key types of harm. First, it contended that being compelled to issue a permit without satisfaction of valid, outstanding by-law conditions forced it to act contrary to its own legislative instrument. Second, it pointed to evidence that the fill operations had already caused damage to municipal infrastructure and argued that ongoing operations, without compliance with security and technical requirements, risked further permanent damage. The Court of Appeal accepted that these concerns went to the nature of the harm rather than merely its quantum. The court also emphasized that, absent a stay, the Township’s appeal would effectively become moot once the permit issued and fill operations continued, and loss of an effective appeal on the merits constitutes irreparable harm in itself.
On the balance of convenience, the respondents argued that if a stay were granted, 129 Canada might lose the property, and Ms. Williams pointed to a terminated agreement of purchase and sale with a developer, significant financial costs, and negative impacts on her health. While acknowledging these hardships, the Court of Appeal found that the record did not establish irreparable harm to the respondents because there was no evidence showing why damages would not be an adequate remedy. There was no proof of unique or irreplaceable characteristics of the property that would make a monetary award insufficient if the Township were ultimately found liable. In light of this evidentiary gap and the strength of the Township’s concerns about mootness and infrastructure damage, the balance of convenience favoured granting the stay.

Clean hands argument and procedural fairness

The respondents also invoked the equitable “clean hands” doctrine, urging the Court of Appeal to refuse to hear the stay motion and to strike the Township’s Notice of Appeal altogether. They relied on the Township’s prior conduct, including removal of culverts to block access and its alleged failure to comply with Justice Casullo’s order, as grounds to deny it relief. The court carefully considered these allegations but distinguished between the Township’s imperfect conduct and the kind of oppressive or bad-faith behaviour that might disentitle a party from seeking equitable relief. While noting that some of the Township’s actions were “questionable,” the court observed that they were largely reactive to 129 Canada’s illegal dumping and that the Township had ultimately restored access and pursued formal legal channels through applications and an appeal. In these circumstances, the Township’s conduct did not justify striking its appeal or denying it a hearing on the stay.

Outcome, expedited appeal, and treatment of costs

The Court of Appeal ultimately granted the Township’s motion for a stay pending appeal and ordered that the appeal itself be expedited, recognising the contentious history and the public and private interests engaged. Because the proceeding before the Court of Appeal was a motion for a stay of an order, rather than an interlocutory injunction, the court confirmed that no undertaking as to damages was required from the Township in order to obtain the stay. The panel reserved the issue of costs of the motion for the appeal panel that will hear and decide the merits of the appeal.
In terms of overall success at this stage, the Township is the successful party in the Court of Appeal on the stay motion, as it obtained the stay and an order for an expedited appeal. The underlying application decision remains in place but is temporarily suspended pending the appeal. No monetary damages or quantified costs have been ordered in favour of any party under this decision, and the total amount of any costs or monetary award cannot be determined from the available reasons.