COURT FILE NO.: DC-06-081239-00
DATE: 20070328
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Paul Philpott and Christine Philpott v. The Corporation of the Town of Innisfil and Heather Rutherford in her capacity as Chief Building Official of The Corporation of the Town of Innisfil
BEFORE: Justices Ferrier, Cumming and Donohue
COUNSEL: Ellen Anderson and Michael Adams for Appellants/Applicants
Robert Bigioni for Respondents/Respondents
HEARD: March 15 and 16, 2007
E N D O R S E M E N T
CUMMING J.
The Appeal
[1] The appellants appeal a judgment of MacKinnon, J. dated August 23, 2006. He dismissed the appellants/applicants’ appeal of the Chief Building Official’s (“CBO”) denial of their application for a building permit. This matter raises novel legal issues.
[2] We dismiss the appeal. Our reasons follow.
Background
[3] The appellants, Mr. and Ms. Philpott, own property referred to as 1150 Arnold Street in the Town of Innisfil. On September 22, 2004 the Town passed Consolidated By-Law 054-04, which granted single, residential (R1S) zoning for the subject property of the Philpotts. Prior thereto the zoning was “H” or “Hold” which did not permit a single-family residence.
[4] By-law 054-04 was appealed by a number of affected parties (not the applicants).
[5] The Town realized at some point in the fall of 2004 that By-Law 054-04 contained a number of errors, one of which was a clerical, mapping error pertaining to the subject property. The Town had not intended in enacting By-Law 054-04 to change the zoning for the subject property. The purported change was inadvertent.
[6] Learning of the zoning change through By-Law 054-04, the appellants applied for a building permit October 29, 2004, authorizing them to build a single-family home. The application was unilaterally held in abeyance by the Town. The appellants first learned about the clerical errors in By-Law 054-04 at a public meeting May 11, 2005. Mr. Philpott was told at that time of the clerical error relating to his property and that the Town intended to restore the “Holding Zone” to his property.
[7] The appellants were then formally advised by the Town by letter June 3, 2005 that the R1S zoning for their property was a clerical error. They were told that By-Law 054-04 was under a pending appeal, and that an amending by-law would be passed, such that the R1S zoning would fall away and the “Holding Zone ” restored. They were further advised that pursuant to s. 34(30) of the Planning Act, R.S.O., 1990, c. P 13. By-Law 054-04 was not in force until the appeals were dealt with by the Ontario Municipal Board (“OMB”). They were also told that if the amending by-law was appealed the Town would seek consolidation of the hearing before the OMB in respect of the parent By-law 054-04. Further, the Philpotts were told that their application for a building permit would be held in abeyance pending the disposition of By-Law 054-04 and that if they sought an earlier decision on the application it would be denied as the property did not comply with the restrictive zoning currently in place.
[8] The solicitor for the Philpotts responded June 7, 2005, stating in part,
I accept your explanation of the Town’s position and would request that the application be held in abeyance, as suggested by you, until the zoning matters are resolved.
[9] On June 29, 2005 the Town passed amending By-Law 045-05, which rescinded the R1S zoning for the subject property and zoned it as Future Development (FD) Zone. Such zoning would not allow the construction of a single-family dwelling.
[10] By order of the OMB dated July 19, 2005 Consolidated By-Law 054-04 was deemed to have come into force September 22, 2004.
[11] On July 22, 2005 the appellants appealed the amending By-Law (but later withdrew this appeal March 17, 2006).
[12] The appellants were advised by the CBO February 2, 2006 that the permit was refused on the basis of the application not complying with the zoning requirements. The Philpotts appealed and the appeal was heard by Mr. Justice MacKinnon.
[13] MacKinnon, J. held that there was no point in time, relevant to the Philpotts’ application, when the CBO could have issued the building permit under applicable law.
The Law
[14] The CBO cannot issue a building permit where there would be a contravention of the zoning requirements: Building Code Act, 1992, S.O. 1992, c.23, s. 8(1) and 8(2). Section 8 (2)(a) provides:
The chief building official shall issue a permit…unless,
(a) the proposed building…will contravene this Act, the building code or any other applicable law. [Emphasis added]
[15] A by-law does not come into force until all appeals are withdrawn or finally disposed of. Once appeals are exhausted, the by-law is deemed to have come into force on its day of passage. Planning Act, s. 34(30), (31). That is, the by-law comes into force with retroactive effect.
[16] As of October 29, 2004 (the date of the appellants’ application for the building permit) the zoning prohibited the issuance of a permit for a single-family dwelling. Consolidated By-Law 054-04 could not come into force until all appeals were exhausted, ie. at the point of the OMB decision of July 19, 2005: s. 34(30), Planning Act.
[17] Hence, the CBO could not issue the permit between October 29, 2004 (the date of application for the permit) and July 19, 2005, when the OMB hearing disposed of the appeals relating to By-Law 054-04 (with consequential retroactive effect as of that date back to September 22, 2004).
[18] The appellants argue that from its enactment June 29, 2005, until March 17, 2006, when they withdrew their own appeal, there was a stay of amending By-Law 045-05. Thus, the appellants argue that the permit could have been issued after July 19, 2005 and at any point until March 17, 2006 (when the appeal was withdrawn) when amending By-Law 045-05 came into force with retrospective force to June 29, 2005.
[19] The CBO was called upon by the appellants July 22, 2005, and some eight times thereafter, to review and approve their application for a permit. The CBO did not make her decision on the application until February 2, 2006. She says she made her decision at that time because counsel for the appellants/applicants “pressed for a final decision in the matter.” She looked to amending By-Law 045-05 as “applicable law” within the meaning of s. 8 (2)(a) of the Building Code Act, 1992 for the purposes of her decision. Given her view as to the “applicable law”, the permit could not be approved. Assuming this interpretation and application of the law is correct, there was non-compliance with the zoning requirements.
[20] The retrospective effect of amending By-Law 045-05 was only operative at the later point in time, March 17, 2006, when there was a withdrawal of the appellants’ appeal re that amending By-Law. MacKinnon J. held (para. 29 of his decision):
…When the CBO was called upon to make a decision, she was entitled to look and did look at the amending Bylaw 045-05 as applicable law for her decision. It would have been inappropriate for her to act in a way that was contrary to the clear intention of her council as expressed by its passage June 29, 2005 of the amending Bylaw 045-05. Innisfil’s clear intention was to correct drafting errors in Bylaw 054-04 and not to permit the building of a home on the appellants’ property.
[21] We agree with this finding. We are of the view MacKinnon, J correctly interpreted and applied the law to the facts at hand.
[22] We add the following observation. The appellants knew of the clear intention of the Town to bring into force amending By-Law 045-05 as of June 29, 2005, which would ultimately be retrospectively in force as of that date, but was put in abeyance because of appeals, including the appeal of the appellants.
[23] The appellants knew that once their appeal would be dealt with at the scheduled appeal hearing March 27, 2006, their appeal would be exhausted and amending By-Law 045-05 would come into force retrospectively to June 29, 2005. It is reasonable to infer this is why the appellants requested on some eight occasions a review of their pending application for a permit between July 22, 2005 and February 2, 2006. Moreover, the appellants were being encouraged by the Town’s Director of Planning to withdraw their application for a building permit but refused to do so.
[24] The certainty of the inevitability of amending By-Law 045-05, with impending ultimate retroactive effect to June 29, 2005, was, of course, known to the CBO when she made her decision to refuse the permit February 2, 2006. Indeed, the CBO would have known of this certainty as of June 29, 2005 when the amending By-law was enacted. This certainty would also be known to the appellants as of June 29, 2005, which is why they were seeking, quite understandably, a decision on their application for a permit as of July 22, 2005 and before amending by-Law would come into force with retroactive effect as of June 29, 2005.
[25] There are two questions raised in respect of the interpretation of s. 8 (2)(a) of the Building Code Ac, 1992. First, what is the relevant point in time as to when “applicable law” is to be considered? Is it (as argued by counsel for the appellants) when the application for a permit is submitted (here, October 29, 2004)? Or is it at the later point in time when the CBO makes a decision in respect of the application?
[26] In our view, and we so find, the pertinent point of time for a determination by the CBO of “applicable law” is at the time of the CBO’s decision in respect of an application for a building permit. First, the plain wording and meaning of s. 8(2)(a) suggests this interpretation. Second, the policy underlying the imposition of zoning standards is to have orderly development for the general advantage of the overall community as seen by the elected governmental body with the legal authority to enact zoning requirements.
[27] It seems contrary to the policy objectives underlying the legislation that a CBO would be obliged to approve an application for a permit simply on the basis of the “applicable law” as fixed on the date the application was submitted. Consider a hypothetical example. Would this approach be consistent with the policy objectives if the application was submitted on day #1; a downzoning by an amending by-law came into force on day #2; and the application was handed to the CBO for decision-making only on day #3?
[28] The second question relates to what specifically is embraced within the term “applicable law”. Section 1.1.3.3 (1) of O. Reg. 403/97, enacted pursuant to the Building Code Act, 1992, gives an extensive definition for “applicable law”, which includes (at 10. (d)) “by-laws made under section 34 …of the Planning Act….” The question then is- does this definition embrace amending By-Law 045-05, enacted June 29, 2005, for the purpose of the CBO’s decision-making February 2, 2006 in refusing to issue the building permit applied for October 29, 2004? The amending By-Law would only come into force at a later date, March 17, 2006 (when the final appeal was withdrawn). However, at that point Amending By-Law 045-05 would have retroactive effect to June 29, 2005.
[29] In our view, and we so find, the CBO correctly applied “applicable law” (as set forth in s. 8 (2)(1) of the Building Code Act and O. Reg 403/97) as including Amending By-Law 045-05 in making her decision in respect of the appellants’ application for a building permit. This interpretation is consistent with, and gives effect to, the apparent underlying public policy to the overall regime of the Building Code Act, 1992 and zoning by-laws.
[30] Where the subsequent by-law (amending By-Law 045-05) awaiting OMB review before it comes into force retrospectively is more restrictive than the prior by-law (Consolidated By-Law 054-04), a CBO should treat the subsequent by-law as “applicable law”, pending the OMB decision. However, where the subsequent appealed by-law (Consolidated By-Law 054-04 in relation to the prior by-law it was amending) is not more restrictive than the prior by-law, the plain meaning of the first part of s. 34(30) (that the amending by-law is not in force until the appeals have been disposed of) requires the CBO to not consider the amending by-law as “applicable law” until it comes into force, but rather, to look to the pre-existing by-law then in force. See the reasons of Cameron J. in Hastings Corp. v Toronto (City) Chief Building Official, [2004] O.J. No. 521 at paras. 63-65, affm’d (2004). 50 M.P.L.R. (3d) 31 (Div. Ct.) at paras. 28, 30 and 31.
[31] See also Foodcorp Ltd. v. Brampton (City), [1994] O.J. No. 2379 (Ont. Co. Ct.) at paras. 28-31; Hastings Corp. v. Toronto (City) Chief Building Official; Re Donald Bye Excavating Co. Ltd. et al and City of Peterborough, 1972 509 (ON CA), [1973] 1 O.R. 139 (Ont. C.A.). Re Woodglen &Co. Ltd. and City of North York et al, (1984), 47 O.R. (2d) 814 (Div. Ct.), is distinguishable on its facts, where the Divisional Court held that an “official plan” was not a “law” and the mere expression of intention of the municipality to re-zone in the future was insufficient to refuse the issuance of a permit. Similarly, Mahew v. Hamilton [2002] O.J. No. 1962 (S.C.J.) is distinguishable from the situation at hand, where MacDougall, J. held that a mere “subdivision agreement” was not an “applicable law.”
[32] In short, the CBO was entitled to look to amending By-Law 045-05 as “applicable law” when she made her decision February 2, 2006, given the intent of Council in enacting the amendments to correct previous clerical, mapping errors in Consolidated By-Law 054-04, the actual enactment of amending By-Law 045-05 as of June 29, 2005 to meet this objective, and the certainty that the amending by-law would have force retrospectively to June 29, 2005 once the appellants’ appeal (and any other appeal) was exhausted.
[33] We find there was no error in law on the part of MacKinnon J., nor any error in his determination of matters of mixed law and fact, nor any palpable and overriding error in his findings of fact.
[34] In our view, the evidentiary record also establishes the CBO engaged in an impartial and fair consideration of the appellants’ application for a building permit, as required by ss. 1.1(6), 7.1.and 8 of the Building Code Act, 1992 and by the Innisfil Code of Conduct for Building Officials. There was some delay in making the decision. MacKinnon was critical of this delay but found there was not any bad faith, noting the “considerable confusion in the Innisfil planning process.”
Disposition
[35] For the reasons given, the appeal is dismissed.
[36] Submissions were made as to costs. Costs would normally follow the event. However, given all the circumstances of this case, and the relative novelty of the legal issue, in our view this is a situation where costs should not be awarded.
CUMMING J.
FERRIER J.
DONOHUE J.
DATE: March 28, 2007