Court File and Parties
CITATION: City of Toronto v. W.J. Holdings, 2010 ONSC 6067
DIVISIONAL COURT FILE NO.: 18/09 and 495/09
Ontario Municipal Board File Nos.: PL071031 through PL071043
DATE: 20101112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, MOLLOY and SACHS J.J.
B E T W E E N:
CITY OF TORONTO Appellant
Mark Sibone and Sharon Haniford, for the Appellant
- and -
W.J. HOLDINGS LIMITED, CAR-ALLAN INVESTMENTS LIMITED and DAVHILL INVESTMENTS LIMITED Respondents
Alan J. Lenczner, Q.C. and Dena N. Varah, for the Respondents
HEARD at Toronto: October 1st, 2010
REASONS FOR DECISION
H. SACHS J.
INTRODUCTION
[1] The Respondents are the owners of thirteen buildings in the City of Toronto that they wish to demolish. In March 2006, they applied to the City of Toronto (the “City”) for demolition permits. By November 2007, the City had still not made a decision. The Respondents therefore appealed to the Ontario Municipal Board (the “Board”) for an order directing the City to issue them demolition permits. At a preliminary stage of that proceeding, the Board directed the City to indicate its position on the point. The City therefore considered the matter and in July 2008 made a decision refusing to issue the demolition permits.
[2] According to the City, the Respondents’ appeal was from the initial failure of the City to make a decision and was required to have been made within 50 days after the first filing of its application back in March 2006. The City took the position that the Respondents were therefore out of time and argued before the Board that the Board did not have jurisdiction to hear the appeal. The Board rejected this submission. The Board allowed the appeal to continue as an appeal from the City’s decision to refuse the permits, found in favour of the Respondents on the merits, and directed the City to issue the permits in question.
[3] The City applied for leave to appeal to the Divisional Court both the Board’s decision that it had jurisdiction and the Board’s decision on the merits. Dambrot J. granted leave on the jurisdiction question only. Thus, the question before us on this appeal is:
Did the Board err in law in determining that it had jurisdiction to hear the appeal brought by the Respondents?
[4] For the reasons that follow I would answer this question in the negative and dismiss the appeal. In my view, the appeal before the Board was brought in time. My reasons for this conclusion differ from those of the Board in at least one essential respect. Specifically, the Board found that the time limits set out in section 3 of An Act respecting the City of Toronto, 1985, chapter Pr22, were of no force and effect, as they conflicted with the provisions of subsection 33(4) of the Planning Act, R.S.O. 1990, c. P.13. I find that the two provisions are not in conflict. However, I also find that the relevant time limit on this appeal is directory rather than mandatory and that, in any event, the appeal in question was filed in time.
BACKGROUND
[5] On March 6, 2006, the Respondents applied to the City’s Building Division for permission to demolish thirteen buildings that were located on thirteen properties that they owned on a block of land located on Bloor Street West in Toronto.
[6] Nineteen months later the City had still not issued a decision on the Respondents’ application for demolition permits. Thus, on November 16, 2007, the Respondents wrote to the Board appealing the City’s failure to approve their applications.
[7] In accordance with its practice and procedure, the Board convened a pre-hearing conference for the Respondents’ appeal on April 11, 2008. At that conference the Board found that it would benefit them to know the City’s final position on the demolition applications and directed the City to bring the matter forward to the relevant authorities to make a decision as soon as possible.
[8] Pursuant to this direction, the City brought the matter forward before City Council in July of 2008 and the Respondents were notified by letter dated July 22, 2008 that City Council had refused their applications.
[9] On August 5, 2008 the Board held a second pre-hearing conference. At that conference, the parties filed on consent a draft procedural order and an issues list, both of which were approved of by the Board. The first order concerned the procedure that the parties had agreed to follow leading up to and during the appeal hearing. The second identified the issues that were to be addressed at the appeal. The appeal was scheduled to be heard over a four day period, commencing October 21, 2008.
[10] On October 8, 2008 the City raised for the first time the question of the timeliness of the Respondents’ appeal and submitted that the Board did not have jurisdiction to hear the appeal. Their motion to that effect was heard at the beginning of the scheduled hearing and, on December 30, 2008, the Board issued written reasons dismissing the City’s motion. It is that decision that is the subject of the appeal before us.
LEGISLATIVE CONTEXT
[11] The basis for the City’s contention that the Respondents’ appeal was filed out of time is s. 3 of An Act respecting the City of Toronto, 1985, chapter Pr22 (the “Act”). That section reads as follows:
Notwithstanding any other Act, where council of the Corporation has refused to issue a demolition permit under subsection 33(3) of the Planning Act, 1983, or where council has neglected to make a decision therein within one month after receipt of the application by the clerk of the Corporation and where an appeal is taken to the Ontario Municipal Board, the appeal shall be filed within twenty days of the mailing of the notice of refusal, or where the council has neglected to make a decision within one month after receipt of the application by the clerk, the appeal shall be filed within twenty days after the one month period first following receipt of the application by the clerk, and the Board shall hear the appeal and either dismiss it or direct that the demolition permit be issued, and the decision of the Board shall be final.
[12] Subsection 33(4) of the Planning Act, R.S.O. 1990, c. P.13 (the “Planning Act”), also provides the Board with jurisdiction to hear an appeal from council’s refusal or neglect to issue a demolition permit. That subsection reads as follows:
Where the council refuses to issue the permit or neglects to make a decision thereon within thirty days after the receipt by the clerk of the municipality of the application, the applicant may appeal to the Municipal Board and the Board shall hear the appeal and either dismiss the same or direct that the demolition permit be issued, and the decision of the Board shall be final.
THE BOARD’S DECISION
[13] On its motion before the Board on the question of jurisdiction, the City argued that the Respondents had appealed the City’s neglect to make a decision on their application. As such, s. 3 of the Act required that the Respondents’ appeal be filed within 50 days of the date that the Respondents filed their application for the demolition permits (as the appeal must be filed within 20 days following the expiry of one month from filing), namely March 6, 2006. Instead of complying with that deadline, the Respondents filed their appeal 19 months later on November 16, 2007.
[14] In response to this submission, the Board found that there was a clear conflict between the provisions of s. 3 of the Act, which provides for time limits on the filing of an appeal, and s. 33(4) the Planning Act, which contains no time restrictions. Furthermore, section 71 of the Planning Act provides that in the event of a conflict between the “provisions of this and any other general or Special Act, the provisions of this Act prevail”. In view of section 71, and in view of the fact that the Planning Act is a public statute, while the City of Toronto Act, 1985 is a private statute, the Board concluded that the provisions of the former should prevail over the latter.
[15] The Board also found that if they were wrong in their conclusion on the conflict question, the time limits set out in s. 3 had been met. While the initial appeal may have been out of time, the City exercised their discretion and came to a decision to refuse the applications while that appeal was pending and while the City was treating it as a legitimate appeal. Notice of that refusal was not mailed to the Respondents until July 22, 2008. According to s. 3 of the Act, the Respondents had twenty days from July 22, 2008 to appeal the refusal. On August 5, 2008, well within the 20-day time limit, the parties attended before the Board for a pre-hearing conference. At that conference, all the parties, including the City, accepted that there was a validly constituted appeal and defined the issues to be dealt with at that appeal. These issues addressed all the reasons that the City had given for refusing the demolition permits. This met the requirements of section 3. As put by the Board, “[t]o conclude otherwise would be to determine this matter on a technicality…” (Board’s Decision, December 30, 2008 at page 12).
STANDARD OF REVIEW
[16] The standard of review from a decision of the Board concerning matters of jurisdiction is correctness. In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of Canada confirms this proposition:
Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires… “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction…(para. 59, emphasis added).
THE CITY’S POSITON
[17] On the appeal before us, the City submitted that the Board erred when it found that there was a conflict between s. 3 of the Act and s. 33(4) of the Planning Act. The first principle to be applied in considering whether two legislative enactments are in conflict is the presumption of coherence. This presumption requires giving effect to every legislative provision to the fullest extent possible without legislative conflict. In this case, it is possible to comply with both the specific appeal time limits set out in s. 3 of the Act and the more general provisions in s. 33(4) of the Planning Act, which merely describes the entitlement to seek an appeal.
[18] The City also argued that the Board erred when it used the City’s participation in an invalid appeal process that they did not invoke, but were obliged to respond to, as a basis for finding that the requirements of s. 3 of the Act had been met. In making this submission, the City noted that the Board does not have jurisdiction to extend the time for bringing a spent appeal.
THE RESPONDENTS’ POSITION
[19] The Respondents argued that the Board was correct when it found that the provisions of s. 3 of the Act conflicted with the provisions of s. 33(4) of the Planning Act and that the latter Act prevailed over the former.
[20] The Respondents also submitted that the Board was correct in finding that, in the circumstances of this case, the requirements of s. 3 of the Act had been met.
[21] The Respondents made two additional arguments in support of their position that the Board did have jurisdiction to hear the appeals in question. First, they stated that the appeal of November 16, 2007 was timely since it was filed within 30 days of it becoming clear to the Respondents that their applications before the City were at an impasse. And, second, they argued that the use of the word “shall” in s. 3 of the Act was directory rather than mandatory.
ANALYSIS
Is there a conflict?
[22] In Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, Bastarache J. explained at paragraph 47 the concept of legislative conflict and the presumption of legislative coherence:
The starting point in any analysis of legislative conflict is that legislative coherence is presumed, and an interpretation which results in conflict should be eschewed unless it is unavoidable. The test for determining whether an unavoidable conflict exists is well stated by Professor Côté in his treatise on statutory interpretation:
According to case law, two statutes are not repugnant simply because they deal with the same subject: application of one must implicitly or explicitly preclude application of the other.
Thus, a law which provides for the expulsion of a train passenger who fails to pay the fare is not in conflict with another law that only provides for a fine because the application of one law did not exclude the application of the other. Unavoidable conflicts, on the other hand, occur when two pieces of legislation are directly contradictory or where their concurrent application would lead to unreasonable or absurd results. A law, for example, which allows for the extension of a time limit for filing an appeal only before it expires is in direct conflict with another law which allows for an extension to be granted after the time limit has expired (cites omitted).
[23] Thus, if it is possible to interpret two pieces of legislation in a manner that does not produce a conflict, the presumption of legislative coherence would dictate this result. In this case, it is possible to interpret s. 3 of the Act and s. 33(4) of the Planning Act in a manner that allows them to co-exist. Section 3 of the Act sets out time limits for the filing of an appeal, while s. 33(4) describes the general entitlement to seek an appeal. By complying with the time limits set out in s. 3 of the Act, one can assert one’s entitlement to an appeal as described in s. 33(4) of the Planning Act.
[24] The Respondents argue that when they filed their appeal on November 16, 2007, the two provisions were in conflict. Specifically, under s. 33(4) of the Planning Act, they had a right to file their appeal, while under s. 3 of the Act they did not. With respect, this is not what is meant by a conflict. If, at the time appeal rights accrue, it is possible to comply with both provisions, one cannot ignore the time limits in one provision and then, when those time limits pass, claim “conflict.”
[25] In Western Express Air Lines Inc. (Re), 2005 BCSC 53, the British Columbia Supreme Court dealt with the question of conflict in the context of two legislative provisions, both of which provided for the right to assert a claim and only one of which specified a time limit within which that claim had to be advanced. In Western Express, section 251.18 of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended (the “Code”), and section 119(2) of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended (the “CBCA”), provided that directors of companies that declared bankruptcy would be liable to their employees for up to six months of their employees’ salary. In the Code, there was no time limit following the company’s declaration of bankruptcy by which an employee had to pursue their claim against their employer’s director. Under the CBCA, any such claim had to be advanced within six months of bankruptcy being declared.
[26] The Court in Western Express found that there was no conflict between the two provisions. In the result, both pieces of legislation were found to apply to the extent that they both described the same obligations that directors were obliged to meet, and the same entitlement that employees could assert. The court went on to hold that the directors in that case were entitled to rely on the limitation period found in the more specific Code provision to insulate themselves from claims that had been filed outside the six-month time limit.
[27] The relationship between s. 3 of the Act and s. 33(4) of the Planning Act is analogous to the relationship between the two statutory provisions in question in Western Express. As in Western Express, it is possible to read both provisions in a manner that avoids any conflict between them. The reasoning in that case is applicable to the facts of this case.
Is the use of the word “shall” in s. 3 of the Act mandatory or directory?
[28] Section 3 of the Act provides that where council has refused a demolition permit application, the appeal “shall be filed within twenty days of the mailing of the notice of the refusal.” It further provides that “where council has neglected to make a decision within one month after receipt of the application by the clerk, the appeal shall be filed within twenty days after the one month period first following receipt of the application by the clerk” (emphasis added).
[29] At issue in this appeal is whether the use of the word “shall” in relation to the time limit prescribed for the filing of an appeal when council has neglected to make a decision is mandatory or directory. If “shall” is determined to be mandatory, the result of the breach is a total nullity. If “shall” is judged to be directory, the result is an irregularity and can be cured. (R. Sullivan, Construction of Statutes, 5th ed. (Markham, Ontario: LexisNexis, 2008) at p.78).
[30] In Marshall v. Ontario (Child and Family Services Review Board), [1994] O.J. No. 2306 (Div. Ct.), Sutherland J. set out at paragraphs 56-58 three factors that a court is to consider in determining whether “shall” in a statutory provision is mandatory or directory. They are:
(a) The court is to consider the whole scope of the statute at issue with a view to trying to discern the real intention of the legislature in enacting the time limit in question and, in particular, whether the legislature intended that non-compliance with the time limit was to result in loss of jurisdiction or nullification of the action.
(b) If the provision is directed to a public duty that is to be performed within a certain time, then the provision is more likely to be directory.
(c) The court is to compare the possible prejudice to the parties that may arise if the provision is read as mandatory to the possible prejudice to the parties that may arise if the provision is read as directory.
[31] The provision in question here is directed towards the time for filing of an appeal from the City’s failure to make a decision. As such, it does not relate to the performance of a public duty by the party against whom it is directed (i.e. the person filing the appeal). That criterion therefore does not apply. However, for the reasons set out below, I consider the other two criteria support reading the provision as directory rather than mandatory.
The Intention of the Legislature
[32] The City’s position is that the time limits set out in s. 3 of the Act are necessary in the public interest because, while demolition permit applications are pending, municipal authorities are unable to enforce the building standards applicable to buildings situated within their municipalities. This legitimate public interest would dictate both that people who wish to obtain demolition permits should exhaust their available remedies within a defined period of time, and that the relevant municipal authorities should deal with these applications in accordance with some expected time table.
[33] Section 3 of the Act provides that if the City has not made a decision on a demolition permit application, the applicants have another 20 days following the expiry of the first month following the filing of their permit application to file an appeal. Thus, in effect, if there is to be an appeal from a failure on the City’s part to make a decision, it is to be filed within 50 days of the filing of the application.
[34] In this case, it is clear that the necessary steps that had to be taken by the City pursuant to the relevant by-law had not been taken within the 50-day period. For example, the by-law requires that the demolition permit application at issue be considered by the Etobicoke York Community Council. The matter did not come before that Council until March of 2007 (a year after the application was filed), and was then deferred until September of 2007 before a decision was made. On the hearing before us, the City admitted that this was not an exceptional circumstance. Effectively, it is in most cases not possible for the City to process such applications within 50 days of receipt.
[35] Thus, if the City’s position is accepted and the time limit specified for appealing the City’s neglect to deal with an application is a mandatory one, it is a time limit that demands that an appeal be filed before the City could reasonably be expected to have taken the necessary steps to process an application.
[36] It is fair to say that one of the purposes of the section is to provide a remedy to an applicant where the City has neglected to deal with their application in a timely manner. However, it cannot have been the intention of the legislature to force applicants for demolition permits to protect their right to a timely decision by demanding that they file an appeal to the Board before the City could reasonably be expected to have had time to consider their application. Yet, if the time limit for appeal specified in section 3 of the Act is interpreted as mandatory, this is the effect. Every applicant who is worried about obtaining a decision in a timely manner must file an appeal to the Board while the City is taking legitimate and necessary steps to process their application.
[37] Ultimately, the purpose of the time limit in question is to facilitate the more efficient administration of the statutory scheme governing demolition permit applications. To do so by forcing applicants to file appeals before it is appropriate or necessary would be inconsistent with this intent.
Prejudice
[38] I do not find that there is any prejudice that would inure to either the City or people in the position of the Respondents if the time limit is interpreted as a directory one. If the City wishes to have an appeal dealt with more quickly, it can make a decision and then the appeal period provided for in the event of a refusal would be triggered. On the other hand, demolition permit applicants would only have to file their appeals when it is clear that the City has truly neglected to make a decision.
[39] This is in contrast to the prejudice that is created if the time limit is interpreted as mandatory. In this case, the Respondents could lose their appeal right when there is no evidence of any prejudice to the City whatsoever by the Respondents’ failure to assert their right within the prescribed time period. Furthermore, interpreting the time limit as mandatory puts other applicants and the City in the absurd position of having to file and respond to appeals before the City has had the chance to pursue the necessary steps it must take before making the decision it has to make. Demolition permit applicants have no control over when and how council may choose to exercise their duty. A person with an application pending before the City is in the process of attempting to persuade the City as to the merits of the application and answering any concerns raised. It is very much a consultative and cooperative process. Requiring such applicants to file an appeal to protect their rights at an arbitrary point in the process is not conducive to the spirit of cooperation underlying these applications. Applicants should not be faced with the dilemma of choosing between losing their appeal rights if council neglects to perform their duty, and appealing before council has had a chance to perform their duty. Such a result is both unjust and inconvenient.
[40] Taking all of these factors into account, I find that the use of the word “shall” in s. 3 of the Act in reference to the time limit for filing appeals in the event of council neglecting to make a decision is directory, not mandatory.
Was the appeal filed on time?
[41] While it is not necessary to deal with this issue, I also find that the Respondents did file an appeal within the time limit set out in s. 3 of the Act. In reaching this conclusion, it is important to note that s. 3 does not specify the manner in which an appeal must be filed. In fact, when the Respondents “filed” their appeal on the basis of the City’s neglect in making a decision, they did so by way of a letter that simply set out their concerns to the Board.
[42] By the time the Board heard the appeal in question, the City had exercised their discretion and refused the Respondents’ application for a demolition permit. The fact that they did so at the direction of the Board does not change this reality. By letter dated July 22nd, 2008, the Respondents were notified of this refusal.
[43] Fourteen days later, on August 5th, 2008, the parties filed on consent both a draft procedural order and a list of issues that were to be dealt with at the appeal hearing. These issues all arose from the City’s refusal decision.
[44] Section 3 of the Act specifies that an appeal from a refusal shall be filed within 20 days of the mailing of a notice of refusal. In the case at bar, within 20 days of the filing of the notice of refusal, documents had been filed that made it clear that there was to be an appeal and that identified all of the issues that were to be dealt with at that appeal, which arose out of the City’s refusal. In my view, the filing of these documents satisfied the requirement that the appeal be filed within 20 days. The purpose of filing an appeal is to make it clear to the other side that one is appealing a decision and to identify the basis for that appeal. The documents that were filed on August 5, 2008 accomplished that end. In fact, they contained more detail than the documents that are often used to “file” an appeal.
[45] In my view, the Board was entitled at that point to treat the matter as an appeal from the decision to refuse the demolition permits and was acting within its jurisdiction in dealing with the merits of the appeal.
CONCLUSION
[46] For these reasons I would dismiss the appeal. The parties have agreed that the Respondents, being the successful parties, are entitled to their costs of this appeal fixed at $7500.00. Dambrot J. awarded costs in the cause of the leave application in the same amount. Thus, the City shall pay to the Respondents their costs of the matter in the total amount of $15,000.00.
SACHS J.
I agree:___________________________
JENNINGS J.
I agree:___________________________
MOLLOY J.
Released: November 12, 2010
CITATION: City of Toronto v. W.J. Holdings, 2010 ONSC 6067
DIVISIONAL COURT FILE NO.: 18/09 and 495/09
Ontario Municipal Board File Nos.: PL071031 through PL071043
DATE: 20101112
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
JENNINGS, MOLLOY and SACHS J.J.
B E T W E E N:
CITY OF TORONTO Appellant
- and -
W.J. HOLDINGS LIMITED, CAR-ALLAN INVESTMENTS LIMITED and DAVHILL INVESTMENTS LIMITED Respondents
REASONS FOR JUDGMENT
H. Sachs J.
Released: November 12, 2010