CITATION: City of Toronto v. SheppBonn Ltd., 2015 ONSC 3829
DIVISIONAL COURT FILE NO.: 264/14 DATE: 20150813
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
H. SACHS, LEDERER & A.J. GOODMAN JJ.
BETWEEN:
CITY OF TORONTO
Appellant
– and –
SHEPPBONN LTD.
Respondent
Brendan O’Callaghan & Kristen Franz, for the Appellant/Moving Party
Isaac Tang, for the Respondent, SheppBonn Ltd.
Stan Floras, for the Ontario Municipal Board
HEARD at Toronto: May 12, 2015
LEDERER J.:
Background
[1] The Respondent, SheppBonn Ltd., is the owner of 91 Sheppard Avenue East, in the City of Toronto. A building permit was required to make interior alterations to change the use of the building from a single-family dwelling to a commercial health and wellness school. The chief building official did not issue the permit. Rather, she delivered an Applicable Law Notice indicating that the proposal was subject to site plan control.
[2] SheppBonn was unhappy with this result, but did not apply for site plan approval. Instead, it brought a motion to the Ontario Municipal Board (the “Board”) ostensibly seeking directions. The substance of the motion was a request that the Board make a finding that the proposal was not subject to site plan control. In response, the City filed a motion requesting an order that the Board did not have the jurisdiction to determine whether or not the chief building official was correct in refusing to issue a building permit as a result of the failure of SheppBonn to comply with the requirements of site plan control.
[3] In its decision, dated May 14, 2014, the Board concluded that it did not have the jurisdiction to determine whether the chief building official was correct to refuse the issuance of the permit in the absence of compliance with site plan control. However, the Board found that it did have the jurisdiction to determine whether site plan control applied to the proposal. The Board concluded that the interior alterations that SheppBonn sought to make to its property should not be considered “development” that would attract site plan control.
[4] The City of Toronto appeals the Board’s decision. For the reasons that follow, the appeal should be allowed and the decision of the Board set aside. I agree with the City that the Board had no jurisdiction to decide whether site plan control applied to the proposal. In my view, the Board’s decision was inconsistent and contradictory. I say this because it is well-established that once the necessary requirements are complied with, the chief building official has no discretion and is obliged to issue a building permit. In this case, the only unfulfilled requirement was the apparent need to obtain site plan approval. Hence, in deciding that site plan approval was not required, the Board was concluding that the building permit was to be issued. In other words, it was deciding that the chief building official erred when she refused to issue a building permit, something that the Board had already decided it had no jurisdiction to do.
[5] The City sought leave to appeal. This request was based, in part, on this perceived conflict in the Board’s reasons. The judge hearing the motion for leave identified the conflict and concluded that it was difficult to see how the Board could make the two findings because: “A conclusion on the latter question directly affects the result on the former question.”[^1]
Preliminary Issue: Is the appeal moot?
[6] At the outset, counsel for SheppBonn proposed that there was no purpose in proceeding with the appeal. The court was asked to decline to hear the case on the basis that there was no longer a live controversy between the parties. Neither SheppBonn nor its tenant continued to seek the building permit necessary to convert the building to a commercial school. SheppBonn had already applied for a building permit for other interior alterations to renovate the building, this time into a day nursery. The issue that had been before the Ontario Municipal Board was moot. Hearing the appeal would be a waste of judicial resources.
[7] The court did not agree. The fresh application was for a different use, but it raised the same issue. The appeal was heard. These reasons are the decision on its merits.
Standard of Review
[8] The City submitted that the standard of review applicable to this case is correctness. Its counsel proposed that the question of whether the Board has the authority to make the order requested is a true question of jurisdiction and, as such, attracts that higher standard. In taking this position, it picked up from the decision made on the motion for leave to appeal. There the judge determined that “... the appropriate standard of review in this case is correctness”.[^2] Both the judge and counsel made reference to Dunsmuir v. New Brunswick[^3], where the following is said:
Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. ‘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.[^4]
[9] As is well-known, this understanding was modified by Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association[^5] (“Alberta Teachers”), where the Supreme Court observed that the parameters of what stands as a true question of jurisdiction has narrowed considerably to the point where the Supreme Court speculated that it may be that no such questions remain:
The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of ‘its own statute or statutes closely connected to its function, with which it will have particular familiarity’ should be presumed to be a question of statutory interpretation subject to deference on judicial review.[^6]
[Emphasis by underlining added]
[10] Despite this limitation, the judge on the motion for leave to appeal found that the appropriate standard of review was correctness. In coming to this conclusion, he relied on McLean v. British Columbia (Securities Commission)[^7] (“McLean”). It recognized that there is a presumption that deference (reasonableness) will apply where a tribunal is interpreting its home statute or statutes that are closely connected to its function. Such questions are presumed to be questions of statutory interpretation and, on that understanding, subject to deference on judicial review. The Court in McLean relied on Alberta Teachers, but pointed out that it was “…not carved in stone”. It was rebuttable.[^8] The judge on the motion for leave quoted the Supreme Court in McLean:
First, this Court has long recognized that certain categories—even when they involve the interpretation of a home statute—warrant review on a correctness standard.[^9]
[11] The judge on the motion for leave to appeal concluded that this case fell into such a category. As I understand it, the category was “true questions of jurisdiction”. To my mind, this analysis does not fit the circumstances. One needs to look more broadly at the decision in McLean. In that case, the Court concluded it is the tribunal that is in the best position to weigh the policy considerations often involved in the interpretation of its home statute. These considerations may be susceptible to multiple reasonable interpretations:
The answer, as this Court has repeatedly indicated since Dunsmuir, is that the resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker. That is so because the choice between multiple reasonable interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker — not the courts — to make. Indeed, the exercise of that interpretative discretion is part of an administrative decision maker’s ‘expertise’.[^10]
[12] Put simply, whatever may be a true question of jurisdiction (and the Supreme Court has not been precise in its interpretation), the issue in this case is not one. This situation is not “exceptional”.[^11] It does not fall within the examples the Supreme Court has provided:
… decisions of tribunals interpreting their home statute where the issue is a constitutional question, a question of law that is of central importance to the legal system as a whole and that is outside the adjudicator’s expertise, or a question regarding the jurisdictional lines between competing specialized tribunals.[^12]
[13] The issue in this case is a standard question of statutory interpretation concerning the authority the words of the legislation provide to the Board. The Board should be given deference when inquiring into its own jurisdiction because it has the expertise to determine how its mandate over site plans fits into the broader regulatory and decision-making scheme that is concerned planning and development.
[14] The standard of review is reasonableness.
Analysis
(a) The positions of the Parties
[15] SheppBonn sought an order, from the Ontario Municipal Board, that site plan control did not apply to the proposal. It submitted that s. 114(7) of the City of Toronto Act, 2006[^13] provided the Board with the requisite jurisdiction to make this finding:
The owner of land or the City may make a motion for directions to have the Ontario Municipal Board determine a dispute about whether a matter referred to in paragraph 1 or 2 of subsection (5) is subject to site plan control.
[16] The City submits that the authority provided to the Board is more limited. Section 114(7) only gives the Board the jurisdiction to deal with disputes about whether a particular item the City requests be shown on a plan or drawing should be required to be included on the plan or drawing in order for the application to be considered complete. On this view, the section does not give the Ontario Municipal Board jurisdiction to determine whether site plan control applies at all or overall.
(b) The Legislative Scheme
[17] The renovations proposed by SheppBonn required the issuance of a building permit.[^14] In the absence of site plan approval, the chief building official did not issue the permit.[^15] The building was located in an area that had been designated as one to which site plan control applied.[^16] The entire City of Toronto has been designated for this purpose.[^17] The proposed changes are referred to as “interior alterations”. Site plan control applies to “development” as defined by the City of Toronto Act, 2006, s. 114(1):
‘development’ means the construction, erection or placing of one or more buildings or structures on land or the making of an addition or alteration to a building or structure that has the effect of substantially increasing the size or usability thereof, or the laying out and establishment of a commercial parking lot or of sites for the location of three or more trailers or of sites for the location of three or more mobile homes as defined in subsection 46(1) of the Planning Act or of sites for the construction, erection or location of three or more land lease community homes as defined in subsection 46(1) of the Planning Act.
[18] The City submitted that the changes were properly understood to be “development” and, therefore, were subject to site plan control. For this reason, the chief building official did not issue the building permit.
[19] An application for a building permit is made pursuant to the Building Code Act, 1992. Where an applicant is unhappy with the result, s. 25(1) provides for an appeal to the Superior Court:
A person who considers themself aggrieved by an order or decision made by the chief building official, a registered code agency or an inspector under this Act (except a decision under subsection 8(3) not to issue a conditional permit) may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made.
[20] The City submitted that this was the remedy available to SheppBonn, a right or opportunity which it chose not rely on or utilize. SheppBonn does not contest that this was an available option.
[21] The City of Toronto Act, 2006 dictates when site plan approval will be required. Section 114(5) explains that no development shall proceed in an area designated as a site plan control area unless the necessary plans and drawings are approved. The section says:
No person shall undertake any development in an area designated under subsection (2) unless the City or, where a referral has been made under subsection (15), the Ontario Municipal Board has approved one or both, as the City may determine, of the following:
Plans showing the location of all buildings and structures to be erected and showing the location of all facilities and works to be provided in conjunction therewith and of all facilities and works required under clause (11)(a).
Drawings showing plan, elevation and cross-section views for each building to be erected, except a building to be used for residential purposes containing less than 25 dwelling units, which drawings are sufficient to display,
i. the massing and conceptual design of the proposed building,
ii. the relationship of the proposed building to adjacent buildings, streets, and exterior areas to which members of the public have access,
iii. the provision of interior walkways, stairs, elevators and escalators to which members of the public have access from streets, open spaces and interior walkways in adjacent buildings,
iv. matters relating to exterior design, including without limitation the character, scale, appearance and design features of buildings, and their sustainable design, but only to the extent that it is a matter of exterior design, if an official plan and a by-law passed under subsection (2) that both contain provisions relating to such matters are in effect in the City, and
v. the sustainable design elements on any adjoining highway under the City’s jurisdiction, including without limitation trees, shrubs, hedges, plantings or other ground cover, permeable paving materials, street furniture, curb ramps, waste and recycling containers and bicycle parking facilities, if an official plan and a by-law passed under subsection (2) that both contain provisions relating to such matters are in effect in the City
[22] Section 114(5) concerns the approval of the plans and drawings that are required to satisfy site plan control in any given case. Paragraph 1 deals with plans. They are to locate buildings, structures, facilities and works. Paragraph 2 refers to drawings of the buildings, the detail they require, and “sustainable design elements on any adjoining [City] highway”. It is for the City to decide whether compliance with either or both of paragraphs 1 and 2 is required. This is the import of the words “as the City may determine”. These words are separated from the authority to approve the plans or drawings.
[23] The authority to approve whatever is required by the City (one or both of plans (paragraph 1) or drawings (paragraph 2)) lies first with the City. Section 114(5) references a “referral” to the Ontario Municipal Board. This happens when the City fails to approve the plans or drawings within 30 days or if the owner is unhappy with any condition set by the City pursuant to s. 114(11). Section 114(15) states:
If the City fails to approve the plans or drawings referred to in subsection (5) within 30 days after they are submitted to the City or if the owner of the land is not satisfied with any requirement made by the City under subsection (11) or with any part thereof, including the terms of any agreement required, the owner may require the plans or drawings or the unsatisfactory requirements, or parts thereof, including the terms of any agreement required, to be referred to the Ontario Municipal Board by written notice to the secretary of the Board and to the city clerk.
[24] Stepping back, the process, taken as a whole, demonstrates that the primary responsibility for site plan control rests with the City and its officials. It is the City that decides, by passing a bylaw, whether any or what parts of the municipality are to be subject to site plan control. It is the chief building official who, upon receiving a request for a building permit, determines whether site plan control applies to the proposal. It is the City that instructs whether or which plans of the site or drawings of the buildings are required. Finally, it is the City that has the first obligation to approve the site plan and impose any conditions.
[25] Appeals or further inquiry are provided for, but they proceed in different directions. If the issue is whether site plan control applies at all (if the proposal is “development”), an appeal lies to the Superior Court by way of s. 25 of the Building Code Act, 1992. However, if the issue is the granting of site plan approval and the sufficiency of the plans and drawings, that is not a matter for the Court but for the Board.
[26] The process as outlined has coherence. The overall responsibility lies with the City. It does the planning. The threshold question of whether site plan control applies is a question of law or mixed law and fact: Is the proposal “development” as defined by the City of Toronto Act, 2006? It is appropriate that an appeal of this question lies to the Court. If site plan control applies, the sufficiency of the documents and the question of whether they should be approved engage planning expertise. This is something more properly left with the Board, where the necessary expertise resides.
(c) Resolution
[27] This takes me back to s. 114(7), the provision upon which SheppBonn relies.[^18] How does it fit into the scheme? If, as SheppBonn proposes, it allows the Board to determine if site plan control applies at all, it would undo the organization of the process. It would insert the Board into the threshold question of whether site plan approval applied. The Board’s reach would be permitted to extend beyond the question of whether the planning requirements of site plan control have been met.
[28] A plain reading of the words of s. 114(7) suggests this is not what was intended. The motion is for “directions”. Directions, as a rule, do not finally determine an issue so much as they point to how the matter should proceed or the terms on which it is to proceed. More importantly, s. 114(7) speaks of determining whether “a matter” referred to in paragraphs 1 or 2 of subsection 5 is subject to site plan control. In other words, it refers to the constituent elements of the two paragraphs, being the substance or detail of the plans and drawings and not the fundamental question of whether site plan control as a whole applies. In short, s. 114(7) deals with the scope of what a site plan requires in a case where there is development. That question, which is a question of what good planning requires, goes to the Board if direction is needed.
[29] In its ordinary meaning, s. 114(7) indicates that the Board may hear a dispute over what ought to be included in the plans and drawings submitted with the site plan application. With a referral, the Board has the power to resolve disputes about what types of features or design elements should be included in the site plan application (the plans and drawings) and which are listed in paragraphs 1 and 2 of s. 114(5). For instance, it may be necessary to include a landscape plan but not an elevator shaft, or include walkways but not fencing.
[30] Section 114(7) expressly gives the Ontario Municipal Board the power to determine disputes about matters referred to “in paragraph 1 or 2 of subsection (5)”. Had the legislature intended to give the Board the power to determine disputes under s. 114 as a whole, it would not have expressly limited the scope of the inquiry in s. 114(7). Put another way, if the legislature had intended that the Board have the jurisdiction to consider whether site plan control applies, it would have specifically provided that authority.
(d) Confirmation
[31] A review of some history of similar provisions found in the Planning Act[^19] confirms this interpretation. The Planning Act has a longer history than the City of Toronto Act, 2006. It applies generally across the province. The City of Toronto Act, 2006 is specific to the City. Section 41(4.2) was added to the Planning Act in 2002. It is the same as s. 114(7) of the City of Toronto Act, 2006.[^20] Section 41(12) of the Planning Act is the equivalent of s. 114(15) of the City of Toronto Act, 2006.[^21] Prior to the insertion of s. 41(4.2), the only recourse for an owner or a municipality to resolve a dispute over the terms for site plan agreement was s. 41(12). It provides for a full hearing at the Board. With s. 41(4.2) in place, the applicant no longer needs to complete its site plan application and proceed to a full hearing in order to determine whether a drawing or plan, to which it objects, is , in fact, necessary. Instead, the applicant may utilize the provisions of s. 41(4.2) to obtain directions and resolve the dispute over what is needed. So it is with s. 114(7) of the City of Toronto Act, 2006.
Conclusion
[32] In the circumstances, allowing the Ontario Municipal Board to determine whether site plan control applies (that is, whether the proposal is “development” as defined by s. 114(1) of the City of Toronto Act, 2006) does not fall within the reasonable range of alternatives available in interpreting s. 114(7) of that Act. It would undermine the overall structure of the legislation, as well as the governance and responsibility for site plan approval. It is worthwhile remembering that while Dunsmuir v. New Brunswick refers to a “range of possible, acceptable outcomes”, it notes that “... reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”.[^22] A position that is inconsistent with the overall legislative scheme cannot meet this threshold.[^23]
[33] The appeal is granted. The Ontario Municipal Board does not have the jurisdiction to determine whether, in an overall context, site plan control applies to a given project.
Costs
[34] The Ontario Municipal Board does not seek costs nor is it requested to pay costs.
[35] Pursuant to the order of the judge on the motion for leave to appeal, costs of that motion in the amount of $7,500 are to be paid by SheppBonn to the City.
[36] Pursuant to the agreement between counsel, SheppBonn will pay to the City costs of the appeal in the amount of $15,000.
___________________________ LEDERER J.
H. SACHS J.
- J. GOODMAN J.
Released: 20150813
CITATION: City of Toronto v. SheppBonn Ltd., 2015 ONSC 3829
DIVISIONAL COURT FILE NO.: 264/14 DATE: 20150813
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. SACHS, LEDERER & A.J. GOODMAN JJ.
BETWEEN:
CITY OF TORONTO
Appellant
– and –
SHEPPBONN LTD.
Respondent
REASONS FOR JUDGMENT
LEDERER J.
Released: 20150813
[^1]: Toronto (City) v. SheppBonn Ltd., 2014 ONSC 5964, 83 O.M.B.R. 253 (Div. Ct.) (Leave to Appeal Decision), at para. 6. [^2]: Ibid, at para. 8. [^3]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. [^4]: Ibid, at para. 59. This quotation is followed by this citation: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose‑leaf), at pp. 14-3 to 14-6. [^5]: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. [^6]: Ibid, at para. 34. [^7]: McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895. [^8]: Ibid, at para. 22. [^9]: Ibid. [^10]: Ibid, at para. 33. [^11]: Alberta Teachers, supra, note 5, at para. 34. [^12]: Ibid, at para 43, relying on Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at para. 26; Dunsmuir, supra, note 3, at paras. 58-61; and, Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at para. 35, per Fish J. [^13]: City of Toronto Act, 2006, S.O. 2006, c. 11, Schedule A. [^14]: Building Code Act, 1992, S.O. 1992, c. 23, s. 8(1) says:
No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefor by the chief building official.
It was not suggested that this section did not apply. It was, in effect, conceded that a permit was required.
[^15]: The Building Code Act, 1992, ibid, s. 8(2) makes clear that the chief building official “shall” issue a permit
Unless, among other things:
(a) the proposed building, construction or demolition contravenes the building code or any other applicable law.
It was not suggested that site plan control did not fall under the rubric of “any other applicable law”.
[^16]: City of Toronto Act, 2006, supra, note 13, s. 114(2) says:
Where in an official plan an area is shown or described as a proposed site plan control area, the City may, by by-law, designate the whole or any part of such area as a site plan control area.
[^17]: City of Toronto By-law No. 774-2012 at § 415-43 states:
“Area of site plan control”
All land within the City of Toronto boundaries is designated a site plan control area.
[^18]: See para. [14], above, where the section is quoted. I repeat it here for convenience:
The owner of land or the City may make a motion for directions to have the Ontario Municipal Board determine a dispute about whether a matter referred to in paragraph 1 or 2 of subsection (5) is subject to site plan control.
[^19]: Planning Act, RSO, 1990, c. P.13. [^20]: Section 41(4.2) of the Planning Act, ibid, says:
The owner of land or the municipality may make a motion for directions to have the Municipal Board determine a dispute about whether a matter referred to in paragraph 1 or 2 of subsection (4) is subject to site plan control.
[^21]: Section 41(12) of the Planning Act, ibid, says:
If the municipality fails to approve the plans or drawings referred to in subsection (4) within 30 days after they are submitted to the municipality or if the owner of the land is not satisfied with any requirement made by the municipality under subsection (7) or by the upper-tier municipality under subsection (8) or with any part thereof, including the terms of any agreement required, the owner may require the plans or drawings or the unsatisfactory requirements, or parts thereof, including the terms of any agreement required, to be referred to the Municipal Board by written notice to the secretary of the Board and to the clerk of the municipality or upper-tier municipality, as appropriate.
[^22]: Dunsmuir, supra, note 3, at para. 47 [^23]: McLean, supra, note 7, at para. 38.