15515280 Ontario Limited v. Waterloo, 2015 ONSC 856

CITATION: 15515280 Ontario Limited v. Waterloo, 2015 ONSC 856

COURT FILE NO.: DC-13-480JR

DATE: 20150205

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: 1515280 Ontario Limited, Applicant

AND:

City of Waterloo, Respondent

BEFORE: Matlow, Mew and Myers, JJ:

COUNSEL: Nathan Chang, Agent for the Applicant (With leave)

Michael A. van Bodegom, Counsel, for the Respondent

HEARD: October 3, 2014 at Hamilton

ENDORSEMENT

MATLOW, J:

This application for judicial review

[1] The applicant, represented with leave by its sole shareholder, brings this application for judicial review to raise two issues related to the effort of the respondent to require the applicant to obtain licences in relation to certain buildings owned by the applicant that contain residential rental units that it rents to tenants. The respondent relies for this requirement on the provisions of is Residential Housing Licencing By-Law 2011-047 which it claims requires that the applicant be licensed.

The issues

[2] The first issue is whether the applicant is exempt from the respondent’s efforts by reason of an exemption provision contained in section 2.7 of the by-law that states in part that “a licence to carry on a Residential Rental Business shall not be required for an Apartment Building”.

[3] It is accepted by both parties that it is only if the subject buildings qualify as “Apartment Buildings” that the licencing exemption can apply.

[4] The determination of this issue rests on the definition of “Apartment Building” contained in the by-law which reads as follows:

“Apartment Building” means a Building, including a maisonette:

containing four (4) or more Dwelling Units;

where the Dwelling Units are horizontally separated; and,

where each Dwelling Unit has access to a common interior corridor system with a common exit at grade level.

[5] “Dwelling Unit” is defined elsewhere in the by-law but its definition is of no consequence to the case at bar.

[6] It is the position of the respondent that an “Apartment Building” must have all of the characteristics set out in the above definition and, because the units in the subject buildings are, for example, vertically rather than horizontally separated and do not have an interior corridor system with a common exit at grade level, the buildings do not qualify as “Apartment Buildings”.

[7] It is the position of the applicant that the definition of “Apartment Buildings” is satisfied if any one of the three listed requirements is met. That is, it argues that the requirements are to be read disjunctively rather than conjunctively.

[8] In my view, the definition cannot be read sensibly on a disjunctive basis. On the applicant’s argument, any building containing more than four Dwelling Units would automatically qualify as an Apartment Building. This makes the other two requirements superfluous. Moreover, grammatically, the applicant ignores the use of the word “and” after the second requirement.

[9] I am satisfied that the clear language of the by-law supports the respondent’s position and that the applicant’s claims for exemption must fail.

[10] The second issue relates to the form of the respondent’s “Rental Housing Licencing Application” which the applicant has refused to execute and submit to the respondent. As a result of the applicant’s refusal, the respondent has issued multiple work orders against the applicant requiring it to submit applications for licencing by stipulated deadlines.

[11] The portion of the application form to which the applicant has taken its primary objection is in the form of a statutory declaration in which an agent of the applicant is required to state under oath that the subject properties are “in compliance with the Building Code Act, 1992, or any regulations made under it, including the Building Code”, that they are “in compliance with the Fire Protection and Prevention Act, 1997, or any regulations made under it, including the Fire Code,” and that they are in compliance with the Electricity Act, S.O. 1998, c. 15, Sched. A, as amended or any regulations made under it, including the Electrical Safety Code”.

[12] It is accepted by both parties that the subject buildings were constructed many years before any of the statutes referred to in the application form were enacted. Accordingly, it is the applicant’s position that it is not required by law to comply with the statutes and that the statutes have application only to buildings that have not yet been constructed.

[13] The applicant reads the requirement of the statutory declaration as requiring him to confirm that statutes apply retroactively to its buildings. That is, Mr. Chang fears that the municipality is trying to enforce statutes that do not apply to his grandfathered buildings through the device of requiring him to confirm that he and his buildings comply with laws that do not apply them. This, he argues, is beyond the legislative competency of the respondent municipality.

[14] The respondent denies that it is trying to have the applicant or any property owner confirm the applicability of statutory provisions that do not by their own terms apply to the owner or its buildings. Some elements of the current statutes may well apply to the applicant’s buildings. The respondent argues that it only requires the applicant to confirm its compliance with provincial laws that apply to it whatever they may be.

Analysis

[15] In my view, the provincial legislation referred to above contains provisions that are applicable only to buildings yet to be constructed as well as to provisions that are applicable even to buildings that were constructed before the legislation was enacted. Whether a provision is applicable to only one category or both depends on the language of each provision and the context in which it appears in the language. For example, even though much of the Building Code Act, 1992 clearly applies only to new construction, other parts such as those dealing with “construction and demolition”, “property standards”, “unsafe buildings” and “maintenance inspection programs” clearly apply to buildings such as the appellant’s. Similar examples can be found in the balance of the provincial legislation.

[16] In my view, the applicant is reading too much into the statutory declarations required by the respondent. Requiring the applicant to confirm that its buildings comply with existing provincial legislation should not pose a challenge to the applicant. To the extent that the legislation applies to the applicant or his buildings by its terms, then the applicant must comply with those terms and should properly be able to confirm that it has done so. If parts of the provincial legislation do not apply to the applicant or to its buildings, due, for example, to grandfathering, then the applicant commits no breach of the legislation by failing to comply with those parts. It can still confirm that it complies with provincial law as it complies with those parts of the law that apply to it. What the applicant does not want, is to be forced to comply with aspects of provincial law which do not apply to it. Neither the respondent’s form nor the by-law asks the applicant to do so. As conceded by counsel to the respondent before the court, by confirming that it is in compliance with law, the applicant is not confirming that it complies with laws that do not apply to it. Nor does the respondent ask that it do so.

Disposition

[17] For these reasons, this application for judicial review, by which the applicant seeks declaratory and other relief, is dismissed.

Costs

[18] The parties may exchange and submit written submissions, in triplicate, no later than on February 23, 2015. The submissions should be delivered to the office of this Court at Hamilton.

Matlow, J.

Mew J.

Myers J.

Date: February 5, 2015