CITATION: Ashburner v. Adjala-Tosorontio, 2016 ONSC 2665

DIVISIONAL COURT FILE NO.: 828/15

DATE: 20160606

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, STEWART and THORBURN J.J.

B E T W E E N :

PETER ASHBURNER, PHYLLIS ASHBURNER AND THOMAS ASHBURNER

Applicants/Respondents

– and –

THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO, KARL KORPELA IN HIS CAPACITY AS CHIEF BUILDING OFFICIAL FOR THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO, KARL KORPELA AND TUIRE PICKERING AND PAUL PICKERING

Respondents/Appellants

Marshall Green and Bola Ogunmefun, for the Applicants/Respondents

James Feehely and Peter McKenna, for the Corporation of the Township of Adjala-Tosorontio

Karl Korpela in his capacity as Chief Building Official for the Corporation of the Township of Adjala-Tosorontio and Karl Korpela

Robert Brown, for Tuire Pickering

HEARD: April 6, 2016

M. DAMBROT J.:

[1] Tuire Pickering resides in the small corner of the Oak Ridges Moraine that is situated in the Township of Adjala-Tosorontio (“the Township”) in Simcoe County and raises horses on her property. In 2005, she obtained a building permit and built a barn to accommodate her six horses. In 2011, she obtained a second building permit and constructed a riding arena on her property to train her horses.

[2] In 2013, her neighbours, the Ashburners, appealed the decision to issue the building permit pursuant to s. 25 of the Building Code Act, 1992, S.O. 1992, c. 23. Justice Quinlan rescinded the permit. Ms. Pickering and the Township appeal to this Court from that decision.

Background

[3] The Township is located in the southwest corner of Simcoe County. It is sparsely populated and is primarily agricultural and rural in nature. The southern portion of the Township falls within the Oak Ridges Moraine, a significant geological feature in south-central Ontario. Horses, including thoroughbred and show horses, are bred, raised and maintained in the Township. A number of properties have tracks and stables associated with them for this purpose. In addition, several indoor riding arenas are located within the boundaries of the Township. The majority of these arenas are in the Moraine.

[4] Tuire and Paul Pickering purchased a twenty-two-acre property located within the Moraine section of the Township in 2004, with the intention of raising and training horses on it. The property currently consists of a house, a 2,000 square foot horse barn and a recently constructed 7,000 square foot riding arena. The Pickerings built the barn in 2005, under the authority of a building permit, in order to accommodate six of their own horses. The riding arena was built for Ms. Pickering’s personal use pursuant to a building permit issued on August 25, 2011. Mr. Pickering is deceased, and Ms. Pickering is now the sole owner of the property.

[5] Phyllis and Peter Ashburner reside across the road from Ms. Pickering. Their property is a 100-acre parcel of land consisting of a house, a garage, a bank barn and an equipment shed. They raise beef cattle on their property.

[6] In November, 2010, the Pickerings had decided that they wanted to build a riding arena and retained a builder. They proposed to build the arena in the front yard of the existing house, believing that this was the only viable location given the rolling nature of the land behind their house.

[7] On April 12, 2011, the Pickerings applied: (1) to the Committee of Adjustment for a minor variance to reduce the front yard setback for the arena from 30 metres to 23 metres; (2) to the Chief Building Official (“CBO”) for a building permit to allow construction of the arena; and (3) for a site plan review to regulate the arena.

[8] The Ashburners attended the meeting of the Committee of Adjustment and objected to the reduction of the setback. The Committee of Adjustment deferred the request to permit the Pickerings to consider other options. By letter dated May 20, 2011, Ms. Pickering withdrew the application. The arena was re-oriented from an east-west direction to a north-south direction to put it inside the required 30 metre setback. The Ashburner residence is now separated from the arena by 122 metres.

[9] The Ashburners maintained their opposition to the proposed arena. Their counsel wrote to the Township on June 13, 2011, and claimed that the issuance of a permit would violate Township By-law 03-56 and, as a result, would offend the Building Code Act. The Ashburners contended that By-law 03-56 did not permit any form of equestrian use; that the arena would be an “accessory use” that was also prohibited by the By-law; and that the arena constituted a major development under Section 4.12.8 of the Township’s Official Plan Amendment #3 and the Oak Ridges Moraine Conservation Plan, but could not meet the requirements associated with major developments.

[10] The Township Planner conducted a zoning review, and concluded that: (1) the riding arena complied with By-law 03-56; (2) the riding arena would be a principal agricultural structure as permitted by By-law 03-56; and (3) the impacts on the Oak Ridges Moraine could be addressed by way of an environmental evaluation conducted by a qualified professional.

[11] The Township and Ms. Pickering executed a Site Plan Agreement on August 16, 2011. This agreement required Ms. Pickering to obtain a natural heritage evaluation of potential Moraine impacts and undertake extensive landscaping to screen the arena structure.

[12] Ms. Pickering retained Michalski Nielson Associates Limited, specialists in environmental planning, to conduct the required natural heritage evaluation for her property. The firm produced two reports, which were peer-reviewed for the Township by an independent engineer. Both Michalski Nielson Associates Limited and the independent engineer were satisfied that the proposed arena would not impact the Moraine.

[13] On August 25, 2011, relying on the Township Planner’s confirmation of zoning compliance, and having no issues with the technical structure requirements of the Building Code, O. Reg. 332/12 or relating to any “applicable law,” the CBO issued the Permit.

[14] The Ashburners appealed the CBO’s decision to issue the Permit pursuant to s. 25(1) of the Building Code Act. Although an appeal pursuant to s. 25(1) is intended to be resolved expeditiously (see Metro1 Development Corp. v. Toronto (City), 2014 ONSC 4225, at para. 34), the appeal was not heard until April 2, 2015. Section 25(7) does not stay the operation of a decision appealed pursuant to s. 25(1) but does provide that a judge may order a stay on such terms as are just. No stay was sought by the Ashburners.

[15] On June 8, 2015, Quinlan J. allowed the appeal, and:

i. declared that the decision of the CBO to grant the permit was made in error because the application did not comply with all applicable law as required by the Building Code Act;

ii. rescinded the decision of the CBO to issue the permit;

iii. declared the permit to be invalid; and

iv. revoked the permit.

The Zoning Framework

[16] The Township was created in 1993 when the County of Simcoe Act, 1993, S.O. 1993, c. 33, merged the townships of Adjala and Tosorontio. The amalgamation took effect on January 1, 1994. The new Township adopted an Official Plan on November 2, 1998. It was approved with modifications by the County of Simcoe on October 28, 1999 and consolidated in November, 2000 (“the 2000 OP”). The Official Plan contains robust policies designed to encourage, promote and preserve the agricultural and rural nature of the Township.

[17] The Oak Ridges Moraine Conservation Plan, O. Reg. 140/2 (“the Moraine Plan”) was enacted on April 22, 2002, pursuant to the Oak Ridges Moraine Conservation Act, 2001, S.O. 2001, c. 31. The Moraine Plan is designed to protect the ecological and hydrological integrity of the Oak Ridges Moraine Area. The Oak Ridges Moraine Conservation Act requires municipalities to bring their planning documents into conformity with the Moraine Plan.

[18] The Township completed its conformity exercise by adopting Official Plan Amendment #3, Oak Ridges Moraine Conservation Plan (“OP No. 3”) on July 19, 2004. OP No. 3 was approved with modifications by Ontario on December 6, 2004, and March 9, 2006. OP No. 3 continued to recognize agricultural uses and did not alter the agricultural/rural policies in the 2000 OP.

[19] The Township passed the Oak Ridges Moraine Conservation Plan Zoning By-law 03-56 (“By-law 03-56”) on October 20, 2003, in order to implement OP No. 3. By-law 03-56 was approved with modifications by the Minister of Municipal Affairs and Housing on August 30, 2007. The Township also passed Zoning By-law 03-57 to govern its land outside the Moraine.

[20] The Township consolidated the 2000 OP with OP No. 3 in October, 2008 (“the Consolidated OP”). No changes were made to the agricultural and rural polices.

[21] By-law 03-56 divides the portion of the Moraine in Adjala-Tosorontio into ten zones. The property owned by the Pickerings falls within the Oak Ridges Moraine Linkage Zone (“ORML”) and is governed by s. 11 of the By-law.

[22] Section 11 of By-law 03-56 recites that the ORML zone represents areas that support the movement of plants and animals among the Natural Core Areas – areas that have a high concentration of specific natural features.

[23] Section 11.1 of By-law 03-56 prohibits the use of any lot or the erection, alteration or use of any building or structure within the ORML except for nine listed uses, and six additional uses subject to demonstration that certain prerequisites are met. The listed uses of relevance here include “agricultural uses as defined in Section 2.4 of this By-law”.

[24] Section 2.4 of By-law 03-56 defines agricultural use in the By-law as follows:

AGRICULTURAL USE: means,

a) Growing crops, including nursery and horticultural crops,

b) Raising livestock and other animals, including poultry and fish, for food and fur,

c) Aquaculture, and

d) Agro-forestry and maple syrup production.

[25] Only Section 2.4 (b) is pertinent here. Livestock, as included in s. 2.4 (b), is defined in s. 2.71 of By-law 03-56, as follows:

LIVESTOCK: means chickens, turkeys, cattle, hogs, horses, mink, rabbits, sheep, goats, fur bearing animals, ratites or any other domestic or game animal raised for the purpose of human consumption for food, fur and/or leather.

[26] In addition, By-law 03-56 distinguishes between principal buildings and accessory buildings or structures, and places limits on accessory buildings. Of relevance here, s. 3.4 provides that an accessory building or structure in the ORML is not permitted in the rear yard or side yard (presumably of the principal building that it is accessory to), and its gross floor area may not exceed 100 square metres.

[27] A principal building is defined in s. 2.16 as follows:

… a building and/or residential dwelling in the case of an agricultural use in which the main use on the lot is conducted.

[28] An accessory building or structure is defined in s. 2.1 as follows:

… a building that is secondary or incidental to and is exclusively devoted to the Principal Buildings, and/or structure and/or use and is located on the same lot therewith.

[29] Section 8(1) of the Building Code Act provides:

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.

[30] Section 8(2) of the Act provides:

The chief building official shall issue a permit referred to in subsection (1) unless,

(a) the proposed building, construction or demolition will contravene this Act, the building code or any other applicable law; …

[31] Section 1.4.1.3(1) of the Building Code provides:

For the purposes of clause 8(2)(a) of the Act, applicable law means,

(a) the statutory requirements in the following provisions with respect to the following matters:

(xx) section 41 of the Planning Act with respect to the approval by the council of the municipality or the Ontario Municipal Board of plans and drawings …

The Decision of the Appeal Judge

[32] I will briefly summarize the three significant determinations made by the appeal judge that led her to rescind the building permit.

1. What is the Standard of Review?

[33] The appeal judge identified a standard of review only when she came to the determination of whether or not to rescind the building permit, adopting the following principles from other decisions involving s. 25 appeals:

• Questions of law are to be reviewed on a standard of correctness;

• Questions of fact are entitled to deference;

• Questions of mixed fact and law are reviewed on a standard reflecting the degree to which the decision is a question of law or a question of fact;

• The standard of review finds itself on a continuum between correctness and patent unreasonableness.

[34] In the end, she decided that the standard of review of the CBO’s decision was correctness because it related to the question of law of whether or not the riding arena was permitted under the By-law which, in turn, turned on “the interpretation of the uses permitted under [the By-law] and on the need for compliance with the mandatory provisions of O.P.A. No. 3.”

2. Is a Riding Arena a Permitted Use under the By-law?

[35] By-law 03-56 permits agricultural uses, which are defined as raising livestock and other animals, including poultry and fish, for food and fur. Livestock is also a defined term. As a result, the appeal Judge concluded that, on a plain reading of the By-law, and reading these definitions together, neither livestock nor other animals can be raised other than “for the purpose of human consumption for food, fur and/or leather.”

[36] As a result, the appeal judge concluded that it was not necessary for her to decide whether or not the riding arena is an accessory building or a principal building, although she indicated in passing that she thought that it was an accessory building.

3. Was the CBO Required to Consider OPA No. 3 and the “Major Development” Policy?

[37] There was no dispute on appeal that the construction of the arena was a major development. The appeal judge concluded that before issuing a building permit for a major development in the Natural Linkage Area the CBO was required to take into account the fact that the Site Plan Agreement did not conform to OPA No. 3, which prohibits major development in that area unless a watershed plan, water budget and conservation plan had been completed. Since these were not completed, and since site approval is required before a building permit is to be issued because site approval is “other applicable law,’” the CBO should not have issued the permit.

The Standard of Review on the Appeal to the Divisional Court

[38] Section 26(1) of the Building Code Act provides that a party to a hearing before the Superior Court of Justice under section 25 may appeal from the decision to the Divisional Court. By virtue of s. 26(3), such an appeal may be made only on a question of law, or a question of mixed fact and law. The standard of review in this court is correctness on questions of law and palpable and overriding error on questions of mixed fact and law unless there is an extricable legal principle: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Ottawa (City) v. Ottawa (City of, Chief Building Official) (2003), 2003 49413 (ON SCDC), 180 O.A.C. 48 (Div. Ct.) and Toronto District School Board v. Toronto (City), 2014 ONSC 5494, 329 O.A.C. 40 (Div. Ct.).

Analysis

[39] I will begin by considering the standard of review applied by the appeal judge. In this case, whether or not the appeal judge applied the correct standard of review is an important consideration in assessing the other alleged errors.

1. What is the Standard of Review on a Section 25 Appeal?

[40] Section 25(1) of the Building Code Act permits persons who consider themselves aggrieved by an order or decision made by a Chief Building Official to appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made. While s. 25 provides for an appeal, it is an appeal from an administrative decision, and attracts the standard of review analysis that applies to judicial review rather than the one for appeals from decisions of courts.

[41] While there is some inconsistency in the case law on the issue of the standard of review on a s. 25 appeal, the question has been determined definitively by this court in Toronto District School Board v. Toronto (City), subject to what I will have to say momentarily about interpreting what I would refer to as a home by-law. In Toronto District School Board, Justice Swinton stated, at para. 18:

The application judge correctly held that the standard of correctness applies with respect to questions of law determined by the CBO. However, with respect to questions of fact and mixed fact and law, the decision is to be reviewed on a standard of reasonableness (Berjawi v. Ottawa (City), 2011 ONSC 236, [2011] O.J. No. 379 (S.C.J.) at para. 12).

[42] In Berjawi, Hackland J. stated, at para. 12:

Considering these principles, it must be recognized that municipal planning and zoning are specialized areas which fall within the expertise of the CBO. Most of the determinations made by CBO’s [sic] in the context of by-law interpretation are mixed questions of fact and law. This requires a significant degree of deference for all but purely legal questions. For most issues, the standard of review will be reasonableness. In Dunsmuir, the court noted that when determining the reasonableness of a decision, a reviewing court should inquire into the qualities that make a decision reasonable, such as the existence of justification, transparency and intelligibility. More particularly, to be upheld on a reasonableness standard, the decision must fall within a range of possible, acceptable outcomes which are defensible in respect of both the facts and the law.

[43] As I have already noted, the appeal judge decided most of the issues on the appeal before making reference to a standard of review and, in the end, determined that the standard of review of the CBO’s decision was correctness because it related to a question of law, namely whether or not the riding arena was permitted under the By-law.

[44] In my view, the appeal judge fell into error in her statement of the standard of review, both in her approach and in her conclusion.

[45] With respect to her approach, rather than examining the various issues she was called upon to decide, and determining what standard of review applied to each of them, she settled on a single overriding standard of review.

[46] With respect to her conclusion, she decided that simply because the CBO’s decision related to a question of law, the standard of review was correctness. However, for the most part, she ought to have reviewed the decision of the CBO on a standard of reasonableness. As Hackland J. noted in Berjawi, most of the determinations made by CBOs in the context of by-law interpretation are mixed questions of fact and law. That is certainly the case here. For example, the question of whether the riding arena was a principal or accessory building is quintessentially a question of mixed fact and law that should have been reviewed on a reasonableness standard, and should have attracted deference. I see no indication that the appeal judge displayed deference to the CBO on this or any other issue raised before her.

[47] I will consider whether or not there are any extricable issues of law that were properly decided on a standard of correctness in due course.

2. Is a Riding Arena a Permitted Use under the By-law?

Can horses be raised other than for food, fur or leather?

[48] As I have noted, although By-law 03-56 permits the raising of livestock in the ORML, and although the By-law includes horses in the definition of livestock, the appeal judge concluded that on a plain reading of the By-law neither livestock nor other animals, including horses, can be raised other than “for the purpose of human consumption for food, fur and/or leather.” She recognized that this was a surprising result, stating, at para. 40:

I recognize that my interpretation of By-law 03-56 does not permit the raising of horses for a recreational use and that horses are not generally raised for food and fur. However, although I have considered the by-law’s “policy derivation and basis within the OP”, to interpret By-law 03-56 as argued by the respondents would require me to ignore the by-law’s ordinary and plain meaning.

[49] In my view, the appeal judge erred in law in the approach she took to the interpretation of the By-law for two fundamental reasons. First, I conclude that she erred in law in reviewing the CBO’s interpretation of the By-law on a standard of correctness instead of reasonableness. Second, even if she did not err in her selection of the standard of review, she erred in not taking into consideration the CBO’s interpretation of the By-law and, in any event, erred in her approach to the proper construction of the By-law.

[50] First, with respect to the standard of review, there is a developing line of authorities stating that, while decisions of law made by an administrative decision-maker that are of central importance to the legal system or are outside the decision-maker’s area of expertise are to be reviewed on a correctness standard, a decision-maker’s interpretation or application of its home statute is to be reviewed on a reasonableness standard. Most recently, in Commission scolaire de Laval v. Syndicat de l'enseignement de la région de Laval, 2016 SCC 8, Gascon J. stated for the majority, at para. 32 :

In Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, the Court stated that when an administrative tribunal interprets or applies its home statute, there is a presumption that the standard of review applicable to its decision is reasonableness (paras. 39 and 41; see also Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, at para. 35; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 26 et 28; Dunsmuir, at para. 54). That presumption applies in the case at bar.

[51] In my view, a Township’s zoning by-law is equivalent to a home statute for the Township’s CBO. Accordingly, a reasonableness standard should apply. Decisions of all administrative decision-makers, including statutory delegates such as CBO’s, are subject to the same deferential standard of review as are tribunals, including when interpreting a home statute. (See Agraira v. Canada, 2013 SCC 36 at paras. 49-50 and Canadian National Railway Co. v. Canada, 2014 SCC 40 at paras. 51-62.)

[52] But even if a correctness standard does apply to the CBO’s interpretation of the By-law, I am of the view that the conclusion of the CBO in interpreting such a by-law should be taken into consideration, particularly when it comes to understanding the purpose of the by-law and the intention of the municipality.

[53] This brings me to the second error made by the appeal judge regarding her approach to the interpretation of By-law 03-56. The appeal judge concluded that the proper interpretation of a by-law is constrained by the ordinary and plain meaning of the words used. In taking this view, she relied on the decision of Howden J. in Aon Inc. v. Peterborough (City) (1999), 1 M.P.L.R. (3d) 225 (Gen. Div.), where he stated, at para. 18:

Thus, while certainly normal rules of statutory construction are properly held to apply to zoning by-laws, they are a somewhat unusual type of law in their statutorily required inter-relationship with an Official Plan. A proper contextual approach to their interpretation requires that zoning by-laws should be interpreted in their ordinary and plain meaning in light of the by-law as a whole and its policy derivation and basis within the Official Plan. However, it must be borne in mind that it is the zoning by-law which is the applicable law to be applied. Both Official Plans and zoning by-laws rely for their creation and life on the provisions of the Planning Act, and it clearly provides the power to municipalities to enact zoning by-laws as the effective law governing land usage, and buildings, and structures. It is therefore a zoning by-law which must implement or convert the Official Plan to a body of law regulating the use of land and it does so only to the extent that it actually sets forth in its provisions, interpreted in their ordinary sense in light of the policy framework of the official plan and the context of the by-law as a whole.

[54] While this passage provides a useful guide to the interplay between an Official Plan and zoning by-laws, the approach to the interpretation of a by-law must now be guided by the decision of the Supreme Court of Canada in Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, in which the modern approach to statutory interpretation was applied to the interpretation of by-laws. McLachlin C.J. and Deschamps J. stated, at paras. 9-12:

9 As this Court has reiterated on numerous occasions, “[t]oday there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26). This means that, as recognized in Rizzo & Rizzo Shoes “statutory interpretation cannot be founded on the wording of the legislation alone” (para. 21).

10 Words that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation. The fact that a municipal by-law is in issue rather than a statute does not alter the approach to be followed in applying the modern principles of interpretation: P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 24.

11 Binnie J. concludes that the provision is unlawful for being overbroad. We do not share his view regarding the scope of the By-law. Even though he discusses the recognized principles of interpretation, Binnie J. bases his analysis on the premise that art. 9(1) of the By-law is clear and unambiguous.

12 In our view, although it appears to be clear, the provision is in fact ambiguous. In interpreting legislation, the guiding principle is the need to determine the lawmakers' intention. To do this, it is not enough to look at the words of the legislation. Its context must also be considered.

[55] In this case the appeal judge did not apply the modern approach to statutory interpretation. Instead she permitted what she considered to be the ordinary and plain meaning of the words of the enactment to be the virtually exclusive guide to their meaning, with scant regard to context. In my view, even if the standard of review is correctness, the appeal judge should not have limited the meaning of the words of By-law 03-56 in issue to what she viewed as their plain and ordinary meaning. While it is true that she did advert to the By-law’s “policy derivation and basis within the OP”, she concluded that her interpretation was constrained by the ordinary and plain meaning of the words in question.

[56] The appeal judge ought instead to have considered whatever guidance there was in the Official Plan, and read the words in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the By-law, the object of the Act, and the intention of the Township. In doing so, she should have taken into consideration the interpretation placed on the words by the CBO and, in particular, his understanding of the context.

[57] This brings me to an examination of the position of the CBO. Ordinarily, when reviewing administrative decisions, judges restrict themselves to the reasons of the decision maker, but CBOs granting or refusing building permits are not expected to give reasons. The only way we can know the basis of their decisions, out of necessity, is by the filing of after-the-fact affidavit evidence created for the purpose of the review, as was done here. Affidavits of the CBOs are frequently filed on s. 25 appeals (see, for example, Berjawi). Counsel for the Ashburners took no objection to this procedure, and in the circumstances, I see none.

[58] The CBO in this case is the Township’s Director, Building and Enforcement Services. After receiving the application for the building permit, the CBO satisfied himself that the proposed building met all of the technical structure requirements of the Building Code Act and regulations, including the Building Code. He also examined all other issues relating to “applicable law” as defined by the Building Code.

[59] In addition, in accordance with municipal procedure, he transferred the file to the Township planning department to review compliance with sections 33, 41, 42 and 46 of the Planning Act, R.S.O. 1990, c. P.13, and the by-laws made under sections 34 and 38 of the Act, which are designated as applicable law under s. 1.4.1.3 of the Building Code. The planning department also considered whether or not the riding arena proposal complied with zoning By-law 03-56. The Township’s Director of Planning, a Registered Professional Planner, personally reached the conclusion that it did, and provided the planning department’s certification of compliance to the CBO.

[60] In a separate affidavit filed on the s. 25 appeal explaining her conclusions, the Director of Planning made a number of observations:

• She stated that the former townships before amalgamation in 1994 and the current Township were and are primarily agricultural and rural in nature, and as a result the planning documents are designed to encourage, promote and preserve the agricultural and rural nature of the municipality. She pointed to sections of the Consolidated OP that reflected these policies.

• An integral part of the agricultural and rural character of the Township relates to equine uses, particularly in the former Township of Adjala, the southern part of the present Township that includes the small corner of the Oak Ridges Moraine that is situated in the Township. One third of the former Adjala is in the Moraine. There are a number of properties in the former Adjala that are used for the breeding, raising and maintaining thoroughbred, standard bred and show horses, with associated facilities such as tracks, stables and indoor arenas.

• When she considered whether or not the riding arena proposal complied with By-law 03-56, the Director of Planning identified several inconsistencies relating to agricultural uses in general and riding arena in particular. She nonetheless concluded that the application complied.

• While the Ashburners’ planner read the word “and” in section 2.4 conjunctively, so that raising livestock and other animals can only be for the purpose of food and fur, she said that such an interpretation was unduly restrictive in the context of the Township’s planning documents and its overall objective of promoting the agricultural and rural nature of the Township. She said that the word “and” must be read disjunctively.

• She further said that the words “raised for the purpose of human consumption for food, fur and/or leather” in the definition of livestock in s. 2.71 must be read disjunctively, and applied only to other domestic or game animals, and not livestock, or else it would unduly restrict the meaning of livestock. For example, in addition to precluding the raising of horses for racing or show jumping, it would make it impossible to raise sheep for wool, since wool is not food, fur or leather. It would also preclude the raising of livestock for breeding purposes. In her view, this was not the intention of the By-law.

[61] The CBO received and accepted the planning department’s certification of compliance, making the planning department’s position his own. This was entirely proper. In Albert Bloom Ltd. v. Bentinck (Township) Chief Building Official (1996), 1996 8020 (ON SC), 29 O.R. (3d) 681 (Gen. Div.), aff’d 1996 522 (ON CA), 31 O.R. (3d) 317 (C.A.), it was submitted that the decision of a CBO should be set aside because he had improperly delegated his authority to the township’s planner. In that case, it was the CBO’s evidence that he relied on the planner’s advice that the proposed use complied with the zoning. Lane J. stated, at para. 57:

All that happened here was that the C.B.O. asked the planner for advice as to compliance with the zoning, was advised that the proposal complied, accepted that advice and acted upon it in the course of making the decision to issue the permit. He acted entirely properly in so doing.

[62] Having satisfied himself that the proposed building met all of the technical structure requirements of the Building Code Act and regulations, including the Building Code, having examined all other issues relating to “applicable law” as defined by the Building Code, and having accepted the advice of the Director of Planning, the CBO issued the building permit.

[63] The appeal judge neither deferred to nor considered the CBO’s decision in resolving this issue. She did say that while she concluded that the standard of review of the overall decision of the CBO to issue the permit was correctness, however “if the question is one of mixed fact and law and the standard of review is one of reasonableness,” the decision of the CBO does not fall within the range of possible, acceptable outcomes defensible in respect of both the facts and the law, and is not entitled to a significant degree of deference.” However she provided no explanation for this conclusion, and undertook no separate consideration of the reasonableness of the CBO’s interpretation of the agricultural uses permitted by By-law 03-56 in the ORML Zone.

[64] Had the appeal judge considered the decision of the CBO on a standard of reasonableness, and inquired into the qualities that make a decision reasonable, such as the existence of justification, transparency and intelligibility, she would have been obliged to uphold it. The decision fell within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law.

[65] Even if I am wrong, and the standard of review for the interpretation of a home by-law of a CBO is correctness, I remain of the view that the appeal judge erred in law and came to the wrong conclusion about the proper interpretation of By-law 03-56.

[66] I begin with an examination of the words in issue. By virtue of s. 11.1 of By-law 03-56, a building permit could only issue for the erection of this riding arena if the arena was to have an agricultural use. The agricultural use here, by virtue of s. 2.4 f), would have to be “[r]aising livestock and other animals, including poultry and fish, for food and fur”. Livestock is defined in s. 2.71 as “chickens, turkeys, cattle, hogs, horses, mink, rabbits, sheep, goats, fur bearing animals, ratites or any other domestic or game animal raised for the purpose of human consumption for food, fur and/or leather.”

[67] The interpretive problem created by these provisions is apparent when the definition of livestock is read into the pertinent agricultural use. The result of this exercise, illustrated below with the substituted definition of the word livestock underlined, leads to the statement that, by virtue of s. 11.1 of By-law 03-56, a building permit could only issue for the erection of this riding arena if the arena was to have the following agricultural use:

Raising chickens, turkeys, cattle, hogs, horses, mink, rabbits, sheep, goats, fur bearing animals, ratites or any other domestic or game animal raised for the purpose of human consumption for food, fur and/or leather, and other animals, including poultry and fish, for food and fur.

[68] These words simply do not have a clear “plain and ordinary meaning”, and the appeal judge erred in law in concluding that they did. Once raising “other domestic or game animal raised for the purpose of human consumption for food, fur and/or leather” is included as an agricultural use, it is hard to understand the additional inclusion of “other animals, including poultry and fish, [raised] for food and fur.” Beyond the addition of fish raised for food, the remaining words appear to be entirely redundant. Given the specific inclusion of chickens, turkey, and other domestic or game animals, it is hard to imagine what might be added by the reference to poultry. Similarly, it is hard to imagine what might be covered by “other animals … for food and fur”, in addition to poultry and fish, that is not already covered by “other domestic or game animal raised for the purpose of human consumption for food, fur and/or leather.” At the very least, the words in issue are ambiguous.

[69] The meaning of “agricultural use” cannot be ascertained simply by attempting to understand the plain and ordinary meaning of the definitions. It can only be ascertained by a thorough examination of the words in the definitions in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the By-law, the object of the Act, and the intention of the Township, while taking into consideration the interpretation placed on the words by the CBO (which incorporates the advice he accepted from the Chief Planner) and, in particular, his understanding of the context. Again, the appeal judge undertook no such examination. As a result, we can only determine if the CBO’s determination was either reasonable, or correct, by doing so ourselves.

[70] The fundamental point of this exercise is to determine if the raising of the named animals, and particularly horses, is an agricultural use of itself, or only if done “for the purpose of human consumption for food, fur and/or leather” and/or “for food and fur.” I begin with the grammatical and ordinary sense of the words. It seems to me that reading the words as the appeal judge did creates obvious and unintended grammatical anomalies that are not harmonious with the scheme of By-law 03-56. In this regard, the points made by the Director of Planning are compelling.

[71] As I have already noted, the Director of Planning said that the words “raised for the purpose of human consumption for food, fur and/or leather” in the definition of livestock in s. 2.71 must be read disjunctively, and applied only to other domestic or game animals, and not livestock, or else it would unduly restrict the meaning of livestock. In particular, in addition to precluding the raising of horses for racing or show jumping, it would make it impossible to raise sheep for wool, since wool is not food, fur or leather. It would also preclude the raising of livestock for breeding purposes. These are clearly unintended consequences, even without regard to context. No drafter would have included the raising of sheep in the definition of agricultural use only to exclude the usual reason for the raising of sheep by the wording of the remainder of the words of the definition. Grammar and logic compel a disjunctive reading of these words. A conjunctive reading of these words is absurd. Permitting the raising of livestock but precluding the raising of livestock for breeding purposes is equally absurd, and likewise compels a disjunctive reading of the words in question.

[72] The identical argument may be made about the words “for food and fur” in the definition of agricultural us in s. 2.4 b) of By-law 03-56. Reading those words conjunctively would create the identical absurdities.

[73] While grammar and logic are compelling in this case, it remains necessary to, as already noted, examine the words in the definition in their entire context, including the overall scheme of the By-law, the object of the Act, and the intention of the Township, taking into consideration the interpretation placed on the words by the CBO, and in particular his understanding of the context.

[74] I begin with an examination of the evidence of the CBO and the Director of Planning. To summarize briefly the findings described above, the Director of Planning said that the Township is primarily agricultural and rural in nature, and as a result the planning documents of the Township are designed to encourage, promote and preserve the agricultural and rural nature of the municipality. The Consolidated OP reflects these policies.

[75] The Director of Planning also said that an integral part of the agricultural and rural character of the Township relates to equine uses, particularly in the southern part of the present Township, including the small corner of the Oak Ridges Moraine that is situated in the Township. There are a number of properties in the southern part of the Township that are used for breeding, raising and maintaining thoroughbred, standardbred and show horses with associated facilities such as tracks, stables and indoor arenas.

[76] I have already noted that, in Montréal (City) v. 2952-1366 Québec Inc., the court said that the guiding principle in interpreting legislation is the need to determine the lawmakers’ intention, and that context must be considered to do this. Counsel for the Ashburners argued, however, that the search for purpose cannot extend beyond an examination of the policies in the Consolidated Official Plan. He submitted that the evidence of the Planner that equine use is an integral part of the agricultural and rural character of the Township and her description of existing equine use cannot inform the exercise. I do not agree. It is central to the role played by CBOs that they know the character of their community and the local conditions. This knowledge cannot but help in determining the lawmakers’ intention.

[77] I find support for my position in the decision of Hackland R.S.J. in Berjawi. There, the appeal judge was faced with the question whether a proposed building was a “shelter,” which was not permitted under a zoning by-law, a “group home,” which was permitted if it did not exceed a ten-person limit, or neither. The CBO made extensive inquiries in order to reach a conclusion that the proposed building fell within the definition of a group home that did not exceed the ten-person limit. Justice Hackland concluded that the CBO’s opinion was reasonable. In the course of his reasons, he stated, at para. 37:

It is said that the CBO is attempting to implement a social services policy through her interpretation of a land use planning regulation. However I respectfully disagree. In my opinion, as long as the by-law qualifies by its terms as legitimately aimed at land use planning, it is permissible to interpret latent ambiguities in the by-law by reference to factors beyond land use considerations, including social policy factors such as the practical reality that homes for battered women need to include provision for their dependent children and need to be situate in residential neighbourhoods to promote the welfare, security and re-integration of these women and their dependent children.

[78] In the same way, it is permissible here to interpret ambiguities in By-law 03-56 by reference to the evidence of the Director of Planning that: (1) the Township is primarily agricultural and rural; (2) the Township’s planning documents, including the Consolidated OP, are designed to encourage, promote and preserve the agricultural and rural nature of the municipality; (3) an integral part of the agricultural and rural character of the Township relates to equine uses, particularly in the southern part of the present Township, including the small corner of the Oak Ridges Moraine that is situated in the Township; and (4) there are a number of properties in the southern part of the Township that are used for the breeding, raising and maintaining of thoroughbred, standardbred and show horses with associated facilities such as tracks, stables and indoor arenas.

[79] These considerations support the view that I have already taken that the definition of agricultural use includes the raising of horses, whether or not they are “raised for the purpose of human consumption for food, fur and/or leather” or “for food and fur.” As a result, a riding arena may be erected for this purpose.

[80] Before leaving this issue, I must consider one final argument made by the respondents. They drew our attention to s. 4.1 of By-law 03-56, which prohibits use of any lot or the erection, alteration or use of any building or structure within the Oak Ridges Moraine Agricultural Zone (“ORMA”) except for fifteen listed uses. One of the permitted uses is “riding arenas”. Relying on the implied exclusion rule, they argue that by specifically including “riding areas” in the ORMA, the Township must be taken by its silence to have excluded it in the ORML.

[81] The implied exclusion rule is based on the presumption that, as much as possible, drafters strive for uniform and consistent expression, and patterns in legislation are assumed to be intended rather than inadvertent. But it has been said that while the rule is often a valuable servant, it is a dangerous master to follow. Deliberate legislative exclusion can be implied only when an express reference is expected but absent: see University Health Network v. Ontario (Minister of Finance) (2001), 2001 8618 (ON CA), 151 O.A.C. 286 (C.A.), at para. 31. Context matters.

[82] Here, there is good reason not to draw such a conclusion by comparing s. 11.1 of By-law 03-56 to s. 4.1. It is apparent on even a cursory review of the two provisions that the drafting styles are quite different, making it unlikely that the drafters had a general rule of interpretation in mind.

[83] For example, s. 4.1 permits “an agricultural use including, sod farms, tree farms, and nurseries”, while s. 11.1 permits “agricultural uses as defined in Section 2.4 of this By-law.” It is most unlikely that the drafter intended to oust the definition of agricultural uses found in the By-law from s. 4.1 because it is referenced in s. 11.1 but not in s. 4.1. It is also unlikely that the drafter intended to exclude tree farms from s. 11.1 because they are mentioned in s. 4.1 but not in s. 11.1, particularly since s. 11.1 also includes “forest management” as a permissible use.

[84] Another example is that section 4.1 lists “a livestock facility” and “walk-in livestock shelters” as permitted uses, while section 4.1 does not. But it is absurd to imagine that the drafter intended to exclude livestock facilities and walk-in livestock shelters as permitted uses in s. 11.1, particularly since raising livestock falls within the definition of agricultural uses, and s. 11.1 permits the erection of structures for the raising of livestock.

[85] Finally, I note that the Director of Planning explained why it was necessary to specifically include riding arenas in s. 4.1. By doing so, s. 4.1 permits stand-alone riding arenas to be erected in the ORMA that have no association with the horses of the owner. As a result, commercially operated riding arenas are permitted which can be used for shows to entertain the public or rented to third parties with no underlying agricultural purpose. Since there was no intention to permit stand-alone riding arenas in the ORML, their listing in 4.1 but not in 11.1 has no significance.

[86] I need go no further. There is no reason to expect an express reference to riding arenas in s. 11.1, and no basis to attribute significance to its absence.

[87] In the end, I am of the view that it was reasonable for the CBO to conclude that s. 11.1 permits the erection of a riding arena, and in any event such an interpretation of s. 11.1 is correct.

[88] Before leaving the question of whether a riding arena is a permitted use under the by-law, I must consider an alternative argument raised by the Ashburners that was not reached by the appeal judge.

Is the riding arena an impermissible accessory building?

[89] Before the appeal judge, the Ashburners argued that even if horses can be raised in the ORML other than for food, fur or leather, the riding arena was not permitted because it was an accessory building that did not comply with s. 3.4 of By-law 03-56. As I have already noted, By-law 03-56 distinguishes between principal buildings and accessory buildings or structures, and s. 3.4 places limits on accessory buildings in relation to location and maximum gross floor area. The riding arena does not conform to these requirements.

[90] A principal building is defined in s. 2.16 as follows:

… a building and/or residential dwelling in the case of an agricultural use in which the main use on the lot is conducted.

[91] An accessory building or structure is defined in s. 2.1 as follows:

… a building that is secondary or incidental to and is exclusively devoted to the Principal Buildings, and or structure and/or use and is located on the same lot therewith.

[92] If the riding arena is an accessory building that does not conform to s. 3.4, then the CBO had no authority to issue the building permit for it. However, the CBO adopted the view of the Director of Planning that the arena was a principal building, and accordingly did not need to comply with s. 3.4.

[93] The Director of Planning accepted that the riding arena is not a stand-alone structure, but rather one that is being used in conjunction with an existing barn facility for the raising of horses. However, she said that the arena is another principal building associated with the raising of horses, just as a building for the storage of hay would be another principal building associated with the raising of cattle. She classified the arena as a principal building housing an accessory or subordinate use associated with the existing permitted agricultural use of raising livestock, here specifically horses.

[94] She noted that, in the agricultural context, agricultural buildings can be principal buildings with accessory uses. It would be overly restrictive to interpret the definitions as not permitting this and, for example, limit a building intended for the storage of hay for the permitted use of raising cattle to 100 square metres.

[95] I note that the definition of accessory building contemplates the presence of more than one principal building on a lot.

[96] There can be no doubt that the question of whether a building is a principal building or an accessory building is a question of mixed fact and law, and that the decision of the CBO on this issue is entitled to a significant degree of deference. If additional authority is necessary, I refer to McIver Holdings Inc. v. Bluewater (Township), [2008] O.M.B.D. No. 1018.

[97] Undoubtedly there is a respectable opposing argument that the arena in question is an accessory building. But it is my view that the CBO’s finding is transparent, intelligible and justified, and falls within a range of possible, acceptable outcomes which are defensible in respect of both the facts and the law. Accordingly, I remain of the view that it was reasonable for the CBO to conclude that By-law 03-56 permits the erection of a riding arena.

3. Was the CBO Required to Consider OP No. 3 and the “Major Development” Policy?

[98] I turn now to the final objection to the issuance of the building permit.

[99] The land on which the Pickerings proposed to build their arena was designated by the Township as being within a site plan control area pursuant to s. 41(2) of the Planning Act. As a result, by virtue of s. 41(4) of the Act, the Pickerings’ plans and drawings as described in that sub-section had to be approved by the Township before the Pickerings could build their arena. As a condition of its approval of the plans and drawings, the Township required the Pickerings to enter into a Site Plan Control Agreement with the Township. As stated earlier, the agreement was executed on August 16, 2011.

[100] One of the conditions of the agreement was a requirement that the Pickerings obtain a Natural Heritage Evaluation Report to demonstrate that the development would not have adverse impacts on the natural heritage features and related ecological functions of the Moraine. They also agreed that the report would be peer-reviewed at the cost of the Pickerings, and had to be to the satisfaction of the Township. It was further agreed that the Pickerings would not be entitled to a building permit until: (1) the agreement was registered on title; and (2) the report was peer-reviewed and either indicated that there were no negative impacts or, if there were negative impacts, the recommendations in the report to mitigate such impacts were implemented.

[101] In fact, a natural heritage evaluation by an engineering firm, two reports prepared by that firm, and an independent peer review by another engineering firm had all already been done before the date that the agreement was implemented. Both firms were satisfied that there would be no impacts on the Moraine. The permit was issued on August 25, 2011.

[102] Despite the preparation of these reports, as the appeal judge correctly noted, the site plan agreement did not conform to OP No. 3. Section 4.12.8(ii) of OP No. 3 prohibits major development in the ORML unless a watershed plan for the relevant watershed had been prepared by the County of Simcoe, the development had been shown to conform to the watershed plan, and a watershed budget and conservation plan prepared by the County of Simcoe demonstrated that the water supply required for the development is sustainable. In fact, the site plan agreement committed the Township to approving the development of the arena without a demonstration of conformity with a watershed plan, watershed budget and conservation plan.

[103] The reason that the Site Plan Agreement did not conform to OP No. 3 was not occasioned by any fault on the part of the Township or of the Pickerings. It came about simply because this official plan policy is impossible to implement. Compliance with it is contingent on the County of Simcoe completing a Watershed Plan as required by s. 24(3) of the Oak Ridges Moraine Conservation Plan. Although the Oak Ridges Moraine Plan Policy was implemented pursuant to O. Reg. 140/02, which was filed on April 22, 2002, and although the Township enacted OP No. 3 on July 19, 2004, the County has not prepared the Plan.

[104] The Director of Planning explained that the Township was cognizant of the sensitive nature of the Moraine land as well as the concerns of the Ashburners and others, and sought to address as many of these as possible within the limits of the Planning Act by imposing a site plan control agreement. It was her opinion that, as a result, any impact from the structure was minimized, landscape features were maximized and the sensitive features of the property were protected.

[105] Despite this background, the appeal judge concluded:

Site plan approval is “other applicable law.” The CBO was required to take into account the fact that the Site Plan Agreement did not conform to OPA No. 3; he should have found the Agreement deficient and should not have issued the building permit.

[106] I am unable to find any legal basis for this conclusion. As I understand this passage, the appeal judge concluded that site plan approval is “other applicable law” within the meaning of s. 8(2) of the Building Code Act, that the CBO was “required” as a matter of law to take into account the fact that the Site Plan Agreement did not conform to OP No. 3, and that as a result, as a matter of law, he should not have issued the permit. In reaching these conclusions, she erred in law.

[107] Section 8(2) of the Building Code Act requires a CBO to issue a building permit unless the proposed building will contravene the Act, the Building Code or any other applicable law. “Other applicable law” for the purposes of clause 8(2)(a) of the Act is exhaustively listed in s. 1.4.1.3(1) of the Building Code. The only law included in the list that is of any potential relevance here is the statutory requirement in s. 41 of the Planning Act with respect to the approval of plans and drawings by the council of the municipality or the Ontario Municipal Board. No requirement that a site plan agreement conform to an official plan is to be found.

[108] As a result, the CBO was not required as a matter of law to take into account the fact that the Site Plan Agreement did not conform to OP No. 3, and there is no basis in law to say that because the Site Plan Agreement did not conform to OP No. 3, the CBO should not have issued the permit.

[109] In fact, counsel for the Ashburners disavowed the reasoning of the appeal judge, but supported her conclusion that the absence of a watershed agreement was fatal to the building permit’s validity on a different basis.

[110] Counsel began by observing that site plans and site plan agreements must be authorized by a by-law of Council. He argued that, because the by-law that authorized the Site Plan Agreement between the Pickerings and the Township in respect of the construction of a riding arena on the subject property did not conform to OP No. 3, it contravenes s. 24(1) of the Planning Act. That section provides:

Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.

[111] As a result, he said, the by-law authorizing the Site Plan Agreement was invalid. It follows that the plans and drawings submitted for site plan approval “indicate” that the proposed structure would contravene the zoning by-law or offend the Official Plan, and the Township should have refused to approve the plans and drawings pursuant to s. 41(4) of the Planning Act.

[112] In my view, this argument is fatally flawed.

[113] Fundamental to this argument is the proposition that a CBO considering an application for a building permit is empowered to look behind a municipal by-law, determine that it was enacted unlawfully, and decline to give it effect. This is plainly not correct. A by-law, like any other legislation, is presumed valid until set aside. A CBO is required to give effect to the law, whether enacted in a statute or by-law, unless and until it is set aside. There are ample means to challenge the validity of a by-law, but they were not pursued in this case. The by-law remained in effect, and the CBO had no choice but to accept its validity. We cannot countenance officials who are entrusted with administering the law instead usurping the jurisdiction of the courts and the Ontario Municipal Board by making their own determinations of the validity of the laws they have been entrusted to administer.

[114] In any event, even if the CBO had determined that the by-law was invalid, he was not empowered, far less required as a matter of law, to refuse the building permit on the basis of this determination. To repeat again, s. 8(2) of the Building Code Act requires a CBO to issue a building permit unless the proposed building will contravene the Act, the Building Code or any other applicable law. Even if the by-law in question was invalid, the proposed building would not have contravened the Act or the Code. The permit could only have been refused if the invalidity of the by-law resulted in the building violating “other applicable law” as listed in s. 1.4.1.3(1) of the Code.

[115] Counsel for the Ashburners attempted to engage the “other applicable law” path to refusing to issue a permit by focussing on the statutory requirements in s. 41 of the Planning Act with respect to the approval by the council of the municipality or the Ontario Municipal Board of plans and drawings. He argued, as I have already noted, that since the plans and drawings submitted for site plan approval “indicate” that the structure would “contravene the zoning by-law” or offend the Official Plan, the Township should have refused to approve the site plan.

[116] Of course, we are not sitting in review of the Township’s approval of the site plan. We are hearing a second level appeal from the decision of a judge on a first level appeal from the issuance of a building permit by a CBO. As a result, I presume the Ashburners are arguing that because, in their view, the Township unlawfully approved the plans and drawings, the CBO should have refused to issue the permit on the basis that “other applicable law,” specifically s. 1.4.1.3(1) of the Code, had been violated.

[117] This argument stands on no better footing than the last one. The CBO is no more empowered to sit in review of the decision of the Township to enter into a site plan agreement and approve plans and drawings than to review a by-law of the Township. Nothing in s. 1.4.1.3(1) of the Code supports this argument. All that s. 1.4.1.3(1) does is empower the CBO to ensure that plans and drawings have been approved where required, and refuse a permit where they have not. It does not empower the CBO to sit in review of a decision of a municipality to approve plans and drawings.

[118] I should add that the appeal judge had no greater authority to review the by-law authorizing a Site Plan Agreement or the decisions of the Township to enter into a Site Plan Agreement and to approve plans and drawings than did the CBO. Nor do we. Section 25(1) provides for an appeal from a decision of a CBO, and not from a decision of a municipality, far less from the enactment of a by-law. Section 25(4) permits an appeal judge to “affirm or rescind” the decision of the CBO, “and take any other action that the judge considers” the chief building official ought to have taken. The appeal judge has no authority to revisit a decision of a municipality.

Disposition

[119] For these reasons, I conclude that the appeal judge erred in law in: (1) declaring that the decision of the CBO to grant Building Permit No. 042-11 was made in error; (2) rescinding the decision to issue the building permit; (3) declaring the building permit to be invalid; and (4) revoking the permit. Accordingly, the appeal is allowed, and each of these determinations is set aside.

[120] On the agreement of the parties, costs are awarded to the Township fixed in the amount of $25,000, all in, payable by the Ashburners, and to Tuire Pickering fixed in the amount of $10,000, all in, also payable by the Ashburners.

DAMBROT J.

STEWART J.

THORBURN J.

RELEASED: June 6, 2016

CITATION: Ashburner v. Adjala-Tosorontio, 2016 ONSC 2665

DIVISIONAL COURT FILE NO.: 828/15

DATE: 20160606

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, STEWART and THORBURN J.J.

B E T W E E N :

PETER ASHBURNER, PHYLLIS ASHBURNER AND THOMAS ASHBURNER

Applicants/Respondents

– and –

THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO, KARL KORPELA IN HIS CAPACITY AS CHIEF BUILDING OFFICIAL FOR THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO, KARL KORPELA AND TUIRE PICKERING AND PAUL PICKERING

Respondents/Appellants

REASONS FOR JUDGMENT

M. DAMBROT J.

RELEASED: June 6, 2016