Wheeler v. Syrowik, 2017 ONSC 2901

COURT FILE NO.: 34/15

DATE: 2017-05-26

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

C. AITKEN, D.L. CORBETT and J. FREGEAU JJ.

B E T W E E N:

STANLEY WHEELER, STELLA WHEELER and SHEILA DIAZ Appellants/Respondents in Appeal

• and -

DAVID SYROWIK, URSULA SYROWIK, RANDY LOVIE and CORPORATION OF THE MUNICIPALITY OF LAMBTON SHORES Respondents/Appellants in Appeal

Counsel: Philip B. Morrissey, on behalf of the Appellants/Respondents in Appeal Analee J.M. Ferreira, for Respondents/Appellants in Appeal, the Syrowiks and for the Respondents/respondents in Appeal Randy Lovie and Lambton Shores

Heard at London: April 6, 2017

DECISION

D.L. Corbett J.:

[1] This is an appeal from the decision of a single judge of the Superior Court of Justice[^1] allowing an appeal from the decision of the Chief Building Officer ("CBO") of the Municipality of Lambton Shores (the "Municipality") to issue a building permit.

[2] The building permit authorizes construction of an accessory building, a garage, on a lakeside residential property.

Summary and Disposition

[3] The appeals judge applied the wrong standard of review and failed to show the deference owed to the CBO's decision. The CBO's decision falls squarely within the core of his specialized expertise and is well within the range of reasonable possible results. The decision satisfies the requirements of justification, transparency and intelligibility. I would allow the appeal and restore the decision of the CBO, with costs throughout.

Background

[4] The Syrowiks own a lot that looks out on the shore of Lake Huron. The lot is municipally known as 7292 Leighton Drive, in the community of Port Franks, in the Municipality of Lambton Shores. A diagram showing pertinent features of the lot and its environs is attached to this decision as Schedule "A".

[5] The lot was created by a plan of subdivision that was registered on July 26, 1951. In this plan, the lot was intended to front on Hazelwood Drive, which was to abut the lot along its northern lot line between the lot and the shore of Lake Huron.

[6] A single-detached dwelling is located on the lot and has been in existence for over 40 years. Construction of this dwelling pre-dated the Municipality's Zoning By-law.[^2]

[7] Hazelwood Drive was never assumed or constructed by the Municipality. Access to the lot is, instead, by right of way running south from the lot along a portion of its eastern boundary.

[8] The By-law was enacted after the dwelling was constructed on the lot. The dwelling and lot do not comply with the By-law because the lot does not border a street. This makes the lot a "non-complying use" under the By-law.

[9] The Syrowiks purchased the lot in 2007. At that time the dwelling was dilapidated and there was no accessory building on the lot. The Syrowiks proposed to tear down and replace the dilapidated old dwelling. They sought a minor variance to the By-law to permit them to build a replacement building to which would be attached an addition that included a garage, storage space and additional residential space. The proposed replacement building (including the addition) would have been located upon the rear yard, contrary to the By-law. That is why the Syrowiks needed a minor variance.[^3]

[10] The Syrowiks' neighbours, the Wheelers, long-time residents of the neighbourhood, objected to the minor variance. They took the position that no expansion of the building ought to be permitted because it would impede sightlines to the lake unduly and would be out of character with the neighbourhood with its open spaces, generous yards and low rise structures.[^4]

[11] The Committee of Adjustment granted the minor variance. The Wheelers appealed to the Ontario Municipal Board ("OMB"), which reversed the decision of the Committee of Adjustment and refused the minor variance. The OMB decided that the Syrowiks could replace their building on the footprint of the original cottage, but they were not permitted to build the addition.

[12] Then on December 11, 2013, the Syrowiks sought a building permit for an accessory building that would not be attached to the principal building on the lot. This accessory building would include a garage and storage space but would not include residential space. The Syrowiks did not seek a minor variance for the construction of this accessory building. Rather, they took the position that their proposed accessory building was permitted under the By-law and no variance was required before a building permit could issue.

[13] Initially the CBO denied a building permit because he was not satisfied that the proposed accessory building complied with the By-law.[^5]

[14] The Syrowiks then hired an expert land use planner, Harry Froussios, who provided them with a planning opinion that the proposed accessory building complied with the By-law. They provided this opinion to the CBO. The opinion provided two interpretations of the By-law, either of which, if accepted, would mean that the requested building permit application complied with the By-law.[^6]

[15] On considering Mr Froussios' opinion, and after consulting with the Municipality's land-use planner and the Municipality's legal department, the CBO accepted one of Mr Froussios' interpretations of the By-law and concluded that the proposed accessory building was permitted under the By-law. The CBO invited the Syrowiks to re-submit their request for a building permit. When they did so, the CBO issued the building permit.

[16] The Wheelers appealed the decision of the CBO to a single judge of the Superior Court (the "appeals judge"). The appeals judge allowed the appeal and quashed the building permit.

[17] The Syrowiks now appeal to the Divisional Court, asking us to set aside the decision of the appeals judge and to restore the decision of the CBO. The Municipality and the CBO support the Syrowiks' position in the appeal. The Wheelers argue that the appeal should be dismissed.

Jurisdiction

[18] An appeal lies from an order or decision of a CBO to a single judge of the Ontario Superior Court of Justice.[^7] A further appeal lies to the Divisional Court.[^8]

Standards of Review

[19] On an appeal from a decision of the CBO, the standard of review is correctness for questions of law and reasonableness for questions of fact and questions of mixed fact and law.[^9] Municipal planning and zoning are specialized areas which fall within the expertise of the CBO. Most determinations made by CBOs are questions of mixed fact and law and are entitled to deference on appeal.[^10]

[20] On appeal to this court from the decision of an appeals judge, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact. In respect to questions of mixed fact and law, the standard of review is reasonableness unless there is an extricable legal principle.[^11]

Statutory Context: Scheme of the Building Code Act

[21] Subsection 8(1) of the Building Code Act prohibits construction of a building "unless a permit has been issued therefor by the chief building official."[^12]

[22] Subsection 8(2) of the Act requires the CBO to issue a building permit unless certain circumstances exist. For the purposes of this case only the circumstance set out in subparagraph 8(2)(a) is material:

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....[^13]

[23] The CBO determined that the proposed accessory building complied with the Building Code and all "applicable laws" except possibly in respect to setbacks and yard requirements in the By-law. This determination was not challenged before the appeals judge and is not challenged in this court.

The Setback and Yard Issues

[24] The Syrowiks' lot is roughly rectangular and has four lot lines.

[25] When the lot was originally laid out, the "front" lot line was to the north, bordering on Hazelwood Drive, the street that was to run along the shore of Lake Huron. This street was never taken up by the Municipality and was never built. Eventually the land for the street was transferred to a community group. Thus the Syrowiks' lot does not border a street.

[26] If the Municipality had taken up the street, then the "front" of the Syrowiks' lot would be the lot line bordering that street. On a literal reading of the By-law, because the street was not taken up by the Municipality and is now separately deeded, what would have been the "front" of the lot is not bounded by a "front lot line". On a literal reading of the By-law, there is no "front" of the lot at all, and thus no "front lot line" for this lot. This is so because the definition of "Front Lot Line" in the By-law is:

... in the case of an Interior Lot, the line dividing the Lot from the Street. In the case of a Corner Lot, the shorter Lot Line abutting a Street shall be deemed the Front Lot Line and the longer Lot Line abutting a Street shall be deemed the Exterior Side Lot Line....

Whether the lot is an interior lot or a corner lot, the front lot line is a line that abuts a street. By definition, then, a "Front Lot Line" must abut a street. The problem here is even more fundamental though.

[27] It is clear that the lot is a "Lot" within the meaning of the By-law. A "Lot" is defined in the By-law to mean "land within a registered plan of subdivision... the boundaries of which are recorded in the Registry Office...." Following this general definition are three sub-definitions of "Corner Lot", "Interior Lot" and "Through Lot". All three of these sub-defined terms must have "Street Access" on at least one side of the lot. "Street Access" means, when referring to a lot, "that such Lot has a Lot Line or portion thereof which is also a Street Line." On a literal reading of the By-law, the Syrowik's lot is a "Lot" but does not fit within any of the sub-definitions of "Lot".

[28] Whether one reads only the definition of "Front Lot Line", or whether one delves further into the definitions of "Lot", subcategories of "Lot" and "Street Access", on a literal reading of the By-law a lot that does not abut a street does not have a "Front Lot Line".

[29] "Rear Lot Line" is defined in the By-law to mean:

In the case of a Lot having four or more Lot Lines, the Lot Line farthest from and opposite to the front Lot Line. If a Lot has less than four Lot Lines, there shall be deemed to be no Rear Lot Line.

[30] "Side Lot Line" is defined in the By-law to mean "a Lot Line other than a Front or Rear Lot Line, and shall include Interior Side Lot Line and Exterior Side Lot Line."

[31] On a literal reading of the By-law, the Syrowiks' lot does not have a front lot line. Therefore, by definition, it does not have a rear lot line. Therefore, by definition, the four lot lines of the lot are all side lot lines.

[32] There are no other provisions in the By-law that assist directly in classifying lot lines in a case like this, where no lot line abuts a street.

[33] Why does it matter if there is a front lot line? There is a greater setback for a front lot line than for a rear lot line or for side lot lines. Accessory buildings may be constructed in "side yards" and "back yards" but not in "front yards". These distinctions protect the overall design and appearance of neighbourhoods. For obvious reasons, everyone benefits from these protections.

[34] Here, it would have been possible, for example, for all lots bordering Hazelwood Drive to have consistent front lot lines, establishing a common minimum setback from the street and thus from the lake. That does not, in fact, appear to be the case here: the lot line facing Lake Huron is a front lot line for the lot to the east of the Syrowiks. It is a side lot line for the lot to the west of the Syrowiks (a lot owned by the Wheelers).

[35] One could imagine many circumstances where the correct identification of a "Front Lot Line" could be important to establish and maintain a common aesthetic and to treat neighbours fairly. In the case at bar, it does not appear that it much matters which, if any, lot line of the Syrowiks' lot is considered to be the front lot line from the perspective of aesthetics or fairness among neighbours. This conclusion is buttressed by the position taken by the Wheelers. The Wheelers do not argue on this appeal that a particular lot line should be considered the front lot line.

[36] The By-law is drafted on the presumption that every lot will have a front lot line. This presumption fits with the requirement in the By-law that all lots border a street.

[37] So, on the presumption that there should be a front lot line, but on a finding that no lot line complies with the definition of "Front Lot Line", how is the CBO to decide required setbacks and how is he to decide which yard is the "front yard", and which are the "back yard" or a "side yard"? And if the required setbacks and the yards cannot be determined, then how can the CBO be satisfied that a proposed building complies with the By-law? The CBO followed this logic the first time that he considered the Syrowiks' application for a building permit. He concluded that he could not satisfy himself that the proposed construction complied with the By-law and for that reason refused the building permit.

[38] On reconsideration, the CBO used a different analysis. He reasoned that, on a literal reading of the By-law, none of the lot lines is a front lot line, and thus none of the lot lines is a rear lot line. This means, then, that, by definition, all of the lot lines are "Side Lot Lines". On this basis, the proposed building complies with the setback required from side lot lines, is located in a "side yard", and thus complies with the By-law. On this logic the CBO granted the building permit. And it is this decision that was the subject-matter of the appeal.

Decision of the Appeals Judge

[39] The appeals judge held as follows:

For the purpose of judicial review, if it is correct that the bylaw provisions are clear, the building inspector had no alternative but to issue the permit. If the respondents' position is the correct interpretation of the bylaw and there is no ambiguity, then the standard of review is correctness and that I should not interfere with the building official's role in making this decision. In the event that the zoning bylaw is ambiguous then the standard of review would be whether his interpretation of the bylaw was reasonable and that deference to his decision would be based on the reasonable standard.

In my opinion the bylaw is ambiguous. The lot in question is unique and is not only undersized but does not front on a street. In my opinion, it stretches the language of the bylaw to say that if you cannot determine the front and the rear everything should be a side with the resulting ability of a property owner to build within 1 metre of any lot line. That, to me, does not represent a logical interpretation of the bylaw and at best it is ambiguous. Further, since the bylaw is in my opinion ambiguous, the standard of review is reasonableness and that it is appropriate to look at the official plan for guidance.[^14]

[40] I agree with the appeals judge that the By-law provisions, as they apply to the "unique" circumstances of this case, admit of more than one reasonable interpretation. I also agree with the appeals judge that the CBO's decision is entitled to deference and was reviewable on the standard of reasonableness.[^15]

[41] The appeals judge then went on to find:

In my opinion Mr Lavoie (sic) was right when he originally refused the building permit because, as he initially stated:

The lot does not front onto a public or private road, therefore the Municipality is unable to determine which lot line is considered the front lot line. As a result, the Municipality cannot determine the applicable setbacks and the legally permitted location for the proposed accessory building.

As a result he did not grant the building permit. He subsequently changed his mind but in my opinion he was right in his initial analysis.[^16]

There are three errors reflected in these reasons. First, the appeals judge applies the wrong standard of review when he finds that "Mr Lavoie (sic) [the CBO] was right...." and "... in my opinion he [the CBO] was right in his initial analysis." In making these findings, the appeals judge applied the standard of review of correctness, not reasonableness. This is a fundamental error of law, cutting to the very heart of the appeals decision.

[42] Second, the appeals judge proceeded on the premise that the CBO could not have been "correct" in both his original decision and in his second decision in which he came to a different conclusion. In holding that the CBO "was right in his initial analysis", the appeals judge implicitly concluded that the CBO was "wrong" in his subsequent, different, conclusion. This logic does not apply where the standard of review is reasonableness. Both decisions could be reasonable. The issue – the only issue – before the appeals judge was whether the CBO's second decision, to issue the building permit, was reasonable.[^17]

[43] Third, having erroneously applied a standard of correctness, and then having erroneously chosen the CBO's first decision as "correct" and the CBO's second decision as "not correct", the appeals judge failed to perform the central task on the appeal: to assess the reasonableness of the CBO's second decision on the basis of the materials before the CBO and the reasons given by the CBO for his decision. Instead, the appeals judge reviewed the prior (largely irrelevant) OMB decision, offered an interpretation of the Municipality's Official Plan (which was not in evidence on the appeal, had not been a basis of the CBO's decision, and was not a proper consideration on the appeal), and ultimately came up with his own view of the meaning of the By-law. In so doing, the appeals judge retried the case and reached his own conclusion on the merits. That is not the role of an appellate court.

[44] I conclude that the appeals judge stated the correct standard of review but failed to apply it. Rather, the appeals judge applied a correctness standard of review, and then retried the case to come to his own decision on the merits. In these circumstances this court must undertake its own review of the decision of the CBO, on the standard of reasonableness, and no deference is owed to the decision of the appeals judge.

Decision of the CBO

[45] The impugned decision is Building Permit 14-205 issued on August 20, 2014 by Randy Lovie, the CBO for the Municipality of Lambton Shores.[^18]

[46] Mr Lovie explains the basis of his decision in his affidavit sworn October 21, 2014.[^19]

[47] Mr Lovie's reasons for granting the permit were as follows:

(a) Pursuant to s.8(2) of the Building Code Act, a CBO is obliged to issue a building permit where an application for a permit complies with the provisions of s.8(2).

(b) There is no public process for considering whether to issue a building permit, and a permit cannot be refused except for reasons prescribed in s.8(2).

(c) One of the requirements under s.8(2) is that a proposed building not contravene the Building Code Act, the Building Code or "any other applicable law".

(d) "Applicable laws" within the meaning of s.8(2)(a) are set out in the Building Code[^20] and include "by-laws made under section 34 or 38 of the Planning Act".[^21]

(e) A municipal by-law is made under s.34 of the Planning Act and is thus an "applicable law" within the meaning of s.8(2)(a) of the Building Code Act.[^22]

(f) The By-law was made under s.34 of the Planning Act and is thus an "applicable law" within the meaning of s.8(2)(a) of the Building Code Act.

(g) The land in respect to which the permit was sought is zoned R5 under the By-law.

(h) The land in respect to which the permit is sought is a "Lot" within the meaning of the By-law because it is described on a registered plan of subdivision.

(i) The proposed use for the building for which the permit was sought, an "accessory building", is a permitted use under the applicable R5 zoning.

(j) The proposed accessory building complies with the By-law except possibly in respect to minimum setback and yard location provisions.

(k) In respect to the yard location requirements, section 3.3.3 of the By-law requires:

All Accessory Buildings and Structures shall comply with the Yard provisions of the Zone in which such Accessory Building or Structure is located, except that in any Residential Zone, an Accessory Building or Structures (sic) shall comply with the following provisions: a) Except as otherwise provided for in any Residential Zone, an Accessory Building or Structure which is not attached to the Main Building shall not be erected in any Yard other than the interior Side Yard or Rear Yard.

(l) The applicant's lot does not front on a street and therefore every lot line constitutes a side lot line (because there is no front or rear lot line).

(m) The non-conformity with respect to frontage (the absence of a front lot line) renders the Syrowiks' lot "non-complying" but does not prevent the use of the Syrowiks' lot, as provided in s.3.9.5 of the By-law.

(n) The setback required for an accessory building from a side lot line is 1 metre, as stipulated in s.3.3.3(d) of the By-law.

(o) The proposed detached accessory building will be set back more than the 1 metre minimum.

(p) This interpretation is consistent with s.3.6(c)(ii) of the By-law, which provides that nothing in the By-law

... shall prevent the erection... of Buildings, Structures and Uses Accessory to a Non-Complying use, Building or Structure, provided that such erection or enlargement does not Further Contravene any of the provisions of this By-law.

(q) As a consequence the proposed construction complies with the By-law and does not require a minor variance.

(r) The Syrowiks had previously sought to build a two-storey garage as an addition to the existing cottage, which would have provided garage, storage space and additional living accommodation. This proposal did not comply with the By-law and so required a minor variance. The Syrowiks sought the minor variance, which was granted by the Committee of Adjustment, but denied by the OMB.

(s) The issues of yard location and minimum setback requirements were raised before but not decided by the OMB on the minor variance application. The OMB proceeding was argued on the premise that the lot line to the north of the lot, bordering the street, was the "Front Lot Line" but this issue was not decided by or argued before the OMB.

[48] The only aspect of the CBO's decision that was challenged – both before the appeals judge and before us – are items (l) and (m) – the finding that every lot line of the Syrowiks' lot is a "Side Lot Line" and that s.3.9.5 applies to permit an accessory building on the lot. The other reasons for the CBO's decision are not challenged.

[49] To appreciate the challenge to item (l), in context, it is helpful to consider the range of possible characterizations of this item that were available to the CBO. There are four lot lines. One borders what used to be the site for a street. The other three border lot lines for building lots owned by other persons. A right of way runs along a portion of one lot line extending southwards to a public street to provide access to the property.

(a) Option A: all lot lines are "Side Lot Lines". This interpretation fits the literal words or plain language meaning of the definitions in the By-law. It has the disadvantage of not requiring a front yard setback anywhere on the lot. This theoretical disadvantage does not appear to create a practical problem in the context of this case but it could do so in other contexts. This was the opinion of the Syrowiks' expert, Harry Froussios (his "Second Proposition" in his letter of opinion).

(b) Option B: one particular lot line is identified as the "Front Lot Line". This was the approach favoured by Patti Richardson, the Municipality's land-use planner and the Syrowiks' expert, Harry Froussios. This interpretation would not be consistent with the literal plain language of the lot line definitions in the By-law, but it would be consistent with the general principles establishing common lot frontages for aesthetic and public green space reasons. If this approach was taken in this case, the lot line most likely to be considered the front lot line is the lot line bordering the planned street between the lot and the lake. This was Ms Richardson's view, and it was the presumed view of the parties when they were before the OMB in respect to the variation application. Another possibility was the eastern lot line, which is the lot line through which the lot has de facto street access over a right-of-way. This was Mr Froussios' view, the "First Proposition" in his letter of opinion.

(c) Option C: make no determination of a front lot line, but conclude that the lot lines material to the proposed accessory building are either side lot lines or a rear lot line, but in any event not a front lot line. The logic of this analysis would be that there are only two reasonable views about the front lot line. Either there is a front lot line, and it borders the closed street allowance (as suggested in (b)), or there is no front lot line and all lot lines are side lot lines (as suggested in (a)). Either interpretation might be reasonable; both lead to the conclusion that the material lot lines for the proposed accessory building are either two side lot lines or a side lot line and a rear lot line. Either way, the required setback for the proposed accessory building is 1 metre. It is not necessary to choose between Option A and Option B in order to conclude that the proposed ancillary building complies with the By-law and a resolution of which approach is better – Option A or Option B – need not be decided in this case.

(d) Option D: conclude that unless it can be shown definitively that the proposed accessory building will be in a front yard or will violate a setback requirement, then the permit must be issued. This reading would tend to comport with the language of s.8(2) of the Building Code Act, but could undercut the general practice of CBO's to require proponents to demonstrate compliance with "all laws". This argument was not advanced in this case but theoretically could be available on a reasonable reading of s.8(2) of the Building Code Act.

(e) Option E: conclude that (a) a front lot line is required; and (b) none of the lot lines can be characterized as a "Front Lot Line"; and (c) therefore the yard and setback requirements cannot be known with certainty; and (d) therefore no accessory building permit can be granted. This was the view of the Wheelers' expert, Ric Knutson. This view runs counter to the principles set out in considerations (a), (f), (g), (j), (l) and (o) of Mr Lovie's reasons for granting the building permit.

[50] Of the options set out above, only the last one would preclude the proposed accessory building. The others would require the CBO to issue the building permit.

[51] The Wheelers' challenge to item (m) of the CBO's reasons concerns the interpretation of s.3.9.5 of the By-law, which states:

In any Zone, where one or more Existing Lots are held in separate ownership and have insufficient Lot Area and/or Frontage, this By-law shall not prevent the Use of such Lot and the construction of any Building or Structure Permitted by this By-law, provided that all other provisions of this By-law are complied with and provided that the lot can be serviced with a potable water supply and sanitary sewerage facilities or septic system.

The Wheelers argue that this provision does not apply because the word "insufficient" means "not enough" but not "not any". They argue that this interpretation is supported by the linkage of Lot Area and Frontage. Obviously, as they argue, no building may be built on a Lot that has "no Lot Area".

[52] With respect, this is sophistry. No problem arises in respect to a lot that has "no Lot Area" since there cannot be a lot with no area. There can be lots with "not enough" frontage and, as is shown in this case, it is possible for there to be a lot with "no frontage". There is no conceivable reason to distinguish between a lot with "not enough" frontage" and a lot with "no frontage" at all in the application of s.3.9.5. Further, if we were to elevate literalism to exclude all contextual considerations, the wording of s.3.9.5 includes "insufficient Lot Area and... Frontage". This language includes a Lot with insufficient area and no frontage; it would not apply, literally, to a lot that has no frontage and no area.

[53] Also with respect, the issue on appeal is the reasonableness of the CBO's decision. There is a very good argument that the respondents' reading of s.3.9.5 is unreasonable. But even if that reading was thought reasonable, there is no argument that the CBO's reading of the provision is unreasonable.

Reasonableness

[54] It is not necessary to pass on the reasonableness of each of the five options to address the problems with "Lot Lines" that I have described above. Nor is it necessary to rank them in order of "relative reasonableness". What is required is an assessment of whether the decision of the CBO, in the circumstances of this case, falls within a range of decisions that are reasonable. As stated in the jurisprudence from the Supreme Court of Canada, to determine reasonableness the court should inquire into the existence of justification, transparency and intelligibility of the impugned decision and determine whether the decision falls within a range of reasonable possible results.[^23]

[55] Mr Lovie, as the CBO, put his mind to the plans for the proposed accessory building and the applicable provisions of the By-law. He concluded that the By-law did not address directly the problem in this case and that the situation was unique and the answer ambiguous. Mr Lovie then interpreted the governing provisions on the basis of his understanding of the By-law, taken as a whole. His decision is a reasonable interpretation of the By-law in the unique circumstances of this case. The question decided by Mr Lovie lies at the very core of his expertise and his decision entitled to deference on appeal.

[56] The only relevant argument made on appeal that the impugned decision is unreasonable concerns the implications if it is possible for all lot lines to be side lot lines. It was this proposition that the appeals judge found not to be "logical". It was this proposition that grounded the argument that the Syrowiks would gain some sort of unfair advantage or the general aesthetics of the neighbourhood would be compromised. And it was this proposition that led the appeals judge to express concern about the application of this principle in other contexts.

[57] The respondents' expert, Ric Knutson, acknowledged in cross-examination that the unique circumstances in this case do not raise an issue of general concern. He said:

I will concede this lot at 7292 Leighton Drive is an anomaly. It's unlikely to see it maybe anywhere else in the Municipality (sic).[^24]

[58] If the Municipality had built Hazelwood Drive, as envisioned at the outset, the Syrowiks would have been permitted to build the proposed accessory building. The neighbourhood would have had the Syrowiks' garage, and it would have had a street running between the cottages and the lake. There is no reason, in principle, why the Syrowiks should lose their accessory building because there is no street.

[59] The CBO's decision to issue the building permit falls within the range of reasonable decisions. It satisfies the requirements of justification, transparency and intelligibility. I would allow the appeal.

Irrelevant Arguments: The Official Plan and the OMB Decision

[60] The respondents placed considerable weight on the Municipality's Official Plan as an aid in interpreting the By-law, and on the decision of the OMB in stating principles to be taken into account in respect to the proposed accessory building. I do not accept either of these arguments.

(a) The Official Plan

[61] First, on any view, it was an error of law for the appeals judge to rely upon the Official Plan to assist him in interpreting the By-law. The Official Plan was not in evidence before the appeals judge. It was not part of the evidentiary record and it is not something of which the appeals court could take judicial notice.[^25]

[62] Second, the Official Plan is not one of the "applicable laws" under s.8(2).[^26] This is clear law, of general application in Ontario, and it reflects the nature of the CBO's authority: his task is to decide whether an application for a building permit complies with "all applicable laws" including the By-law. His task is not to consider whether a proposed project fits with general matters of principle reflected in the Municipality's Official Plan. The Official Plan may only be considered where there is an ambiguity in the By-law and only to the extent that the Official Plan will help to resolve that ambiguity.[^27]

[63] Third, in this case the Official Plan could be of no use to the CBO to resolve an ambiguity. The Official Plan does not cast any light upon how to resolve problems respecting non-complying Lots. It says nothing about the definitions of lot lines or the meaning of the word "insufficient" in s.3.9.5 of the By-law.

(b) The OMB Decision

[64] The OMB decision is irrelevant to the issue before the CBO.

[65] The Wheelers argue otherwise on the basis of the similarities between the construction proposed before the OMB and that proposed in the request for a building permit. Those similarities are likewise irrelevant. And all of this is well-trod ground in municipal planning law.

[66] If a project meets the requirements of s.8(2) of the Building Code Act, then the proponent is entitled to receive a building permit from the CBO. If a project does not meet the requirements of s.8(2), then the CBO may not issue a building permit. The proponent must seek a minor variance (or take other steps to bring the proposal into compliance with "all laws").

[67] It is commonplace for a proponent to seek a minor variance and then, if unsuccessful, to seek a building permit for a project as close as possible to the original proposal which complies with "all applicable laws" and does not require a variance.

[68] Where a minor variance is sought, there is a public process that involves notice and an opportunity to be heard for persons, such as the Wheelers, who may have an interest in whether a minor variance should be permitted. There is a broad range of factors to take into account when deciding whether a variance ought to be permitted. Those factors include things like the impact of the project on neighbours and planning concerns as a whole. None of these factors has any bearing on a request for a building permit to a CBO. If the proposed project qualifies for a building permit, then the impact of the proposal on neighbours is irrelevant: the proponent is entitled to the building permit.

[69] This is a critical point in a case such as this one, where the lot and use are non-complying. Of course general planning principles would militate against any kind of building permit: those same provisions would preclude the lot and use were it not for the saving provisions that render the lot and use non-complying. Such an analysis ignores the breadth of the provisions in the By-law continuing and permitting non-complying uses. In this instance, the By-law permits an accessory building on an R5 lot, and that permission applies to a non-complying lot zoned R5.

(c) Misuse of These Points on the Appeal

[70] The Municipality and the CBO argue that the use made by the appeals judge of the Official Plan and the prior decision of the OMB introduces land use planning matters into the process of building permit applications. They argue that this "would result in an unauthorized and unjustified expansion of the CBO's powers". They argue that this would impart a "subjective element to the issuance of a building permit based on the public interest and potential impacts of neighbours".

[71] This argument flows from s.25(4) of the Building Code Act, which provides that the appeals judge "steps into the shoes" of the CBO – and thus the analysis used by the appeals judge, by necessary implication, was an analysis available to the CBO in this case, and to CBO's generally in other cases.[^28]

[72] I agree that the use made by the appeals judge of the Official Plan and the OMB decision was to import land use planning and policy considerations into his decision. He was clear that this was what he was doing:

I believe it is appropriate when examining the zoning bylaw and the official plan to take an overview as to whether or not this application is desirable from a planning and public interest point of view....[^29]

This is wrong in principle. This is not the role of the CBO in considering an application for a building permit. It is likewise not the role of a judge sitting on appeal from a decision of the CBO to issue a building permit. If an application complies with s.8(2) of the Building Code Act, then the permit must be granted, regardless of the CBO's or the judge's view of the desirability of the project. If the application does not comply with s.8(2), then the permit must be denied, regardless of the CBO's or the judge's view of the desirability of the project.

Disposition

[73] I would allow the appeal. I would set aside the decision of the appeals judge and restore the decision of the CBO.

[74] I would grant the Syrowiks their costs in this court and below. If the parties cannot agree upon the quantum of these costs then they shall make written costs submissions, the appellants by June 2, 2017 and the respondents by June 16, 2017.

D.L. Corbett J.

I agree: Aitken J.

I agree: Fregeau J.

CITATION: Wheeler v. Syrowik, 2017 ONSC COURT FILE NO.: 34/15 DATE: 20170526

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

C. AITKEN, D.L. CORBETT and J. FREGEAU JJ.

BETWEEN:

STANLEY WHEELER et al. Applicant/Respondents in Appeal

• and -

DAVID SYROWIK et al. Respondents/Appellants in Appeal

DECISION

D.L. Corbett J.

Released: May 26, 2017

[^1]: Wheeler v. Syrowik, 2015 ONSC 301. [^2]: Municipality of Lambton Shores By-law 1 of 2003 (Comprehensive Zoning By-law), Exhibit "D" to the Affidavit of Clifford Eric Knutson, Exhibit Book, Volume 1 (the "By-law"), s.2.2 (definition of "non-complying"). [^3]: Wheeler v. Syrowik, OMB Decision of Member Blair S. Taylor, Sept. 11, 2013 (unreported, PL 121228)(the "OMB Decision"), paras. 29-44. [^4]: OMB Decision, para. 34. [^5]: Letter from the CBO dated January 8, 2014, Exhibit A to the Affidavit of Randy Lovie, Exhibit Book, Vol. 1, pp. 126-7. [^6]: Letter from Harry Froussios dated April 29, 2014, Exhibit B to the Affidavit of Randy Lovie, Exhibit Book, Vol. 1, pp. 128-136. [^7]: Building Code Act, 1992, SO 1992, c.23, s.25(1). [^8]: Building Code Act, 1992, SO 1992, c.23, s.26. [^9]: Toronto District School Board v. Toronto (City), 2014 ONSC 5494 (Div Ct), para. 18; Berjawi v. Ottawa (City), 2011 ONSC 236, [2011] OJ No. 379 (SCJ), para. 12; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770. [^10]: Southgate Public Interest Research Group v. Southgate (Township), 2012 ONSC 5383, paras. 62-64; Vandenheede Farms Ltd. v. Norfolk (County) Chief Building Official, 2011 ONSC 1525, paras. 6-13; Runnymede Development Corp. v. 1201262 Ontario Inc., 2000 ONSC 22337, paras. 12-14. [^11]: Toronto District School Board v. Toronto (City), 2014 ONSC 5494 (Div Ct), para. 19; Ottawa (City) v. Ottawa (City) Chief Building Official, 2003 ONSCDC 49413, [2003] OJ No. 4530 (Div Ct), para. 92. [^12]: Building Code Act, 1992, SO 1992, c.23, s.8(1). [^13]: Building Code Act, 1992, SO 1992, c.23, s.8(2)(a). [^14]: Wheeler v. Syrowik, 2015 ONSC 301, paras. 20-21. [^15]: I do not agree with the reasoning used by the appeals judge to arrive at this conclusion: the standard of review of the CBO's decision to grant the building permit was reviewable on a standard of reasonableness, period. [^16]: Wheeler v. Syrowik, 2015 ONSC 301, para. 22. [^17]: See Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770. [^18]: Appeal Book and Compendium, tab 17. [^19]: Appeal Book and Compendium, tab 18. [^20]: O. Reg. 332/12 (the Building Code"). [^21]: Building Code, s.1.4.1.3(f). [^22]: Planning Act, RSO 1990, c. P.13, s.34. [^23]: Berjawi v. Ottawa (City), 2011 ONSC 236, para. 12; Dunsmuir v. New Brunswick, [2016] 1 SCR 190; Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 SCR 770.. [^24]: Cross-examination of Eric Knutson, Q. 165. [^25]: I say "seek to put" because it is not clear to me that the Official Plan would have been admissible: there is at least an argument that it is irrelevant. As a practical matter, in most cases it would be expected that no objection would be taken to placing the entire Official Plan before the court, leaving it as a matter of argument the extent, if any, that consideration or weight should be given to it. [^26]: Building Code, s.1.4.1.3(1). [^27]: Toronto District School Board v. Toronto (City), 2014 ONSC 5494, para. 27 (Ont. Div. Ct.), per Swinton J.; Southgate Public Interest Research Group v. Southgate (Township), 2012 ONSC 5383, paras. 77-80 (Ont. SCJ), per Ricchetti J. [^28]: Southgate Public Interest Research Group v. Southgate Township, 2012 ONSC 5383, para. 3. [^29]: Wheeler v. Syrowik, 2015 ONSC 301, para. 28.