CITATION: 2332980 Ontario Inc. v. Toronto (City), 2017 ONSC 460

DIVISIONAL COURT FILE NO.: 387/16 DATE: 20170119

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, SWINTON and RAMSAY JJ.

BETWEEN:

2332980 Ontario Inc. Applicant (Respondent in Appeal)

– and –

John Heggie (in his capacity as Acting Chief Building Official in the City of Toronto) and 2101173 Ontario Inc. Respondents (Appellants in Appeal)

John Mascarin and Laura Dean, for the Respondent, 2332980 Ontario Inc.

David Tortell, for the Appellant, the Acting Chief Building Official in the City of Toronto J. Alan Aucoin, for the Appellant, 2101173 Ontario Inc.

HEARD: at Toronto, January 16, 2017

[1] This is an appeal under s. 26 of the Building Code Act, 1992, S.O. 1992, c. 23 from the order of Morgan J. dated July 7, 2016.

[2] The Chief Building Official of the City of Toronto issued three building permits for renovations to Unit 1 of 3670 Victoria Park Avenue that would make that site suitable for use as a body rub parlour. The appellant 2101173 Ontario Inc. (“210”) leased that unit. The respondent 2332980 Ontario Inc. is the owner of Unit 2A, a competing body rub parlour. It appealed the Chief Building Official’s decision to the Superior Court under s.25 of the Building Code Act. The appeal judge allowed the appeal and rescinded the building permits. The Chief Building Official and 210 now appeal to this court.

[3] Land use in this district is governed by By-law 7625 which governs zoning within the bounds of the former City of North York. The MO zone in the by-law governs industrial-office business parks. Personal service shops, which would include body rub parlours, are permitted in the MO zone. There is an exception to the MO zone provided in s.64.34(3)(a) of the by-law, known as the MO(3) zone. The site in question is located within the MO(3) zone. The boundary of MO(3) for the most part runs north and south 60 metres west of Victoria Park Avenue. Section 64.34(3)(a) of the by-law provides:

Notwithstanding the uses permitted in a MO zone, no commercial uses except business offices, professional offices, restaurants and financial institutions and no automotive uses are permitted which front on the west side of Victoria Park Avenue for a depth of 60 m, except for an existing retail use located 39.3 m from the west side of Victoria Park Avenue on Parcel 2 as shown on Schedule MO (3).

[4] Section 2 of the by-law begins with the words that “[f]or the purpose of this By-law the definitions and interpretations given in this section shall govern.” Section 2.84 states that the word “shall” is mandatory. Section 2.40 of the bylaw defines “front” as follows:

“Front” shall mean the elevation of a building which is opposite the main access door.

The Chief Building Official’s decision

[5] The application for the building permits was reviewed by Tim Crawford, the manager of plan review for the North York district. His duties include overseeing plan reviews, interpreting zoning by-laws and the Ontario Building Code and advising on zoning and planning related policy matters.

[6] Mr. Crawford deposed that the site to which the permits relate is a ground level non-residential unit located within the MO(3) zone inside 3670 Victoria Park Avenue, which is at the north-west corner of Victoria Park and Sparks Avenue. The easterly portion of the site is located within 60 metres of Victoria Park. The main access to the building, including Unit 1, is on Sparks Avenue, not Victoria Park. The storefronts, parking spaces and main vehicular and pedestrian access points are all located along Sparks Avenue. The only driveway accessing from Victoria Park leads to an industrial loading and shipping dock located along the north side, i.e. the back of the building. Mr. Crawford has visited and photographed the site. From Victoria Park Avenue, what is visible is a wall and some shrubs.

[7] Based on his review of the permit applications and the by-law, and his many years of experience reviewing such applications, Mr. Crawford concluded that the proposed use was in compliance with the by-law.

[8] In his opinion, the by-law permitted the use of a personal service shop, despite being in the MO(3) zone, because the site did not front on Victoria Park Avenue. In his view, there was no ambiguity concerning the meaning of “front,” because it is defined in s.2.40 of the by-law.

The decision on the first level of appeal

[9] The parties agree that the appeal judge was correct to hold that the impugned decision was a question of mixed fact and law, to which a standard of reasonableness applies. See Ashburner v. Adjala-Tosorontio (Township), 2016 ONSC 2665 (Div. Ct) at para. 51.

[10] The appeal judge noted that the by-law defines “front” as a noun but not as a verb. He held that this gave rise to an ambiguity.

[11] With respect to resolving the ambiguity, he said:

[30] In other words, both sides in this debate seek to apply the “clear meaning” rule of interpretation to the statutory provision in hand. It is plain and clear that “front” means the front entrance of the building. It is likewise plain and clear that “front” means facing the street with a stretch of the Building regardless of whether that stretch is comprised of a brick wall or a doorway.

[31] Since neither interpretation is clearly right or clearly wrong, the controversy demonstrates the fact that interpretive rules such as this are a mirage, with false meaning shimmering in what is otherwise a hermeneutic desert. …

[33] This clash of meanings for the word “front”, each of which is plausible from a logical and linguistic point of view, making each simultaneously a formally valid and invalid interpretation, does not necessarily impede statutory interpretation.

[12] The judge decided that the proper interpretation turned on the policy of the by-law. He held that “uses … which front on Victoria Park Avenue for a depth of 60 metres” meant uses on a site within 60 metres of Victoria Park Avenue where the building has a wall on Victoria Park Avenue, whether the main access is on Victoria Park or not.

[13] This meaning, in his view, was the only interpretation consistent with the policy of the by-law. In the judge’s view the Chief Building Official made a decision that was both incorrect and unreasonable because he ignored the policy of the by-law.

The standard of review on further appeal

[14] 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: Ashburner, paragraph 38. There is no appeal on a question of fact alone: Building Code Act, s.26(3).

The decision on the first level of appeal

[15] In my view, the appeal judge made two errors of law:

(a) He misapprehended the evidence; and

(b) He did not apply the standard of reasonableness.

Misapprehension of evidence

[16] The appeal judge, in finding fault with the decision to issue the building permits, said:

[47] Applying the public values and policy considerations at stake in a zoning enactment, section 64.34(3) (a) of the By-law places Unit 1 of the Building within the MO (3) zone. To conclude otherwise would be to impose an arbitrary and meaningless policy onto this stretch of Victoria Park Avenue.

[48] In issuing the Permit on the basis that Unit 1 of the Building is within the MO zone and not the MO (3) zone, the CBO ignored the By-law’s policy context in its entirety. He thereby made not just an incorrect decision, but an unreasonable one.

[17] This conclusion reveals a serious misapprehension of the evidence. The evidence was not that the proposed use was permitted because the site was in the MO zone. The evidence was that the site was within the MO(3) zone, as the map contained in the by-law clearly shows, but the building permits were issued because the site did not have its main access on Victoria Park Avenue. The City’s point was that use is restricted in the MO(3) zone only if the use fronts on Victoria Park, and if that were not so, s.64.34(3)(a) would not need to mention fronting at all. This misapprehension colours the judge’s conclusions on the Chief Building Official’s interpretation of the by-law. If the appeal judge had correctly apprehended the evidence filed by the Chief Building Official, there would have been no basis upon which to find his interpretation unreasonable.

Applying the standard of review

[18] A reasonable decision in respect of law and facts is one which falls within a range of possible, acceptable outcomes that are defensible in law: Dunsmuir v. New Brunswick, 2008 SCC 9, para. 47. The Chief Building Official’s decision was unreasonable if there is no line of analysis that could reasonably lead from the evidence before him to the conclusion at which he arrived. A decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling: Ryan v. Law Society (New Brunswick), 2003 SCC 20, para. 55.

[19] In applying the reasonableness standard of review, one starts with the reasons of the decision-maker, which in this case are contained in the affidavit of Mr. Crawford. The appeal judge did not do so. Instead, he conducted his own interpretation of the by-law and made his own decision about its proper application. That was an error in law.

[20] The appeal judge commenced his analysis with the meaning of “front” as a verb rather than a noun. He concluded that since “front” as a verb is not defined by the by-law, an ambiguity arises. There were two possible interpretations, and neither possible interpretation is clearly right or clearly wrong. He then considered a number of authorities on statutory interpretation, drawing heavily from American academic circles, and concluded that the ambiguity must be resolved in accordance with the policy of the by-law.

[21] In my view, when the appeal judge proceeded to consider these other authorities he started to go wrong. If the interpretation made by the Chief Building Official was possible “from a logical and linguistic point of view,” it cannot have been unreasonable. That should have been the end of it.

[22] As the appeal judge did not conduct the correct analysis it falls to this Court to do so.

[23] When one considers the language of the by-law and its application to the facts of this case, the decision of the Chief Building Official was a reasonable one.

[24] The first line of inquiry into the policy of legislation is its wording. The most obvious interpretation of “front” as a verb is the meaning of “front” as a noun.

[25] Can it really be likely that City Council had a reason for choosing the expression “uses … which front on Victoria Park Avenue” as opposed to “uses which have their front on Victoria Park Avenue”? It is very unlikely that City Council defined “front” as a noun in the definition section, but, wishing to convey a different meaning from its stated definition, it chose to use the same word as a verb in s.64.34(3)(a). In my view the alleged ambiguity is fanciful. At the very least, it was reasonable for the Chief Building Official to give the verb the meaning corresponding to the defined noun.

[26] The appeal judge, having found an ambiguity, proceeded to determine the policy behind the zoning by-law without reference to the evidence of the Chief Building Official, whose function it was to know that policy. Nor did the appeal judge undertake a review of the context of the by-law. He reviewed largely academic and dated authority. In the end he emphasized the line that runs down the by-law map parallel to Victoria Park Avenue at a distance of 60 metres to the east. He concluded, it seems, that the policy of the by-law was to restrict commercial use within 60 metres of Victoria Park to four uses, regardless of whether the main access was on Victoria Park or the side street, and that to do otherwise would make no sense. “After all,” he said, “the by-law regulates uses, not doorways.”

[27] I do not see the inevitability of the appeal judge’s conclusion. Indeed, the effect of his interpretation is to read “front” out of the by-law, as he has concluded that any building in the MO(3) zone with an elevation on Victoria Park is caught by the exclusion. Zoning is in part concerned with appearance. The main access to a building is its most visible side. The policy of the by-law could well be to restrict commercial uses in sites in which the main access is on Victoria Park. Rather than regulate doorways, it would use the location of doorways to regulate uses. Any doubt should have been resolved by the Chief Building Official’s evidence.

Conclusion and orders

[28] I would allow the appeal and set aside the decision of the appeal judge including the cost awards.

[29] Having heard from the parties on costs, I would award the City $17,500 for the first appeal and $10,000 for the appeal in this court, and the other appellant, 2101173 Ontario Inc., $12,500 for the first appeal and $10,000 for the appeal in this court, all payable by the Respondent 2332980 Ontario Inc.

Ramsay J.

I agree _______________________________

Kiteley J.

I agree _______________________________

Swinton J.

Released: January 19, 2017

CITATION: 2332980 Ontario Inc. v. Toronto (City), 2017 ONSC 460 DIVISIONAL COURT FILE NO.: 387/16 DATE: 20170119

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, SWINTON and RAMSAY JJ.

BETWEEN:

2332980 Ontario Inc. Applicant (Respondent in Appeal)

– and –

John Heggie (in his capacity as Acting Chief Building Official in the City of Toronto) and 2101173 Ontario Inc. Respondents (Appellants in Appeal)

REASONS FOR JUDGMENT

Released: January 19, 2017