Court Information and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20211117 DOCKET: C69034

Judges: MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN:

David Syrowik and Ursula Syrowik Applicants (Appellants)

AND:

Stella Wheeler and Sheila Diaz Respondents (Respondents)

Counsel: Analee Baroudi, for the appellants David M. Sanders, for the respondents

Heard: November 2, 2021 by video conference

On appeal from the judgment of Justice Jonathon C. George of the Superior Court of Justice, dated December 18, 2020 with reasons reported at 2020 ONSC 7948.

Reasons for Decision

[1] The appellants appeal from a decision dismissing their application under s. 440 of the Municipal Act, 2001, S.O. 2001, c. 25, (the “Act”) for declaratory and other relief to enforce a municipal fence by-law. The by-law at issue is referred to as “The Corporation of the Municipality of Lambton Shores By-law 80-2008, a By-law to Prescribe the Height and Type of Fences” (the “Fence By-law”). Following the appeal hearing, we dismissed the appeal for reasons to follow. These are our reasons.

Background

[2] The appellants and the respondents own neighbouring cottages in the Municipality of Lambton Shores (the “Municipality”) on Lake Huron. Both cottages face generally to the north and front on an unopened private road allowance that runs along the lake. The respondents’ property lies to the west of the appellants' property. The respondents’ driveway faces west and opens onto a private road that runs generally north and south.

[3] In 2015, the respondents built a privacy fence (the “Fence”) that runs parallel to the east wall of their cottage and their eastern property line, which divides their land from the appellants’ land. The Fence sits adjacent to the respondents’ cottage and runs beyond their cottage towards the lake.

[4] The appellants contend that the Fence is too high, that it violates the Fence By-law and that, on occasion, it blocks their view of the sunset over the lake. They also contend that, in constructing the Fence, the respondents violated the Municipality's site alteration by-law by shoring up the fence line with sand without a permit.

[5] In April 2018, the appellants complained to the Municipality. The Municipality’s clerk responded to the appellants' complaints by email dated May 25, 2018. She said the Municipality had considered the complaint and found no violation of the site alteration by-law. Further, while the Municipality believed that the end of the Fence closest to the lake violated a 6.5 feet height restriction in the Fence By-law, other factors were relevant: the nature and context of the complaint, background information and spirit of the By-law. Having considered all the circumstances, the Municipality said it would not be conducting any further investigation with respect to the alleged fence violation.

The Application Judge’s Decision

[6] On the appellants’ application to enforce the Fence By-law under s. 440 of the Act, the application judge assumed for the purposes of the application that the Fence "is probably higher than the Municipality permits." Nonetheless, he declined to make an order that the respondents remove or lower the Fence. He found that the Municipality had looked into and declined to enforce the Fence By-law for articulable reasons. Given that the Municipality had not acted unreasonably or in bad faith, he saw no basis on which to intervene and grant the relief requested.

Discussion

[7] Section 440 of the Act reads as follows:

If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.” [Emphasis added.]

[8] Both parties submit that the application judge erred in concluding that in order to succeed on an application to enforce a by-law under s. 440 of the Act, where a municipality has declined to do so, a taxpayer is required to show that the Municipality acted unreasonably or in bad faith in declining to enforce the by-law.

[9] We agree. The appellants were not seeking an order compelling the Municipality to enforce the Fence By-law. Nonetheless, we are satisfied that the evidence the appellants adduced on their application lacked sufficient detail to establish a clear breach of the Fence By-law and that they were not therefore entitled to an order restraining its contravention.

[10] As we will explain in more detail, the Fence By-law’s height restrictions, as they apply to the respondents’ property, are determined by reference to the term “street”. The term “street” is defined in the Fence By-law to mean “a public highway which provides the principal means of vehicular access to abutting lots and includes its sidewalks and boulevards.” However, there are no “public highways” adjacent to the respondents’ property. Rather, an unopened road allowance lies to the north and a private road lies to the west of their property. The respondents are otherwise bounded by other cottagers. [^1] Accordingly, whether and how the Fence By-law applies to the respondents’ property is fraught with difficulty. Although served with notice, the Municipality declined to appear on the application. Further, the appellants adduced no evidence on the application from Municipal officials or employees. Based on our review of the record, the appellants’ evidence is not sufficient to demonstrate whether or how the Fence By-Law applies to the respondents’ property.

1. The Fence By-law Definitions

[11] The Fence By-law prescribes fence heights by reference to their location in a particular yard: front yard, exterior side yard, side yard and rear yard.

[12] It is undisputed that the Fence is of a “solid type of construction” as described in the Fence By-law. The Fence By-law specifies that a fence of a solid type of construction shall not exceed the following maximum heights:

• 0.91 metres (3 feet) in front and exterior yards; and
• 2 metres (6.5 feet) in interior side yards and rear yards.

[13] The difficulty concerning whether or how the Fence By-law applies to the respondents’ property arises because it is not clear that the land on which the Fence is located falls within the definition(s) of any of the foregoing yards.

[14] This is because the definition of each yard described in the Fence By-law is tied, in turn, to the definition of "street". The link occurs either directly through the definition of the particular yard in the Fence By-law - or indirectly through references in the definition of the particular yard in the Fence By-law to terms defined in either Lambton Shores Zoning By-law No. 1 of 2003 (the “Zoning By-law”) or the Fence By-law.

[15] The problem arises because, as we have said, the road and road allowance abutting the respondents’ property are private, not public. If the land on which the fence is located does not fall within one of the relevant yard definitions, it is far from clear that the Fence By-law operates to prescribe fence height limits on the respondents’ property at all.

[16] All the relevant By-law definitions are set out in Appendix ‘A’ with the relevant links underlined. But, by way of example, we will set out below the relevant definitions of exterior side yard, front yard and side yard in the Fence By-law and show how the definitions are tied to the term “street”.

[17] For example, the definition of exterior side yard in the Fence By-law refers directly to the definition of “street”. In contrast, the definition of front yard in the Fence By-law is tied to the definition of “street” by reference to a term that is defined, and tied to the definition of “street”, in the Zoning By-law. Further, an interior yard is defined by reference to a term in the Fence By-law (front yard) that is tied to the definition of “street” through the Zoning By-law.

(i) Exterior side yard

Fence By-law

“Yard, exterior side” means a side yard immediately adjoining a street, extending from a front yard to the rear lot line;

(ii) Front yard

Fence By-law

“Yard, front” means a yard that extends across the full width of the lot from the front lot line to the nearest wall of the main building on the lot;

Zoning By-law

“Front Lot line” means 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. In the case of a Through Lot or a Corner Lot whose exterior Lot Lines are the same length, the Lot Line where the principle access to the Lot is provided shall be deemed to be the Front Lot Line. [^2]

(iii) Interior Yard

Fence By-law

“Yard, side” means a yard that extends from the front yard to the rear yard and from the side line of a lot to the nearest wall of the main building on the lot.

Fence By-law

“Yard, front” means a yard that extends across the full width of the lot from the front lot line to the nearest wall of the main building on the lot.

2. The Appellants’ Evidence

[18] The appellants filed two affidavits from a registered land use planner to address, among other things, the interpretation of the Fence By-law and its application to the Fence. The planner advanced an opinion that the Fence is located partly within a front yard and partly within a side yard of the respondents’ property and therefore subject to both a 3 foot and 6.5 foot height restriction. In reaching these opinions the planner relied in large measure on a 1980 Committee of Adjustment decision and what he describes as the intent of the original subdivision plan within which the cottages are located. At least implicit in this opinion is a conclusion that the northern boundary of the respondents’ property is a front lot line.

[19] Based on our review of the record, the land use planner's evidence is not sufficient to establish a clear breach of the Fence By-law. As a starting point, the planner did not explain the basis for his opinion concerning the intent of the original subdivision plan relative to the Fence By-law. Nor does his opinion refer to Wheeler v. Syrowik, 2017 ONSC 2901, 67 M.P.L.R. (5th) 43 (Div. Ct.), a decision addressing the appellants' property, but which described the northern boundary of the respondents' land as a side lot line – apparently premised on an interpretation of the Zoning By-law proffered by the planner and accepted by the Chief Building Official. [^3]

[20] Most importantly however, the planner’s opinion does not address what we view as the real possibility that the Fence By-law does not apply to the respondents’ lands at all. His reliance on a dated Committee of Adjustment decision, and an unexplained opinion concerning the intent of the original subdivision plan, are inadequate to displace that concern.

Disposition and Costs

[21] The appeal is dismissed. Costs of the appeal are to the respondents on a partial indemnity scale in the agreed upon amount of $12,300 inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“I.V.B. Nordheimer J.A.”

Appendix ‘A’

Fence By-Law

“Yard, exterior side” means a side yard immediately adjoining a street, extending from a front yard to the rear lot line;

“Yard, front” means a yard that extends across the full width of the lot from the front lot line to the nearest wall of the main building on the lot;

“Yard, rear” means a yard that extends across the full width of the lot from the rear lot line to the nearest wall of the main building on the lot;

“Yard, side” means a yard that extends from the front yard to the rear yard and from the side lot line of a lot to the nearest wall of the main building on the lot.

Zoning By-law

“Front Lot Line” means 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. In the case of a Through Lot or a Corner Lot whose exterior Lot Lines are the same length, the Lot Line where the principle access to the Lot is provided shall be deemed to be the Front Lot Line.

“Rear Lot Line” means 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.

“Side Lot Line” means a Lot Line other than a Front or Rear Lot Line, and shall include Interior Side Lot Line and Exterior Side Lot Line.

“Exterior Side Lot Line” on a Corner Lot, means the longer Lot Line abutting a Street.

“Interior Side Lot Line” means a Side Lot Line other than an Exterior Side Lot Line.

Footnotes

[^1]: The neighbourhood where the parties' cottages are located is private property. The landowners hold title to their individual properties but all else is owned and maintained by the Richmond Park Cottagers’ Association, comprised of the homeowners in the neighbourhood. None of the streets in the neighbourhood have been assumed by the municipality. [^2]: The exterior lot lines of the respondents’ property are not the same length. [^3]: The interpretation accepted by the Chief Building Official was one of two interpretations proffered by the planner and not apparently the planner’s preferred interpretation.