DATE: 20030912 DOCKET: C38771

COURT OF APPEAL FOR ONTARIO

FELDMAN, CRONK and ARMSTRONG JJ.A.

BETWEEN:

LIGHTHOUSE NIAGARA RESOURCE CENTRE

Applicant (Respondent in Appeal)

• and -

THE CORPORATION OF THE CITY OF NIAGARA FALLS

Respondent (Appellant)

Thomas A. Richardson and Jane Clarkson for the applicant (respondent in appeal)

Paul A. Pingue for the respondent (appellant)

Heard: February 7, 2003

On appeal from the order of Justice William J. Festeryga of the Superior Court of Justice, dated August 8, 2002.

ARMSTRONG J.A.:

[1] This is an appeal from the order of Festeryga J. of the Superior Court of Justice (the "applications judge").

[2] The order of the applications judge granted the application of the respondent for a declaration that the establishment of an emergency youth shelter facility in Niagara Falls is a permitted use within the General Commercial Zone provisions of the zoning by-law of the appellant, the City of Niagara Falls, By-law No. 79-200, Comprehensive Zoning By-law, s. 8.2.1.

BACKGROUND

[3] The respondent is a not-for-profit organization, registered as a charity with Revenue Canada. Since the summer of 1998, the respondent has intermittently operated a drop-in centre at various locations in the City of Niagara Falls.

[4] In 2001, the respondent decided that it wanted to establish an emergency youth shelter facility that would provide overnight accommodation for twelve people between the ages of sixteen and twenty-one. The emergency youth shelter was intended to supply the following additional services:

(i) hot meals including dinner, breakfast and bag lunches at no cost;

(ii) hygiene and household supplies at no cost;

(iii) shower and laundry facilities at no cost;

(iv) the provision of clothing and footwear at no cost;

(v) emergency first aid at no cost;

(vi) outreach services at no cost;

(vii) educational upgrading, homework tutoring, computer training and job search assistance at no cost; and

(viii) crisis intervention and referrals to other agencies at no cost.

[5] The City opposed the establishment of such a facility on the ground that it was not a permitted use under the city zoning by-law, supra, s. 8.2.1.

[6] The respondent brought an application pursuant to rule 14.05 (3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides:

14.05(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(d) the determination of rights that depend on the interpretation of a…municipal by-law… .

[7] The applications judge decided that the proposed emergency youth shelter facility is a "Community Building" as defined by the zoning by-law and is therefore a permitted use under the said by-law.

THE ISSUES IN THIS APPEAL

[8] The appellant raised the following issues in this appeal:

(a) Did the applications judge err in finding that the respondent's proposed emergency youth shelter facility is a Community Building as defined in the City's zoning by-law?

(b) Did the applications judge err in determining that because the respondent's purposes are charitable, the respondent's proposed use fell within the definition of a Community Building, as defined in the City's zoning by-law?

(c) Did the applications judge err in granting the application on the basis that the appellant's failure to allow the proposed emergency youth shelter facility as of right would result in an injustice to the community?

[9] The appellant also advanced as a further ground of appeal in its factum whether the applications judge erred in making his decision when the question before him was academic because it relates to matters which might arise in the future. This ground of appeal was premised on the basis that there was no specific evidence as to a proposed location for the emergency youth shelter. However, in the argument before us, this ground of appeal was abandoned.

ANALYSIS

(a) Did the applications judge err in finding that the respondent's proposed emergency youth shelter facility is a Community Building as defined in the City's zoning by-law?

[10] Section 2.15 of the zoning by-law defines Community Building as follows:

"COMMUNITY BUILDING" means a building used for community activities including, but not so as to restrict the generality of the foregoing, arts, crafts, physical, social, charitable and educational facilities and not used for any commercial purpose.

[11] The appellant submitted that sleeping is not a "community activity" when considered in accordance with the ordinary meaning of the English language and is therefore not a permitted use.

[12] The appellant argued that under s. 8.2.1. of the zoning by-law, permitted uses include a hotel and motel. Pursuant to s. 2.28, a hotel is a permitted use for the "temporary accommodation for travellers or transients on a year round basis". Pursuant to s. 2.33, a motel is a permitted use"catering primarily to the travelling public by supplying overnight sleeping accommodation".

[13] There is express reference to "accommodation" within the definition of hotel and express reference to "sleeping accommodation" within the definition of motel. The appellant contended that there is no express or implied reference in the definition of Community Building that permits overnight accommodation or sleeping use, whether for emergency purposes or otherwise. According to the appellant, when the city intended to make provision for sleeping accommodation in the by-law, it did so in express language.

[14] The appellant also argued that another permitted use under the zoning by-law is a "Receiving Home" within the meaning of the Child Welfare Act, R.S.O. 1980, C. 6b, repealed. A Receiving Home was defined under the Child Welfare Act as "an institution or home operated or supervised by a [children's aid] society for the temporary care of children." It is argued that if the city had intended to include an emergency youth shelter facility within the definition of Community Building, it would not have been necessary to expressly name a Receiving Home as a permitted use.

[15] The definition of Community Building states that it is "a building used for community activities". The list of specific community activities that follows is qualified by the language that such list is not "to restrict the generality of the foregoing". The specific items in the list are by way of example.

[16] In my view, the appellant takes far too narrow an approach to the interpretation of the definition of Community Building under the by-law. To suggest that sleeping is not a community activity is to emasculate the intent of the zoning by-law. By adding overnight accommodation in combination with its many other services, the youth shelter is doing no more than providing an additional service to its list of community activities.

(b) Did the applications judge err in determining that because the respondent's purposes are charitable, the respondent's proposed use fell within the definition of a "Community Building", as defined in the City's zoning by-law?

[17] The applications judge concluded that the proposed emergency youth shelter fell within the definition of Community Building because it would be engaged in social and charitable community activities that are expressly provided for in the definition.

[18] Counsel for the appellant argued that the respondent relied upon its status as a registered charity to bring itself within the definition of Community Building in the by-law. In particular, the appellant referred to the following answer given in cross-examination by Richard Brady, a professional planner retained by the respondent:

Q. So I guess the question - - if you can please, if you could just direct me to the part of the definition suggesting the permitted [hostel] use then?

A. The permitted [hostel] use is permitted by virtue of the fact it is being provided by a registered charity.

[19] While Mr. Brady's affidavit also contained similar language, it is apparent that he believed that the proposed emergency youth shelter was a permitted use, based upon the nature of its proposed activities. His opinion was not based solely upon the fact that the respondent is a registered charity.

[20] I also note that Alex Herlovitch, the Deputy Director of Planning and Development for the City of Niagara Falls, testified in cross-examination as follows:

Q. Would you agree that a shelter for homeless youth is a charitable purpose?

A. Yes, I would.

Q. Would you agree that it is also a social purpose?

A. It fulfills a social need.

Q. Would you agree that the relief from poverty generally is a charitable function?

A. I would, I would say that that has often been part of what our society attempts to do is to [alleviate] the conditions of human beings.

Q. That's a very well put statement. Would you agree with me that applies too to the removal of homeless people from the streets or providing accommodation for people from the street?

A. I would say that putting people into decent and good and affordable housing is certainly an objective of any segment of the population and there may be some groups which turn their attention to provide those facilities.

Q. Okay. Would you agree with me that the provision of emergency shelter for those same people is also a charitable use?

A. It could be a charitable use. It's, it's a -- the use is actually a shelter providing accommodation is -- you know, for the -- getting people off the streets is --doesn't necessarily need to be a charity.

Q. Well that's why I've posed my last questions to you, Mr. Herlovitch in the way I have. I haven't asked you about the organization. You're right, the Humane Society would be classified as a charitable organization for tax purposes. What I've asked you several times and I'll ask you one more time is, would you agree with me that the provision of care for the homeless people is a charitable act?

A. It, it is an act of charity, yes.

[21] Having referred to the above evidence, I note that while the evidence of professional planners is often useful in providing background information in cases such as this, their opinions are not determinative of the issue before the court.

[22] In the law of wills and trusts, one can find many cases that define the words"charity" and "charitable". In Re Levy Estate (1989), 58 D.L.R. (4th) 375 (Ont. C.A.) at 377, Blair J.A. said:

The words "for charitable purposes" and "charity" have acquired a technical meaning. A brief description of the development of the legal definition of charity will assist in the understanding of the issue in this case. A long list of then recognized charitable purposes was set out in the preamble to the Statute of Charitable Uses, 1601, 43 Eliz. I, c. 4, usually referred to as the Statute of Elizabeth. This list was elaborated by judicial decisions in the centuries that followed and ultimately a comprehensive definition of legal charity was propounded by Lord Macnaghten in Com'rs for Special Purposes of Income Tax v. Pemsel, [1891] A.C. 531 (H.L.) at p. 583:

"Charity" in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.

[23] In my view, the emergency youth shelter with its sleeping accommodation is proposed for a purpose beneficial to the community. Whether or not one relies upon the legal definition of Lord Macnaghten, it is clear that the establishment of the proposed emergency youth shelter is a charitable activity falling squarely within the plain language that defines Community Building in the zoning by-law. I see no error in the reasons of the applications judge in this respect.

(c) Did the applications judge err in granting the application on the basis that the appellant's failure to allow the proposed emergency youth shelter facility as of right would result in an injustice to the community?

[24] After concluding that the proposed emergency youth shelter involved the provision of social and charitable community activities, the applications judge made the following observation:

Not to allow the application would do the community an injustice. This conclusion, in my view, is also justified when the words of the by-law are given their ordinary and natural grammatical meaning.

[25] The appellant submitted that if the court should determine that the proposed emergency youth shelter does not fall within the definition of Community Building, the respondent would be entitled to make an application to amend the by-law. The appellant pointed out that the record contains reference to three shelter facilities in the City of Niagara Falls that were permitted as a result of site-specific rezoning applications. Since this other avenue of approach was available to the respondent, it could not be said that any injustice would be visited on the respondent should the court deny its application.

[26] In my view, the above comments concerning a possible injustice were obiter dicta. They are not essential to the ratio decidendi. They appear to have been spoken as an afterthought. Even assuming that they formed part of the basis for the applications judge's decision, it is clear that his decision is supportable on the basis that the proposed facility falls within the plain language of the zoning by-law and its definition of Community Building. I would therefore not give effect to this ground of appeal.

CONCLUSION

[27] In the result, I would dismiss the appeal.

COSTS

[28] I would award the respondent its costs of the appeal on a partial indemnity basis, fixed at $8,500 including Goods and Services Tax and disbursements.

RELEASED: "SEP 12 2003"

"Robert P. Armstrong J.A." "KNF" "I agree K. Feldman J.A." "I agree E.A. Cronk J.A."