COURT OF APPEAL FOR ONTARIO

CITATION: Scozzafava v. St. Catharines (City), 2007 ONCA 245

DATE: 20070405

DOCKET: C45569

RE:

ROSS SCOZZAFAVA and JOHN WALTER JANZEN (Applicants/Respondents in Appeal) – and – THE CORPORATION OF THE CITY OF ST. CATHARINES and BRIAN THIESSEN, CHIEF BUILDING OFFICIAL (Respondents/Appellants)

BEFORE:

LABROSSE, LANG and ROULEAU JJ.A.

COUNSEL:

Ian James Lord and Blake Hurley

for the appellants

John A. Crossingham

for the respondents

HEARD:

March 29, 2007

On appeal from the judgment of Justice Joseph W. Quinn of the Superior Court of Justice, dated May 16, 2006, with reasons reported at [2006] O.J. No. 2087.

E N D O R S E M E N T

[1] The application judge’s decision in this case turned on his finding that the zoning by-law was actually passed by Council on November 28, 2005 and not on January 9, 2006.

[2] Before this court, the appellants argued that all of the statutory and procedural prerequisites to a by-law being passed and coming into effect were not met until January 9, 2006. This submission was not made before the application judge and therefore, was not considered by him in reaching his decision.

[3] We were referred to s. 249(1) of the Municipal Act 2001, S.O. 2001, c. 25, which provides:

Every by-law of a municipality,

(a) shall be under the seal of the corporation; and

(b) shall be signed by the clerk and by the head of council or presiding officer at the meeting at which the by-law was passed.

[4] In The Law of Canadian Municipal Corporations, 2d ed., looseleaf, Vol. 1 (Toronto: Carswell, 1971), Ian MacF. Rogers, Q.C. wrote at p. 448:

Without being sealed and signed by the head of the council and the clerk as required by the law in most jurisdictions, the instrument is not a by-law whatever else it may be. A by-law that has been passed by a council and which has not been sealed or signed as prescribed by statute is, for the time being, of no validity but, when so signed and sealed, it becomes effective. [Footnotes omitted.]

[5] When Council’s proceedings of November 28 and January 9 are read in this light, it is apparent that Council did not intend to adopt a by-law at their November 28 meeting. It was a resolution directing city staff to prepare a by-law and to report to Council at its subsequent meeting. In our view, therefore, the application judge erred in concluding that the by-law was passed on November 28, 2005. Only one by-law was passed, namely, By-law 2006-03, adopted on January 9, 2006. It amended the former By-law 6609 by incorporating amendments approved on November 28, 2005, as well as further modifications approved on January 9, 2006.

[6] Accordingly, the decision taken on November 28, 2005 was in the nature of a resolution to pass a by-law, and not the enactment of a by-law. The application judge’s conclusion to the contrary was an error of law.

[7] Council knew that, because it had made changes to the proposal subsequent to the public meeting, s. 34(17) of the Planning Act, R.S.O. 1990, c. P 13 required it to determine whether any further notice was required.

[8] The staff report and January 9, 2006 resolution of Council contained a statement to the effect that the revisions are considered minor and that no additional public notice was required. After considering this report, Council adopted the staff recommendation to amend the zoning by-law. The respondents argue that we should interpret the statement in the report and resolution as referring only to the changes to the proposed by-law which were recommended in the staff report and not to the changes Council resolved to make on November 28. While we agree that such a reading may be possible, we nonetheless reject the submission.

[9] Council’s resolution stipulated that “having considered the matters outlined in this report, no further public notice is required.” The recommendations in the report as adopted by Council contained a list of all of the changes approved by Council by their November 28, 2005 resolution, as well as the clarifications and changes suggested by staff. Accordingly, it is clear that Council considered the need for the public notice in respect of all of the changes and decided against it. Pursuant to s. 34(17), Council had the power to make this decision both in respect of the staff changes and the November 28 changes. We conclude that Council carried out its obligations under the statute and, before making its decision not to give further public notice, considered all of the modifications made to the original proposal. Section 34(17) provides that this determination by Council is final and not subject to review.

[10] We turn now to the refusal to issue the building permit. The interim control by-law put into place by the city had expired on December 6, 2005. The changes to the zoning by-law were not made until January 9, 2006. In the intervening period, the respondents sought the issuance of their building permit. The city refused to do so for several reasons, including the fact that the appropriate plans had not been submitted with the application. The deficiencies noted were not corrected until some time in February, by which time the new zoning by-law had been passed and the respondents’ proposal was non-compliant. In these circumstances, we see no basis for ordering the city to issue the building permit sought by the respondents.

[11] In the result, the appeal is allowed and the decision of the application judge is set aside. Since this appeal was argued by the appellants on a different basis from that argued before the application judge and in the factum filed on this appeal, we award no costs here or on the original application.

“J.-M. Labrosse J.A.”

“S. E. Lang J.A.”

“Paul Rouleau J.A.”