Court File and Parties

2007 ONCA 828

DATE: 2007-11-30

DOCKET: C47001

COURT OF APPEAL FOR ONTARIO

SIMMONS, MACFARLAND AND EPSTEIN JJ.A.

BETWEEN:

HUMPHREY FUNERAL HOME – A.W. MILES CHAPEL AND 2099908 ONTARIO LIMITED

Applicants (Appellants)

And

THE CITY OF TORONTO and ANN BOROOAH, CHIEF BUILDING OFFICIAL FOR THE CITY OF TORONTO, MOUNT PLEASANT GROUP OF CEMETERIES and the MOORE PARK RATEPAYERS’ ASSOCIATION

Respondents (Respondents in Appeal)

Counsel:

Harold G. Elston for the appellants

Leonard Ricchetti for the respondent Mount Pleasant Group of Cemeteries

Thomas H. Wall for the respondents City of Toronto and Ann Borooah, Chief Building Official for the City of Toronto.

Heard and released orally: November 14, 2007

On appeal from the judgment of Justice Alison Harvison Young of the Superior Court of Justice dated March 5, 2007.

ENDORSEMENT

[1] The application judge dismissed the appellants’ request for a declaration that a proposed visitation center to be constructed at the Mount Pleasant Cemetery is not permitted under s. 12(1)(313) of City of Toronto Zoning By-Law 425-93. Although Mount Pleasant’s proposal was initially rejected by city officials on two occasions, the Chief Building Official ultimately concluded that the proposed visitation centre is a permitted use.

[2] The Mount Pleasant proposal is for a 24,000 square-foot, two-storey building that would include, among other things, a chapel, a clergy room, visitation rooms, reception facilities, a general administration and office area, a garage and public washrooms.

[3] The relevant portions of s. 12(1)(33) of By-law 425-93 provide as follows:

12(1) Notwithstanding anything hereinbefore contained, none of the provisions of this by-law or of any restrictive by-law applies:

(313) to prevent a cemetery, columbarium, crematorium or mausoleum as defined by the Cemeteries Act and associated uses on the lands outlined … on the following maps. [Emphasis added.]

[4] The appellant contends that the application judge erred in interpreting the zoning by-law by relying on new proposed legislation, namely the Funeral Burial and Cremation Services Act, 2002, and by failing to take account of the prior decisions of city officials rejecting Mount Pleasant’s proposal.

[5] Assuming without deciding that the application judge erred in these respects, we nevertheless agree with her conclusion that the Mount Pleasant proposal is an “associated use” as contemplated by s. 12(1)(313) of By-law 425-93 and is therefore permitted. In this regard, we note that the By-law does not purport to regulate building dimensions and that there is currently a 36,600 square foot mausoleum on the subject lands

[6] Further, reading this section of the by-law in the context of the current statutory framework (including both the Cemeteries Act, R.S.O. 1990, c. C.4 and the Funeral Directors and Establishments Act, R.S.O. 1990, c. F. 36), we observe that the proposed use appears to fall within subsection (e) of the definition of “cemetery services” in s. 1 of the Cemeteries Act — “such other services as are provided by the owner of the cemetery at the cemetery” — and does not appear to be prohibited by the Funeral Directors and Establishments Act.

[7] Finally, we agree with the application judge’s statement:

Humphrey’s analysis is exceedingly narrow and ignores the simple reality that the cemetery is as much about the living survivors as it is about the disposition of human remains and accordingly the visitation center falls within a use that is associated with the use as specified in the exception.

[8] The appeal is therefore dismissed.

[9] Nothing in these reasons should be taken as reflecting an opinion on our part concerning whether the procedure adopted by the appellants to challenge the decision of the Chief Building Official was appropriate.

[10] Costs of the appeal are to the respondents in the amount of $12,500 each on a partial indemnity scale inclusive of applicable G.S.T. and disbursements.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“G. Epstein J.A.”