Suprun v. Bryla, 2008 ONCA 94

CITATION: Suprun v. Bryla, 2008 ONCA 94

DATE: 20080212

DOCKET: C47675

COURT OF APPEAL FOR ONTARIO

CRONK, GILLESE and ARMSTRONG JJ.A.

BETWEEN:

ANTHONY JULIAN SUPRUN and CATHERINE LAVERNE SUPRUN

Applicants (Respondents in Appeal)

and

SANDRA LYNN BRYLA, REBECCA DIANNE DAVIES, CHERYL ELLEN SLOAT, ARNOLD WAYNE SLOAT, GARY CHRISTOPHER SLOAT, NORFOLK COUNTY and ARNOLD HARRY SLOAT

Respondents (Appellants in Appeal)

Thomas A. Cline, Q.C., for the appellants

Mark Abradjian, for the respondent, Norfolk County

Paul D. Amey, for the respondents, the Sloat Group

Heard and released orally: February 8, 2008

On appeal from the judgment of Justice J.W. Quinn of the Superior Court of Justice dated July 24, 2007.

ENDORSEMENT

[1] As ultimately argued before this court, the appellants’ core submission on this appeal is that because the Township’s fence bylaw conflicts with the Region’s zoning bylaw, and the Region is a superior planning authority, the fence bylaw does not validly operate to restrain the height of the appellants’ fence. We disagree.

[2] We see no conflict between the two bylaws. The Region, through its zoning bylaw, chose to regulate certain land uses in areas zoned residential and certain accessory uses to residential uses, among other matters. There is no dispute that the lands in question are not zoned “residential” but, rather, “lakeshore”. Thus, the provisions of the zoning bylaw pertaining to residential uses do not apply in this case.

[3] Similarly, for two reasons, the provisions of the zoning bylaw relating to “accessory uses to residential uses” do not apply here. First, as we have said, the lands in question are not zoned residential. Second, s. 6.8.1 of the “accessory uses” provisions pertains to “buildings or structures”. The construction in issue is not a “building” as that term is defined under the zoning bylaw. Nor, in our view, is it a “structure” as that term is defined under the zoning bylaw. Rather, as the appellants acknowledge, it is “a boundary fence”. Boundary fences are specifically excluded from the definition of the word “structure” under the zoning bylaw.

[4] In the end, therefore, on a plain reading, the provisions of the Region’s zoning bylaw referenced by counsel for the appellants do not apply to fences of the kind at issue in this case. Because the Region’s zoning bylaw did not “occupy the field” in this sense, there was no impediment to or conflict arising from the Township enacting a bylaw regulating the height of fences. In the absence of such conflict, there is no basis to challenge the validity of the Township’s fence bylaw.

[5] Accordingly, for the above reasons, the appeal is dismissed. The respondents (the Sloat Group) are entitled to their costs of this appeal, fixed, as agreed by counsel, in the total amount of $6,000, plus disbursements and GST.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”