CITATION: Vergara v. London (City), 2010 ONCA 138
DATE: 20100225
DOCKET: C50756
COURT OF APPEAL FOR ONTARIO
Doherty, Goudge and MacPherson JJ.A.
BETWEEN
Abe Vergara
Applicant (Appellant)
and
The Corporation of the City of London
Respondent (Respondent in Appeal)
Carolyn Brandow, for the applicant (appellant)
Geoffrey Belch, for the respondent
Heard: February 16, 2010
On appeal from the judgment of Justice H.A. Rady of the Superior Court of Justice dated June 12, 2009.
By the Court:
[1] Despite the able argument of Ms. Brandow for the appellant, we are satisfied that the appeal cannot succeed.
[2] The appellant advances three grounds of appeal. First, he contends that the City Council acted in bad faith in rejecting his application to amend the schedule to the relevant by-law. Second, the appellant contends that the City Council and the application judge erred in their interpretation of the meaning to be given to “residence” in the relevant by-law. Third, the appellant argues that he was not afforded procedural fairness in the process culminating in the rejection of his application.
Facts
[3] The appellant owns a licensed adult entertainment services parlour in London. He wanted to open a second store at a location on Dundas Street in the city of London. To secure a licence for the second location, the appellant made an application to City Council to amend the schedule to the relevant by-law. That schedule listed the locations where a business like that run by the appellant could be operated in the city. The appellant applied to have the schedule amended to add the Dundas Street location. The validity of the by-law is not in issue in these proceedings.
[4] The by-law limited the locations in the city where a business like that operated by the appellant could operate. Under the terms of the by-law, a location could be added to the schedule to the by-law only if it met certain locational prerequisites. Generally speaking, those prerequisites prohibited operating this kind of business on a property close to a school, residence or religious institution. The limitation tied to proximity to a residence is the important one for the purposes of this proceeding. Under the terms of the by-law, a side property line of a parcel of land upon which the business was to be located could not:
… abut a parcel of land upon which a residence is situated existing on the date of the licence application.
[5] The appellant first brought his application in 2005. In January 2006, the City solicitor for London advised the appellant’s lawyer that in her opinion the Dundas Street location met the criteria in the by-law and could be added to the schedule. In reaching her opinion, the City solicitor noted that the abutting property, 419 Spruce Street, was empty at the time of the application.
[6] At a subsequent meeting before the Board of Control, a committee of Council, material was placed before the Board indicating that 419 Spruce Street was not vacant at the relevant time. Other concerns were also raised by local residents. The Board of Control passed a resolution denying the amendment to the schedule.
[7] A Superior Court judge subsequently quashed the Board’s resolution holding that the appellant had been denied procedural due process (Vergara v. Corporation of the City of London, Court File 51282, reasons released January 9, 2007). The Superior Court judge remitted the appellant’s application to the Board of Control for a continuation of the hearing on the merits of the application. Ultimately, the Board refused the application and the City Council, by resolution, refused to amend the schedule to the relevant by-law. That refusal led to this proceeding.
[8] The City gave two reasons for refusing the application. The first reason, referred to in argument as the “merger” approach, was premised on the City’s assertion that the joint ownership of the Dundas Street property where the business would be located and two adjacent residential properties on Spruce Street required that the three properties be considered as one for the purposes of determining compliance with the by-law. On the “merger” approach, the three properties constituted a single “parcel of land” for the purpose of determining whether a residence abutted on the property on which the business would be located. It was common ground that if the three properties were properly viewed as a single parcel of land for the purposes of the by-law, a residence located at 423 Spruce Street abutted that property.
[9] The second reason given by City Council for refusing the application assumed that the location on Dundas Street was the relevant parcel of land. City Council took the position that 419 Spruce Street, an abutting property, was a residence at the time of the application even though it may not have been occupied as of that date. In reaching that conclusion, City Council referred to the residential zoning status of 419 Spruce Street, the historical use of the property, the dwelling house on the property, and its likely future use.
The Bad Faith Argument
[10] The appellant submits that City Council’s representation that the Dundas Street location did not meet the criteria for inclusion in the schedule to the by-law was merely a ruse and that the real reason the City refused his application was the “not in our neighbourhood” complaints raised by the local residents beginning in 2006. The appellant submits that these complaints were irrelevant to his application to amend the by-law to include the Dundas Street location as a permitted location for the operation of his business and that City Council acted in bad faith by basing its denial on a consideration which was irrelevant to the application.
[11] This submission rests entirely on what the appellant claims is the inference to be drawn from the change of position by the City in 2006. The appellant contends that the City solicitor initially took the position that the Dundas Street property complied with the requirements of the by-law, and only took a different position after local residents complained at the first public meeting about the effect of the operation of the appellant’s business on their neighbourhood.
[12] The appellant has the onus of demonstrating bad faith and the court will not readily draw an inference that a City Council acted in bad faith. The appellant has not discharged his onus. Clearly, City Council, as it should, considered what the local residents had to say about the proposed change to the schedule in the by-law. Some of the representations made by residents challenged the factual basis upon which the City solicitor had given her initial opinion. In light of the comments of the residents, the City called for further investigation by its legal staff and ultimately acted upon the revised advice given to it. We find nothing in the record to support the contention that the reasons given by the City for rejecting the application were disingenuous and contrived to hide the true reasons for the refusal.
The Residence Issue
[13] It is agreed that 419 Spruce Street abuts the side property line of the Dundas Street property on which the appellant wants to operate his business. The question is whether as of the date of the application, 419 Spruce Street was “a parcel of land upon which a residence is situated existing on the day of the licence application”.
[14] 419 Spruce Street is zoned for residential use. The building on the property has been used as a residence for many years. As of May 31, 2005, the date of the appellant’s application, the building located on the property was under renovation and had been under renovation for some time. A building permit had been issued some three years earlier. There was no gas, hydro or water services to the building.
[15] Mr. Taylor, a contractor, worked for the owner of 419 Spruce Street. The same person owned the Dundas Street property. There was uncontradicted evidence that Mr. Taylor lived in the house on the property at 419 Spruce Street for some time after he was hired to renovate that property. There was a dispute as to how long Mr. Taylor lived in that house. There was substantial evidence that he lived there until October 2005, several months after the appellant made his application to amend the by-law. In 2006, Mr. Taylor provided a statutory declaration to the City solicitor stating that he lived at 419 Spruce Street as of May 31, 2005, the date of the application. Mr. Taylor was apparently not available in 2007 when the public meeting to consider the appellant’s application was completed.
[16] The dispute between the parties concerning 419 Spruce Street related exclusively to whether Mr. Taylor was living there as of May 2005. There was no dispute about the zoning of the property, its historical use, the condition of the building located on the property, or that the building had been under renovation for some time.
[17] As indicated above, the City concluded that it was irrelevant to the determination of the residence question that the dwelling was unoccupied on the date of the appellant’s application. The application judge, after thoroughly reviewing the factors relevant to the character of the property as of the date of the application (see para. 32 of her reasons), indicated at para. 33:
… I am satisfied that 419 Spruce Street was a residence or was capable of being a residence at the time of Mr. Vergara’s application …
[18] The factors identified by the application judge were supported by the evidence and were all relevant to the question of whether 419 Spruce Street was a residence as of the date of the application. We agree with the City that it was not essential that the dwelling on the property be used as a residence on the very day of the appellant’s application. We do not read the application judge as holding to the contrary. The building had a long history of use as a residence, was zoned residential, and was clearly capable of being used as a residence perhaps with very minor modifications. The property had not lost its character as a residence even if the building located on the property was not being lived in as of the date of the application.
[19] Counsel for the appellant frankly acknowledged that if we rejected her argument that 419 Spruce Street was not a parcel of land upon which a residence was situated, her appeal must fail regardless of the merits of her contention that City Council’s “merger” approach was incorrect. We agree with that concession. We need not consider the correctness of the “merger” approach put forward by City Council. We note that the application judge also did not consider this argument.
The Procedural Fairness Argument
[20] The appellant acknowledges that he had no statutory right to a hearing. It is also clear that the matters relevant to his application were addressed in a public meeting and that he was given an opportunity to make submissions concerning the matters upon which the application ultimately turned. The appellant submits, however, that in the circumstances natural justice required that he be given a hearing where he could directly challenge the evidence put against him.
[21] When pressed in argument, counsel for the appellant indicated that a full hearing would have potentially allowed her to cross-examine Mr. Taylor (if he was available) as to where he lived at the relevant time. As is evident from both the reasons given by City Council and the application judge, Mr. Taylor’s actual residency on the date of the application was not determinative or even particularly significant to the outcome. Counsel next submitted that at a full hearing, the appellant would have had an opportunity to address the various complaints made by the local residents. Those complaints were irrelevant to whether the Dundas Street property abutted a property upon which a residence was situated.
[22] The appellant has not demonstrated that a full hearing would have been of any assistance to him on the issue upon which his application ultimately turned. He has not demonstrated that the failure to afford him a hearing resulted in any procedural unfairness in the process.
Conclusion
[23] The appeal is dismissed. The parties agree that the successful party, the respondent, is entitled to costs in the amount of $12,840, inclusive of GST and disbursements.
RELEASED: “DD” “FEB 25 2010”
“Doherty J.A.”
“S.T. Goudge J.A.”
“J.C. MacPherson J.A.”