Court of Appeal for Ontario

CITATION: Stone Mills (Township) v. Rebel Scrap Metal Inc., 2013 ONCA 172

DATE: 20130321

DOCKET: C56157

BEFORE: Rosenberg, Gillese and Rouleau JJ.A.

BETWEEN

The Corporation of the Township of Stone Mills

Applicant/Respondent by Appeal

and

Rebel Scrap Metal Inc., Parts-A-Plenty Inc., James (Jim) Sinclair, Todd Sinclair, Arrowstar Terminals Inc. and 816 Goodyear Rd. Inc.

Respondents/Appellants

COUNSEL:

Mark A. Klaiman, for the appellants

Timothy J. Wilkin and James L. McDonald, for the respondent

Heard and released orally: March 19, 2013

On appeal from the order of Justice Rick Leroy of the Superior Court of Justice, dated September 24, 2012.

ENDORSEMENT

[1] In this court the appellants restricted their appeal to the submission that the chain link fence was the principal structure. When s. 5.16.6 is read in accordance with the applicable principles of interpretation as set out in Berjawi v. Ottawa (City), 2011 ONSC 236, [2011] O.J. No. 379, especially considering the by-law as a whole, we are satisfied that the principal structure must have a wall. A chain link fence does not constitute a wall. Section 5.16.6 deals separately with fencing in a manner that implies that a principal structure must have a wall and therefore be something other than a chain link fence.

[2] Accordingly, the appellants’ use of the property does not comply with the by-law. Given this conclusion we need not determine the broader question as to whether the principal structure must also meet the definition of building.

[3] Accordingly the appeal is dismissed with costs fixed at $25,000 inclusive of disbursements and HST.

“M. Rosenberg J.A.”

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”