COURT OF APPEAL FOR ONTARIO

CITATION: Waterloo (City) v. 379621 Ontario Limited, 2014 ONCA 231

DATE: 2014-03-26

DOCKET: C57259

Doherty, Laskin and Feldman JJ.A.

BETWEEN

The Corporation of the City of Waterloo Appellant on Appeal (Respondent)

and

379621 Ontario Limited Respondent on Appeal (Appellant)

Counsel: Daniel W. Veinot and Patrick J. Kraemer, for the appellant Bruce Ritter, for the respondent

Heard and released orally: March 21, 2014

On appeal from the order of Justice Patrick J. Flynn of the Superior Court of Justice, dated May 24, 2013.

ENDORSEMENT

[1] The City of Waterloo ordered the respondent 379621 Ontario Limited to remedy a violation of the light standard in its Property Standards By-Law. The remedial order was confirmed on appeal by the City’s Property Standards Committee. However, on further appeal to the Superior Court, the appeal court judge rescinded the remedial order. He did so for two reasons. First, he concluded that the order was overly broad; and second, he concluded that the by-law was impermissibly retrospective in effect.

[2] We do not agree with either conclusion. We deal first with the applicability of the by-law and then with the breadth of the order.

1. The Applicability of the By-Law

[3] In our view the Property Standards By-Law does not have a retrospective effect. A retrospective law looks backwards. It attaches consequences to acts that took place before the law was passed. This by-law does not do so. It does not attach consequences to the respondent’s lighting before the new standard was adopted. It is prospective only, and thus, going forward the respondent is required to comply with the new light standard. That it must do so does not mean the by-law standard has retrospective effect.

[4] We add that there is no evidence the respondent had a vested right in its lighting as it existed before the new standard was enacted. Even if it did however, we are satisfied that the new standard was intended to interfere with vested rights. To hold otherwise would be to defeat the purpose of that section of the by-law in which the light standard is found and would be inconsistent with the wording of ss. 2.1 and 2.3 of the by-law.

[5] The light standard is found in s. 5.4.2 of the by-law. The purpose of s. 5 of the by-law is to regulate the environment. Section 2.1 of the by-law states: “that this by-law applies to all property in the city”. Section 2.3 of the by-law requires property owners whose property does not conform to the by-law standards to bring their property into compliance. The purpose of s. 5 of the by-law and the wording of ss. 2.1 and 2.3 clearly show an intent to affect vested rights.

2. The Breadth of the Remedial Order

[6] In substance, the remedial order does no more than require the respondent to remedy a violation of the city’s lighting standard. The respondent does not claim that the current lighting on its property complies with this order. Though framed in general terms, the order is not overly broad, nor is it vague in the sense that it cannot be complied with, nor is it otherwise unenforceable.

[7] The intent of the order is to prescribe an objective standard, which can be complied with and can be enforced. To make that objective standard clear, we amend the remedial order to make it conform to the wording of the by-law itself. We do so by adding the word “likely”. Accordingly, the remedial order as amended will read: “by redirecting external lighting so as not likely to cause light to disturb adjacent inhabitants, trespass onto another property, or shine directly into a dwelling unit.” The respondent shall comply with this order by June 30, 2014.

3. Conclusion

[8] Accordingly, the appeal is allowed, the order of the appeal court judge is set aside and, subject to the variation in the wording of the order, the respondent’s appeal from the order of the Property Standards Committee is dismissed.

[9] On consent, counsel have agreed to limit the application of the order to the adjacent property owner at 157 Lexington Road, Waterloo, Ontario. If counsel cannot agree on the terms of the consent, they may arrange a telephone conference call with Laskin J.A.

4. Costs

[10] Although the City largely succeeded on its appeal, the respondent did obtain an important variation to the wording of the order. In all of the circumstances a fair disposition of costs is as follows:

• The City is entitled to the costs of the appeal before the appeal court judge, fixed in the agreed amount of $5000, all inclusive.

• There shall be no costs of the appeal in this court.

“Doherty J.A.”

“John Laskin J.A.”

“K. Feldman J.A.”