COURT OF APPEAL FOR ONTARIO

CITATION: Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 494

DATE: 20150703

DOCKET: C58676

Doherty, Epstein and Tulloch JJ.A.

BETWEEN

The Corporation of the City of Sarnia

Respondent (Applicant)

and

Trustees of River City Vineyard Christian Fellowship of Sarnia

Appellant (Respondent)

Murray Klippenstein and Kent Elson, for the appellant

Joseph J. Hoffer and Laura M. McKeen, for the respondent

Reema Khawja and Cathy Pike, for the intervener, Ontario Human Rights Commission

Heard: October 28, 2014

On appeal from the judgment of Justice Thomas J. Carey of the Superior Court of Justice, dated March 13, 2014, with reasons reported at 2014 ONSC 1572, 22 M.P.L.R. (5th) 35.

Tulloch J.A.:

A. Overview

[1] The River City Vineyard Christian Fellowship of Sarnia (“River City”) is a church located in the Urban Residential Zone 1-27 in the City of Sarnia. River City has operated a men’s homeless shelter known as the Harbour Inn Mission in its church basement since 2006. The City of Sarnia opposed its operation on the basis that it breached Sarnia’s zoning by-law, By-law No. 85 of 2002 (the “By-law”). River City disagreed and continued operating the shelter.

[2] In response, Sarnia applied to the Superior Court for an injunction to stop River City’s operation of the shelter. River City brought a counter-application seeking a declaration it was not contravening the By-law, or in the alternative, to the extent the By-law prohibited the shelter, the By-law unjustifiably infringed its freedom of religion as protected by the Canadian Charter of Rights and Freedoms. In 2014, the applications judge issued an injunction against River City, prohibiting it from operating the shelter because it was in contravention of the By-law.

[3] River City appeals on two main grounds, arguing:

1. The By-law, properly interpreted, permits the shelter; and

2. In the alternative, if the By-law prohibits the shelter, the application or enforcement of the By- law infringes s. 2(a) of the Charter, and the infringement is not justified under s. 1.

[4] For the reasons that follow, I would dispose of the appeal on the first ground. In my view, the applications judge erred in his interpretation of the By-law, and as such, incorrectly found that it did not permit River City to operate the shelter.

B. Background

[5] River City is located in Urban Residential Zone 1-27 (“UR1-27”) in the City of Sarnia. The By-law lists the permitted uses in UR1-27 as “Church, school and parking only”. “Church” is defined as follows:

"CHURCH (PLACE OF WORSHIP)" means a building used by a religious organization for public worship and church-sponsored community activities and projects, and may include as accessory uses a rectory or manse, church hall, day nursery or religious school, offices, but shall not include a soup kitchen or food bank, unless otherwise permitted by this By-law.

[6] River City has operated the Harbour Inn Mission, a small men’s homeless shelter, out of its church basement since 2006. The City of Sarnia informed River City very shortly after the Harbour Inn Mission opened that the By-law prohibits homeless shelters in UR1-27.

[7] After some discussion, the City of Sarnia passed a temporary use by-law that eventually permitted River City to operate its shelter until one year after a permanent men’s homeless shelter opened in the community. During the term of the temporary use by-law, River City renovated its basement to bring the shelter space up to acceptable standards. River City spent about $100,000 on the renovations. In September 2010, the Inn of the Good Shepherd Lodge, a permanent homeless shelter, began accommodating homeless men, setting in motion the termination of the Harbour Inn Mission’s authorization, effective September 2011.

[8] In September 2011, River City applied to the City of Sarnia to permanently re-zone its property to allow the shelter. City council denied the application, spurring an appeal to the Ontario Municipal Board. River City later abandoned that appeal because it believed it was entitled to operate the shelter as part of the church. The City brought an application for an injunction to prohibit River City’s operation of the shelter based on its violation of the By-law. River City submitted a counter-application for a declaration that the Harbour Inn Mission does not violate the By-law, and if it does, that the By-law, to the extent it prohibits River City from sheltering the homeless, violates s. 2(a) of the Charter and is not saved by s. 1.

C. Decision Below

[9] The applications judge concluded that the By-law forbids operation of a homeless shelter on River City’s lot, dismissed River City’s Charter claim and granted an injunction prohibiting the shelter’s operation.

[10] The applications judge first reasoned that the shelter was not a church-sponsored community activity given the prohibition on soup kitchens and food banks. He held that these specific prohibitions indicated intent to “narrowly prescribe the range of activities which constitute church use”.

[11] Second, the applications judge held that because River City had renovated the basement to use as a shelter, the shelter did not constitute a “use” as defined by the By-law, which is “the purpose for which a lot, building or structure, or any combination thereof is designed, arranged, occupied or maintained”.

[12] Third, he reasoned that the shelter could not qualify as an “accessory use” because the shelter was not incidental and exclusively devoted to the main use of the building as a church.

[13] Finally, the applications judge observed that while River City regarded the shelter as part of its spiritual mission, legally, it fell into the By-law’s definition of “emergency shelter”. He seems to have impliedly held that for this reason, it could not also come within the definition of “church”.

D. Analysis

[14] River City appeals to this court and contends that the applications judge erred in his interpretation of the By-law, as well as his interpretation and application of s. 2(a) of the Charter.

[15] The City of Sarnia submits that the applications judge committed no legal errors, and as such, the appeal should be dismissed and the injunction enforced.

[16] As stated earlier, I would dispose of this appeal on the first ground, and as a result, it is not necessary to address whether the applications judge erred in dismissing River City’s Charter claim.

[17] The main issue on this appeal is therefore whether the By-law prohibits or permits River City’s operation of a homeless shelter in its church basement. Whether the By-law prohibits or permits River City’s shelter turns on the interpretation of the By-law’s definition of “church”. That definition is as follows:

"CHURCH (PLACE OF WORSHIP)" means a building used by a religious organization for public worship and church-sponsored community activities and projects, and may include as accessory uses a rectory or manse, church hall, day nursery or religious school, offices, but shall not include a soup kitchen or food bank, unless otherwise permitted by this By-law. [Emphasis added.]

[18] This issue may be divided into two questions:

1. Does River City’s homeless shelter constitute “church-sponsored community activities and projects” within the meaning of the By-law?

2. Is the shelter permitted as an “accessory use” to the church?

[19] River City argues that a homeless shelter is permitted both under “church-sponsored community activities and projects” and as an “accessory use”. If either is the case, the shelter would fall within the meaning of “church”, a use permitted in UR1-27.

[20] In my view, River City’s homeless shelter falls within the meaning of “church-sponsored community activities and projects”. For the reasons that follow, I conclude that the applications judge erred in his interpretation of the By-law. Below, I set out the standard of review for the applications judge’s decision and the approach to statutory interpretation. I then explain the legal errors made by the applications judge and, finally, I outline why it is my view that upon reading the words “church-sponsored community activities and projects” in their entire context and according to their grammatical and ordinary meaning, this part of the By-law permits River City to operate the Harbour Inn Mission out of its basement.

[21] I would decline to deal with the second aspect of River City’s statutory interpretation argument, namely that the shelter also constitutes an “accessory use”. Under s. 3.1(1) of the By-law, accessory uses cannot include accessory dwelling units, unless the By-law provides otherwise. The parties did not address whether the shelter qualifies as a dwelling unit. Accordingly, it is not appropriate for this court to decide the point, and in any event, it is not necessary.

Standard of review

[22] The proper interpretation of the By-law is a question of law, reviewable on a correctness standard: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Whether River City’s shelter falls within the By-law’s definition of “church”, properly interpreted, is a question of mixed fact and law, and the applications judge’s conclusion is therefore entitled to some deference absent an extricable error in principle or palpable and overriding error: see Donnell v. Joseph, 2012 ONCA 240, 94 M.P.L.R. (4th) 169, at paras. 10-11.

Principles of statutory interpretation

[23] The general approach to statutory interpretation requires the words of the provision here to be read in their entire context and according to their grammatical and ordinary meaning, harmoniously with the scheme and object of the By-law as a whole and the intention of the drafters: John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3, at para. 18.

[24] Additionally, legislative provisions are presumed to be consistent with constitutional norms, including the values enshrined in the Charter. However, this presumption comes into play as an interpretive principle only if a provision is genuinely ambiguous, in that it is “subject to differing, but equally plausible, interpretations”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62.

Legal errors made by the applications judge

[25] In my view, the applications judge made three fatal errors in his reasons for determining that the Harbour Inn Mission is not a church-sponsored community activity or project.

[26] First, the applications judge erred in concluding that the express prohibition on soup kitchens and food banks indicates an intention to narrowly prescribe the range of activities that constitute church use. While the express prohibition on soup kitchens and food banks in churches narrows the range of activities that constitute church use to some extent, it does not follow that the intent of the By-law was to prohibit other activities of a similar nature.

[27] According to the principle of implied exclusion, “[w]hen a provision specifically mentions one or more items but is silent with respect to other items that are comparable, it is presumed that the silence is deliberate and reflects an intention to exclude the items that are not mentioned”: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014), at § 8.92.

[28] The specificity of the words “shall not include a soup kitchen or food bank” implies that the express prohibitions were intended to be exhaustive. If the drafters had intended to prohibit uses analogous to soup kitchens and food banks, they could have either expressly prohibited these analogous uses or used words in the nature of “shall not include accessory uses such as a soup kitchen or food bank”.There is no indication that analogous activities are to be read in. Therefore, the presumption is that the list of prohibitions was intentionally limited to the items specifically mentioned.

[29] Further, in my view, given the structure of the definition of “church”, the prohibition on soup kitchens and food banks relates to accessory uses, and not church-sponsored community activities or projects. It appears that the applications judge relied on the prohibition to conclude the shelter was not a church-sponsored community activity or project. As it relates to accessory uses, the prohibition on soup kitchens and food banks is not helpful in deciding whether homeless shelters are “church-sponsored community activities and projects”.

[30] Second, the applications judge erred by concluding that the renovations to the church basement took the shelter outside of the word “use”, as defined in the By-law. The word “use” is defined in the By-law as follows:

"USE" where it appears as a noun, means the purpose for which a lot, building or structure, or any combination thereof is designed, arranged, occupied or maintained.

[31] I would note that other than with respect to “accessory uses”, the definition of “church” in the By-law does not include the word “use” as a noun. The relevance of the definition of “use” is therefore questionable.

[32] Assuming some relevance, there is no indication in the By-law that the definition of “use” is limited to purposes that existed when the building was first constructed. To the contrary, the word “is” in the definition of “use” indicates a present purpose, rather than the original purpose. Even if the purpose for which a building is “designed” or “arranged” is interpreted to refer to its original design or arrangement, such an interpretation cannot apply to the words “occupied” or “maintained”. When given their ordinary and grammatical meaning, “occupy” and “maintain” refer to an ongoing state or action. If the church building is currently “occupied” or “maintained” as a homeless shelter, it qualifies as a “use”.

[33] The By-law does not expressly provide or imply that “church-sponsored community activities and projects” are restricted to activities or projects that can be accommodated without renovations. The applications judge erred by reading in such a restriction.

[34] Third, the applications judge erred by attaching relevance to the fact that the homeless shelter fits under the By-law’s definition of “emergency shelter”. There is no indication in the By-law that “church-sponsored community activities and projects” may not include uses that are defined elsewhere in the By-law. To the contrary, there are several examples of uses that fall under two separate definitions in the By-law. For example, day nurseries are permitted as accessory uses under the definition of “church” and are specifically included under the definition of “Day-care Centre”.

[35] Further, as River City points out, s. 1.2(3) of the By-law permits uses lawfully in existence prior to the passing of the By-law. Because the definition of “emergency shelter” was added to the By-law in 2008, two years after the Harbour Inn began operating, the definition of “emergency shelter” cannot prevent the use of the church basement as a shelter. If River City was in compliance with the By-law before the definition of “emergency shelter” was added, the addition of that definition could not make it non-compliant.

[36] The City of Sarnia points to 1121472 Ontario Inc. v. Toronto (City) (1998), 1998 CanLII 4637 (ON CA), 39 O.R. (3d) 535 (C.A.), at p. 540, in which this court held that an establishment that met the definition of “entertainment facility” could not also be a “restaurant”. In my view, 1121472 is distinguishable. It turned on whether an “entertainment facility” may be an “accessory use” to a restaurant. The definition of “restaurant” did not include an open-ended category analogous to “church-sponsored community activities and projects”. The definition of “entertainment facility” pre-dated the permit issued for the establishment in question, and it was also conceded from the outset that if the establishment met the definition of “entertainment facility”, it was not permitted in the area: see 1121472 Ontario Inc. v. Toronto (City) (1995), 1995 CanLII 7218 (ON SC), 26 O.R. (3d) 25 (S.C.).

[37] For these reasons, the definition of “emergency shelter” is irrelevant.

[38] In my view, the applications judge’s conclusion that River City’s shelter does not come within the meaning of “church-sponsored community activities and projects” was based on flawed reasoning and is not entitled to deference.

The By-law permits River City to operate the Harbour Inn Mission

[39] In my opinion, River City’s homeless shelter falls within the scope of the words “church-sponsored community activities and projects”, when these words are properly interpreted. I begin by outlining the scheme and object of the By-law. I then assess the grammatical and ordinary sense of the words “church-sponsored community activities and projects” and the intention of the drafters in choosing these words. Finally, I conclude that these words are broad enough to permit River City to operate the Harbour Inn Mission without contravening the By-law.

[40] In my view, the scheme and object of the By-law is to regulate the use of lands in the City of Sarnia with a certain degree of specificity. This intention is reflected in the long title of the By-law, which refers to the By-law’s purpose as “to regulate the use of lands and the character, location and use of buildings and structures within the City of Sarnia”. The preamble to the By-law similarly describes it as intended “to ensure proper and orderly development within the corporate limits of the City of Sarnia”. This intention is also reflected in the detail with which permitted land uses are set out in the By-law as a whole.

[41] The scope of “church-sponsored community activities and projects”must be interpreted in a manner consistent with the object of the By-law, which is to circumscribe the use of land in Sarnia. In other words, these words must have an internal limit and are not a license for a church to undertake whatever activities or projects it wishes. At the same time, the drafters chose fairly broad and permissive language to describe the uses churches were entitled to make of their premises.

[42] I turn now to the grammatical and ordinary sense of the words “church-sponsored community activities and projects” and the intention of the drafters of the By-law in including these words. The words may be divided into three components for ease of analysis: “activities and projects”, “church-sponsored” and “community”.

[43] The words “activities and projects” are, on their own, fairly broad. An activity is simply “a particular occupation or pursuit”: The Canadian Oxford Dictionary, 2d ed., sub verbo “activity”. A project is variously defined as “a plan”, “a scheme, “an undertaking that is carefully planned and designed to achieve a particular aim”, “any planned activity” or “an individual or collaborative enterprise undertaken [usually] for industrial or scientific research, or having a social purpose”: The Canadian Oxford Dictionary, 2d ed., sub verbo “project”.

[44] The words “church-sponsored” limit the activities and projects churches may undertake on their premises. The ordinary sense of the words “church-sponsored” suggests that the church in question must at least agree with the aims of or support the activity or project. What this entails may vary from case to case.

[45] The word “community”, in its ordinary and grammatical meaning, also limits the qualifying activities or projects. The word “community” connotes a socially beneficial use intended to assist or engage the public or some sub-group within the general public. In my view, the inclusion of the words “community activities and projects” reveals an intention on the part of the drafters of the By-law to allow churches to engage in socially beneficial conduct and respond to the needs of the community.

[46] Although the definition of “church” provides no examples of “community activities and projects”, the words “community activities” are used elsewhere in the By-law, namely in the definition “community centre”:

"COMMUNITY CENTRE" means land, buildings or structures used for community activities, including recreational, cultural, educational and institutional uses.

This list of types of community activities suggests that a community activity is one that people engage in as a group for a socially beneficial purpose.

[47] The use of the word “community” to modify “activities and projects” excludes certain “activities and projects”. For example, purely commercial or industrial activities or projects would fall outside the meaning of “community activities and projects” because these activities or projects do not serve a community purpose. Activities of a private residential nature would also likely fall outside the meaning of “community activities and projects”. Based on the above examples of excluded activities, an interpretation of “church-sponsored community activities and projects” that includes homeless shelters is sufficiently restrictive to be consistent with the object of the By-law to regulate land use “to ensure proper and orderly development” in Sarnia.

[48] In my view, the Harbour Inn Mission is a church-sponsored community activity or project. There is no real dispute that the Harbour Inn Mission is “church-sponsored”, as it is both funded and operated by River City. It qualifies as a community project and involves community activities for several reasons. The establishment and operation of the shelter has involved significant planning and is directed toward a specific aim: to serve the needs of a particular part of the community, those who find themselves homeless. The shelter runs on the power of the River City community. It is staffed largely by volunteers from the church. In other words, the church members work together as a group for a socially beneficial purpose: providing shelter for members of the community in need. The day-to-day acts involved in both running and living in the shelter encompass community activities as the members of the church interact with the residents of the shelter.

[49] I would note that this court addressed the question of whether a homeless shelter constitutes a “community activity” in Lighthouse Niagara Resource Centre v. Niagara Falls (City) (2003), 2003 CanLII 32898 (ON CA), 177 O.A.C. 34. In that case, Lighthouse Niagara Resource Centre, a registered charity, decided to establish an emergency youth shelter in the City of Niagara Falls. The application judge decided that the emergency youth shelter was a permitted use because it fell within the definition of “Community Building”, which was defined as follows in the Niagara Falls Zoning By-law:

"COMMUNITY BUILDING" means a building used for community activities including, but not so as to restrict the generality of the foregoing, arts, crafts, physical, social, charitable and educational facilities and not used for any commercial purpose.

[50] Armstrong J.A., writing for the court, agreed that the emergency youth shelter was a “community building”, in part because the words “community activities” include sleeping. He stated that “[t]o suggest that sleeping is not a community activity is to emasculate the intent of the Zoning By-law”: Lighthouse Niagara, at para. 16.

[51] The City of Sarnia would distinguish Lighthouse Niagara on the basis that it did not involve a church and that the definition in question included a non-exhaustive list of examples of “community activities”. In my view, these are not relevant distinctions. Both cases turn on an interpretation of the words “community activities”; neither interpretation turns on analogies to listed examples. Nor does the fact that the present appeal involves a church, rather than a “community building”, necessarily affect the meaning of “community activities”.

[52] The words “church-sponsored community activities and projects” are therefore at least broad enough to include River City’s homeless shelter.

[53] Finally, I would note that I have reached this conclusion without resort to the principle that legislation must be interpreted in compliance with Charter values. The applications judge did not err by failing to apply this principle, as suggested by the intervener.

[54] The Supreme Court has emphasized that Charter values are to be used as an interpretive principle only when a provision is genuinely ambiguous, and its meaning cannot be determined using a contextual analysis: see Bell ExpressVu, at para. 62; Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 29. Because the meaning of “church-sponsored community activities and projects” can be determined using a contextual analysis, this interpretive principle is unnecessary.

E. DISPOSITION

[55] For the reasons outlined above, I am of the view that the applications judge erred in his interpretation of the By-law. The Harbour Inn Mission constitutes a church-sponsored community activity or project, and therefore River City’s operation of it does not contravene the By-law.

[56] I would therefore allow the appeal and dismiss the City of Sarnia’s application for an injunction.

F. COSTS

[57] The parties may make written submissions on the costs of the appeal within 20 days of the release of these reasons.

Released:

“JUL -3 2015” “M. Tulloch J.A.”

“DD” “I agree Doherty J.A.”

“I agree Gloria Epstein J.A.”