Court of Appeal for Ontario

Date: 2019-06-04 Docket: C66254

Judges: Feldman, MacPherson and Simmons JJ.A.

Between

Southside Construction Management Limited Applicant (Appellant)

and

The Corporation of the Town of Ingersoll Respondent (Respondent in Appeal)

Counsel

John D. Goudy, for the appellant

Kelly Nenniger, for the respondent

Heard: May 27, 2019

On Appeal

On appeal from the judgment of Justice A. Duncan Grace of the Superior Court of Justice, dated November 1, 2018, with reasons reported at 2018 ONSC 6561.

Reasons for Decision

Background

[1] Southside Construction Management Limited appeals from a judgment dismissing its application for a declaration concerning the interpretation of s. 12.3.9.2.4 of Town of Ingersoll, by-law No. 04-4160, Zoning By-Law.

[2] Southside owns an approximately 33-acre parcel of vacant land in Ingersoll. The land is adjacent to Highway 401 and is designated generally as a Highway Commercial Zone ("HC") under s. 12 of the Zoning By-Law. In addition, a site-specific provision, s. 12.3.9, designates the land as Highway Commercial Zone 9 ("HC-9").

[3] Under the general provisions applicable to the HC Zone, Southside's land is subject to a lot coverage cap of 40% for buildings. However, s. 12.3.9.4, specifically applicable to the HC-9 zone, also imposes a cap on the "gross leasable commercial floor area" of a "community shopping centre". Section 12.3.9.2.4 of the Zoning By-Law reads as follows:

The gross leasable commercial floor area for a community shopping centre containing permitted uses in the HC-9 Zone shall not be greater than 4,645 m² (50,000 ft²). [Italics in original.]

[4] "Community shopping centre" is not defined in the Zoning By-Law. However, "Shopping Centre" is defined in the definition section of the Zoning By-Law, s. 4, which reads, in part, as follows:

In this By-law, unless the context requires otherwise:

"SHOPPING CENTRE", means a building or group of buildings designed, developed, owned and managed as a unit containing six or more separated spaces for lease or occupancy by commercial uses or business or professional offices. [Italics in original.]

[5] Relying largely on a submission that a "community shopping centre" must be a type of "shopping centre" – and therefore consist of six or more separated spaces – Southside sought a declaration that s. 12.3.9.2.4 of the Zoning By-Law does not prohibit development for permitted uses greater than 4,645 m² (50,000 ft²) where the development consists of five or fewer separate spaces for lease or occupancy.

Application Judge's Decision

[6] The application judge dismissed Southside's application. He noted that the genesis of the current provisions in s. 9.3.3.1 of the County of Oxford Official Plan (the "Official Plan") and s. 12.3.9 of the Zoning By-Law (the site-specific zoning provision) applicable to Southside's land was a 2006 proceeding before the Ontario Municipal Board (the "OMB").

[7] In that proceeding, the OMB exempted Southside's land, shown in a Service Commercial area of the Official Plan, from a pre-existing Official Plan requirement for a retail market impact study for developments over 25,000 ft². However, a requirement for such a study for developments over 50,000 ft² remained.

[8] Section 9.3.3.1 of the Official Plan now provides, in part, as follows:

Community shopping areas offering a range of goods and services which cater to the convenience shopping and service needs of community residents and the traveling public are a permitted use in the Service Commercial designation.

Community shopping areas are permitted to locate in the Service Community designation immediately adjacent to the Highway 401 corridor. Such community shopping areas will have between 930 and 4,645 square meters (10,000 to 50,000 square feet) of gross leasable commercial floor area.

Development proposals above 4,645 square meters (50,000 square feet) of gross leasable commercial floor area per site will require the preparation of a retail market study ... This impact study should evaluate the potential to locate the use in the Central Area as a first priority...

[9] Considering the Zoning By-Law as a whole and in the context of the applicable Official Plan provisions, the application judge rejected Southside's argument that a "community shopping centre" must be a type of "shopping centre" as defined in s. 4 for three main reasons.

[10] First, he noted that under s. 2.3.3 of the Zoning By-Law the definition provisions in s. 4 are to apply to italicized text. No part of the phrase "community shopping centre" in s. 12.3.9.2.4 is italicized.

[11] Second, he noted that, albeit not italicized, "shopping centre" appears elsewhere in s. 12, namely in s. 12.3.10.1, another site-specific provision of the Zoning By-Law applicable to a different parcel of land, designated as HC-10. He reasoned that some meaning for the term "community" must have been intended and "community" cannot be merely superfluous. The definitions portion of the Zoning By-Law provides that the definitions apply "unless the context requires otherwise"; use of the term "community" changes the context.

[12] Third, he interpreted the scale limitation in s. 9.3.3.1 of the Official Plan as applying to the square footage of a structure accommodating a community shopping area without regard to the number of units that the structure would contain. In his view, nothing in the Official Plan suggested the number of units in such a development was of concern.

Issues on Appeal

[13] Southside raises three issues on appeal.

First Issue: Surplusage of the Definition

[14] First, Southside argues that the application judge erred by rendering the definition of "shopping centre" in s. 4 of the Zoning By-Law surplusage. According to Southside, apart from the definition provision, "shopping centre" appears in only three other places in the Zoning By-Law, all of which are in s. 12, and two of which use the term "community shopping centre". Southside argues that it makes little sense to define the term "shopping centre" but use it to mean something other than the definition. It makes much more sense that, wherever used together, the words "shopping centre" would have the defined meaning. Accordingly, a "community shopping centre" must be a form of shopping centre.

[15] We are not persuaded by this argument. As we have said, the application judge identified another provision of s. 12 of the Zoning By-Law that uses the exact term "shopping centre", albeit without italics. Particularly when considered in light of the application judge's other reasons, we see no error in his conclusion that some meaning must be ascribed to the word "community" when associated with "shopping centre".

Second Issue: Official Plan vs. Zoning By-Law

[16] Second, Southside argues that the application judge erred by treating the policies in the Official Plan, rather than the terms of the Zoning By-Law, as the applicable law.

[17] According to Southside, as written, the Zoning By-Law caps gross leasable commercial floor area only for a community shopping centre – which, because it is a type of shopping centre, must contain six or more separated spaces. Where a development contains less than six separated spaces, the general 40% coverage cap for buildings applies. This, it says, is consistent with Official Plan policies concerning Service Commercial Areas, which are intended to accommodate large commercial uses with large site requirements not suited to Ingersoll's Central Area (i.e., the downtown). Applying a 4,645 m² (50,000 ft²) gross leasable commercial floor area cap to five or fewer individual uses would undermine the planned function of Service Commercial Areas as set out in the Official Plan. The application judge erred by finding, in effect, that a defined term in the Zoning By-Law cannot apply because it does not appear in the Official Plan without considering whether application of the Zoning By-Law definition would conflict with the Official Plan.

[18] We do not accept this argument. The application judge cited the applicable case law concerning the interrelationship between zoning by-laws and official plans and their interpretation: Aon Inc. v. Peterborough (City), 1 M.P.L.R. (3d) 225; Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 494, 42 M.P.L.R. (5th) 1. In our view, the application judge did no more than read the Zoning By-Law in its entire context and interpret it as required under the relevant authorities. Considered in context, it would have made no sense to read the by-law as imposing a relatively small size limit on a structure with six or more units but no size limit other than the 40% lot coverage cap on a structure with five or fewer units.

Third Issue: Void for Vagueness

[19] Third, Southside argues that in rejecting its interpretation of the Zoning By-Law, the application judge rendered the term "community shopping centre" vague to the extent that s. 12.3.9.2.4 becomes void for uncertainty.

[20] We reject this argument. There is no requirement that every term in a zoning by-law be precisely defined. Where words are not defined, they can be interpreted in accordance with their grammatical and ordinary meaning and the context in which they are used. Southside has not demonstrated how s. 12.3.9.2.4 meets the requirements of the void for vagueness test.

Disposition

[21] The appeal is dismissed with costs to the respondent on a partial indemnity scale fixed in the amount of $6,600 inclusive of disbursements and taxes.

"K. Feldman J.A."

"J.C. MacPherson J.A."

"Janet Simmons J.A."