Court of Appeal for Ontario

Date: January 31, 2019 Docket: C65238

Judges: Strathy C.J.O., Lauwers and Zarnett JJ.A.

Between

Belwood Lake Cottagers Association Inc. and Conestogo Lake Cottagers' Association Inc. Applicants (Appellants)

and

Ministry of the Environment and Climate Change and Grand River Conservation Authority Respondents (Respondent)

Counsel

Robert G. Doumani and Vedran Simkic, for the appellants

Meagan J. Swan, for the Grand River Conservation Authority

Tamara D. Barclay and Heather McIvor, for the respondent Ministry of the Environment and Climate Change

Heard

December 19, 2018

On Appeal

From the order of Justice James F. Diamond of the Superior Court of Justice, dated March 16, 2018, with reasons reported at 2018 ONSC 1688, 73 M.P.L.R. (5th) 170.

Strathy C.J.O.

Introduction

[1] This appeal concerns a dispute between the Ministry of the Environment ("MOE") and two associations representing cottagers in the Grand River Conservation Area over the regulatory regime applicable to the construction and operation of the cottagers' sewage systems.[1]

[2] The issue is whether the sewage systems are subject to the Ontario Water Resources Act, R.S.O. 1990, c. O.40 ("OWRA") or whether the Building Code Act, 1992, S.O. 1992, c. 23 ("BCA") applies. If the OWRA applies, the MOE has jurisdiction and an Environmental Compliance Approval ("ECA") must be obtained for each cottage sewage system. If the BCA applies, the local municipalities have jurisdiction.

[3] The applicable scheme is determined by the total design capacity[2] of the sewage system(s) located on a particular "lot or parcel of land", an expression found in s. 53(6.1) of the OWRA. Systems with a design capacity in excess of 10,000 litres per day ("lpd") are generally subject to the OWRA.

[4] The land on which the cottages are situated is not covered by a formal plan of subdivision. The cottages on Belwood Lake (approximately 335 cottages) and Conestogo Lake (approximately 398 cottages) are located on five parcels of land registered under the Ontario Land Registry System. The five parcels are owned by the Grand River Conservation Authority ("GRCA").

[5] Each cottage has its own sewage system. There is no dispute that the individual cottagers' sewage systems do not have a design capacity in excess of 10,000 lpd. A typical system is in the range of 3,000 lpd. The issue is whether the relevant "lot or parcel of land" for the purposes of determining total design capacity is one of the five parcels registered on title, or the individual cottage lots described in each cottager's lease with the GRCA.

[6] Since the systems located on each of the five registered parcels have a collective sewage design flow capacity much greater than 10,000 lpd, the MOE's position is that they fall under the OWRA and require an ECA.

[7] The cottagers' position is that each individual cottage is situated on a separate, legally recognized lot leased to them by the GRCA and because their individual sewage systems do not exceed the 10,000 lpd statutory threshold, they are regulated by the BCA. The distinction makes a difference, because if the OWRA applies, cottagers will have to apply for an ECA, pay a fee of approximately $800, and have their sewage systems inspected. The inspection might reveal defects in their sewage systems that would require repair or replacement.

[8] The resolution of this issue depends on the interpretation of the words "lot or parcel of land" in the legislation and their application to the facts of this case.

Relevant Statutory Provisions

[9] The OWRA and the BCA are two complementary parts of a regime for the regulation of sewage systems in Ontario. Subject to certain provisions of the Environmental Protection Act, R.S.O. 1990, c. E.19 ("EPA"), the OWRA provides that no person shall use, operate, establish, alter, extend, or replace new or existing "sewage works"[3] except under and in accordance with an ECA. An ECA contains conditions to ensure that sewage works are constructed and operated in a manner that protects the environment.

[10] Section 53(6.1) of the OWRA requires that an ECA must be obtained if:

(a) the sewage works have a design capacity in excess of 10,000 litres per day;

(b) more than one sewage works is located on a lot or parcel of land and they have, in total, a design capacity in excess of 10,000 litres per day; or

(c) the sewage works are not located wholly within the boundaries of the lot or parcel of land on which is located the residence or other building or facility served by the works. [Emphasis added.]

[11] The BCA and the Building Code, O. Reg. 332/12, generally apply to smaller sewage systems that do not meet these thresholds.

Background

Regulation of sewage systems in Ontario

[12] The legislative framework for the approval of cottage sewage systems prior to 1974 is not explained by the record. The respondent's affiant, Amy Shaw, Guelph District Manager of the MOE, deposed that from 1974 to 1988, approvals were conducted by the MOE under the EPA, with the program being administered through municipalities, health units, and conservation authorities.

[13] In 1997, the Province of Ontario transferred the regulation of smaller sewage systems (i.e., systems with a design capacity under 10,000 lpd) from the EPA to municipalities under the BCA. Since 1998, larger sewage systems (over 10,000 lpd) have been regulated under the OWRA and require MOE approval to establish, alter, extend, or replace them. However, under a "grandfathering" arrangement, in place from 1998 to 2011, large sewage systems built prior to 1998 were not required to be approved by the MOE, provided they had not been altered or expanded. That grandfathering was removed in 2011 due to an amendment to s. 53(1) of the OWRA, which provided that:

No person shall use, operate, establish, alter, extend or replace new or existing sewage works except in accordance with an Environmental Compliance Approval. [Emphasis added.]

[14] The result was that, effective 2011, operators of large sewage systems were required to obtain an ECA, regardless of when the sewage system had been constructed, and whether or not it had previously been subject to the grandfathering regime.

The cottages

[15] For 65 years, the Belwood Lake Conservation Area and the Conestogo Lake Conservation Area, two large tracts of land located in southwestern Ontario, have been designated as conservation land for flood control and water supply reservoir purposes. The two areas consist of five separate parcels of land, each designated by a Property Identification Number ("PIN") registered in Ontario's electronic Land Registry System. All five parcels are owned by the GRCA.

[16] Beginning in the 1940s and 1950s, the GRCA leased to the public cottage sites on the shorelines of the two lakes under a "Cottage Lot Program". There are approximately 733 cottage sites within the two conservation areas. The sites generally have 100 feet of lake frontage. Each cottage has its own separate lease with the GRCA. The leases are for five year renewable terms. Under the lease, each cottager is responsible for their own sewage and water systems. Most of the cottages have individual septic systems (holding tanks or septic tanks and leaching beds) and their own drinking wells.

[17] While each cottage lease refers to a lot number and the boundaries of the lot are shown on a schedule attached to the lease, the Cottage Lot Program was developed without either a registered plan of subdivision or a registered survey of the five parcels.

[18] The cottages are permanent structures but are not permanent residences. In a decision dated April 1, 2005, the Ontario Rental Housing Tribunal determined that the cottages located on the subject lands are "land lease homes", part of a "land lease community" as defined under the Tenant Protection Act, 1997, S.O. 1997, c. 24: see Putnam v. Grand River Conservation Authority, [2005] O.R.H.T.D. No. 12, affirmed by the Divisional Court in (2006), 210 O.A.C. 191 (Div. Ct.).

[19] There is very little evidence about the nature and condition of the sewage systems on the cottage lots. There is no evidence of when the sewage systems were constructed, under what approvals process, their current condition, or whether they are subject to any routine independent inspection. While it may be logical to assume, as the appellants urge, that the cottages were built under building permits issued by the local municipality, which generally approves the building and the design of sewage systems, there is no evidence in the record of the date any such building permits were issued and what the associated regulatory approvals for the sewage systems entailed. The evidence of the appellants' professional engineer was that small sewage systems are not inspected after construction, that the owner of the system is required to maintain it under the BCA, and that while the building authority may inspect the system following installation, it is not required to do so. There is no evidence that any building authority has ever inspected any of the cottages or lots after the installation of its sewage system.

The condition of the lakes

[20] The respondent's affiant, Ms. Shaw, deposed that Belwood Lake and Conestogo Lake have previously experienced phosphorus pollution. She opined that the proper operation and maintenance of septic systems is an important way of reducing phosphorus concentrations in the lakes:

Belwood Lake and Conestogo Lake are dam controlled reservoirs known to be eutrophic. Both lakes have experienced green and/or blue green algae blooms in the past which are likely influenced by high phosphorous concentrations. The proper operation and maintenance of septic systems around the reservoirs is an important aspect of reducing phosphorus entering into the environment and improving water quality within this particular watershed.[4]

[21] There was no evidence to refute these observations concerning the condition of the two lakes.

The MOE's outreach program

[22] Beginning in 2014, the MOE, in consultation with the GRCA and the two local townships where the lakes are located, began an "outreach" program to explain the requirements of the OWRA and the need for cottagers to obtain an ECA.

[23] Ms. Shaw deposed that when she first became involved with the issue in 2014, "only about 20% of the cottagers around Belwood Lake were known to have a valid ECA or a municipally-issued building permit, prior to 1998, for their sewage system." The majority of cottages on the two lakes were serviced by individual septic systems, varying in age, condition, and effectiveness. She deposed that an "informal" survey conducted by MOE staff in 2014 around the two lakes revealed that:

• many of the cottage owners interviewed did not perform routine maintenance or have documentation about their system;
• many did not know what type of system they had or where it was located;
• many cottagers believed that their system may be original (40+ years old) and, in some cases, had built decks, parking spots or additions over their system; and
• most cottages had their own private drinking water well located on the property, some in close proximity to their septic systems.

[24] While the appellants have a healthy scepticism about the results of this survey, they adduced no evidence to refute its findings.

The cottagers' concerns

[25] While some 105 cottagers followed the new regulatory process and obtained ECAs, many others resisted. They were no doubt surprised by the change in policy and concerned by the need for an inspection of their system, the cost of obtaining an ECA, and the potential cost of rectifying deficiencies.

[26] As a result of these concerns, the appellants brought an application for a declaration that each cottage was located on a separate "lot or parcel of land" under the OWRA, and that the cottagers' sewage systems did not fall under the OWRA. The application turned on the interpretation of a "lot or parcel of land" for the purposes of the OWRA. The term "lot or parcel of land" is not defined in the OWRA, or its regulations, or in the BCA.

Reasons of the Application Judge

[27] The application judge dismissed the application, finding that the cottages were subject to the OWRA. He noted the evidence about algae problems in the lakes and found that the sewage systems on the cottagers' lots undoubtedly varied in age, type, condition, and performance.

[28] He found that the boundaries of the lots described in the cottagers' leases were "approximations at best" and that the "lots" assigned to them were for identification purposes only. He said, "[a]t their highest, the actions of the GRCA have created leasehold interests in non-surveyed and unofficially delineated 'lots'": at para. 24.

[29] The application judge stated, at para. 25, that "lot or parcel of land" referred to land for which title could be "legally conveyed" from one party to another:

In my view, the appropriate interpretation to be given to the phrase "lot or parcel of land" is a lot or parcel of land, title to which can be legally conveyed from one party to another. This interpretation is consistent with the purpose of the OWRA, and in particular ensures the efficient and sustainable conservation, protection, use and management of Ontario's waters in order to promote long term environmental, social and economic well-being in the province. To achieve those purposes, implementation of the provisions of the OWRA must be based upon foundations of consistency and certainty.

[30] He added, at para. 27, that "lot or parcel" referred to a lot or parcel "legally recognized for municipal and planning law purposes":

Accordingly, to achieve the stated legislative purposes of the OWRA, a "lot or parcel of land" under section 53(6.1) must mean a lot or parcel of land that is legally recognized for municipal and planning law purposes. I therefore find that each cottage is not located on a lot, thus the cottages are collectively located within five parcels of land (ie. the PINs).

[31] The application judge found that the appellants could not rely on the informal descriptions of their lots contained in their leases, because this would promote arbitrariness, rather than certainty. It would enable any private landowner to avoid compliance with the OWRA by informally subdividing their land into random "lots". This, he found, would undermine the legislative purpose of the OWRA.

[32] The application judge rejected the appellants' argument that because the cottages had been found to be "land lease homes in land lease communities" under the Tenant Protection Act, 1997, the cottages are "land lease community homes" as defined by s. 46 of the Planning Act, R.S.O. 1990, c. P.13, and the combined effect of ss. 46(2.1) and 71 of the Planning Act is that each cottage must be located on a separate "lot or parcel of land" under the OWRA. In his view, s. 46(2.1) deals with land use controls (i.e. what can be constructed upon an existing registered lot), not the subdivision of land and, therefore, does not impact the definition of a "parcel of land" under the Planning Act.

[33] Given his interpretation of s. 53(6.1) of the OWRA and his interpretation of s. 46(2.1) of the Planning Act, the application judge found that each cottage was not located on a separate "lot", and the cottages were collectively located on five "parcels" of land. Accordingly, he found that the 733 cottages fall within the jurisdiction of the OWRA, and dismissed the application.

The Submissions of the Parties

[34] The parties' submissions focus on the meaning of the words "lot or parcel of land" in both the OWRA and the Planning Act. The appellants advance what they say is the "plain meaning" or the "ordinary grammatical meaning", assisted by the dictionary definition of a "lot" or "parcel". They say that their "lots" are clearly defined in their leases, their leases are capable of being legally assigned, and the use of their properties is recognized by the Planning Act.

[35] The respondent submits that the application judge's interpretation properly accounts for the principle that a lot or parcel of land is one that is legally recognized, assessed, and regulated under various provincial statutory schemes. Such a definition gives effect to the purpose of the OWRA and ensures consistency across the province. The nature of the interests created by the private leases between the appellants and the GRCA is not dispositive.

Analysis

Standard of review

[36] Relying on Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 33, the appellants submit that the interpretation of the statutes is a question of law and reviewable on a correctness standard. The respondent says that while the interpretation of a statute is subject to review for correctness, the appellants are challenging findings that result from the application judge's application of the law to his findings of fact. Those are matters of mixed fact and law: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 36-37.

[37] The issue of whether the application judge correctly interpreted "lot or parcel of land" in s. 53 of the OWRA to mean a lot or parcel of land that is legally recognized for municipal and planning law purposes, and for which title can be conveyed from one party to another, is an extricable question of law of relatively broad application that is to be reviewed on the correctness standard. The application judge's determination of whether the individual cottages fall within the definition of a "lot or parcel of land", properly interpreted, is a question of mixed fact and law entitled to deference. There is no basis to interfere with this determination absent a palpable and overriding error or extricable error in principle: Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia, 2015 ONCA 494, 336 O.A.C. 373, at para. 22.

[38] I turn to the principles of statutory interpretation and their application to this case.

The modern approach

[39] The modern approach to statutory interpretation requires a court to consider the words of a statute "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 9-12, citing Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21.

The grammatical and ordinary sense of the words

[40] Both parties rely on the leading text by Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014), who summarizes the "ordinary meaning" rule at §3.6:

It is presumed that the ordinary meaning of a legislative text is the meaning intended by the legislature. In the absence of a reason to reject it, the ordinary meaning prevails.

Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations, including purpose, related provisions in the same or other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities to be avoided and the like.

In light of these considerations, the court may adopt an interpretation that modifies or departs from the ordinary meaning, provided the interpretation is plausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning.

[41] Sullivan notes that ordinary meaning is not the end of the process of statutory interpretation, it is simply the beginning. She refers to the observations of Iacobucci J. in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 34, in connection with the interpretation of the Immigration Act:

The grammatical and ordinary sense of the words employed in s. 70(1)(b) is not determinative, however, as this Court has long rejected a literal approach to statutory interpretation. Instead, s. 70(1)(b) must be read in its entire context. This inquiry involves examining the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, and Parliament's intent both in enacting the Act as a whole, and in enacting the particular provision at issue.

[42] Thus, the plain meaning of the words of the statute is only one aspect of the "modern approach". I will return to the parties' submissions on the plain meaning of "lot or parcel", but I turn next to the purpose of the legislation.

The purpose of the legislation

[43] The purpose of the OWRA, as the application judge recognized, is "to provide for the conservation, protection and management of Ontario's waters and for their efficient and sustainable use, in order to promote Ontario's long-term environmental, social and economic well-being": OWRA, s. 0.1. It does this by prohibiting the discharge of pollutants that can impair water quality and by the regulation of sewage disposal and sewage works, among other operations.

[44] This court has noted that the OWRA "creates a wide ambit of protection for Ontario waters": see R. v. Inco Ltd. (2001), 54 O.R. (3d) 495 (C.A.), at para. 53. As the court observed in Inco, this broad protection is necessary because the damage caused by pollution of waters may not be immediately apparent and impairment may be caused by the accumulation of pollutant materials over time: at para. 54.

[45] As I noted earlier, the OWRA and the BCA create a complementary system to regulate the construction and operation of sewage works – works that are obviously potential sources of pollution. The intent of both statutes is that locations generating a lower volume of sewage (less than 10,000 lpd) are regulated by municipal building authorities under the BCA and the Building Code, and locations generating a volume of sewage greater than the 10,000 lpd threshold are regulated by the MOE under the OWRA. The words "lot or parcel of land" are used in both the OWRA and the Building Code to describe the land to which the standard is to be applied.

[46] The BCA and the Building Code, as their names suggest, establish uniform standards of construction, which are enforced by municipalities. In Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, the Supreme Court discussed the purpose of the BCA. The court stated, at para. 23: "The purpose of the building inspection scheme is clear from these provisions: to protect the health and safety of the public by enforcing safety standards for all construction projects." Those standards apply to smaller sewage systems, typically those employed by a single family dwelling. Through this jurisdiction, and the jurisdiction of municipalities in relation to zoning, planning, and subdivision control, a municipality is able to ensure that residents have adequate and safe sewage disposal systems.

[47] The municipal regime is complemented by s. 53 of the OWRA, which regulates tracts of land that produce a larger volume of sewage in a regulatory framework that focuses on the broader environmental impact of sewage on water and watercourses, rather than on construction-level requirements only. This is in keeping with the expertise of the MOE, as recognized by the case law, and the recognized need to consider the collective impact of multiple sources of pollution on the environment.

Application of the principles of statutory interpretation

[48] The scheme and purpose of the OWRA is to regulate the construction and operation of sewage works in order to protect the environment and the public. It entrusts the regulation of "smaller" systems to municipalities under the BCA and "larger" systems to the MOE. As outlined above, the dividing line is based on the design volume of daily sewage flow on a "lot or parcel of land".

[49] Returning to the "plain meaning" of the statute, the appellants rely on the definitions of "parcel" contained in Webster's Third International Dictionary, and applied in Ost v. Turnbull (1977), 1977 ABCA 283, 81 D.L.R. (3d) 161 (Alta. S.C. (App. Div.)), at p. 166:

In Webster's Third International Dictionary there are two definitions of parcel, either one of which might apply. The first is "a continuous tract or plot of land in one possession no part of which is separated from the rest by intervening land in the possession of another"; the second is "a tract or plot of land whose boundaries are readily ascertainable by natural or artificial monuments or markers". …

[50] The appellants say that each cottage owner is in possession of a continuous plot of land, the boundaries of which are readily ascertainable from the schedule attached to their lease.

[51] Ost v. Turnbull was concerned with the interpretation of the word "homestead" in the Dower Act, 1948 (Alta.), c. 7, a statute that is far removed from the issue before us. I find greater assistance in the approach taken by the Ontario Building Code Commission (the "Commission") in Fletcher v. Township of Southgate (1 March 2014), Ruling No. 03-52-950, Building Code Commission. That decision is instructive because it considered the very issue that is before us – namely, the meaning of "lot or parcel of land" in connection with an application for a building permit for a sewage system under the BCA.

[52] In Fletcher, the applicant for a building permit owned a 123-acre piece of land that was operated as a resort and golf course. The land consisted of three contiguous part lots. If each part lot were regarded as a separate "lot", the BCA would apply. On the other hand, if the three part lots were regarded as a single lot, the total design sewage flow would exceed 10,000 lpd and the OWRA would apply.

[53] The Commission found that the entire parcel of three part lots was the applicable "lot". The three part lots were a single amalgamated lot and were not capable of being independently conveyed without a severance. Since the combined design flow of the sewage systems on the three part lots exceeded 10,000 lpd, it was subject to the jurisdiction of the MOE.

[54] In the course of its reasons, the Commission gave a helpful overview of the division of regulatory authority over sewage systems in Ontario and the rationale for it:

The regulation of on-site sewage system construction in Ontario is divided between the Ontario Building Code (OBC) for projects with a total daily design sanitary sewage flow of 10,000 litres per day or less and the Ontario Water Resources Act (OWRA) for flows over 10,000 litres per day. Review and enforcement of proposals under the OBC is done through local municipalities, health units, and conservation authorities. In the case of the OWRA, review and enforcement is done through the Ministry of Environment (MOE). For all sewage applications, the assessment of the total daily design sanitary sewage flow is made in accordance with Article 8.2.1.3. of the OBC, which requires consideration of Tables 8.2.1.3.A and B, or the highest metered flow of three similar establishments.

Although the design, construction and operation of an on-site sewage system should be carried out with due consideration to the local environment (particularly the groundwater), the purpose of the division in responsibilities for approval is to afford the MOE an opportunity to scrutinize proposed larger (over 10,000 litres per day) sewage works relative to the local environmental conditions and potential impacts of effluent disposal. In particular, the proponent of the larger sewage works must consider the impact of dissolved nitrogen species on the local groundwater and down gradient uses of the water (Reasonable Use Policy). [Emphasis added.]

[55] The Commission concluded that the entire 123-acre property was a single "lot or parcel". Consent of the Land Division Committee would be required to sever the property into individual parcels before selling or transferring them.

[56] Also instructive is the decision of the Divisional Court in Re Kelley and Redmond (1979), 26 O.R. (2d) 417 (H.C. (Div. Ct.)). The applicants, Redmond and Feenstra, had purchased a piece of land as joint tenants. When their application to sever the land was refused, they jointly leased one part to Feenstra for 20 years and the other to Redmond for 20 years. The parts were identified on a reference plan, but the lots were not severed and the parcel remained in their joint ownership. Feenstra applied for and was issued a building permit to build a house on the portion of the land described in the reference plan as Part 2. When Redmond applied for a building permit with respect to Part 3, it was refused, on the ground that the by-law prohibited a second dwelling on a "lot". The by-law defined "lot" as a "parcel or plot of land, whether or not shown on a registered plan of subdivision".

[57] Redmond argued that the land described in his lease was a "lot" within the meaning of the by-law. The Divisional Court rejected this submission, noting that under this interpretation, a building permit would have to be issued for any piece of land having the necessary dimensions, regardless of whether the land was described in any registered or unregistered instrument. The court found, at p. 419, that a lot had to have a "separate legal identity":

However, it is my opinion that such pieces of land would not be "lots" within the meaning of the by-law. In my view, the definition of "lot" in s. 3.36 requires a parcel of land which is severed and thus has a separate legal identity. This separate legal identity may arise by virtue of the parcel or plot of land being shown as a lot on a registered plan of subdivision; it may also arise in other ways, such as by being a farm lot shown on the original survey of the township; or a separate parcel of land established at a time antedating the modern regulatory schemes. This is not intended to be an exhaustive list.

[58] The application judge applied a similar approach to the case at bar. I agree with the respondent that the application judge correctly interpreted "lot or parcel of land" in s. 53 of the OWRA to mean a lot or parcel of land that is legally recognized for municipal and planning law purposes, and for which title can be conveyed from one party to another. He correctly observed that permitting the appellants to rely on the descriptions in their leases, a purely private contractual division of the larger registered parcels, would promote arbitrariness rather than certainty, thereby undermining the purpose of the OWRA: at para. 26.

[59] The application judge's interpretation of the legislation advances the purpose of the OWRA by ensuring that high volume sewage systems are subject to the regulatory oversight of the MOE under the OWRA. By virtue of its mandate and experience, the MOE is well-equipped to determine the cumulative effect of the operation of several hundred sewage systems on the local environment and to ensure the protection of both the cottagers and the environment. The ECA process enables the MOE to impose conditions on the construction and operation of sewage works, to ensure that the works are built in accordance with prescribed construction standards, and that the works are operated in the manner in which they were described and for which approval was granted, in order to ensure the ongoing protection of the environment in the public interest.

[60] I do not accept the appellants' submission that because their cottages are "land lease community homes" as defined in s. 46(1) of the Planning Act[5], they should each be regarded as being situated on a separate "lot or parcel of land". Section 46(2.1) falls under Part V of the Planning Act and deals with land use controls. It does not impact the issue of whether the individual cottages are situated on a "lot or parcel of land". I agree with and adopt the reasons of the application judge with respect to that issue.

Order

[61] For these reasons, I would dismiss the appeal, with costs to the respondent in the agreed amount of $10,000, inclusive of disbursements and all applicable taxes.

Released: January 31, 2019

"G.R. Strathy C.J.O."

"I agree. P. Lauwers J.A."

"I agree. B. Zarnett J.A."

Footnotes

[1] The Grand River Conservation Authority intervened in the appeal but took no position.

[2] The term "design capacity" is used in both the OWRA and the Building Code, O. Reg. 332/12, as the means of categorizing sewage systems. It is not defined in the OWRA. It is defined in the Building Code as "the total daily design sanitary sewage flow determined in accordance with Article 8.2.1.3. of Division B": s. 1.4.1.2.

[3] "Sewage works" means "any works for the collection, transmission, treatment and disposal of sewage or any part of such works, but does not include plumbing to which the Building Code Act, 1992 applies": OWRA, s. (1)(1).

[4] The term "eutrophic" was not defined by the affiant. A dictionary definition indicates that it refers to a body of water that is rich in nutrients, supporting a dense plant population but depriving the water of oxygen.

[5] "Land lease community home" is defined in s. 46(1) of the Planning Act as "any dwelling that is a permanent structure where the owner of the dwelling leases the land used or intended for use as the site for the dwelling but does not include a mobile home."