COURT FILE NO.: 03-DV-857

DATE: 21/11/2003

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUSSON, MéTIVIER AND LINHARES de SOUSA JJ.

B E T W E E N:

THE CORPORATION OF THE CITY OF OTTAWA

J. Bruce Carr-Harris and Jane M. Bachynski, for the Applicant (Appellant on the Appeal/Respondent on the Cross-Appeal)

Applicant

• and -

THE CHIEF BUILDING OFFICIAL OF THE CITY OF OTTAWA, MS. ARLENE GRÉGOIRE

William R. Hunter, for the Respondent (Respondent on the Appeal and Cross-Appeal)

Respondent

• and -

1479333 ONTARIO INC.

Ronald F. Caza and Josée Lafontaine, for the Intervenor (Respondent on the Appeal/Appellant on the Cross-Appeal)

Intervenor

HEARD AT OTTAWA: September 2, 3, 4, 2003

Linhares de Sousa J.

(i) The matter before this Court concerns an appeal and cross-appeal brought pursuant to s. 26 of the Building Code Act, 1992, c. 23 as amended (the BCA). The Appellant, The Corporation of the City of Ottawa (the City of Ottawa) appeals the judgment of Roy J. dated March 18, 2003. In that decision, Roy J. dismissed, in part, the City of Ottawa’s appeal, brought pursuant to s. 25(1) of the BCA, from the decision of the Respondent, the Chief Building Official of the City of Ottawa, Ms. Arlene Grègoire (the CBO). The CBO’s decision that the City of Ottawa wishes overturned is the decision to issue a building permit, dated October 17, 2002, to the Respondent, 1479333 Ontario Inc. (the Intervenor), authorizing renovation/alteration work to proceed on a property located in the City of Ottawa, at 339 Lafleur Road (the Property), in connection with the operation of an intensive commercial pig farm, consisting of 1,045 sows. In its appeal, the City of Ottawa seeks to have the issued building permit rescinded and not issued again until the Intervenor has complied with certain conditions that the City of Ottawa has stipulated in clause (b) of its Notice of Appeal (see Appeal Book, vol. 1, tab. 1).

(ii) The Intervenor cross-appeals from the decision of Roy J in that same judgment whereby he concluded that the CBO was wrong in law in finding that the Intervenor had a legal non-conforming use on the Property, permitting it to conduct a commercial pig farm of a maximum of 1,045 sows. Roy J. amended the building permit issued by the CBO to allow for the operation of a pig farm with a maximum number of 750 pigs, in accordance with an existing interim control by-law passed by the City of Ottawa on September 12, 2001. The Intervenor seeks to have confirmed the building permit issued by the CBO on October 17, 2002 recognizing their right to a legal non-conforming use for the operation of a pig farm with 1,045 sows.

(iii) The Intervenor was also seeking leave to appeal the order of Roy J. dated June 10, 2003 dealing with the question of costs of the application before him. However, it was determined that this panel would not deal with that question. Consequently, it was not addressed.

ISSUES

(iv) The issues on the appeal brought by the City of Ottawa are the following:

1. What is the appropriate standard of review by this Court on the appeal?

2. Was the Application Judge correct in concluding that a proper interpretation of the term “other applicable law”, pursuant to s. 8(2) of the BCA, excluded, as a category, the environmental statutes at issue here, namely, the Ontario Water Resources Act, R.S.O. 1990, c. C.40 (the OWRA), the Fisheries Act, R.S.C. 1985, c. F-14 (the Fisheries Act) and the Environmental Protection Act, R.S.O. 1990, c. E.19 (the EPA)?

3. Was the Application Judge correct in concluding that, even if any of the three environmental statutes could be considered “other applicable law”, they were nonetheless inapplicable to this case on a proper interpretation of their provisions?

(v) The issues on the cross-appeal brought by the Intervenor are the following:

1. What is the appropriate standard of review by this Court on the cross-appeal?

2. Did the Application Judge err in refusing to recognize the right of the Intervenor to a legal non-conforming use on the Property, as the CBO had so determined?

BACKGROUND FACTS

(vi) Sylvio Ouellette & Sons Farms Limited operated the Property through four generations as a family dairy farm. In September 2001, Messrs. Mario Cote and Luc Fontaine incorporated the Intervenor, 1479333 Ontario Inc., and through amalgamation, bought out the Ouellette family dairy farm.

(vii) Messrs. Cote and Fontaine operate at least one pig farm together in the Province of Quebec. However, Mr. Cote is also involved in a large number of hog producing partnerships and corporations in that Province which collectively produce approximately 500,000 pigs for slaughter annually. Mr. Cote is one of the largest pig farmers in the Province of Quebec.

(viii) In July 2001, the Intervenor filed a building permit application with the City of Ottawa to, among other things, renovate three existing barns and construct two additional barns on the Property at a cost of approximately one million dollars. The plan is to operate a farrowing hog farm. It was intended that the renovated buildings would accommodate 2,831 sows. This initiative was to be the first hog operation undertaking in Ontario by Mr. Cote. At the time that the Intervenor filed his building permit application with the City of Ottawa, there was no legal impediment to the commencement of such an agricultural undertaking. The zoning of the Sarsfield farm was agricultural use which included the use of buildings for “the raising, boarding and keeping of all forms of livestock”. The zoning by-laws did not regulate the number of livestock permitted on a farming operation.

(ix) As part of his plans for the farrowing hog farm operation, the Intervenor began to work voluntarily with the Ontario Ministry of Food and Agriculture (the OMAF) to develop a Nutrient Management Plan to ensure the approved use of the nutrient fertilizer generated by the hogs. This Plan involved state of the art technology (VIRIS) including such things as injecting the nutrient fertilizer into the soil as opposed to spreading it on the surface of the land as was done in the previous dairy farm operation and being able to monitor the soil conditions at all times. The most efficient use of the nutrient fertilizer generated by the pigs is to add it to the fields to fertilize the mostly corn crops which, in turn, would be used to feed the pigs. The Intervenor’s Nutrient Management Plan was approved by the OMAF.

(x) At the time of the Intervenor’s building permit application, there was no legal requirement to submit a Nutrient Management Plan to the OMAF before starting a hog operation. Since that time, the Nutrient Management Act has been passed, being proclaimed in July 2003. The purpose of this Act is to provide for the management of materials containing nutrients in ways that will enhance protection of the natural environment and provide a sustainable future for agricultural operations and rural development. All users and producers of nutrients in Ontario will have to meet the requirements of this legislation, depending on their size, in one or two years.

(xi) Following the Intervenor’s first building permit application, dated July 20, 2001, the City of Ottawa passed, on September 11, 2001, an interim control by-law, pursuant to s. 38 of the Planning Act, prohibiting intensive livestock operations in the City which, in the case of the proposed hog operation, meant no more than 750 sows.

(xii) In response to the interim control by-law, the Intervenor then attempted to establish a claim for a legal non-conforming use pursuant to s. 34(9) of the Planning Act. The position taken by the Intervenor is that the Ouellette family operated a dairy farm with 209 cows, prior to the interim control by-law. Accordingly, they had 59 dairy cows beyond the limit provided by the interim control by-law and therefore, the Intervenor would be entitled to 209 livestock units, which translates into 1,045 sows.

(xiii) At the same time, the Intervenor also submitted a new building permit application requesting permission to do renovations and alterations on the Property, now estimated to be in an amount of $200,000, to accommodate 1,045 sows.

(xiv) In the summer and fall of 2002, the Intervenor’s intended hog operation continued to be a hotly contested issue among City of Ottawa residents. The City of Ottawa passed a Resolution, among other things, specifically requesting that the CBO not issue the building permit to the Intervenor. The Intervenor responded with an application for judicial review to compel the CBO to issue the building permit for which they had applied.

(xv) It is well established in the jurisprudence that, pursuant to s. 8(2) of the BCA, the CBO, having properly considered the provisions of the BCA, the Building Code and “other applicable law” to ensure they will not be contravened, is required to issue a building permit, even if the will of the City of Ottawa’s residents, as expressed through City Council, is otherwise. The independence of the CBO and her lack of discretion in this regard were not contested by the parties. The CBO issued the building permit to the Intervenor on October 17, 2002. The project for which the building permit was issued is described as: “to alter interior of an existing barn to accommodate a hog farm”.

(xvi) The City of Ottawa appealed the decision of the CBO to issue the building permit to the Intervenor. The matter came before Roy J. for a hearing. In view of the fact that the parties required some time to file affidavit material to argue the application and to proceed with discoveries and, in view of the fact that the Intervenor was proceeding with their renovation plans, Roy J. ordered a stay of the building permit on December 20, 2002 until he rendered his decision in the matter.

(xvii) His decision was released on March 18, 2003. It did not revoke the building permit issued to the Intervenor. Roy J. did, however, overturn the conclusion of the CBO with respect to the Intervenor’s claim for a legal non-conforming use on the Property. He limited the maximum number of sows in the pig farm operation to 750 sows in accordance with the interim control by-law passed by the City of Ottawa on September 11, 2001.

(xviii) On April 16, 2003, the City of Ottawa filed this appeal before the Divisional Court. In view of the pending appeal, the City of Ottawa requested that the Court, once again, stay the building permit issued to the Intervenor until the matter was decided by this Court. The stay was granted on May 27, 2003 by Lalonde J. who concluded that the “balance of convenience favours the Appellant [the City of Ottawa], in view of the potential for serious repercussions to arise from the pig farm, and the status quo should be maintained as it presently exists, that is without the pigs” (see Appellant’s Book of Authorities, tab. 1). Lalonde J. also expedited the hearing before this Court.

DECISION OF ROY J.

(xix) In considering the standard of review with which he was to decide the case before him, Roy J. indicated that the main issues before him rested on matters of law rather than fact. He concluded, with the apparent agreement of the parties, that the appropriate standard of review “would be a blend of two tests, namely a standard of correctness for questions of law, and a standard of reasonableness for the question of fact” (para. 12). He went on to say that because his decision was more a determination of law than fact, then the standard will be closer to correctness than reasonableness.

(xx) Roy J. identified the three issues which were before him. The two which are the subject of this appeal are the following:

1. Was the respondent [CBO] correct in concluding that the Intervenor had a legal non-conforming use, because of the prior dairy farm operation on the property, and therefore, was justified in granting the permit for the raising of 1,045 sows?

2. Was the respondent [CBO] correct in concluding that in granting the permit, she did not have to consider the OWRA, the Fisheries Act, and the EPA as “applicable law” pursuant to s. 8(2) of the BCA?

(xxi) With respect to the first issue, it was not disputed that the statutory basis for a claim to a legal non-conforming use came from s. 34(9) of the Planning Act, clearly applicable law, which reads as follows:

No by-law passed under this section applies:

a) To prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose.

(xxii) Roy J. decided that the governing law for determining whether the Intervenor had a claim to a legal non-conforming use was the recent decision of the Supreme Court of Canada in Saint Romuald v. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898 in which the Supreme Court dealt with that very issue involving a property in Quebec. In that case, the Supreme Court discussed in great detail the factors that were to be considered by a Court in coming to a decision on the question of whether such a right existed.

(xxiii) Roy J. concluded, based on his reading of Saint Romuald v. Olivier, supra, that it was important to determine what use was made of the Property before the passing of the interim control by-law, namely the Ouellette family dairy farm, and what use was to be made of the Property after the passing of the interim control by-law, namely the new proposed hog farm operation. If the use to be undertaken in the new proposed hog farm operation was of the “same nature” as that of the Ouellette family dairy farm, then the legal non-conforming right would be protected. Based on a quotation from the dissenting reasons of Gonthier J. in Saint Romuald v. Olivier, supra, “If, on the other hand, it is even minimally different, the protection will be lost.”

(xxiv) Roy J. recognized that because of the Supreme Court’s analysis found in Saint Romuald v. Olivier, supra, one could no longer determine whether there had been a change of use by using a broad “category” approach to the question. In other words to simply determine that the use is agricultural is not enough. Rather, one had to consider the facts of the case in light of the numerous factors set out by the Supreme Court in Saint Romuald v. Olivier, supra which is what Roy J did in coming to his conclusion at p. 12 of his decision:

In this matter, after reviewing the factors set out in the Supreme Court Romuald decision, and the evidence before me, I have no difficulty in concluding that the proposed hog farm operation is not a continuance of the pre-existing dairy farm operation. Its character has been so altered, and in terms of impact on the community, is a very different use.

(xxv) In coming to that conclusion, Roy J considered the following factors that he took directly from the decision of the Supreme Court of Canada in Saint Romuald v. Olivier, supra at p. 920:

1. The purpose of the pre-existing use and the activities that were carried on the Property prior to the interim by-law of September 11, 2001.

2. Is the new proposed use simply an intensification of the old use or does it go beyond a matter of degree and constitute, in terms of community impact, a difference in kind?

3. How remote is the expansion of the activity from the earlier activity?

4. To what extent are the new activities within the original scope of usage? In this the Court has to balance the community interest against the interest of the landowner. The greater the disruption, the more tightly drawn will be the definition of pre-existing use or acquired right.

5. The neighbourhood effects as established by the evidence.

6. The consideration of the proper balance in the characterization of the legal non-conforming use (not too general so as to liberate the owner from the constraints of what he actually did and not so narrow as to rob him of flexibility).

7. The definition of acquired non-conforming right will always have an element of subjective judgment but it must be grounded on objective facts.

(xxvi) In applying the above factors to the facts of his case as established by the evidence before him, Roy J. came to the following conclusions:

With respect to factor 1: before the interim control by-law, the activity on the Property was that of a “fourth generation family dairy farm” as compared to the planned activity after the by-law of “a highly industrialized and sophisticated hog production”.

With respect to factor 2: the change from a family dairy farm to an industrialized, sophisticated hog production operation led one to conclude that this was a difference in kind. The evidentiary basis for this was the evidence relating to the moratorium that had been imposed by the province of Quebec on such hog operations, the evidence of community impact and the concern of the community about their drinking water and the nuisance of the smell when the nutrients would be spread over the property.

With respect to factor 3: the proposed hog operation represented a “marked departure from the family dairy farm that existed before the passing of the interim control by-law”.

With respect to factor 4: the disruption to the neighbours, who had for years lived with a family dairy farm around them and were suddenly faced with a sophisticated pork production enterprise next door, had to be weighed in the balance of considering community interests against the interest of the landowner. Given the Intervenor’s original plan, the possibility of future expansion was very strong.

With respect to factor 5: there was considerable evidence of neighbourhood effects, namely, the Quebec moratorium on hog operations, the Lathrop report indicating the neighbours’ reaction to the commencement of the pig farm operation, the direct correspondence from the neighbours to City Council and finally, the evidence presented by Mr. Brunet about the increase in the smell that goes with a pig farm operation as opposed to a dairy farm operation.

With respect to factor 6: one cannot accept the characterization of the pig farm operation, as proposed by the Intervenor, as simply a continuance of an agricultural use. To do so would effectively undermine the factors listed by the Supreme Court of Canada in Saint Romuald v. Olivier, supra.

(xxvii) Roy J. concluded his analysis with the following words at para. 38

[para38] In summary, when all of the factors are taken into consideration, along with the neighbourhood effects and the possible impact on the environment, there is good reason for the courts to balance the landowner’s interest against the community interest. Obviously, the proposed pig farm operation of the intervenor is not yet in existence, and therefore, many of the neighbourhood and environmental effects are not considered in a factual setting. Nevertheless, there is sufficient history and notoriety about industrialize [sic] a hog operation for the Court to understand that the neighbourhood concerns are not based on imagination or fiction. The Court has to consider that our neighbouring province of Quebec has imposed a moratorium on such hog operations. The neighbours in that area get their drinking water from wells. Given the existence of unused wells on the property, the existence of streams that feed into neighbouring rivers, given the topography, geology and hydrogeology of the property, all of these factors may have some impact on the drinking water of the neighbours. All of these concerns, of course, are taking place within the context of the report of the Walkerton inquiry and the recommendations of the presiding commissioner about the protection of drinking water sources from agricultural activity.

(xxviii) Not only did Roy J. rely on the decision of Saint Romuald v. Olivier, supra, to come to his conclusion, he also relied on the decision of the Manitoba Court of Queen’s Bench, 4310845 Manitoba Ltd. v. Morris (Rural Municipality), [2001] M.J. No. 574.

(xxix) Roy J. found that the CBO obviously did not consider all of the factors set out in Saint Romuald v. Olivier, supra in coming to her decision that the Intervenor had a claim to a legal non-conforming use. He, therefore, amended the building permit to allow for the operation of a pig farm that complied with the interim control by-law with a maximum number of 750 hogs.

(xxx) With respect to the second issue and the interpretation to be given to the term “applicable law” as found in s. 8(2) of the Building Code Act, Roy J. found the definition of the term “applicable law” in s. 1.1.3.2. of the Ontario Building Code (1997) as follows:

For the purpose of s. 8 of the Act, any general or special Act, and all regulations and by-laws enacted thereunder, which prohibit the proposed construction or demolition of the building unless the Act, regulation or by-law is complied with.

(xxxi) From this, Roy J. concluded that for the purposes of s. 8, “applicable law” referred to laws that prohibited the proposed “construction” or “demolition” of the building that was the subject of the permit.

(xxxii) The two terms “construction” and “demolition” were also defined in s. 1(1) of the Building Code Act. Given the definitions found in that section, namely,

"construct" means to do anything in the erection, installation, extension or material alteration or repair of a building and includes the installation of a building unit fabricated or moved from elsewhere and "construction" has a corresponding meaning;

"demolish" means to do anything in the removal of a building or any material part thereof and "demolition" has a corresponding meaning;

(xxxiii) Roy J. agreed with the CBO’s position that there was no logical or real nexus between the Building Code Act and the three environmental Acts in question. He concluded by saying:

[para55] Therefore, looking at the provisions of s. 8(2) of the Building Code Act, the interpretation of “applicable law” in the light of the definitions set out, both in the code and in the statute would appear that “applicable law” is restricted, or any law dealing with construction and demolition, not with use. It’s difficult for me to see how a Court could interpret “applicable law” for the purposes of s.8(2), to be anything else. Given the Act and the definitions referred to, I don’t see how the respondent could have arrived at any other conclusion. A closer look at these various statutes makes their application even more questionable.

(xxxiv) Roy J. went on to examine the three environmental Acts separately concluding in each case for the reasons given on pp. 16 and 17 of his decision that they did not apply to the facts of this case. He concluded by saying at para. 60:

[para60] Accordingly, I see no error in the respondent’s decision not to consider the Fisheries Act, the O.W.R.A. and the E.P.A., as applicable law, prior to issuing the building permit.

POSITION OF THE PARTIES WITH RESPECT TO THE ISSUES ON THE APPEAL

1. What is the appropriate standard of review by this court on the appeal and on the cross appeal?

City of Ottawa

(xxxv) The City of Ottawa takes the position that all of the issues on the appeal deal with conclusions of law and that there are no material issues of fact in dispute. The standard of review is therefore one of correctness.

CBO

(xxxvi) The CBO does not dispute that the standard of review on conclusions of law is that of correctness. However she takes the position that this appeal involves a consideration of mixed fact and law which involves applying a legal standard or principle to a set of facts. The standard of review is therefore on a spectrum going from correctness to palpable and overriding error. In this case, the standard of review is closer to the “palpable and overriding error” end of the spectrum.

(xxxvii) The CBO argues that, on the application before him, Roy J. had to decide whether the decision of the CBO to issue the building permit to the Intervenor was reasonable or whether it was wrong as a matter of law. On this appeal, the onus is on the City of Ottawa to show that some aspect of the proposed construction would contravene the relevant statute and thus would contravene “applicable law”.

Intervenor

(xxxviii) The Intervenor does not appear to have taken a position on the question of the standard of review on the appeal.

2. Was the application judge correct in concluding that a proper interpretation of the term “other applicable law”, pursuant to s. 8(2) of the Building Code Act excluded, as a category, the three environmental statutes at issue here?

City of Ottawa

(xxxix) The City of Ottawa submits that the application judge was in error in concluding that the term “other applicable law” is restricted to only those laws, “dealing with construction…not with use”. The broader context of use must be considered and is supported by the case law.

(xl) The City also relied on two recent decisions of the Ontario Court of Appeal, R. v. Cranbrook Swine Inc., 2003 ONCA 41182, [2003] O.J. No. 1433 (QL) (C.A.) and Pedwell v. Pelham (Town), 2003 ONCA 7488, [2003] O.J. 1774 (QL) (C.A.), both of which were released after the decision of the application judge in this case was released.

CBO

(xli) The CBO takes the position that for a law to be “other applicable law” within the meaning of s. 8(2) of the BCA, it must relate to the construction or demolition of a building and have a logical and real nexus to the subject and purpose of the BCA. The statutory responsibility and authority of the CBO is solely guided by that purpose of the BCA, which, as has been well established, is to protect the public from unsafe design and construction. In essence, it is to establish and guarantee standards for the construction and the demolition of buildings. It is not to make decisions about or based on agricultural practices.

(xlii) Consequently, by any accepted principle of legislative interpretation, purposive or via the ejusdem generis rule, the law to be applied must relate to matters of construction or demolition of buildings. The three environmental laws in question do not. The case law relied on by the City of Ottawa is easily distinguishable from the facts of this case.

Intervenor

(xliiii) The Intervenor supports the position of the CBO on this issue. The Intervenor agrees that an examination of the statutory definitions of “other applicable law” necessarily limits it to laws that relate solely to the construction and demolition of buildings and not use. The Intervenor also argues that there must be a real and logical nexus between the applicable law and the construction and demolition of buildings.

(xliv) The three environmental statutes in question do not have that connection and are not applicable to questions of agricultural use. Furthermore, the structure of the Intervenor that is in dispute here is well within the usage that is foreseen by the applicable zoning by-laws.

3. Was the application judge correct in concluding that, even if any of the three environmental statues could be considered “other applicable law”, they were, nonetheless, inapplicable to this case on a proper interpretation of their provisions?

City of Ottawa

(xlv) With respect to the OWRA, the City of Ottawa takes the position that the Intervenor’s proposed hog farm enterprise comes within the operation of that statute by virtue of its farm waste disposal plan that comes with the definition of “sewage” and “sewage works” as defined in the OWRA. The application judge, therefore, erred in concluding that s. 53 of the OWRA does not apply to agriculture.

(xlvi) The City of Ottawa maintains that, in view of the fact that there is no statutory exemption for farm sewage works, the Intervenor is obligated, under the OWRA, to obtain a Certificate of Approval from the Ministry of the Environment, which enforces s. 53 of the OWRA. The City of Ottawa concedes that it does appear to be the practice that the Ministry of the Environment does not require compliance with this requirement in the case of farm sewage works. Nonetheless, for the reasons given, the clear provisions of the OWRA remain the applicable law.

(xlvii) The application judge also erred in not considering in his reasons, although addressed by the parties in their arguments, Regulation 903 of the OWRA that deals with unused wells. The evidence indicated that there were a number of abandoned wells on the Property where the pig manure would be spread. Because of this, Regulation 903 of the OWRA would logically be “applicable law”.

(xlviii) With respect to the Fisheries Act, the City of Ottawa submits that ss. 35 and 36 of the Fisheries Act prohibits anyone from harming fish habitats or from depositing any deleterious substances into water frequented by fish. The Fisheries Act applies to all internal waters of Canada including those which are found on the Property or within a reasonable vicinity of the Property, such as Becketts Creek, the North Indian Creek, the South Nation River and the Ottawa River, all of which are or flow into fish habitats

(xlix) The Intervenor’s plan to spread large quantities of liquid pig manure on the Property, and the presence on the Property of tile drains and “French drains”, could impact adversely on the nearby watercourses and their fish habitats. Consequently, ss. 35 and 36 of the Fisheries Act are clearly applicable to the “work” and “undertaking” proposed by the Intervenor in his building permit application. The CBO clearly erred in not even considering the possible application of the Fisheries Act.

(l) The City of Ottawa further argues that the application judge erred in his interpretation of certain case law in concluding that the Fisheries Act would have no application, unless the construction or demolition of the building was in the area of a flood plain. There was no evidence before him that made that comment relevant to this case.

(li) With respect to the EPA, the City of Ottawa takes the position that the proposed hog operation of the Intervenor with its accompanying plan to spread animal waste on the Property, could be in contravention of ss. 6, 9 and 14 of the EPA that prohibits any person from discharging into the natural environment any contaminant. Based on the following declared facts, the presence of unused wells on the Property, the presence of streams intersecting the Property which feed into the Ottawa and South Nation Rivers and the topography, geology and hydrology of the Property, the EPA should have been considered “applicable law” by the CBO prior to issuing the building permit.

(lii) The City of Ottawa further argues that, even though ss. 6 and 14 of the EPA provide for an exemption for “animal wastes disposed of in accordance with normal farming practices”, the exemption for agriculture only applies to such discharge of contaminants where there will not be, or there is not likely to be, harm to humans, animals or plants. As the City of Ottawa states at p. 28 of its Factum,

In short, agriculture operations, including construction or renovations, are exempted up to but not beyond the point where harm of this kind will result or is likely to result.

(liii) The City of Ottawa maintains that the application judge erred in concluding from his reading of Burns v. Perth South (Township) Chief Building Official, (2001), 2001 ONSC 28064, 54 O.R. (3d) 266, that there was no “nexus between the purpose of s. 14 of the EPA, which is meant to prevent the discharge of harmful contaminants, and s. 8 of the BCA which deals with construction of structures. The decision of Burns v. Perth South (Township) Chief Building Official, supra, is wrong insofar as it purports to extend an exemption to agricultural operations which does not exist in the statute. In the view of the City of Ottawa, Burns v. Perth South (Township) Chief Building Official, supra is clearly wrong in law. In support of this, the City of Ottawa relies on two recent Ontario Court of Appeal decisions, Pedwell v. Pelham (Town), supra and R. v. Cranbrook Swine Inc., supra.

CBO

(liv) With respect to the Fisheries Act, the CBO takes the position that there is no logical and real nexus between the Fisheries Act and the subject and purpose of the BCA. The only possible way that the Intervenor might breach the Fisheries Act is if he does not follow his approved Nutrient Management Plan, once the hog operation commences. This has nothing to do with the construction in question. There is nothing in the Fisheries Act that prohibits against the construction of a building. The statutory responsibility of the CBO is only with regard to construction and demolition and not with farming practices.

(lv) With respect to the EPA, the CBO puts forward the same argument as was made by her with respect to the Fisheries Act concerning the lack of logical and real nexus between the EPA and the BCA. Furthermore, the CBO argues that ss. 6 and 14 of the EPA grants an unambiguous exemption for agricultural operations or normal farming practices. It is a normal farming practice to spread manure nutrient on fields.

(lvi) With respect to the OWRA, the CBO argues that the manure trenches proposed for the inside of the barns do not fit the definition of “sewage works” as found in the OWRA and therefore do not require a certificate of approval under s. 53 of the OWRA. Specifically, animal or farm wastes are not specified in the regulations, nor are they included in the definition of “sewage” as found in the OWRA, namely, “drainage, storm water, commercial wastes and industrial wastes and such other matter or substance as is specified by the regulations.”

(lvii) The CBO further submits that even if the Court finds that the proposed manure trench system is a sewage system within the meaning of the OWRA, the uncontradicted evidence was that it is the joint practice of the Ministry of the Environment and the OMAF to not require a Certificate of Approval for farm waste disposal systems. In light of this, for the CBO to request that the Intervenor obtain this approval before issuing the building permit would be completely beyond the CBO’s jurisdiction and authority.

(lviii) Finally, the CBO argues that the evidence indicated that the Nutrient Management Plan of the Intervenor has been approved by the OMAF after Mr. Brunet reviewed it. Assuming this plan is followed by the Intervenor, the environmental concerns raised by the City of Ottawa will have been addressed. There is no evidence that the proposed construction, in this case, will cause any breaches of the provisions of the three environmental statutes in question.

(lix) According to the CBO, all three of the environmental statutes in question have potent enforcement measures should there be any infraction within their specific area of regulation and control, such as wells, fisheries, watercourses and the release of contaminants into the environment. The Legislature cannot have intended to abdicate its responsibilities for regulating these matters to the CBO by having her consider whether or not these Acts are “applicable law” in the context of s. 8 of the BCA.

(lx) The CBO argues, lastly, at p. 28 of her Factum:

As a matter of policy…it is not appropriate that the chief building official, in each municipality in Ontario, be required to make decisions respecting construction matters as well as potential uses that could be made of the buildings. The result would be a patchwork of standards for approval of the issuance of building permits for farm buildings across Ontario rather than a uniform standard.

Intervenor

(lxi) With respect to the OWRA, the Intervenor supports the CBO in advancing the position that there is no real and logical nexus between this statute and the planned renovations. If there were any evidence, and the Intervenor maintains that there is not, that the Intervenor was in breach of the OWRA, it would be the responsibility of the Ministry of the Environment to enforce against such breaches and not the CBO.

(lxii) The Intervenor points out that the language in s. 53 of the OWRA is problematic in that there appears to be a difference in the terms used in the French and English versions of the law. However, that apart, the Intervenor takes the position that the application judge was correct in concluding that s. 53 excludes agricultural operations from the definition of “sewage” and “sewage works”. The evidence relating to how the proposed manure trenches will work confirms this.

(lxiii) With respect to Regulation 903 of the OWRA, the application judge did not mention it in his reasons because it cannot be considered “applicable law” for the same reasons that the OWRA is not “applicable law”. The evidence indicated that the unused wells referred to by the City of Ottawa are not a real concern and “not a significant threat to groundwater quality at the subject property” in the opinion of one hydrology expert. In addition to this, the Intervenor’s Nutrient Management Plan, approved by the OMAF, will avoid the potential risks that have been identified by the City of Ottawa.

(lxiv) The Intervenor’s approved Nutrient Management Plan also addresses the speculative risks raised by the City of Ottawa with respect to a possible infraction of the Fisheries Act. The Intervenor submits that there is nothing in ss. 34 or 35 of the Fisheries Act to lead one to conclude that the proposed renovations would come within the regulation of that statute. There is no real or logical nexus between the purpose and provisions of the Fisheries Act and s. 8(2) of the BCA so as to make it “applicable law”.

(lxv) With respect to the EPA, the Intervenor agrees with the CBO that s. 14 of the EPA exempts agricultural operations that carry out normal agricultural practices. The Intervenor’s plans to spread the nutrient fertilizer on the Property is a normal agricultural practice and was done in the dairy farm operation that preceded the planned hog farm operation.

(lxvi) The Intervenor argues that the application judge was correct in concluding, as was concluded in Burns v. Perth South, (Township) Chief Building Official, supra and in Welwood v. Huron-Kinloss (Township) Chief Building Official (2002), 29 M.P.L.R. (3d) 1 (Ont.S.C.J.), that there was no real or logical nexus between the purpose of s. 14 of the EPA, which is to prevent the discharge of harmful contaminants into the environment, and s. 8 of the BCA, which deals with the construction of structures.

(lxvii) The Intervenor further argues that the cases of Pedwell v. Pelham, supra and R. v. Cranbrook Swine Inc., supra can be distinguished from this case on their facts.

POSITION OF THE PARTIES WITH RESPECT TO THE ISSUES ON THE CROSS-APPEAL

1. What is the standard of review to be applied by the Divisional Court?

Intervenor

(lxviii) The Intervenor submits that the application judge correctly stated the standard of review by which he was to decide the application before him; namely, correctness for questions of law and reasonableness for questions of fact. He also correctly concluded that his revision of the decision of the CBO, with respect to whether the Intervenor had a claim to a legal non-conforming right under s. 34(9) of the Planning Act, involved a question of mixed fact and law.

(lxix) However, the application judge erred in applying the standard of correctness to the decision of the CBO. The analysis of the facts on which he embarked in his decision was a question of fact and not of law. He should only have overturned the decision of the CBO if the application judge could have come to the conclusion that the decision of the CBO, in light of the factors enumerated by the application judge, was not reasonable.

(lxx) The Intervenor also takes the position that the application judge, in arriving at his decision, considered several irrelevant facts such as: the fact that the Intervenor had the intention of eventually increasing his hog operation to include 2,800 pigs; the fact that the province of Quebec had declared a moratorium on pig farm operations; and, the fact of the Walkerton Report and the events that had led up to the Walkerton Inquiry. In so doing, the application judge committed an error in law. The Intervenor relies on Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 in support of this position.

City of Ottawa

(lxxi) The City of Ottawa takes the position that Roy J. applied the proper legal test of correctness with respect to the CBO’s approach to the determination of the Intervenor’s non-conforming use rights. It was not disputed by the parties that the governing law relating to whether a claim to a legal non-conforming right is justified or not is the test established in Saint Romuald v. Olivier, supra. It was also not disputed on the evidence, including the CBO’s own admission, that she failed to consider the factors set out in Saint Romuald v. Olivier, supra. By not applying the proper legal test, the decision of the CBO was a clear error of law and was not reasonable.

(lxxii) Pursuant to s. 25(4) of the BCA, by which the application came before Roy J., the application judge was empowered and entitled to overturn the decision of the CBO, apply the correct legal test established in Saint Romuald v. Olivier, supra and substitute his own opinion for that of the CBO.

(lxxiii) With respect to the findings of fact made by Roy J., the City of Ottawa relies on the Housen v. Nikolaisen, supra and submits that this Court ought not to interfere with the application judge’s findings of fact or inferences of fact unless this Court finds that he made a “palpable and overriding error”, or one that is “plainly seen”. Based on Housen v. Nikolaisen, supra, the test is the same with respect to issues of mixed fact and law. Only in the event that the Intervenor can establish an erroneous finding of fact which can be traced to an error of law, will the standard of correctness be applicable.

(lxxiv) The City of Ottawa disputes the Intervenor’s assertions that the application judge’s consideration of irrelevant facts amounted to an error of law that is reviewable according to the standard of correctness. The trial judge was rightly entitled to consider those facts in reaching his conclusion on the issue of non-conforming use rights because they were relevant in the context of the approach and the factors to be considered as set out in the Planning Act and the Saint Romuald v. Olivier, supra case. It is also clear from the reasons of Roy J. that those facts did not form the sole basis for his conclusion.

2. Did the application judge err in refusing to recognize the right of the Intervenor to a legal non-conforming use on the Property as the CBO had so concluded?

Intervenor

(lxxv) The Intervenor submits that the application judge made his conclusion of fact, that the Intervenor did not have a claim to a legal non-conforming use, without any evidence to support that conclusion. Consequently, he made a palpable and overriding error.

(lxxvi) Firstly, the Intervenor submits that the “use” protected by s. 34(9) of the Planning Act is agricultural use. By virtue of the applicable zoning by-laws, agricultural use includes “the raising, boarding and keeping of all forms of livestock”. In this context, whether the livestock is pigs or cows is irrelevant. At the time that the interim control by-law was passed, the buildings on the farm were used for this agricultural purpose and had 209 animal units which translate into 1,045 pigs. This claim to a legal non-conforming use to have 1,045 pigs should stay with Intervenor as long as he had the intention of using the farm for an agricultural purpose. The Intervenor relies on the very case cited by Roy J., 4310845 Manitoba Ltd. v. Morris (Rural Municipality), [2001] M.J. No. 574 (Man.Q.B.) in support of his position

(lxxvii) Secondly, there is no dispute that the Supreme Court decision in Saint Romuald v. Olivier, supra determines the legal approach to the question in issue. It establishes the seven factors to be considered by the Court. The Intervenor submits that the application judge erred in his analysis of the criteria and in the findings of fact on which he relied in arriving at his decision as follows:

Factor 1: The purpose of the pre-existing use. The purpose of the pre-existing use and the proposed use were not different. In conformity with the zoning by-laws, both were agricultural use for the purpose of raising livestock. The number of animal units was the same.

Factor 2: The intensification of the previous agricultural operation and the degree of comparison between the previous and proposed use. In reality, the application judge came to his conclusion that the Intervenor did not have a claim to a legal non-conforming right because of the proposed renovations to the buildings of the Property, (that were necessary to convert a dairy farm operation into a hog farm operation), amounted to a change, different “in kind” and a “marked departure” from the previous dairy farm operation. In fact, both were agricultural operations and almost identical, with the same number of animal units, and the same amount of animal waste, the same method of storage for the manure and the same spreading of the manure, but, in the view of the Intervenor, with less impact on the environment as in the past dairy farm operation.

(lxxviii) The Intervenor submits that the application judge erred in his analysis of the applicable factors because, as is obvious from his reasons, he was under the wrong impression that the proposed hog operation was of a scale considerably bigger than the pre-existing dairy farm operation. In fact the evidence showed that the number of animal units were the same.

(lxxix) The application judge erroneously considered the previous building permit application of the Intervenor for 2,831 pigs which has nothing to do with the matter now before the court. The application judge erred in concluding that the proposed hog farm operation was more industrialized and sophisticated than the previous dairy farm operation. In essence, it only proposed to use more modern agricultural practices that are more mindful of the environment.

(lxxx) The Intervenor takes the position that the application judge also erred in concluding that the proposed hog farm operation could create harmful effects for the neighbourhood and the environment. The risks raised by the City of Ottawa were both speculative and far from conclusive. The evidence relating to the Intervenor’s approved Nutrient Management Plan addressed all of these risks and concerns. In fact, the Intervenor submitted that the evidence indicated the impact on the environment of the hog farm operation would be less than the impact caused by the previous dairy farm operation because of the advanced technology that would go with the pig farm operation.

(lxxxi) Finally the Intervenor submits that the application judge, contrary to factor 6 and 7 as described in the decision of Saint Romuald v. Olivier, supra characterized the Intervenor’s right to a legal non-conforming use too narrowly in coming to his decision. He also erroneously relied on a “preuve subjective” rather than make a decision on a factual basis.

The City of Ottawa

(lxxxii) The City of Ottawa argues that the submissions of the Intervenor characterizing the usage of the Property as agricultural in accordance with the zoning by-laws and the Planning Act is totally contrary to the directive found in the Supreme Court decision, Saint Romuald v. Olivier, supra to not determine questions of existing rights to legal non-conforming use on a property by a “category” approach.

(lxxxiii) The City of Ottawa takes the position that the application judge correctly rejected the “category” approach and correctly applied the factors to the evidence he had before him. There was ample evidence before the application judge to support his findings and inferences of fact. The decision of the application judge was made after a due consideration of all of this evidence and not on a misunderstanding of the previous use made of the land and a false impression of the proposed pig farm operation.

(lxxxiv) The City of Ottawa submits that, contrary to the Intervenor’s assertions, Roy J. correctly relied on the case of 4310845 Manitoba Ltd. v. Morris (Rural Municipality), supra to support his findings based on the evidence before him with respect to neighbourhood effects and in the difficult task of balancing the community interests with the individual interests.

(lxxxv) The City of Ottawa maintains that, in the face of the substantial objective evidence before him, the decision of Roy J. cannot be said to be a primarily subjective one. Although, as the Supreme Court of Canada pointed out in the Saint Romuald v. Olivier, supra decision,

While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court's decision in the objective facts.

(lxxxvi) As Roy J. correctly pointed out, the balancing process between community and individual interests is not an exact science. The application judge was in the best position, having had the benefit of examining all of the evidence and having heard the arguments of the parties, to make the findings of fact that he did and in the absence of a palpable and overriding error, this Court ought not to interfere with that decision.

(lxxxvii) The City of Ottawa submits that, in the face of all of this evidence, Roy J. correctly concluded that the Intervenor’s proposed pig farm operation constituted “a very different use” from the pre-existing dairy farm operation and, as a result, the Intervenor did not have a legal non-conforming use pursuant to the Planning Act, entitling it to operate a pig farm consisting of 1,045 sows. In coming to this conclusion, Roy J. correctly considered and applied s. 34(9) of the Planning Act and the approach and factors set out in the Supreme Court decision of Saint-Romuald v. Olivier, supra. Based on this and based on the evidence before the application judge, no “palpable and overriding error” can be found in his decision on this issue.

ANALYSIS

Standard of Review

(lxxxviii) The issue of the standard of review effectively raises two questions. The first concerns what standard of review is to be applied by the Divisional Court on the various issues raised in the appeal and cross-appeal before this court. The second relates to what standard of review was to be applied by the application judge on the appeal before him from the decision of the CBO and to whether he applied that standard of review correctly.

(lxxxix) The relief granted under s. 26 of the BCA, pursuant to which the appeal and cross-appeal come before this court, is not the retrial of the case but an appeal of the decision of Roy J. The applicable standard of review then is that of an appellate court on the various issues that arise on the appeal and cross-appeal. The correct standard of review of an appellate court was comprehensively discussed by the Supreme Court of Canada in its decision of Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. In that decision, the Supreme Court examined the standards of review relevant to the following types of questions:

1. Questions of law;

2. Questions of fact;

3. Inferences of fact; and

4. Questions of mixed fact and law.

(xc) The factual context of the Supreme Court’s discussion was its review of a decision of a trial judge who had found contributory negligence against a municipality for failing to post signs at an accident site. What it was reviewing, effectively, was the judge’s application of the legal standard of care to the particular facts of the case.

(xci) In addition to explaining in detail why, the Supreme Court enunciated the following principles with respect to the applicable appellate standards of review at pp. 247 to 258:

[para8] On a pure question of law, the basic rule with respect to the review of a trial judge's findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness: …

[para10] The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error": Stein v. The Ship "Kathy K", 1975 SCC 146, [1976] 2 S.C.R. 802, at p. 808; Ingles v. Tutkaluk Construction Ltd., [2000] 1 S.C.R. 298, 2000 SCC 12, at para. 42; Ryan v. Victoria (City), 1999 SCC 706, [1999] 1 S.C.R. 201, at para. 57….

[para19] We find it necessary to address the appropriate standard of review for factual inferences because the reasons of our colleague suggest that a lower standard of review may be applied to the inferences of fact drawn by a trial judge. With respect, it is our view, that to apply a lower standard of review to inferences of fact would be to depart from established jurisprudence of this Court, and would be contrary to the principles supporting a deferential stance to matters of fact.

[para25] …We conclude, therefore, by emphasizing that there is one, and only one, standard of review applicable to all factual conclusions made by the trial judge -- that of palpable and overriding error.

[para26] At the outset, it is important to distinguish questions of mixed fact and law from factual findings (whether direct findings or inferences). Questions of mixed fact and law involve applying a legal standard to a set of facts: Canada (Director of Investigation and Research) v. Southam Inc., 1997 SCC 385, [1997] 1 S.C.R. 748, at para. 35. On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts. Both mixed fact and law and fact findings often involve drawing inferences; the difference lies in whether the inference drawn is legal or factual. …

[para27] Once it has been determined that a matter being reviewed involves the application of a legal standard to a set of facts, and is thus a question of mixed fact and law, then the appropriate standard of review must be determined and applied. Given the different standards of review applicable to questions of law and questions of fact, it is often difficult to determine what the applicable standard of review is. In Southam, supra, at para. 39, this Court illustrated how an error on a question of mixed fact and law can amount to a pure error of law subject to the correctness standard: …

... if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.

Therefore, what appears to be a question of mixed fact and law, upon further reflection, can actually be an error of pure law.

[para28] However, where the error does not amount to an error of law, a higher standard is mandated. Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review: Southam, supra, at paras. 41 and 45. While easy to state, this distinction can be difficult in practice because matters of mixed law and fact fall along a spectrum of particularity.

(xcii) With those legal principles in mind, the issues on the appeal and cross-appeal before this court clearly touch on both questions of law and questions of mixed fact and law. Whether the application judge was correct in concluding that the three environmental statutes cannot be considered “applicable law” for the purpose of s. 8(2) of the BCA is a question of law and the standard of correctness is to be applied. However, whether a particular set of facts relating to a structure or building actually demonstrates a contravention of one of those particular statutes, assuming that it may be considered “applicable law” within the meaning of s. 8(2), raises questions of mixed fact and law. The standard of review, therefore, is on a spectrum going from correctness (relating to the correct consideration and application of the legal principles in question) to “palpable and overriding error” (relating to the findings of fact or inferences of fact on the evidence to which the legal principle in question is applied to come to the decision under appeal).

(xciii) Similarly, whether the application judge erred in refusing to recognize the right of the Intervenor to a legal non-conforming use on the Property raises questions of mixed fact and law. Was the legal principle by which such a right is recognized correctly stated and applied by the application judge? Was there palpable and overriding error in the findings of fact and inferences of fact made by the application judge on the evidence and to which he applied such legal principle. The standard of review, therefore, is on the same spectrum that was discussed in the previous paragraph; namely, from correctness to “palpable and overriding error”.

(xciv) On the question of the standard of review to be applied by the application judge when reviewing the decision of the CBO and whether or not he applied the standard correctly, I can find no error in the decision of the application judge. The test stated by him as being a “blend of two tests, namely a standard of correctness for questions of law, and a standard of reasonableness for the question of fact”, with the standard being “closer to correctness than reasonableness” is a correct one and supported by the case cited by him as well as by other jurisprudence.

(xcv) In Burns v. Serpa, Acting Alternate Chief Building Official, Township of Perth South et al., supra, Killeen J. pointed out that, in view of the generous jurisdictional language found in s.25(4) of the BCA, pursuant to which the matter came before Roy J, (“the judge shall hold a hearing….take such action as the judge considers the inspector or chief building official ought to take….may substitute his or her opinion for that of the inspector or chief building official”), and in view of the fact that the judge may and often will entertain evidence from a variety of sources that were not directly before the CBO, it may be tempting to treat the appeal as a full de novo hearing. Nonetheless, it remains an appeal from the decision of the CBO to which an appellate standard of review is to be applied.

(xcvi) Killeen J went on to state that the direction for the correct appellate standard of review must be taken from the recent landmark decision of the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., 1997 SCC 385, [1997] 1 S.C.R. 748. Killeen J refers to the decision of Molloy J. in Runnymede Development Corp. v. 1201262 Ontario Inc. (2000), 2000 ONSC 22337, 47 O.R. (3d) 374 in which Molloy J. applied to the s. 25 appeal process under the BCA the teaching of the Supreme Court in Canada (Director of Investigation and Research) v. Southam Inc., supra. The appropriate standard should be a blend of two tests; namely, a standard of correctness for questions of law and a standard of reasonableness for questions of fact, as was recognized by Roy J.

(xcvii) The fact that the standard of review is not necessarily static and can move along the spectrum of correctness to reasonableness and, for example, be closer to correctness as opposed to reasonableness, as was found by Roy J in his decision, was also recognized by Molloy J. in Runnymede Development Corp. v. 1201262 Ontario Inc., supra. At p. 386 she states:

[para29] …The standard to be applied to decisions of the Chief Building Official will always be less deferential than the patently unreasonable test. The broad powers on appeal, particularly the power to do what the official "ought to have done", the nature of the decision maker and the decision making process (i.e., the decision of a municipal employee rather than an expert tribunal after a full hearing) are factors which suggest a degree of deference on the lower end of the scale, towards correctness. On the other hand, municipal planning and zoning are specialized areas that are squarely within the expertise of the Chief Building Official, a factor that supports a greater degree of deference. It is not possible to say where on the continuum between "patently unreasonable" and "correct" the appropriate standard will fall for all cases involving a Chief Building Official, as the level of deference to be accorded will vary depending on the nature of the issue before the tribunal. Indeed, the apparent differences in the standard applied by the various decisions of this court to date can largely be explained by the differences in the nature of the question being determined. The more the Chief Building Official's decision is a determination of law, the closer the standard will be to correctness. The more the initial decision is dependent upon factual determinations within the special expertise of the Chief Building Official, the more deferential will be the standard. Generally speaking, however, a standard of correctness will be applied to decisions based on law or jurisdiction and a standard of reasonableness will be applied to questions of fact. Within the standard of reasonableness, the degree of deference or the "weight" to be given to any particular determination will depend on the circumstances.

(xcviii) This is a correct statement of law and accepted by this Court. See also on this point the decisions of William F. White Limited v. Uzumeri, in his capacity as Chief Building Official of the City of Toronto et al.; A. Mantella & Sons Limited et al., Intervenors (1999), 1999 ONSC 14809, 44 O.R. (3d) 750 (S.C.J.) and Welwood v. Huron-Kinloss (Township) Chief Building Official (2002), 29 M.P.L.R. (3d) 1 (S.C.J.).

(xcix) I can find no error in Roy J’s application of the standard of review that he adopted. The substantial issues before him did raise questions of law and questions of mixed facts and law and, therefore, were “more a determination of law”. On those issues, the standard would be on the spectrum closer to correctness than reasonableness, which is the standard that he applied to the issues before him. In doing this, he concluded that the only correct interpretation that a court could give to “applicable law” in s. 8(2) of the BCA was the decision of CBO to exclude the three environmental statutes from her consideration in deciding to issue the building permit.

(c) With respect to the CBO’s decision to grant to the Intervenor a legal non-conforming use to the Property permitting him to have 1,045 hogs, as opposed to 750 hogs permitted by the interim control by-law, it is clear on the evidence that she committed an error in law, therefore raising a question of law before Roy J. It was not disputed that the CBO had not considered the test established by the Supreme Court of Canada in Saint-Romuald v. Olivier, supra before deciding to grant the Intervenor his claim to a legal non-conforming use on the Property. Rather the evidence indicated undisputedly that she arrived at that conclusion simply by confining her analysis of change of use to the livestock units contained in the interim control by-law. In particular, it was not disputed that her evidence was that, because the previous dairy farm had 209 cows, the Intervenor was entitled to have 1,045 sows based on the 5 to 1 livestock unit ratio contained in the interim control by-law.

(ci) Roy J. recognized the error in legal principle made by the CBO in not considering the factors set out in Saint- Romuald v. Olivier, supra, in coming to her decision and applied the correctness standard by applying those factors himself to the facts of the case in order to come to his own decision. I can see no error in this application of the standard of review. Based on the analysis found in Runnymede Development Corp. v. 1201262 Ont. Inc., supra, an error in law made by a CBO is neither correct nor reasonable.

Was the application judge correct in concluding that a proper interpretation of the term “other applicable law”, pursuant to s. 8(2) of the BCA, excluded, as a category, the environmental statutes in question?

(cii) The interpretation that is to be given to a particular legislative provision, such as the term, “other applicable law” found in s. 8(2) of the BCA is a question of law. The starting point is clearly to commence with the statute in question, to examine any definitions provided by the statute itself and to examine the statute’s subject matter and purpose. On this point, I can find no error in the approach taken by Roy J. Nor can I find any error in his conclusion that,

the interpretation of “applicable law” in the light of the definitions set out, both in the code and in the statute [definitions of the words “applicable law”, “construct” and “demolish”] [it] would appear that “applicable law” is restricted [to] any law dealing with construction and demolition, not with use.

(ciii) The CBO and the Intervenor advance the purposive approach to the interpretation of the term “other applicable law”. The reason for a purposive analysis of a piece of legislation is “to clarify the scope of general language” (See R. Sullivan, Statutory Interpretation (Toronto: Irwin Law, 1997). There is no question that the term “other applicable law” qualifies as general language.

(civ) The purposive approach advanced by the CBO and the Intervenor agrees with the textual and definitional analysis made by Roy J. as described in the preceding paragraph. It requires, for a law to be relevant and applicable, a real and logical nexus between the applicable law and the essential purpose of the BCA, which is the construction, and demolition of buildings.

(cv) This restricted and rather specialized perception of the BCA was recognized by MacPherson J. in Greater Toronto Airports Authority v. Mississauga (City) (1999), 1999 ONSC 14773, 43 O.R. (3d) 9. Macpherson J. had to decide on the facts of that case whether a redevelopment project at a federally owned international airport came within the operation of the BCA to which he answered no. At p. 10 of that decision, Macpherson J. had the following to say about the subject-matter of the BCA:

The subject-matter of the Building Code Act is, in my view, as its title suggests, buildings. The Act is a relatively short and general one. However, its essence is, per s. 34, "standards for the construction and demolition of buildings". The Act provides municipalities with extensive powers to regulate property development, such as by specifying rules for the construction, demolition, use and occupation of buildings and requiring the submission of plans to a municipal building department for approval before construction may proceed. The Act provides municipal building officials with the power to remove buildings from land and to have them demolished. Those officials are also empowered to make assessments of the structural adequacy of buildings for the purpose for which they are to be used, and they have broad powers to enter and search property and to make orders against both owners of buildings and many other persons who have dealings with buildings, thus affecting the property rights of anyone with an interest in the property. The Act also provides for a number of liens which may be visited on the land itself. In short, the subject-matter of the Act is buildings and the land on which they are placed.

(cvi) It is interesting to note that Macpherson J., in his last statement, extended the subject-matter of the Act not only to the buildings but also to the land on which they are placed.

(cvii) Killeen J., in Burns v. Serpa, Acting Alternate Chief Building Official, Township of Perth South et al., supra, in his discussion of the scope and purpose of the BCA, recognized the Act’s limited purpose but saw it as having a broader scope due to its “obvious interrelationships with other statutes”. He states at p. 272 of his decision:

[para19] The BCA is a complex piece of legislation which is, in general terms, aimed at setting and enforcing standards for all manner of construction and building projects in Ontario. It cannot, because of its nature, be considered in splendid isolation because it has obvious interrelationships with other statutes, provincial and even federal, as well as a variety of municipal regulations under local by-laws. Examples of such interplays would be with the provincial Planning Act, R.S.O. 1990, c. P.13, and a local zoning by-law.

(cviii) Despite this recognition, Killeen J., at p. 273, still concluded that the scope of s. 8 of the BCA and the term “applicable law” were “clarified and “limited” by the definitions of the terms “construct” and “demolish” set out in the definitional section of the BCA; a conclusion that Roy J. accepted, it being consistent with his own textual analysis of the BCA.

(cix) There was no dispute among the parties that the term “other applicable law” found in s. 8(2) of the BCA required the CBO to consider such things as the Planning Act and any relevant local zoning by-laws in force before issuing a building permit. I agree with the City of Ottawa that, therefore, strictly speaking, this necessarily mandates the CBO to consider not only the proposed construction and buildings but also the intended use of such construction and buildings before issuing a building permit. Accepting this fact, one must logically ask the question, how broad or narrow are these considerations of use by the CBO under “other applicable law” to be? Is it to be broad, with the CBO taking on the role of “gatekeeper” of the environmental statutes, as the City of Ottawa argues? Or, is to be more qualified, restricted to those uses that have a real and logical nexus to the construction and demolition of buildings as the CBO and the Intervenor argue and as Roy J. so found in his decision? An examination of the jurisprudence provides answers to these questions.

(cx) The parties’ agreement that “other applicable law” includes such laws as the provincial Planning Act and local zoning by-laws is supported by the case law. In Phi Delta Beta of London Inc. v. London (City) Chief Building Official (1995) 25 M.P.L.R. (2d) 140 (Ont.Gen.Div.), the chief building official refused to issue a building permit to the applicant fraternity on the basis that the intended use contravened the relevant zoning by-law. The renovations were to increase the number of living units allowable under the zoning by-law (eleven units as opposed to the allowable three). The fraternity applied for an order rescinding the chief building official’s decision not to process its application and an order to issue the building permit. Leitch J. refused the application, ruling that the chief building official was entitled to consider the “intended use” of the property in exercising his statutory authority under s. 8(2) of the BCA. In coming to this conclusion, Leitch J. relied on the following words of Saunders J. in Axelrod v. Toronto (City), (1981), 15 M.P.L.R. 143 (Ont.Div.Ct.), p. 148:

[para8] … It would be irrational to hold that he was so precluded. Such a holding would mean that he could not refuse to issue a permit for a factory in a residential zone if the Building Code and all other applicable laws were complied with.

(cxi) In Walton v. Lincoln (Town) (1997), 43 M.P.L.R. (2d) 291 (Ont.Gen.Div.), the applicants applied for a building permit to rebuild an outbuilding that had burned down. The intended use of the building was to house a large number of guinea pigs for the purpose of breeding such guinea pigs. The building was to include a heat pump, insulation and air conditioning to facilitate the breeding operation. The chief building official refused to issue a permit to rebuild the structure on the basis that the proposed use, guinea pig breeding, did not comply with the existing zoning by-law. When the matter came before Quinn J. on appeal pursuant to s. 25(1) of the BCA, counsel for the applicant argued that the definition of “applicable law” as found in s. 8 of the BCA speaks of “construction and demolition” and therefore considerations of “use”, as the chief building official undertook in the decision to refuse the building permit, were precluded. Quinn J. refused this argument stating at pp. 324 and 325:

[para58] … The matter is more than one of bricks and mortar. The definition of "applicable law" allows a chief building official, when assessing a Permit Application, to consider "by-laws ... which prohibit the proposed construction ... of the building." This definition does not exclude "use" as a consideration. By way of example, can it not be said that a residential zoning by-law would, effectively, prohibit the proposed construction of a factory?

[para60] Accordingly, in the case at bar, I hold that the chief building official, in the course of issuing the building permit, was entitled (indeed, required) to consider whether the intended use of the barn would violate the provisions of the new by-law. It would have been wrong for him to have restricted his review of the Permit Application to a consideration of whether the building itself structurally complied with the by-law.

(cxii) After examining the by-law in question, Quinn J ordered that the building permit be issued on the grounds that the intended use did not contravene the by-law and that if the City wished to control the number of guinea pigs they were able to do so, but had not done so.

(cxiii) It is easy to see in these cases, as with any zoning by-law, how the consideration of use dictated by the zoning by-law is directly related to the nature of the construction or building in question. There is a real and logical nexus between the building and the exigencies of the zoning by-law.

(cxiv) In other cases, the term “other applicable law” in s. 8(2) of the BCA has been used to draw into its net a wide variety of laws. In Leeds and Grenville v. Gerard, [1991] O.J. No. 1825, the issue before Cosgrove J. was whether on the facts of the case, persons proposing to build pumps for the purpose of pumping toxic chemical into pipes that could leak into the ground water, the chief building official should act to require a certificate of approval under the EPA. Relying on the fact that the chief building official had a duty of care to persons in close proximity of the proposed project to not issue a permit where the result might be to cause damage to others, Cosgrove J. found that such an approval was required.

(cxv) However, for reasons that I find very persuasive, the decision in Leeds and Grenville v. Gerrard, supra, was not followed by Lane J. four years later in Alaimo v. North York (City) (Chief Building Official), [1995] O.J. No. 862 (Ont.Gen.Div.). On the appeal before him, the chief building official had refused to issue a building permit on the grounds that the proposed construction, because of the proximity and height of chimneys on adjacent buildings, might cause a nuisance. The issue was whether the chief building official could refuse to issue a building permit pursuant to s. 8(2) on such common-law considerations as nuisance.

(cxvi) At para. 21 of his decision, Lane J. took a very restrictive view of the question, based on his legislative interpretation of the term, “applicable law, as he found it in the BCA. He rightly observed that the Leeds and Grenville v. Gerrard, supra was decided prior to the Building Code being amended to define “applicable law” in terms,

that confine it to statutes, regulations or by-laws which prohibit the proposed construction of the building unless complied with. This definition excludes common law considerations such as nuisance. It also confines the relevant enactments to those prohibiting the erection of buildings unless complied with. It seems to me that the decision in Leeds has not survived this statutory change.

(cxvii) He ruled that the chief building official did not have the discretion to refuse to issue a permit when all the statutory requirements, which did not include considerations of common law nuisance, had been fulfilled. He ordered that the building permit be issued.

(cxviii) In both Mayhew v. Hamilton (Township)(Chief Building Official), [2002] O.J. No. 1962 and Rotstein v. North York (City) (Chief Building Official) (1995), 29 M.P.L.R. (2d) 305 (Ont.Gen.Div.), the Court was faced with the question of whether “other applicable law” in s. 8(2) of the BCA could be interpreted to include a subdivision agreement entered into between a municipality and a developer relating to the use of the land in question. On the facts of those cases, the proposed constructions, if allowed to go forward, would be in breach of those agreements. In both cases, the Court ruled such subdivision agreements could not be brought within the purview of the words “applicable law”. Subdivision agreements were nothing more than a contract between the City and a developer and did not have the force of law or the effect of converting such contracts into a regulation or by-law.

(cxix) MacDonald J., in Mayhew v. Hamilton (Township) (Chief Building Official),supra, provides a very useful survey of the case law dealing with the interpretation of the term “other applicable law”, some of which were clearly considered by Roy J. in coming to his conclusions. An examination of that case law leads one to conclude that, for the most part, the term has been restrictively interpreted and found to include consideration of other laws when those laws have been found to have, as the CBO and Intervenor argue, a real and logical nexus to the proposed construction in question. The following are some examples of this.

(cxx) In Upper Thames River Conservation Authority v. London (1989), 1989 ONSC 4097, 67 O.R. (2d) 784 (Ont.Dist.Crt.) and Stacey v. Oxford-On-Rideau (1989), 46 M.P.L.R. (2d) 219 (Ont.Gen.Div.), the proposed construction was to be right on a flood plain. As a result, the Conservation Authorities Act and its regulations were held to be “applicable law” requiring the consent of the authority. It is hard to see how the very foundation of the building is not directly related to the construction itself.

(cxxi) The Ontario Heritage Act and a Heritage Easement Agreement registered under that Act, was held to be “applicable law” for purposes of the BCA in the case of Roman Catholic Episcopal Corp. v. Cobourg (1998), 1998 ONSC 14848, 46 M.P.L.R. (2d) 195. It is important to note that the decision in this case rests solely on its very specific facts. The municipality, under the Heritage Act, was empowered to pass by-laws designating property as having a historic or architectural value and for providing historical easement agreements. On the facts of this case the municipality had passed such a designation by-law which thereby incorporated the easement agreement into the statutory scheme. It was, in essence, the existence of the local zoning by-law that determined the application of the Ontario Heritage Act in this case.

(cxxii) In William F. White Limited v. Toronto (City) Chief Building Official (1999), 1999 ONSC 14809, 44 O.R. (3d) 750, the Court was directly faced with the question of whether, the EPA could be considered “applicable law” for the purposes of issuing a building permit. On the facts of that case, tenants of a building sought a building permit to construct a health and fitness club on the second floor of a building. The appellants were the first floor tenants who ran a business dealing with camera and other equipment that was very sensitive to dust, dirt and vibrations. When the building permit was issued to the second floor tenants allowing them to go ahead with the renovations to create the health and fitness club, the appellants brought the appeal under s. 25 of the BCA. They argued that the proposed construction was in contravention of the EPA. In particular, they argued that the operation of the health and fitness club would discharge sound and vibrations from human activities and this would constitute a discharge of a contaminate into the natural environment that would interfere with the normal conduct of the appellant’s business. There was no question on the facts of the case that the chief building official had not even considered the EPA before issuing the building permit.

(cxxiii) Stinson J. found that the EPA “may” fall within the scope of the “applicable law” under s. 8(2) of the BCA. It was not an automatic thing in each case. In some cases, it would be apparent that the EPA is relevant or irrelevant law. Stinson J. left it to the chief building official, in the first instance, to assess whether a particular application for a building permit falls within the ambit of the EPA or any other legislation. If that decision is wrongly made by the chief building official then, as a matter of law, it could become the subject of an appeal pursuant to s. 25 of the BCA.

(cxxiv) Relevant to an aspect of this appeal, Stinson J. went on to say that, in his view, in order to succeed on an appeal from a decision of the chief building official who issued a building permit without considering the EPA, it was not enough to show that there had been a failure to consider the EPA as “applicable law”. The relevancy of the EPA to the particular facts of the case, namely that some aspect of the proposed construction would contravene the relevant statute, must be shown

(cxxv) After examining the provisions of the EPA and applying it to the facts before him, Stinson J. concluded that the EPA was not engaged by the particular construction in question and no error had been committed by the chief building official. Put another way, I think what Stinson J. was doing was determining whether there was a real and logical nexus between the EPA as applicable law and the construction or building in question. Finding that there was none, Stinson J. rightly concluded that the CBO’s failure to consider it did not constitute an error in law.

(cxxvi) At this juncture I observe that, the approach to the question before him taken by Stinson J., is very similar to that taken by Roy J. in this case. After determining, on a contextual and definitional analysis, that the three environmental statutes cannot be considered in the interpretation of “applicable law”, Roy J. did not end his examination there. He went on in paras. 56, 57 and 58 of his decision to examine whether the proposed construction breached any of the three statutes. I cannot find any error in this approach which appears to be very consistent with the jurisprudence.

(cxxvii) In a decision whose facts are much closer to the facts found in this case, Burns v. Serpa, Acting Alternate Chief Building Official, Township of Perth South et al, supra, Killeen J. also concluded that the EPA cannot be considered “applicable law” for the purposes of s. 8(2) of the BCA. On the facts of that case, the acting chief building official issued a building permit for the construction of two hog-raising barns on the property in question. A representative of a ratepayers’ association of neighbouring landowners appealed the decision to issue the building permit on the grounds that after the barns were constructed, the spreading of liquid manure on the property, under the Nutrient Management Plan, would cause a discharge of contaminants into the environment in contravention of s. 14 of the EPA.

(cxxviii) As has already been mentioned, Killeen J., in the first instance, interpreted the scope of s. 8(2) of the BCA as limited by the definition of the terms “construct” and “demolish” set out in the definitions section of the BCA. After examining the purpose of the EPA, in general, and sections 6, 9 and 14 of the EPA, in particular, he determined that the EPA exempted agricultural operations from its ambit because it “does not apply” to adverse effects caused by “animal wastes disposed of in accordance with normal farm practices” (see para. 54). Killeen J. concluded at pp. 281 and 282 of his decision as follows:

[para59] In my view, a finding that s. 14 is "other applicable law" for the purpose of regulating the construction of buildings and structures within s. 8 of the BCA would not give effect to the clear intent of the legislature to regulate and control the construction of structures from an environmental perspective under s. 9 of the EPA. Section 9, as I have already emphasized, calls for a certificate-of-approval process for structures which may discharge harmful contaminants but -- and this is an important but -- para. 9(3)(c) exempts farm structures such as the Cold Springs' barns. Further, a finding that s. 14 is applicable law will not give effect to the stated statutory policy of the legislature and government not to regulate the construction of structures used in agriculture under the EPA.

[para67] When read together -- as I think they must [be] to get at an articulate commonality of meaning -- the answer must again be that s. 14 of the EPA cannot logically be construed as an applicable law against which to measure whether a building permit should be issued for the construction of these barns. There is simply no rational and necessary nexus between the purpose of s. 14, which is to prevent the discharge of harmful contaminants and s. 8 of the BCA which deals with the construction of structures.

(cxxix) Browne J. followed the decision of Killeen J. in Welwood v. Huron-Kinloss (Township) Chief Building Official, supra because he saw the facts of the case before him as indistinguishable from those before Killeen J. in Burns v. Serpa, Acting Alternate Chief Building Official, Township of Perth South et al., supra. A building permit was issued for the construction of two barns that were intended to house 4,000 hogs from which operation there would be generated annually some 1.75 million gallons of liquid hog manure to spread on the township and adjoining township lands. On the appeal taken from that decision, Browne J. had to decide whether the EPA was “applicable law” within the scope of s. 8 of the BCA that he saw as a question of law. In coming to his conclusion that it was not, Browne J. took the same approach that Stinson J. took in William F. White Limited v. Toronto (City) Chief Building Official, supra. He did not interpret Killeen J.’s decision in Burns v. Serpa, Acting Alternate Chief Building Official, Township of Perth South et al., supra as standing for the proposition that s. 14 cannot, in all cases, be applicable law within s. 8 of the BCA but rather that, in that case, it is not applicable law for the construction of the hog barns for intensive agricultural use in issue.

(cxxx) The City of Ottawa relies on two recent decisions from the Ontario Court of Appeal in support of its position. In R. v. Cranbrook Swine Inc., 2003 ONCA 41182, [2003] O.J. No. 1433 (C.A.), the defendant, Cranbrook Swine Inc. (Cranbrook) had been issued a building permit by the chief building official under the Building Code to construct two barns and a liquid manure storage tank which he proceeded to do. He was subsequently charged with violating the Conservation Authorities Act, because his liquid manure storage tank had been build within a wetlands which was a water resource area in contravention of the Conservation Authorities Act. The specific question before the Court was not the issue before this Court. Rather it was whether Cranbrook could succeed on the defence of officially induced error to the charge, by virtue of the fact that the chief building official had issued a building permit for the construction of the liquid manure storage tank.

(cxxxi) In a dissenting decision, Abella J.A. concluded that the Defendant could succeed on such a defence stating as follows at para. 20:

[para20] The appellants acknowledge that the Conservation Authorities Act and the construction regulations enacted under it are "applicable law" within the meaning of s. 8(2) of the Building Code Act. That makes compliance with its provisions part of what the chief building official is required to consider in deciding whether to grant a building permit. The granting of the permit is, therefore, on its face, a determination by the chief building official that, among other statutes, the relevant provisions of the Conservation Authorities Act have been complied with.

(cxxxii) Later on in her decision, Abella J.A. went on to suggest that the same conclusion might apply to a variety of other statutes that affect the use of land in Ontario, among which were included two of the environmental laws in question in this case, the EPA and the OWRA, (see paras. 30 to 36 inclusive).

(cxxxiii) I have difficulty in accepting that R. v. Cranbrook Swine Inc., supra supports the position of the City of Ottawa to the extent that it argues or that the case can be taken to overturn the preceding jurisprudence on the question. Firstly, whether the statute in question, namely the Conservation Authorities Act was “applicable law” within the meaning of s. 8(2) of the BCA was not in issue in that case. It was the subject of an agreement between the parties so that the Court of Appeal was not dealing head on with the issue before this Court. Secondly, the context of the decision concerned a quasi-criminal case which puts the focus of the discussion, and rightly so, on the strict rights of the defendant. Thirdly, any comments by Abella J.A. regarding the status of statutes, other than the Conservation Authorities Act, as “applicable law” within the meaning of s. 8(2) of the BCA is obiter. Fourthly, the decision of Abella J.A. is a dissenting one. The majority decision clearly rejected not only her disposition but also her “analysis concerning the reliance component of the defence” which included the obiter part of her reasons.

(cxxxiv) In Pedwell v. Pelham (Town), 2003 ONCA 7488, [2003] O.J. No. 1774 (C.A.), by a mechanism known as a testamentary devise, Mr. Pedwell was able to avoid certain provisions of the Planning Act and the intent, at least, of the applicable zoning by-laws. In an attempt to stop the development, the Town enacted an interim control by-law that effectively stalled any development on the land. On an application to challenge the interim control by-law, the trial judge found that the Town had acted in bad faith, declared the interim control by-law a nullity and directed the chief building official to issue a building permit for the lots.

(cxxxv) On appeal from the judgment of the trial judge, the Town argued that the judge had made a palpable and overriding error on the facts and that he had misdirected himself with respect to the applicable law. One of the alleged misdirections was that the EPA is “other applicable law” for the purposes of s. 8 of the BCA.

(cxxxvi) With respect to the argument that the trial judge had committed a palpable and overriding error on the findings of fact, one of which was that the Town had acted in bad faith, Rosenberg J.A. stated at para. 23 that while he might not have made all of the same findings as the trial judge, nor drawn the same inferences, he was not satisfied that the trial judge was “palpably in error”.

(cxxxvii) With respect to whether the EPA is “other applicable law” for the purposes of s. 8 of the BCA, because the evidence showed that the septic system proposed by Pedwell would release nitrates into the soil in such quantities as to violate the Act, Rosenberg J.A. had the following rather qualified statement to say at para. 47:

[para47] I accept that in the circumstances of this case, the Environmental Protection Act can be considered other applicable law within the meaning of s. 6(1) of the Building Code Act. See Welwood v. Huron-Kinloss (Township) Chief Building Official (2002), 29 M.P.L.R. (3d) 1 (Ont. S.C.J.). Although compare Burns v. Perth South (Township) Chief Building Official (2001), 2001 ONSC 28064, 54 O.R. (3d) 266 (Ont. S.C.J.).

(cxxxviii) On the facts of that case, it is not hard to relate directly by way of a clear and logical nexus, the construction in question, in particular the construction of the septic system, with the environmental law in question, the EPA, that is necessarily concerned with the release of nitrates into the soil. I understand from the results of and reasons given in Pedwell v. Pelham (Town), supra, that whether the EPA is to be considered “applicable law” will depend on the individual “circumstances of [each] case” and whether a real and logical nexus exists between the facts of the case and the EPA.

(cxxxix) The ratio of Pedwell v. Pelham (Town), supra is consistent with the preceding jurisprudence, which I find to have been stated particularly well in the decision of Stinson J. in William F. White Limited v. Toronto (City) Chief Building Official, supra.

(cxl) In sum, and based on the analysis of the preceding case law, I cannot find that Roy J. erred in concluding that a proper interpretation of the term “other applicable law” pursuant to s. 8(2) of the BCA excluded, as a category, the three environmental statutes in issue. Whether such environmental statutes can be considered “applicable law” in any individual case is left to the CBO in the first instance and to the application judge on an appeal pursuant to s. 25 of the BCA as a question of law.

(cxli) Furthermore, the decision of whether any of the EPA, the OWRA and the Fisheries Act are engaged by the construction, that is the subject-matter of the building permit, must be based on whether there is a real and logical nexus between the applicable law and the erection of the building in question. The relevancy of the three environmental laws as “applicable law” is not shown by the mere failure to consider them, but upon proof that the proposed construction, that is the subject of the building permit, would contravene any of their provisions. Roy J. did not err in failing to consider whether the proposed construction for the hog farm operation on the facts of this case would contravene any of the provisions of the three environmental statutes in question. In fact, he considered all three statutes individually in his decision in paras. 56 to 58. Did he err in this examination is the third issue on the appeal.

(cxlii) Before going on to consider the third issue on the appeal before this Court, the following comments are justified. The law relating to the interpretation of the term “applicable law”, for the purposes of s. 8 of the BCA, as I have just enunciated it in the previous paragraphs, is a reasonable, measured and workable one that is consistent with the statutory language chosen by the Legislators. There is no question that the environmental concerns raised in this appeal are significant to the well being of the Ottawa community. They should be pursued, regulated and enforced, if necessary. However, the power to do that lies elsewhere, than in the limited powers of the CBO and the legislation governing those powers. I agree with the sentiments expressed by Roy J. in his decision that to designate the CBO as the gatekeeper to the concerns of the environmental statutes, in the way suggested by the City of Ottawa, is asking this Court to legislate law rather than interpreting it. It is not for this Court to do. It is not justified by the language found in the BCA and the jurisprudence relating to that language.

Was the application judge correct in concluding that, even if any of the three environmental statutes could be considered “other applicable law”, they were, nonetheless inapplicable to this case on a proper interpretation of their provisions?

(cxliii) I can find no error in the application judge’s interpretation of the provisions of the three environmental statutes in question. Roy J. applied the correct test to those provisions and found that there was no rational and necessary nexus between those provisions and s. 8(2) of the BCA. He also examined those provisions in light of the substantial evidence that he had before him and could not find that the proposed construction would, in any way breach those provisions.

(cxliv) With respect to the OWRA, based on the evidence before Roy J., one can take serious issue with his statement in paragraph 56 that “Sewage, as defined in the statute, appears not to apply to agriculture”. An examination of the relevant sections of the OWRA and the evidence presented in this case, (see Compendium Supplementaire De L’Intervenante, tab 21), supports the conclusion that farm waste and farm waste disposal systems do come within the definition of “sewage” and “sewage works” and would technically come within the certificate of approval process provided for in s. 53 of the OWRA. Section 30 of the OWRA also does not provide an exemption for agricultural operations, (see Peacock v. Norfolk (County) Chief Building Official, 2003 ONSC 36647, [2003] O.J. No. 2771 (QL) (S.C.J.).

(cxlv) Nonetheless, Roy J. had ample evidence before him, evidence that was not disputed by the parties, to conclude that, as a result of discussions between the Ministry of the Environment and the Ministry of Agriculture and Food, certificates of approval for farm waste disposal were not required. As a matter of practice, sanctioned by the two enforcing Ministries in question, Roy J. did not err in finding that the proposed construction, along with its renovations relating to the manure collection, transmission and storage system, would not contravene the OWRA and, hence, had no real or logical nexus to it.

(cxlvi) Regulation 903 of the OWRA, which deals with unused wells, was not specifically mentioned by Roy J. in his reasons. However, the evidence concerning the unused wells was extremely conflicting. There was nothing in the evidence to show that the proposed renovations would contravene Regulation 903 of the OWRA. I can find no error in Roy J. treating Regulation 903 of the OWRA in the same way that he dealt with the rest of the provisions of the OWRA.

(cxlvii) In his discussion of the Fisheries Act in para. 57 of his decision, Roy J.’s reference to a “flood plain” and Cold Springs Farms Limited v. Serpa, 2001 ONSC 28064, 54 O.R. (3d) 266 is confusing. That decision did not deal with the construction of a building in the area of a flood plain. The case of Upper Thames River Conservation Authority v. London (1989), 1989 ONSC 4330, 67 O.R. (2d) 748 (Ont.Dist.Crt) deals with the construction of buildings on a flood plain. In that case, the Conservation Authorities Act and its regulations were found to be applicable law.

(cxlviii) Nonetheless, with respect to the Fisheries Act, there was no evidence before Roy J. to establish a real and logical nexus between that Act and the proposed construction. There was no evidence to show that the farm waste from the proposed operation would go into any of the surrounding watercourses. I cannot find that Roy J. erred in finding on the evidence before him that the proposed construction would not contravene ss. 35 and 36 of the Fisheries Act and hence render it applicable law.

(cxlix) Finally, with respect to the EPA, I can find no error in Roy J.’s conclusion that there was no rational and necessary nexus between the purpose of s. 14 of the EPA and s. 8 of the BCA in the circumstances of this case. Roy J. did not accept without reservation Killeen J.’s interpretation of s. 14(1) and (2), that there was an absolute and complete exemption for agricultural activities from the operation of those sections. On my reading of those provisions of the EPA, I can find no such absolute exemption. I agree with the submissions of the City of Ottawa that, on a proper reading of those provisions of the EPA, normal farming practices may be exempt, but not beyond the point where harm results or is likely to result from such activity. However, I cannot find that Roy J. erred in finding that the proposed construction would not, on the evidence before him, in any way breach the provisions of the EPA. It was, therefore, not relevant as applicable law.

(cl) The last issue to be dealt with is the second issue on the cross-appeal; namely,

Did the application judge err in refusing to recognize the right of the Intervenor to a legal non-conforming use on the property as the CBO had so concluded?

(cli) For the reasons given earlier, this is clearly a question of mixed fact and law. It can be likened to the issue that was before the Supreme Court of Canada in Housen v. Nikolaisen, supra. In that case, the trial judge had to apply the legal principle of duty of care to the facts of the case, grounded on the evidence, to determine whether the party was negligent. As was pointed out in Housen v. Nikolaisen, supra, the finding of negligence made by the trial judge is entitled to the highest deference and should only be overturned by an appeal court if it can be shown that the trial judge made a “palpable and overriding error”. So in this case, Roy J. had to apply the accepted legal principle, with respect to a claim for a legal non-conforming use, as established by the Supreme Court in Saint-Romuald v. Olivier, supra, to the facts of the case, grounded on the evidence, to determine whether there has been a change in use. That finding is entitled to the highest deference and should be overturned only if this Court can find that Roy J. has made a “palpable and overriding error”.

(clii) It was not disputed by the parties that the legal test to be applied to the facts of the case to determine whether there is a change in use is that established by the Supreme Court in its recent decision, Saint Romuald v. Olivier, supra. At an earlier part of this decision, I reviewed in some detail Roy J.’s enunciation and application of the test to the facts of this case. Upon having made that review, I can find no error in the application judge’s understanding and enunciation of the test. It was correctly stated.

(cliii) In his submissions, the Intervenor put great emphasis on the fact that the intended hog farm operation was nothing more than the continuation of the previous agricultural use, that had been made of the farm in the preceding dairy farm operation, with respect to the number of animal units, the volume of animal waste and the farm practices relating to the processing and use of that waste. Clearly, this had to be considered, as Roy J. did, given the evidence before him. However, to have considered that alone would clearly have rendered the analysis merely a “category” approach to deciding whether a claim to a legal non-conforming use existed or not. This broad “category” approach was specifically rejected by the Supreme Court in Saint-Romuald v. Olivier, supra, and correctly not followed by Roy J.

(cliv) I now consider Roy J.’s application of that test to the facts and evidence presented before him. Just as this Court has had, so too did Roy J. have a substantial amount of evidence presented before him. Without limiting the full inventory of the evidence placed on record, the following is an example of the scope, volume and substance of that evidence:

• Maps and charts relating to the location and identification of the Property, including any near-by creeks and watercourses.
• Information about the historical and current farming usage of the Property and its surrounding land and neighbourhood.
• A number of professional reports and studies commissioned by both the City of Ottawa and the Intervenor relating to the topography, geology and hydrology of the Property. Those reports, among other things, dealt with the soil type, the presence and condition of abandoned wells and the tile drainage and “French drains” on the Property, as well as the significance of all of this for the water resources associated with the Property and the surrounding land.
• Information about the nature and magnitude, both with respect to livestock numbers and financial operation, of the pre-existing dairy farm operation on the Property.
• Information about the nature and magnitude of the proposed hog farm operation. This included, among other things, information about livestock numbers, the new technology to be used in the care and breeding of the hogs, the number of employees and other professionals that would be used on a regular basis in the operation, the delivery system and other details of the day to day operation of the hog farm.
• Information and photographs of the realized and proposed renovations to the buildings in question, including the cost of those renovations. This information also included details relating to the Intervenor’s proposed manure transmission, storage and spreading system.
• Detailed information about the Intervenor’s proposed Nutrient Management Plan, including the constituent parts of its operation in the hog farming as well as the details of the process by which it was approved by OMAF. There was even information about how the Intervenor’s Nutrient Management Plan met, perhaps even more than legally required, the recently passed Nutrient Management Act. Based on their opportunity to question various professionals involved in Nutrient Management Planning relating to agricultural operations, there was also information about the alleged deficiencies and the alleged strengths of Nutrient Management Plans, in general, and the Nutrient Management Plan of the Intervenor, in particular, and how it may impact on the environment and the surrounding farming community.
• The views and evidence of such professionals as Dr. Murray S. McQuigg of the Walkerton Inquiry and Mr. Luc Brunet, and Mr. Robert Chambers about the environmental protections and concerns of the proposed hog farm operation. The CBO provided her own affidavit concerning her perception of certain aspects of the proposed hog farm operation and the process of this litigation.
• Information about the findings and recommendations of the Walkerton Inquiry.
• Information comparing dairy farm operations with pig farm operations from the point of view of livestock numbers, volume of manure production and processing and odour to the community.
• Details of the concerns raised by the City of Ottawa relating to the risks to the environment and the surrounding lands that they anticipated, if the proposed hog operation were to go ahead as well as the Intervenor’s reply to the concerns raised.
• Affidavits, as well as the transcripts of the questioning that took place on those affidavits, and letters from neighbours to the Property and Ottawa citizens, relating to the concerns about the environmental and community impact of the proposed hog farm in their midst. There were also affidavits from individuals who supported the Intervenor’s proposed plans and these were before the Court too.
• Information about the Quebec moratorium on hog farm operations and the reasons for such moratorium.
• Information about the subject matter, enforcement procedures and practices followed by the various Ministries responsible for the three environmental statutes in question, the OWRA, the Fisheries Act and the EPA.

(clv) With all this evidence plus more before him, Roy J. applied the correct legal test, considering all of the seven factors enunciated by the Supreme Court, and came to the conclusion that the proposed hog operation constituted a change in use from the previous dairy-farm operation.

(clvi) In examining the analysis made by him and the reasons stated in his decision, I cannot find that Roy J. considered irrelevant evidence, in coming to his final decision, as alleged by Intervenor. While Roy J. makes reference to such things as the Quebec moratorium, the Walkerton Inquiry and the original intention of the Intervenor to operate with a much larger number of livestock, when one examines the whole of his decision, one cannot conclude that his decision was based on these few isolated facts.

(clvii) Furthermore, those facts cannot be considered completely irrelevant. They provide important contextual and narrative information, logically connected to the nature of the factors that the Supreme has mandated be considered in the Saint-Romuald v. Olivier, supra decision. (See also Peacock v. Norfolk (County) Chief Building Official, supra.)

(clviii) As is evident from his reasons, Roy J considered all of the evidence before him. His findings of fact and inferences of fact are supported by the evidence before him. His findings of fact and inferences of fact are grounded on the evidence before him and are not speculative. Based on the evidence, he did not characterize the legal non-conforming use in question too narrowly nor inflexibly, but dealt with it in a fair and measured manner in his attempt to deal with the interests of the farmer and the community in a balanced way, as directed by the Supreme Court. I can find no basis on the evidence or in Roy J.’s reasons for concluding, as the Intervenor submits, that he came to his conclusion based on “l’utilisation de la preuve subjective”.

(clix) As Rosenberg J.A. pointed out in Pedwell v. Pelham (Town), supra, while I might not have made all of the same findings as the application judge or drawn the same inferences from the very substantial and oftentimes conflicting evidence, that is not the standard. I am not satisfied that the application judge was palpably in error. For this reason, the answer to this issue on the cross-appeal is in the negative.

(clx) Counsel directed the Court’s attention to some jurisprudence on the issue of legal non-conforming use. Some of this case law pre-dated the final crystallization of the test by the Supreme Court of Canada decision in Saint-Romuald v. Olivier, supra. (See Glenelg (Township) v. Davies (1992), 1992 ONCA 8648, 10 M.P.L.R. (2d) 260 (Ont.C.A.); Heutinck v. Oakland (Township) (1997), 1997 ONCA 1284, 42 M.P.L.R. (2d) 258 (Ont.C.A.); Nepean (City) v. D’Angelo, [1998} O.J. No. 5299 (QL) (Ont.Gen.Div.).

(clxi) The few cases that have been decided since the Supreme Court released its decision in Saint-Romuald v. Olivier, supra, to the extent that comparisons can be drawn between the cases on their different facts, appear to support the conclusion of Roy J. In Peacock v. Norfolk (County) Chief Building Official, supra, Taliano J. found, relying on the Supreme Court decision, that even the proposed expansion of an existing hog farm operation could constitute a change in character and not enjoy a legal non-conforming use. He states at p. 13 of his decision:

[para76] …Put another way, the doctrine of legal non-conforming use cannot be used to protect expansion that necessarily entails such grave environmental and public safety dangers. I am fortified in this view by the decision of the Supreme Court of Canada in Saint-Romuald (Ville) v. Olivier…

(clxii) In 4310845 Manitoba Ltd. v. Morris (Rural Municipality), supra, like the facts in this case, the proposed hog farm operation had not yet commenced. The Court, in dealing with the legal test enunciated by the Supreme Court in Saint-Romuald v. Olivier, supra, dealt with the fact that the hog operation had not yet commenced and that therefore the Municipality could not argue adverse neighbourhood effects from a factually founded position. Despite this, the Court found that, on the evidence, the residents of the community had “expressed reasonable concerns”. The Court concluded that there was not a continuation of the pre-existing non-conforming use.

(clxiii) As can be seen from his reasons, Roy J. took the same approach to this issue. I can see no error in this. Given the evidence before him, it did not render his treatment of the factor of community effects and the balancing that he had to do with respect to the community interests and the farmer’s interests speculative and any less grounded in the evidence.

(clxiv) In Rotstein v. Oro-Medonte (Township) (2002), 34 M.P.L.R. (3d) 266 (Ont.S.C.J.), the Court had to decide whether a legal non-conforming use continued after renovations were made to a boathouse on a severed property. The appeal was refused by Howden J. who found that he lacked the evidence to conduct the measured approach and analysis, grounded on the evidence, as required by the Supreme Court in Saint-Romuald v. Olivier, supra. The facts of that case are very different from the facts of the case at bar. In this case, the evidence was substantial. Roy J. was able and did carry out the measured analysis grounded on the evidence, as mandated by the Supreme Court in Saint-Romuald v. Olivier, supra.

(clxv) By way of summary, for all of the reasons given above, the second and third issues on the appeal brought by the City of Ottawa are answered in the negative. The appeal is therefore dismissed. The second issue on the cross-appeal is answered in the negative. The cross-appeal is therefore dismissed.

(clxvi) If the parties cannot reach an agreement on the question of costs, with respect to both the appeal and cross-appeal, the Court will receive the short written reasons of the parties on the question of costs. The City of Ottawa shall have three weeks from the release of this decision to file and serve its written submissions on costs, with respect to both the appeal and cross-appeal. The CBO and the Intervenor shall have two weeks from that time to file and serve their submissions on costs with respect to the appeal and cross-appeal. The City of Ottawa, if it so chooses, shall have one further week from that date to reply. If the Court deems it necessary, it may ask the parties to supplement their written submissions on costs with brief oral arguments on a date to be fixed by the trial coordinator.

Linhares de Sousa J.

Cusson J.

Métivier J.

Released: November 21, 2003

COURT FILE NO.: 03-DV-857

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUSSON, MéTIVIER AND LINHARES de SOUSA JJ.

B E T W E E N:

THE CORPORATION OF THE CITY OF OTTAWA

Applicant (Appellant on Appeal/Respondent on Cross Appeal)

• and –

THE CHIEF BUILDING OFFICIAL OF THE CITY OF OTTAWA, MS. ARLENE GRèGOIRE

Respondent (Respondent on Appeal and Cross-Appeal)

• and –

1479333 ONTARIO INC.

Intervenor (Respondent on Appeal/Appellant on Cross-Appeal)

REASONS FOR JUDGMENT

Linhares de Sousa J.

Released: November 21, 2003