DIVISIONAL COURT FILE NO.: 145/04
SUPERIOR COURT FILE NOS.:03-CV-255048CM1 & 03-CV-257685CM1
DATE: 20040622
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: HASTINGS CORPORATION LTD. Applicant (Appellant in Appeal)
- and -
ANN BOROOAH, in her capacity as Chief Building Official of the City of Toronto; THE CITY OF TORONTO; and MUC SHELTER CORPORATION Respondents (Respondents in Appeal)
BEFORE: MacFARLAND, HOWDEN & LINHARES de SOUSA JJ.
COUNSEL: Christopher J. Williams and J. Mascarin, for the applicant/appellant Diana W. Dimmer and Thomas Wall, for the Chief Building Official & The City of Toronto William C. McDowell and W. Grant Worden, for MUC Shelter Corporation
HEARD: June 2, 2004
E N D O R S E M E N T
HOWDEN J.
[1] Hastings Corporation Ltd. owns a property on Richmond Street East containing a three-storey commercial building. Across the street and a short distance along Ontario Street, the site of a proposed building is owned by the respondent, MUC Shelter Corporation. In August and October, 2003, the respondent Chief Building Official of the City of Toronto issued two building permits to allow construction on the MUC property of a nine-storey building providing temporary accommodation, transitional housing and support services for refugees and those with refugee-experience. MUC’s current lease is nearing its end and it wants to replace its current fifty emergency shelter beds and provide, in addition, fifty-two transitional housing units.
[2] The project is to be funded under the federal Supporting Communities Partnership Initiative (“SCPI”) program which is administered by the respondent city, and by a mortgage taken out by Sojourn House, the name of the operating group which relies on funds raised from the community. The transitional housing component is housing for refugees, their families, and refugee-claimants who are homeless and require support to maintain their housing for short or longer periods of time.
[3] This appeal is from a decision by Cameron J. released February 11, 2004. Cameron J. dismissed the appellant’s application under the Building Code Act to declare invalid and set aside the two building permits issued by the CBO. Those permits resulted from applications filed by the respondent, MUC, on June 6, 2003, following a preliminary project review initiated in April, 2002.
[4] The appellant submits that the application judge erred in the following ways:
• in holding that the proposed use was permitted by the City’s zoning by-law and that the CBO had properly classified the proposed use as a “hostel” and “dwelling rooms/units”, uses permitted as of right in the RA zone governing the property;
• in holding that the residential amenity space requirement of the by-law was met despite its not being exclusive to the dwelling unit occupants;
• in holding that the Municipal Shelter By-law, passed in February 2003 and not yet fully through the Ontario Municipal Board appeal process, did not prevent issuance of the building permits; and
• in determining that the permits should not be revoked pending the OMB decision.
[5] In addition, the appellant requests leave to appeal from the application judge’s determination that the respondents’ costs be recovered from the appellant, and for review of the quantum of the costs order.
Zoning Compliance
[6] The zoning classification issue brings into play the standard of review used by Cameron J. in addressing the duty and the decision of the CBO. The CBO had decided that the proposed use in zoning terms came within those permitted in the AR zone as a “hostel” with “dwelling units”, rather than a “crisis care facility”. In the zoning by-law, those terms are mutually exclusive. .If the proposed use was properly a crisis care facility, it could not be a hostel and it could not meet the minimum distance separation required from another similar facility. As well, because a crisis care facility by definition provides shelter for persons requiring immediate shelter and assistance for a short period, the proposal would probably not satisfy the additional requirement for a crisis care facility that it occupy the whole of the residential portion of the building. Here, Sojourn House would include several floors of dwelling units for lengthier stays as well as administrative and service offices for support staff, in addition to the shelter beds.
[7] Cameron J. characterized the zoning compliance issue as one of mixed fact and law and found the appropriate standard of review of the Chief Building Official’s decision to be reasonableness. In his words:
The issue is more than just a matter of law; it is a mixed issue of fact and law. The court should be reluctant to re-examine such decisions: Southam (referring to Canada v. Southam Inc., [1997] 1 S.C.R. 748) at para. 35.
The CBO is the designated decision maker under the Code. The CBO regularly classifies proposed uses under the zoning by-law in issuing building permits and so has an expertise in the area.
Accordingly, the decision of the CBO should be accorded some respect. In such circumstances the standard of review is the reasonableness, rather than the correctness, of the CBO’s decision: Runnymede Development Corporation Limited v. 1201262 Ontario Inc. (2000), 47 O.R. (3d) 374 at 387 (S.C.J.); Thomas Furniture Ltd. v. Toronto (City) Chief Building Official (2002), 33 M.P.L.R. (3d) 208 (Div. Ct.), at para. 16. The test is whether the decision is clearly wrong: Southam, p. 778, para. 60.
[8] The appellant submitted that Cameron J. erred in using a “reasonableness” standard. The appellant submitted that the CBO’s decision should be held to a “correctness” standard in this case because (i) the CBO’s principal official responsible for reviewing the proposed project lacked specialized knowledge regarding certain crisis care facilities in the city, (ii) the CBO failed in her duty to make an independent and impartial judgment in issuing the permits before the Ontario Municipal Board’s appeal process dealing with the municipal shelter by-law was completed; and (iii) the live issues regarding zoning compliance in this case centred more on issues of law, including the meaning of the zoning definitions, the application to this case of a Divisional Court decision regarding issuance of a building permit for a residence for homeless persons known as Dixon House, and the added twist that the competing use definitions were mutually exclusionary.
[9] Counsel for the respondents stressed the major issues of zoning compliance as heavily fact-driven. They submitted that Cameron J. did not err in adopting a somewhat deferential standard in this case.
[10] There is no doubt that, because of the large range and types of issues which can confront a CBO, the place on the continuum between patently unreasonable and correct varies with the nature of the issue before the court. The closer a CBO’s decision is to a determination of law, the closer the standard will be to correctness. Runnymede Development Corporation, supra, at p. 215; Ottawa (City) v. Ottawa (City) Chief Building Official (2003), 2003 Carswell Ont. 5280 (Div. Ct.); Lock v. Middlesex Centre (Township) Chief Building Official (2001), 22 M.P.L.R. (3d) 66 (Ont. S.C.J.); Welwood v. Huron-Kinloss (Township) Chief Building Official (2002), 29 M.P.L.R. (3d) 1 (S.C.J.); Rotstein v. Oro-Medonte(Township) (2002), 34 M.P.L.R. (3d) 266 (S.C.J.).
[11] In our view, the CBO, in determining zoning compliance in this case, faced issues of mixed fact and law, as in most cases of zoning classification. Her officials had to review many documents, consider a variety of professional submissions, examine the site and the area in order to reach factual conclusions about the use and its proposed location. However, when the reviews were completed, the factual component became pretty clear. The CBO was faced at the time of the decision to issue the permits or not with zoning issues relating more to the meaning of the zoning terms and consistency of interpretation of the by-law. As well, the CBO had to deal with “applicable law” in the Building Code Act in regard to the effect, if any, of the Municipal Shelter By-law, the appeals from which were not as yet dealt with under the Planning Act process.
[12] It is easy to conclude that the middle standard of reasonableness is a suitable compromise for all issues of mixed fact and law, whereas the categorization in this mixed area itself opens up a continuum of review standards dependent on the particular weight of law vs. fact. Iacobucci and Major, JJ. (for the majority) in Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 at paras. 27 and 28:
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 law.
Therefore, what appears to be a question of mixed fact and law, upon further reflection, can actually be an error of pure law.
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.
[13] With respect, we find that Cameron J. erred in applying the more deferential standard of reasonableness simpliciter to the zoning compliance component. While the CBO was entitled to limited deference in this case, we find that the standard of review required is closer to that of correctness.
[14] In so finding, we place no weight on the appellant counsel’s submissions regarding the alleged lack of knowledge of the official in the CBO’s office who was cross-examined. The only basis for that submission cited by counsel was that he was not familiar with the details of certain sites zoned as crisis care facilities which appellant’s counsel chose to put to the witness during cross-examination; it had nothing to do with his level of knowledge of building and planning issues or his expertise and building code judgment. Likewise, we see no basis for the statement in the appellant’s factum, not stressed in oral argument, that the CBO and her officials failed to meet the statutory duty to act independently and impartially. This was clearly not a case like Peter Kiewet Sons v. Tillsonburg (Town) (2003), 28 M.P.L.R. (3d) 277 (S.C.J.) where the CBO failed completely to consider highly relevant information and was held to have pre-determined that the permit would issue without considering required planning input.
[15] In this case, the CBO took a position initially to await completion of the Municipal Shelter By-law appeals though that by-law was clearly not in effect, nor would it be in effect in the near future as of the date of the permit application. The CBO took into account what was before her, including legal submissions made on the appellant’s behalf as to the appellant’s position of compliance with all relevant law and with the Municipal Shelter By-law as passed by council. There is no evidence to suggest that the CBO fettered her discretion or failed to exercise her statutory duty to make an independent and impartial determination.
[16] Even using a standard close to correctness, we find that Cameron J.’s acceptance of the CBO’s determination of zoning compliance was consistent with the principles and findings in Thomas Furniture, supra, a decision of the Divisional Court regarding a similar shelter accommodation for homeless persons called Dixon House. In that case, the Divisional Court faced a submission like that of the appellant in this case, that the proponent’s plans properly constituted a crisis care facility and, as that definition excluded “hostel” uses, the proponent failed to comply with the zoning by-law and the building permit should not issue. The Divisional Court as then constituted held, in Thomas Furniture:
The By-law definition of “crisis care facility” and “hostel” are, in our view, unfortunately drafted in that each definition is qualified by the other. “Hostel” does not include a “crisis care facility”; “hostel” is a defined use in the By-law; “crisis care facility” does not include a use otherwise classified or defined in the By-law. Thus there is an element of circularity in the definitions. It appears that this unfortunate drafting led Jennings J. into error as he appears to have asked himself the wrong question and indeed the problem appears to have arisen by the wrong approach to determining the question. Rather than dealing with both definitions in tandem, with an eye on the companion definition in trying to see which of the two definitions more accurately described the proposed use by DH of the Property, Jennings J. approached the definition of “crisis care facility” in isolation. Then, having concluded that the proposed use fitted the definition of a “crisis care facility”, he did not analyze whether the proposed use could be as a “hostel”. Jennings J. simply concluded:
As the facility is a “crisis care facility” as defined, it cannot be a hostel…
Thus he gave no consideration to the exclusionary words in the definition of “crisis care facility” that that use “does not include a use otherwise classified or defined in this by-law.”
DH in its application for the Building Permit described the proposed use as that of a “hostel”. The CBO in granting the Building Permit accepted that proposed use as being appropriate in the circumstances.
As indicated in the affidavits advanced by the City as noted above, shelters for abused woman and young children and for run away youth or young prostitutes or detox (alcohol or drug) centres would fit within this definition [of crisis care facility]. However, as we move along the spectrum away from the residence and the assistance requirements of those in acute crisis to the residence needs of the chronic homeless where the shelter aspects may not be linked with any assistance; or the assistance provided may not necessarily be linked to the shelter aspect; and where the dwelling accommodation is not of any limited duration but may in fact be of a long term (months or years) duration as envisaged here in DH’s application; then it appears to us that these needs would fall within the “hostel” definition.
We would therefore allow the appeal and restore the decision of the CBO which allowed the issuance of the Building Permit to DH to renovate the Property for use as a hostel.
[17] We do not see the fact that the MUC proposal provides housing and support services for a more defined group of homeless people than Dixon Hall, i.e., refugees and refugee-claimants and their families, as a reason to distinguish this case from Thomas Furniture in principle. It appears to us that, in asserting (as the plaintiff does in its factum at para. 53) that if the proposed use could be classified as a crisis care facility, then it could not be a hostel, that line of analysis is the very error found by the Divisional Court in Thomas Furniture.
[18] In conclusion, we do not see any error in Cameron J.’s acceptance of the CBO’s finding on zoning compliance, even when it is reviewed on a standard close to correctness.
Residential Amenity Space
[19] The appellant objected that Cameron J. misinterpreted the by-law’s requirement for residential amenity space in the project. This term refers to space in the proposed building on the main, part-second, eighth and ninth floors for such common areas as dining room, kitchen facilities, storage, lounge/TV room, and laundry. It was submitted that the zoning by-law required such amenity areas to be for the exclusive use of residents of the dwelling units, not of the temporary shelter area. As so interpreted, the appellant submits that the proponent’s plans do not comply with the applicable law.
[20] Cameron J. held that this argument was without merit because the by-law simply does not limit the residential amenity space only to the non-hostel portion. When this was put to appellant’s counsel, he responded that the appellant was interpreting this term in a purposive manner by reading into the by-law a limitation that was not there. We find no basis for the appellant’s submission and we find no error in Cameron J.’s disposition on this issue.
The Municipal Shelter By-Law
[21] This by-law was passed by City Council on February 11, 2003. As of June 6, 2003, when the building permit for the MUC project was applied for, it was not in force because of appeals taken to the Ontario Municipal Board, including one by this appellant. But for the appeals, it would have been in full effect as of the permit application-filing date. As passed, the Municipal Shelter By-law permits the proposed refugee hostel/housing project by a site specific exemption from separation distances between similar facilities across the city. The definition of “municipal shelter” in the new by-law includes this project.
[22] The appellant argues that Cameron J. erred in holding that, if parts of the by-law are repealed or amended by the Board such as by removal of the site specific permission granted this project, those amendments or parts repealed are not given retroactive effect to the date of passing of the by-law by the Planning Act. Counsel for the appellant submitted that s. 34(30) either clearly has the opposite effect when read in context, or it is ambiguous on its face and the more reasonable interpretation is that the parts repealed or amended by the Board are to have retroactive effect with the rest of the by-law. Otherwise, counsel argues, it would lead to absurd results. Finally, counsel submitted that, if amendments or part-repeals by the Board do not come into effect retroactively, s. 34(30) of the Planning Act provides no trigger to put them into legal effect.
[23] Section 34 of the Planning Act provides the authority and process for enactment and appeal of municipal zoning by-laws, as well as their effect in law. When a zoning by-law is passed by council, interested parties are given a period within which to appeal to the Ontario Municipal Board (s. 34(19)). If no appeal is filed, the by-law is deemed to come into effect on the day it was passed (unless it accompanied an amendment to the Official Plan, which the by-law in question did not). The Board is given authority to dismiss appeals, or to allow appeals and repeal or amend the by-law, or direct council to repeal or amend the by-law as the Board may order (s. 34(26)).
[24] Section 34(30) reads:
If one or more appeals have been filed under subsection (19), the by-law does not come into force until all of such appeals have been withdrawn or finally disposed of, whereupon the by-law, except those parts of it repealed or amended under subsection (26), shall be deemed to have come into force on the day it was passed.
[25] In this case, the chronology involving the shelter by-law and the building code process is necessary to understand.
• The shelter by-law was passed on February 3, 2003, and was appealed within the proper time to the Board;
• The MUC proposal had passed through the building department preliminary review by June 2002;
• The building permit application was filed on June 6, 2003;
• The permits for foundation and above-grade building issued, with concurrent notice to the appellant, on August 19 and October 6, 2003;
• Cameron J. heard the application on January 21 and 22, 2004 and his decision issued on February 4, 2004.
• The hearing before the Board was bifurcated into two parts: the first part was to deal with the general provisions of the shelter by-law – it continued from the end of September, 2003 for two-and-a-half months and the Board’s decision issued March 15, 2004;
• The Board issued an order dated April 29, 2004 purporting to “approve” the by-law as amended by the Board, allow an appeal in part, and, because appeals from the by-law have not all yet been dealt with, ordered that the by-law as amended by the Board does not yet apply to 101 Ontario Street;
[26] We are informed that the second phase of the Board’s hearing was adjourned on consent in March of this year until this appeal is finally determined.
[27] Cameron J. noted that the shelter by-law was not in force at the time that the CBO was required to make her decision on the MUC building permits. He held that whatever the Board may decide, there would be no impact in law on the status of the building permits because:
i. either the shelter by-law permission for the MUC project would come into effect unamended and that would have retroactive effect back to its date of passage without adverse effect in law on the hostel/transitional housing proposal for 101 Ontario St.; or
ii. were the Board to amend the by-law by repealing the site specific exemption, such an amendment or repeal would not have retrospective effect and also would not impact in law on the proposed use.
He stated:
I conclude this discussion by declaring that the shelter by-law did not prevent the CBO from issuing the permits.
[28] In our view, Cameron J. did not err in this regard. Read in context and applying to the words used their ordinary meaning, s. 34(30) clearly gives express retroactive effect to the by-law as passed by council to the date of passage by that council. It was that by-law or, if amended later, the unamended unrepealed parts, which went through the public process required under s. 34 of the Planning Act, became the expression of council’s will on the date of passage, and later became law. Amendments by the Board emanate from the Board’s public process and may or may not express the will of council when the by-law was originally passed. We see no reason or useful result in adopting the reading suggested by the appellant by which, on any zoning appeal including appeals from general and area zoning by-laws, all property owners’ plans for re-investment or development would be hostage for the length of the appeal process to the uncertainties of amendments which could have retroactive effect back to the start of the process, in this case now some seventeen months from the filing of appeals.
[29] Furthermore, there was no need to include, in subsection 34(30), provision for the coming into effect of amendments by the Board. The power to give effect to all matters exclusively within the Board’s jurisdiction under any general or special Act is provided to the Board by its constitutive statute, the Ontario Municipal Board Act, in sections 30-37 and clause 109 of its rules, the authority for which is in the same statute.
[30] Under the Building Code Act, the CBO is required to issue a building permit unless the proposed building would contravene this Act, the building code, or any other applicable law (s. 8(2)(a)). There is no issue arising from the other pre-conditions in s. 8(2). Where an appeal is taken from the decision of the CBO, the judge is required to hold a hearing and is empowered to substitute his or her opinion for that of the CBO in reaching a decision to affirm, rescind or otherwise deal with the decision of the CBO and the permits, including their revocation. To qualify as “applicable law” under s. 8(2), the law must be one which prohibits the proposed construction unless that law is complied with. (O. Reg. 403/97, section 1.1.2.3)
[31] In holding that the shelter by-law was not applicable law for purposes of the Building Code Act, we see no error in the judgment of Cameron J. The by-law expressly permits the project, and any amendment which could possibly change the relevant part of the by-law would not affect the CBO’s decision in August and October, 2003 when, by s. 8, she was required to make a decision. It is only where the applicable law prevents issuance that the CBO can refuse to issue the permit applied for.
[32] The Municipal Shelter By-law purports to change the existing rules and provide a more uniform approach to shelters/hostels across this recently-amalgamated city. It provides general locational criteria in relation to similar facilities with which the proposed hostel/housing project would not comply. However, the city examined it specifically and concluded that a specific permission for it should be provided. Nothing in the shelter by-law changes the status of the construction applied for as of the time of the permit application.
[33] In conclusion, Cameron J. considered the issue of “applicable law” correctly. We find no error in his conclusion that some future possible change to the Municipal Shelter By-law did not alter the correctness of the CBO’s decision to issue the permits pursuant to her duty to do so under s. 8(2) of the Building Code Act.
Revocation of Permits Pending OMB’s Final Disposition
[34] Cameron J. refused the appellant’s request to revoke the building permits and order the CBO not to issue further permits for the MUC hostel/housing project until final disposition by the Ontario Municipal Board of the shelter by-law.
[35] We find that Cameron J. took into account the necessary interests of the parties, his jurisdiction, and all relevant factors. He did not err in law in refusing the appellant’s request.
[36] For the reasons given, the appeal is dismissed.
[37] As for the request for leave to appeal from the costs order and the request for review of the quantum of that order, no ground for interfering with Cameron J.’s exercise of his discretion in fixing costs was advanced. Leave to appeal the cost order is refused.
[38] Counsel may make brief written submission in relation to the costs of this appeal, by the respondents by July 9, 2004 and by the appellants in reply, by July 16, 2004.
MacFARLAND J.
HOWDEN J.
LINHARES de SOUSA J.
DATE: June 22, 2004