Introduction

[1] This is an application for judicial review of a decision taken by the council of the Township of Georgian Bay. The Applicant Roberta Henhoeffer is the registered owner of property located on Six Mile Lake. She took ownership of the property on October 19, 2017. In 2018 the Township granted the Applicant a building permit to reconstruct the cottage on the property, to be set back 20 metres from the shoreline. The Applicant demolished the old cottage which exposed a sandy area underneath. During August 2020, the Township received complaints that the Applicant had dumped a large volume of sand on an area near the shoreline. An investigation was undertaken, inspections took place and reports were exchanged. On August 24, 2021, the Township issued and served a repair order (Number E20-21). The Applicant requested a review seeking to have the order revoked. The council of the Township considered the request at a public meeting on October 12, 2021. It deliberated, in a closed session, provided its decision to the Applicant on October 14, 2021 and publicly announced that decision at its regular council meeting, on November 8, 2021.

[2] It is that decision which Roberta Henhoeffer seeks to quash on this judicial review.

Background

[3] The Respondent is the Township of Georgian Bay. It is authorized by s. 142 of the Municipal Act[^1] to regulate the placing, dumping or removal of fill within the geographical area the makes up the Township:

142(2) Without limiting sections 9, 10 and 11, a local municipality may,

(a) prohibit or regulate the placing or dumping of fill;

(b) prohibit or regulate the removal of topsoil;

(c) prohibit or regulate the alteration of the grade of the land;

(d) require that a permit, be obtained for the placing or dumping of fill, the removal of topsoil or the alteration of the grade of the land; and

(e) impose conditions to a permit, including requiring the preparation of plans acceptable to the municipality relating to grading, filling or dumping, the removal of topsoil and the rehabilitation of the site.

[4] In furtherance of this authority the Township has enacted Site Alteration By-law No. 2014-72. As described and agreed to by the parties:

The By-law has as its primary purpose “...to protect and preserve water quality” while allowing the right of property owners to “engage in normal landscaping activities on their waterfront property”.

The By-law prohibits “...any landscaping work that could significantly alter the grade or topography in a manner that increases the flow of surface water to neighbouring lands or the adjacent waterbody”. To this end it prohibits the placing or removal of fill on lands within the Township defined to be a Shoreline Area and/or zoned Open Space or Environmental Protection except as permitted in the exemptions contained in section 4 (the “Exemptions”) or through a request to Council pursuant to section 5.1.

For the purposes of this Application, the following definitions and provisions in the By-law are relevant:

a. “Alteration” means “a change in elevation from Existing Grade or Finished Grade resulting from (i) The Placing or Dumping of Fill”; and

b. Section 4 sets out the Exemptions, including for minor landscaping and/or the maintenance or replacement of any existing landscaping and existing beaches.

Under section 7.6 of the By-law a landowner served with a repair order can request that Council review same. There is no right of appeal from a decision by Council on such a request.[^2]

[5] The investigation of the complaint included several site inspections. The first, by the Township’s external planning consultant (Jamie Robinson), took place on July 21, 2020. Photographs and measurements were taken. They confirmed that the Applicant had contravened section 3.1 of the by-law[^3]:

No person shall Place or Remove Fill, or cause or permit any site alteration on lands within the area defined in this By-law as the Shoreline Area, except as noted in Section 4 Exemptions From Application of By-law.[^4]

[6] On August 25, 2020 the Township Manager of Planning notified Roberta Henhoeffer of non-compliance with the By-law and requested that she bring the property into compliance by retaining a qualified environmental professional to prepare a site plan and re-vegetation plan to stabilize and denaturalize the shoreline.[^5] In response, on September 3, 2020, the Township received a letter from John Jackson, a land use planner.[^6] The letter asserted that the placement and dumping of sand had been carried out by the previous owner of the property:

Based on my assessment, it would appear that as much as 87% of the shoreline has been modified or disturbed by the historical use of the property. It would be my respectful opinion that this extent of the shoreline activity predates this provision of Zoning By-Law No. 2014-75. Therefore, the more extensive activity area would be grandfathered pursuant to the provisions of Section 34 of the Planning Act.

A careful review of site conditions and history of the property would allow for a fair conclusion to appreciate that there was much greater extents of disturbed areas and modified shoreline.[^7]

[7] In the absence of any documents or photographs demonstrating the “history” being referred to, the presumption has to be that this conclusion arises only from the observations made (and photographs taken) by the land use planner when he visited the property. The Township disputes the claim that this much disturbance to the shoreline was due to the actions of the previous owner. It says, from a review of the historical photographs, aerial imagery, photographs submitted from those who made the original complaints, and site visits, the Township By-law Enforcement Officer (Corey Avery) has determined that the property was in a natural vegetated state prior to Roberta Henhoeffer’s purchase of the property, that the previous owner made only minor alterations to the shoreline and that it is the current ownership that altered the shoreline through the placement of sand contrary to the By-law.[^8]

[8] The Township followed up with two further letters confirming its view that the By-law had been breached and seeking remedial action. The first, dated September 25, 2020, stated that “failure to correct the non-compliance by October 12, 2020 will result in action by the Township”.[^9] The second, dated January 29, 2021, requested that a revegetation plan be submitted by May 28, 2021 to address the non-compliance with the Zoning and Site Alteration By-laws.[^10] This appears to have been the subject of an understanding arrived at during a further site visit that had taken place during November 2020:

As discussed and agreed upon during the site visit on November 9^th, 2020 with the Township, your agent Mr. Jackson and yourselves; the Township is anticipating the submission of a re-vegetation plan prepared by a qualified environmental professional. The submitted plan shall have regard for the re-stabilization and re-naturalization of the shore line area in order to mitigate and improve the negative impacts of the work that was done on the property.

[9] The letter goes on to explain, in some detail, what was expected pursuant to that “discussion and agreement”:

The plan shall indicate a Shoreline Activity Area and Natural State Shoreline Area, in accordance with Section 4.30 of the Zoning By-law. It should also have regard for the contraventions within Section 4.40 Walkways & Breezeways of the Zoning By-law. And address the contraventions within Site Alteration By-law 2014-72, which does not permit fill within 20.0 metres of the shoreline.[^11]

[10] During March 2021, the Township retained David Leeder, a professional engineer and geoscientist, to conduct a review. In company with the Township By-law Enforcement officer, on April 6, 2021, David Leeder visited the site, conducted an investigation, and completed a report which was dated May 10, 2021.[^12] It was provided to Roberta Henhoeffer, the next day, May 11, 2021. The report confirmed that the Applicant had deposited sand on the Shoreline Area of the property and that erosion was present at the waterline:

The current property owner altered the soil, grading and vegetation cover on the property by importing sand fill to the nearshore area and filling with imported sand to the waterline of Six Mile Lake. The pre-existing features may have excavated/regraded, although the extent of regrading of the original ground’s surface is difficult to discern because of the fill placement. The imported sand fill is not suitable for the slope of the property, and has eroded to the littoral area of the lake, evidenced by on-land rilling and sand deposits in the lake (from Township and Ministry of Natural Resources and Forestry [MNRF] photographs). The sand fill placement and subsequent erosion has caused the shoreline to become unstable and altered the naturalized state of the shoreline and nearshore area.[^13]

[11] The report went further. It provided the outline of a series of recommended actions:

a. the installation of a silt fence along the highwater mark,

b. regrading of the property within 15 m. of the highwater mark including the removal of the imported sand fill and installation of low-relief retaining structures,

c. installation of 750 mm (3”) of topsoil, planted with reclamation seed mix,

d. installation of a stormwater runoff attenuation apron at the end of the stone walkway to dissipate runoff water velocity into the lake, and

e. that the reclamation plans be submitted to the Township prior to commencing work.[^14]

[12] On July 6, 2021 the By-law Enforcement officer conducted a third follow-up inspection. There was no change. Signs of erosion continued to be present, and remediation had not taken place. No additional mitigation, erosion, or sediment control measures were implemented on the site.[^15]

[13] On August 24, 2021, the Township By-law Enforcement Officer issued, and served on Roberta Henhoeffer the Repair Order. It included reasons supporting its issuance, enclosed a copy of the report prepared by David Leeder (the Hutchison Report), and outlined the steps necessary to bring the property into compliance.[^16]

[14] On September 10, 2021, the By-law Enforcement Officer undertook a further follow-up inspection. No steps had been taken to comply with the Repair Order. The Officer observed that there were signs of erosion and conditions that were consistent with his April 6, 2021 site visit, made in company with David Leeder. No silt fence had been installed. The conditions on the shoreline included sand fill that appeared to be unstable.[^17]

[15] By letter dated September 21, 2021, delivered by counsel for Roberta Henhoeffer, a request for a review by council and a revocation of the Repair Order was made.[^18]

[16] On October 12, 2021, the council of the Township held a public meeting to consider the request for Review. During the meeting the mayor made opening remarks, staff (the By-law Enforcement Officer) briefed the members of council as to the Repair Order and the reasons for its issuance. Thereafter, counsel for Roberta Henhoeffer was given the opportunity to make oral submissions in support of her request. After that, council met in closed session and passed a resolution leaving the Repair Order in place. Following the deliberations in the closed meeting, the council, in an open session, confirmed the resolution.[^19]

The Ministry of Natural Resources and Forestry

[17] The Factum filed on behalf of the Applicant reports on the involvement of the Ministry of Natural Resources and Forestry in this situation. It refers to a site visit undertaken by the Ministry in November 2020 that “recorded no major shoreline alterations had occurred” but then identifies “an issue with sand going into the Lake as a result of rainfall, wave action and fluctuating water levels”.[^20] In phrasing it this way it is made to appear that the “sand going into the Lake” is something other than a “major shoreline alteration”. The email from the Ministry to John Jackson puts it differently:

The reason for the MNRF site visit was due to a complaint regarding shoreline alterations. We did not note major shoreline alterations except for the sand fill that continues to be deposited into the water with rainfall, wave action and fluctuating water levels.[^21]

[Emphasis added]

[18] Evidently this indicated “the potential to violate section 27 of the Public Lands Act”:[^22]

27 (1) Except with the written consent of the Minister or an officer authorized by the Minister, no person shall deposit or cause to be deposited any material, substance or thing,

(a) on public lands, whether or not the lands are covered with water or ice; or

(b) on water or ice covering public lands.

[Emphasis added]

[19] The concern expressed was that:

As sand fill continues to be deposited onto Crown lake bed this is a concern to us and a violation of the Public Lands Act despite the shoreline substrate prior to work being sand.

If the sand fill can be contained/prevented from eroding into the water we can close this file.

[20] However, it was acknowledged that there could be concerns that reach beyond Ministry’s own:

Any work above the high watermark would not require a permit from MNRF (silt curtains, retaining wall etc.) Is this something your client would be able to complete within the next few weeks to limit additional material from entering the water?[^23]

[21] The husband of Roberta Henhoeffer undertook what the Factum filed on her behalf refers to as the “MNRF voluntary compliance program”.[^24] The Affidavit of John Jackson, the land use planner retained by Roberta Henhoeffer and her husband refers to a “voluntary remediation plan”. He deposed:

The Henhoeffers and I worked with MNRF staff...to resolve the erosion issue through a voluntary remediation plan. These sedimentation control measures are set out in 18, February 2021 affidavit of Paul Henhoeffer.[^25]

[22] The Factum goes on to say that this was to “arrest any shoreline erosion.”[^26] The Affidavit of John Jackson, says that the work having been undertaken “erosion is no longer a problem for the Subject Property” and that this was confirmed “by MNRF staff for the Henhoeffers and the Township”.[^27] This is not consistent with what the Ministry told the Township.

[23] There is no document confirming the agreement of the Ministry to any particular remediation plan or to there being any applied remedy to the risk of erosion. To the contrary, on November 13, 2020 John Jackson had sent an email to the Ministry advising that he was “working with the land owner” and that they were “proceeding with a plan to prevent any further erosion into the lake with screening of sand, sediment erosion control and seeding to stabilize soil.”[^28] There is no suggestion that this plan had been reviewed with, much less adopted by, the Ministry.

[24] As early as April 19, 2021 John Jackson sent an email to the Ministry saying that whatever measures had been taken, they were successful, “there was no evidence of erosion following a rain event.”[^29] This observation is not attributed to anybody, particularly anyone with any expertise to understand what to look for. It may be that this was taken from Paul Henhoeffer, the husband of the Applicant, Roberta Henhoeffer, who, in the Affidavit he swore, after listing the components of the works he installed, deposed:

The effect of these improvements is that, while water still runs down the way it used to, it does not take sand with it into the Lake. As a result no further remedial measures are required.[^30]

[25] There is nothing to suggest that Paul Henhoeffer is any way qualified to offer these observations or opinions.[^31] They are decidedly different from the views expressed by David Leeder in his report.

[26] On the same day (April 19, 2021) the Township By-law Enforcement Officer (Corey Avery) wrote to the Ministry:

I was unaware that the property owners [sic] planner had reached out to your office regarding the matter. The property is in contravention of multiple municipal by-laws including site alteration (dumping of fill and beach sand) and not meeting the “Natural State Shoreline Area” where a majority of the shoreline area (20 m. from the high watermark) passed to remain in a natural vegetated state as per Township Georgian Bay’s Zoning By-law.

Preliminary review from our consultants including multiple site visits observed the need for additional sediment control and vegetation measures to bring the property back into compliance.

As previously mentioned, the Township is working with retained consultants to provide the property owner with minimal measures that the Township will want to see implemented to bring the property back into compliance. This is a result of the property owner not wanting to rectify the municipal violations. Once we receive the report I will provide it to your office for review, ensuring voluntary compliance is met through the MNRF and for comment if any purposed work may require a shoreline work permit.

[27] On April 21, 2021 the Ministry responded:

Thank you for reaching out. Please don’t hesitate to pass along the consultant’s report once it is available.

It appears the landowner has implemented some very minimal measures to prevent additional sand from eroding into the lake comparing the video to the pictures taken during our fall visit.

They seem to be meeting our requirements for now but a larger rain event may lead us back to adjustments

[28] Following a further site visit, on June 2, 2021, by an email dated June 4, 2021, the Township was advised by the Ministry that:

During our inspection we observed various erosion prevention measures that had been installed by the property owner since my first inspection in November 2020 as part of his requirements of his MNRF voluntary compliance. The erosion measures were installed upland of areas where I had previously observed erosion occurring. MNRF did not provide advice to the property owner on what techniques or erosion prevention measures to install but rather to do what was needed to stop the erosion from occurring.

Though the potential for erosion may exist, MNRF did not observe any new Public Lands Act (PLA) violations that had occurred since the previous site inspection. The owner will need to continually monitor the situation and enhance existing erosion prevention measures if signs of erosion occur. Should a PLA violation occur in the future the owner can be subject to additional MNRF compliance which could include MNRF enforcement/legal action.[^32]

Issues to be resolved (as stated by the Applicant)

[29] The parties see the issues differently. Those proposed by the Applicant are founded on a false proposition. This is a judicial review. The Applicants wish it to be treated as a de novo hearing. The court is asked to find the decision incorrect because factual findings that the application seeks to have made are inconsistent with the issuance of the Repair Order and are the factual findings the Applicant believes should have been made by the council on its review. The Factum filed on behalf of the Applicant states it this way:

Was the Decision incorrect on the basis that:

a. the previous owner of the subject property had significantly altered the shoreline including the installing stabilization measures along the shoreline;

b. the shoreline consists predominantly of sand. There is little in the way of natural vegetation;

c. the shoreline work undertaken by the Applicant was done:

i. for the purposes of maintenance and erosion prevention and not for the purpose of site alteration; and

ii. largely under the direction of the MNRF which is the true body having jurisdiction on this matter. Council was made aware of the conclusions of MNRF staff that there were no issues with erosion

[30] The statement of issues goes on to deal the interpretation of the By-law but in a way that reflects on the Applicant’s view of the facts and the restrictions necessary for it to succeed, as follows:

Was the decision incorrect on the basis that the By-law:

a. permits landowners to engage in “normal landscaping activities on their waterfront property”, including the maintenance or replacement of existing landscaping in beaches; and

b. only regulates landscaping work that significantly alter the grade in a manner that increases the flow of surface water to the adjacent waterbody?

[31] Even questions of jurisdiction are viewed with an eye on what, from the perspective of what the Applicant believed, was required to deal with the technical problem at hand:

Was the Decision incorrect on the basis that it intruded on the jurisdiction over erosion control enjoyed by MNRF. The Repair Order required mediation measures which were not only necessary but outside the jurisdiction of the Township to demand.

[32] Only the last of the stated issues reflects what would typically be the subject of a judicial review:

Did Council err in not providing any reasons for the Decision, thus failing in its duty to observe the requirements of natural justice and procedural fairness?[^33]

Issues to be resolve (as stated by the Respondent)

[33] I prefer the issues as described by the Respondent. They more fairly explain the questions to be answered by this judicial review:

What is the applicable standard of review?

Did the Township have the jurisdiction to issue the Repair Order?

Does the principle of legal non-conforming use apply to this case?

Was the Township’s decision to uphold the issuance of the Repair Order reasonable, and, in particular, was it reasonable for the Township to conclude that:

i. The Applicant contravened the Site Alteration By-law?

ii. Exemptions set out in section 4(a), minor landscaping, and 4(b), maintenance and replacement of existing landscaping, do not apply to the facts of this matter.

Did the Township breach a duty of procedural fairness by not issuing written reasons with respect to its decision to uphold the issuance of the Repair Order?

Standard of Review

[34] The presumptive standard of review for all administrative decisions is reasonableness. There are exceptions: (1) where the legislature imposes the standard of review of correctness and (2) where the rule of law requires it. This includes “general questions of law of central importance to the legal system as a whole and questions regarding jurisdictional boundaries between two or more administrative bodies.”[^34]

[35] The standard of review for the Township’s decision to uphold the Repair Order is reasonableness. There are no statutory rights of appeal for the decision made by council. No standard of review of correctness has been imposed by the legislature. No questions of law “of central importance to the legal system as a whole” have been raised.

[36] Correctness applies as the standard of review to the jurisdictional question raised by the Applicant. Does the Township have the jurisdiction to issue the Repair Order in the face of the jurisdiction given to the Ministry of Natural Resources and Forestry?

The Township’s jurisdiction to issue the Repair Order

[37] The Township was correct in its determination that it had the jurisdiction to issue the Repair Order and to uphold that order as part of the review undertaken by its Council. The Municipal Act authorizes that Township to pass by-laws to prohibit or regulate the placing or dumping of fill, the removal of topsoil, and the alteration of the grading of land.[^35]

[38] Pursuant to their authority, the Township has passed Site Alteration By-law No. 2014-72 which regulates the placing or dumping of fill and site alteration within the Township’s geographical boundaries including Shoreline Areas as defined by the By-law. The property owned by Roberta Henhoeffer is located within the area covered by the By-law.[^36]

[39] The By-law authorizes the Director of Development Services, Manager of Planning or the Senior Planner for the Township or his or her delegate to regulate the placing dumping of fill through the issuance of a Repair Order requiring a person to rehabilitate the land in such a manner as they consider appropriate.[^37]

[40] The Township’s authority to issue the Repair Order does not overlap with the jurisdiction of the Ministry of Natural Resources and Forestry. The Ministry’s regulatory authority, in this matter, is geographically circumscribed as “shore lands” which is defined as “lands covered or seasonally inundated by the water of a lake, river, stream or pond”. Both the By-law and the Repair Order are limited to the lands within areas which are above the high-water mark and therefore outside of the geographic area of Ministry’s regulatory authority.[^38]

[41] The courts have recognized and allowed for concurrent municipal and provincial jurisdiction in relation to Crown lands.[^39]

Does the principle of legal non-conforming use have application to this case?

[42] This reflects on the proposition suggested by the Applicant that the site alterations of concern were put in place not by the Applicant, Roberta Henhoeffer and her husband, but by the previous owner at a time which predated the enactment of the Site Alteration By-law. The Township did not accept this position. Seemingly, it was founded on a site visit undertaken by John Jackson as part of his work with the current owners. The historical photographs, aerial imagery, photographs submitted from those who made the original complaints, when reviewed by Township staff, led them to conclude that the previous owners had made only minor alterations and the alterations of concern were as a result of the actions of the Applicant and her husband. This was a reasonable conclusion and negates any reliance on activities by past owners.

[43] Even if this were not so, the concept of a legal non-conforming use has no application to this matter. The principle applies to zoning enacted pursuant to the Planning Act. It has no reference to site alteration as referred to in the Municipal Act.

Was the Respondent’s Decision to uphold the issuance of the Repair Order reasonable, and in particular was it reasonable for the Respondent to conclude that:

i. the Applicant contravened the Site Alteration By-law

[44] The Respondent (the Township) reasonably determined that the Applicant had contravened the By-law. It prohibits the placing or removal of sand in certain described areas of the Township including the Shoreline Areas in which the property of concern is located. Specifically, the By-law prohibits anyone from placing or removing “Fill”. The definition of “Fill” in the By-law includes “soil” and the definition of “soil” includes “sand”.[^40] The By-law Enforcement Officer obtained evidence, corroborated by a qualified independent expert, that the Applicant had placed sand on the Shoreline Area of the property, causing erosion impacts.

ii. the exemption for minor landscaping and maintenance and replacement of existing landscaping, do not apply

[45] “Minor Landscaping” is defined as:

“Landscaping, Minor” means the construction of walkways, pathways, flowerbeds, and similar landscaping features where the landscaping does not significantly alter the topography of the lands and shall not increase the flow or the rate of flow of surface water to the adjacent lands or the adjacent lake or water body but does not include the planning or creation of lawns.[^41]

[Emphasis added]

[46] The Township reasonably, and correctly, determined that the Applicant’s actions of dumping or placing sand in the Shoreline Area, the contravention that was the basis of the Repair Order, does not meet this definition. It was not construction walkways, pathways or similar landscaping features.

[47] The actions undertaken by the Applicant were not in furtherance of the maintenance of existing landscaping. The Township By-law Enforcement Officer, in company with the expert, David Leeder, confirmed, through inspections of the property and historical records that no prior landscaping existed in the Shoreline Area of the property, prior to the actions of the Applicant, such that the placement or dumping of sand in this area could be considered maintenance of existing landscaping. There was no physical or photographic evidence provided by the Applicant to the Township By-law Enforcement Officer or Township Council on review, indicating that the Shoreline Area was sand covered prior to the placement or dumping of sand on the property, by the Applicant.

Did the Township breach a duty of fairness

[48] This was not, as the Applicant would have it, a procedure or hearing similar to those conducted by a court or administrative tribunal. It is not intended to and does not resemble a judicial decision-making process. Rather it was a review, by the municipal council, of actions taken by its staff to confirm a proper consideration of the applicable facts in the context of a breach of a municipal by-law and to bring to bear any further considerations the councillors believe to be relevant.

[49] The review is mandated by the By-law to ensure the policies it represents are respected. The principal concern is the protection of the existing natural environment: the shoreline, the lake, plant, animal and maritime life. This is not something that as a matter of law has a significant impact on the lives of the Applicant and her husband. Either there is no impact, or they are required to rectify the damage they have caused. The impact is in the cost of undertaking the required remedial action which, if one accepts the values the manifested in the policies, will benefit their property.

[50] There is no promise of any particular process as presented through the By-law. Thus, there can be no legitimate expectation of any high level of procedural protection. As it is, the Applicant was well-aware of the problem as seen by the municipality through the input and communication with the Township staff. The Repair Order demonstrates the concern and what was seen as a breach of the By-law. The report prepared by David Leeder had been delivered to the Applicant on May 11, 2021. Before the meeting the Applicant received all of the documents that were to be relied on. The Applicant had the assistance of a land use planner and counsel. At the meeting of council, the Mayor explained the process, the By-law Enforcement Officer briefed the councillors in the presence of the public, including those representing the Applicant and those acting for her made submissions. They had an unfettered opportunity prior to and during the public meeting to provide any supporting documents and written submissions. The councillors adjourned to discuss the matter in private and subsequently announced their decision leaving the Repair Order to stand.

[51] This is a decision of a municipal council. They do not speak through written reasons but through the passage of by-laws and resolutions. Their role in a case like this is not judicial, it is administrative; it is the review of an administrative act being the issue of a repair order by the staff of the municipality. The reasons can be deduced from the record as a whole which includes the Repair Order, the resolution of council, any investigative reports and the reasoning that those reports adopt:

Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided. This will often occur where the decision-making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote: see, e.g., Catalyst; Green; Trinity Western University. However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque. It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision: Baker, at para. 44 [^42]

In this case, I find that the combination of the Resolution, and the detailed investigative report and the reasoning it adopts, provides a robust set of reasons that exceed what would ordinarily be expected or required of a municipal council, even for this more adjudicative type of decision.[^43]

Conclusion

[52] For the reasons reviewed the application is dismissed.

Costs

[53] The parties were asked to come to an agreement as to costs. It appears they were unable to do so. Accordingly, the Township, as the successful party, is to make submissions, in writing, to be uploaded on to caselines, no later than ten days after the release of these reasons. Such submissions are to be no longer than three pages double spaced not including any Bill of Costs that is provided. Roberta Henhoeffer is to respond, in writing, to be uploaded on to caselines no later than five days thereafter. Such submissions are to be no longer than three pages double spaced.

Lederer J.

I agree _______________________________

Lococo J.

I agree _______________________________

Hooper J.

Released: March 20, 2023

CITATION: Henhoeffer v. Georgian Bay (Township of), 2023 ONSC 1711

DIVISIONAL COURT FILE NO.: DC-21-00001275-00JR

DATE: 20230320

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

(Lederer, Lococo, Hooper JJ)

BETWEEN:

ROBERTA HENHOEFFER

Applicant

– and –

THE CORPORATION OF THE TOWNSHIP OF GEORGIAN BAY

Respondent

REASONS FOR JUDGMENT

Lederer J.

Released: March 20, 2023

[^1]: S.O. 2001, c. 25

[^2]: Factum of the Applicant at paras. 33, 34 and 35 (referencing Affidavit of John S. Jackson, sworn February 18, 2022 at Exhibit C (Caselines A44)) and Factum of the Applicant at para. 36 (Caselines A163)

[^3]: Affidavit of Cody Avery, sworn March 31, 2022 at para. 9 and Exhibit S (Caselines B-1-9 and B-1-215)

[^4]: The “Shoreline Area” is defined at s. 1(s) of the By-law as: “...the area of land abutting a waterbody that is located within the front yard setback as defined in the Township’s Zoning By-law and includes the area of land extending to the existing level of the abutting waterbody.” (Caselines B-1-219)

[^5]: Affidavit of Cody Avery sworn March 31, 2022 at para. 10, 11and Exhibit F (Caselines B-1-10 and B-1-124)

[^6]: Ibid at para. 12 and Exhibit H (Caselines B-1-10 and B-1-130)

[^7]: Ibid (Caselines B-1-135) Section 34 of the Planning Act deals with zoning.

[^8]: Ibid at paras. 62, 70, Exhibit E and Exhibit G (pictures taken prior to the purchase by the current owners) at pp. 40-44, 123 (Caselines B-1-22, B-1-24, B-1-44 to B-1-49 and B-1-128) .

[^9]: Ibid at para. 13 and Exhibit I (Caselines B-1-10 and B-1-138)

[^10]: Ibid at para. 15 and Exhibit J (Caselines B-1-11 and B-1-150)

[^11]: Ibid at Exhibit J (Caselines B-1-150)

[^12]: Ibid at para. 23 (Caselines B-1-12)

[^13]: Ibid at Exhibit M (Hutchison Environmental Report) at p. 1 (Caselines B-1-159)

[^14]: Ibid at Exhibit M (Hutchison Environmental Report) at p. 3 (Caselines B-1-161)

[^15]: Ibid at para. 26 (Caselines B-1-14)

[^16]: Ibid at paras. 28, 29, 30, 31 and Exhibit O (the Repair Order) (Caselines B-1-14, B-1-15 and B-1-172)

[^17]: Ibid at para. 32 (Caselines B-1-15)

[^18]: Ibid at para. 33 and Exhibit P (letter: Request for Review) (Caselines B-1-15 and B-1-181)

[^19]: Ibid at para. 34, Exhibit Q (Caselines B-1-16, B-1-186, B-1-192, B-1-201, B-1-203)

[^20]: Factum of the Applicant at para. 12

[^21]: Affidavit of John Jackson sworn February 18, 2020 at Exhibit G (Caselines A73)

[^22]: Ibid at para. 12. The Public Lands Act is found at R.S.O. c. P. 43

[^23]: Ibid at Exhibit G (Caselines A73 and A74)

[^24]: Factum of the Applicant at para. 13

[^25]: Affidavit of John Jackson sworn February 18, 2020 at para. 18 (Caselines A18)

[^26]: Factum of the Applicant at para. 13

[^27]: Affidavit of John Jackson sworn February 18, 2020 at para. 9 (Caselines A17)

[^28]: Affidavit of Cody Avery sworn March 31, 2022 at para. 51 and Exhibit U (Caselines B-1-19 and B-1-230)

[^29]: Ibid at para. 52 and Exhibit V and see Affidavit of John Jackson at Exhibit I (Caselines B-1-20, B-1-235 and A78)

[^30]: Affidavit of Paul Henhoeffer, sworn February 18, 2022 at paras. 5 and 6 (Caselines A123 and A124)

[^31]: His involvement comes only from having purchased the property with his wife; together with her, being served with the Repair Order; and having “been involved with the MNR and Township staff in resolving issues of erosion on the Subject Property” (Affidavit of Paul Henhoeffer, sworn February 18, 2022 at paras. 1 and 2)

[^32]: Affidavit of Cody Avery sworn March 31, 2022 at para. 55 and Exhibit W (Caselines B-1-21 and B-1-238)

[^33]: Factum of the Applicant at paras. 37, 38, 39 and 40

[^34]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 23 and 53

[^35]: Municipal Act, supra (fn. 1) at s. 142(2) quoted at para. [ ] herein and s. 142(5) which lists those matters to which a by-law passed under section 142 does not apply (Exemptions)

[^36]: Site Alteration By-law No. 2014-72, s. 2.1: This By-law shall only apply to the following areas in the Township: (c) Lands within the Shoreline Area.

[^37]: Ibid at s. 7.2: Where the Director is satisfied that a Person has contravened any provisions of this By-law the Director may make a Repair Order requiring the Person to rehabilitate the land in such a manner and within such a period as the Director considers appropriate.

[^38]: Public Lands Act, supra (fn. 22), O. Reg. 239/13, section 1(1): “shore lands” means lands covered or seasonally inundated by the water of a lake, river, stream or pond and Site Alteration By-law No. 2014-72, s. 1(s) (see: fn. 4 herein) and 2.1 (see: fn. 36 herein)

[^39]: Re: Gay, 1959, 20 DLR (2d) 171; 1959 393 (ONCA) at p. 173 and Glaspell v. Ontario 2015 ONSC 3965 at paras. 53-57 which in turn refer to: Township of Moore v. Hamilton (1979), 1995 7189 (ON SC), 23 O.R. (3d) 156 (C.A.), Humphrey (Township) v. Robinette, [1993] O.J. No. 1995 (Gen. Div.), Galway and Cavendish (United Townships) v. Windover, 1995 7404 (ON SC), [1995] O.J. No. 3932 (Gen. Div.), R. v Black, [2002] O.J. 3049 (O.C.J.) and Seguin (Township) v. Bak, 2013 ONSC 5788,.

[^40]: Site Alteration By-law No. 2014-72 at ss. 1(h), 1(u) and 3.1,

[^41]: Ibid at s. 1(k)

[^42]: Canada (Minister of Citizenship and Immigration) v. Vavilov, supra (fn. 34) at para. 137

[^43]: Dupont v. Port Coquitlam (City), 2021 BCSC 728 at para. 40

Roberta Henhoeffer v. The Corporation of the Township of Georgian Bay, 2023 ONSC 1711

Case Summary

Introduction

Background

The Ministry of Natural Resources and Forestry

Issues to be resolved (as stated by the Applicant)

Issues to be resolve (as stated by the Respondent)

Standard of Review

The Township’s jurisdiction to issue the Repair Order

Does the principle of legal non-conforming use have application to this case?

Was the Respondent’s Decision to uphold the issuance of the Repair Order reasonable, and in particular was it reasonable for the Respondent to conclude that:

i. the Applicant contravened the Site Alteration By-law

ii. the exemption for minor landscaping and maintenance and replacement of existing landscaping, do not apply

Did the Township breach a duty of fairness

Conclusion

Costs

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 2