CITATION: Ashburner v. Corporation of Adjala-Tosorontio (Township), 2015 ONSC 3662

BARRIE COURT FILE NO.: 11-0844

DATE: 20150608

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER ASHBURNER, PHYLLIS ASHBURNER and THOMAS ASHBURNER

Applicants

– and –

THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO, KARL KORPELA IN HIS CAPACITY AS CHIEF BUILDING OFFICIAL FOR THE CORPORATION OF THE TOWNSHIP OF ADJALA-TOSORONTIO, KARL KORPELA and TUIRE PICKERING and PAUL PICKERING

Respondents

E.M. Green and B. Ogunmefun, for the Applicants

J.J. Feehely, for the Respondents, The Corporation of the Township of Adjala-Tosorontio, Karl Korpela in his capacity as Chief Building Official for the Corporation of the Township of Adjala-Tosorontio, and Karl Korpela

R.K. Brown, for the Respondents, Tuire Pickering and Paul Pickering

HEARD: April 2, 2015

REASONS FOR DECISION

QUINLAN J.:

Nature of the Application

1The applicants seek an Order declaring that the Township’s Chief Building Official (CBO) erred in his decision to grant a building permit. They seek to have the decision rescinded and the permit revoked and declared invalid.

2For reasons that follow, the application is granted.

Overview

3The applicants own a farm property across the road from the respondent, Tuire Pickering¹ (Ms. Pickering). Ms. Pickering applied to the respondent Township (the Township) to construct a riding arena in the front of her property (the subject property). The Township issued a building permit and the riding arena was constructed. It is used at all hours and casts light into the neighbourhood.

4The applicants contend that the building permit was issued to Ms. Pickering in contravention of the Building Code Act,² the Township’s Official Plan (OP) and its Zoning By-Law.

Issues

5The issues are:

(a) Is a riding arena a permitted use on the subject property, taking into account the policies in the OP, the provisions of By-Law 03-56 and the provisions relating to major development in OPA No. 3?

(b) Was the building permit issued in contravention of the Building Code Act? If yes, should the CBO’s decision to issue the building permit be rescinded and the building permit revoked?

Background

6The facts are not in dispute.

The Township

7The Corporation of the Township consists of two former municipal townships within the County of Simcoe: the Township of Adjala and the Township of Tosorontio. Both of the amalgamated townships were and continue to be primarily agricultural and rural in nature. Horses are bred, raised and maintained within the Township. There are several riding arenas in the Township, with the majority located in the area of the Oak Ridges Moraine.

8The Township’s OP contains policies that are designed to encourage, promote and preserve the agricultural and rural nature of the Township. These policies recognize that the preservation of agricultural land continues to be of primary importance and they emphasize the need to protect and enhance the rural character of the Township.

9The Oak Ridges Moraine Plan (Moraine Plan) is designed to preserve a significant geological feature in the Province of Ontario. Once in place, it required municipalities to bring their planning documents into conformity its provisions. The Township completed its conformity exercise by way of Official Plan Amendment No. 3, Oak Ridges Moraine Conservation Plan (OPA No. 3). OPA No. 3 did not alter the agricultural/rural policies in the OP.

10In addition, the Township passed the Oak Ridges Moraine Conservation Plan zoning by-law as Zoning By-Law 03-56 (By-Law 03-56) in order to implement OPA No. 3. There are two zones within By-Law 03-56 that deal with lands within the Moraine Plan: the Oak Ridges Moraine Linkage (ORML) Zone and the Oak Ridges Moraine Agricultural (ORMA) Zone.

11The ORML Zone represents the areas that form part of a central corridor system located within the Moraine that support or have the potential to support the movement of plants and animals among areas including the Natural Linkage Areas. The uses permitted in the ORML Zone include agricultural uses but do not include riding arenas. The ORMA Zone represents lands located on the Moraine that are prime agricultural lands. The uses permitted in the ORMA Zone include agricultural uses and riding arenas.

The Property

12The applicants’ property is a 100-acre parcel consisting of a house and a garage, along with a bank barn and equipment shed, which are both located behind the house. Beef cattle are raised on the property, which is part of a quiet, rural area within the largely rural and agricultural township.

13The subject property is located across the road from the applicants’ property. It is approximately 22 acres and consists of a house and a horse barn in which a number of horses are boarded, together with the riding arena in front of the house, which was constructed pursuant to the building permit in issue. No other active farming is carried out on the subject property. The riding arena was constructed for recreational use and it is located 30 metres from the front lot line. It is a very large structure: 60 feet by 120 feet (7,200 square feet/669.78 m²). The distance between the applicants’ residence and the riding arena is approximately 122 metres.

14The subject property is located within the Natural Linkage Area designation of the OP. Since the lands are within the Oak Ridges Moraine Area, OPA No. 3 also applies. The subject property is zoned Oak Ridges Moraine Linkage (ORML) Zone under By-Law 03-56. As noted, agricultural uses are listed as a permitted use within the ORML Zone. Riding arenas are not.

The Pickerings’ Applications to the Township

15In 2010, Ms. Pickering decided she wanted to construct a riding arena to train her horses for competition in various equestrian events. She intended to use the building for her personal recreational use and she has also permitted a friend to use the riding arena at no cost.

16Ms. Pickering submitted three applications to the Township related to the building of the riding arena:

(i) for a minor variance to reduce the front yard setback for the riding arena from 30 metres to 23 metres;

(ii) for a building permit to the CBO to allow construction of the riding arena in front of the house on the subject property; and

(iii) for a site plan review to regulate the riding arena site.

17The applicants and other neighbours objected to the application for the minor variance. The applicants contended that the riding arena could be built behind the house as required of accessory buildings in By-Law 03-56. The applicants attended the Committee of Adjustment meeting on May 4, 2011, and submitted annotated maps outlining alternate locations for the proposed riding arena that would not offend their view or cast light out into the neighbourhood.

18On May 10, 2011 the Committee of Adjustment issued a Notice of Decision deferring the request for a minor variance to allow Ms. Pickering to consider alternate locations for the proposed riding arena. Ms. Pickering subsequently reoriented the building 90 degrees so that a variance to the front yard setback would not be required, and withdrew her application for a minor variance.

19The applicants maintained their objection to the proposed riding arena and retained a Registered Professional Planner, Robert Lehman, to provide an opinion regarding the proposed riding arena’s compliance with By-Law 03-56 and OPA No. 3.

20Mr. Lehman’s opinion was that the proposed riding arena did not conform to the OP or OPA No. 3 because the definition of “agricultural use” does not permit any form of equestrian use, but only refers to raising animals for food and fur. Mr. Lehman also concluded that the riding arena was not a permitted use in the ORML Zone under By-Law 03-56.

21Ms. Pickering’s application for a minor variance triggered a review of the Township planning and zoning documents. Jacquie Tschekalin, a Registered Professional Planner employed by the Township as its Director of Planning (Township Planner), identified a number of inconsistencies in the by-laws with respect to riding arenas. She presented a Planning Report in which she outlined the significant opposition that arose in response to Ms. Pickering’s minor variance application.

22On August 25, 2011, the CBO for the Township issued a building permit to Ms. Pickering for the construction of a riding arena in front of her home on the basis that the Township’s Planner was satisfied that proposed riding arena complied with By-Law 03-56.

23Construction of the riding arena was within the Oak Ridges Moraine; the Township therefore required a site plan control agreement under the provisions of s. 41 of the Planning Act³ in order to minimize the impact of the riding arena and ensure protection of the environmentally sensitive features identified in the Moraine Plan.

24Ms. Pickering retained the firm of Michalski Nielsen, specialists in environmental planning, to complete a Natural Heritage Evaluation that considers the requirements of OPA No. 3 and to make recommendations that ensure conformity with the Moraine Plan. Michalski Nielsen prepared reports that were peer-reviewed by the Township’s engineering firm, R.J. Burnside & Associates Limited. The consultants concluded that the riding arena proposal was consistent with the natural heritage policies of the Moraine Plan.

25A Site Plan Agreement (Agreement) was executed by the parties and incorporated the Michalski Nielsen reports.

26On the recommendation of the Township Planner, Council made a resolution to amend By-Law 03-56 to create a new section setting out the requirement for riding arenas in all zones. On October 3, 2011, Council for the Township adopted By-Law 11-30, which inserted the definition of riding arena in By-Law 03-56. By-Law 11-30 further clarified the setback provisions for agricultural structures, imposing a minimum setback of 100 metres from the front lot line or behind the dwelling unit, whichever is most restrictive, and 30 metres from any lot line.

Relevant Definitions

The Official Plan

27As noted above, the subject property is located within the Natural Linkage Area designation of the OP. This designation permits “agricultural uses”.

Zoning By-Law 03-56

28The subject property is zoned ORML under By-Law 03-56. The uses permitted in the ORML Zone under By-Law 03-56 include agricultural uses, which are defined as:

(b) raising livestock and other animals, including poultry and fish, for food and fur;

29Riding arenas are not a permitted use in the ORML Zone.

30“Livestock” is defined in By-Law 03-56 as:

…chickens, turkeys, cattle, hogs, horses, mink, rabbits, sheep, goats, fur bearing animals, ratites, or other domestic or game animals raised for the purpose of human consumption for food, fur and/or leather.

31By-Law 03-56 also has the following definitions:

Accessory use: a use of lands, buildings, or structures which is normally incidental or subordinate to the principal use of lands, buildings, or structures located on the same lot.

Building, principal: a building and/or residential dwelling in the case of an agricultural use in which the main use on the lot is conducted.

Accessory building or structure: a building that is secondary or incidental to and is exclusively devoted to the principal buildings, and/or structure and/or use and is located on the same lot therewith.

Positions of the Parties

32The applicants’ position is that:

(a) the only reference to animals under the definition of “agricultural use” in By-Law 03-56 is in respect of “raising livestock and other animals, including poultry and fish, for food and fur”. Accordingly, livestock and other animals may be raised for food and fur only;

(b) the definition of “agricultural uses” does not permit any form of equestrian use, such as the riding arena constructed on the subject property;

(c) the activities conducted in a riding arena are not essential or integral to the principal use of the property, but are properly considered accessory uses;

(d) a building housing an accessory use should be considered an accessory building; and

(e) the building permit should not have been issued because the major development policy in OPA No. 3 was not complied with; site plan approval is “other applicable law” that the CBO was required to be taken into account.

33The Township’s position, supported by Ms. Pickering, is that:

(a) “raising livestock” must be read disjunctively from “other animals, including poultry and fish, for food and fur”, otherwise a significant sector of the agricultural livestock uses existing in the Township would be non-conforming. The words “for food and fur” must also be interpreted disjunctively in that it is not possible to get food and fur from poultry and fish; it must be one or the other. By-Law 03-56 specifically defines horses as “livestock”, but they are not commonly used for food, fur and/or leather, and any equestrian uses in the Township for raising horses would no longer be permitted. Such an interpretation of By-Law 03-56 would be unduly restrictive and contrary to the expansive policies in the OP and any common sense understanding of agricultural activity in the Township;

(b) the riding arena is another principal building in an overall livestock operation, and there are no restrictions in By-Law 03-56 on the number of principal buildings available to a farm operator engaged in an agricultural use. The building would be a permitted use as a principal agricultural building, although housing what is effectively an accessory use. In the agricultural context, agricultural buildings can be an accessory use, but are not limited to the accessory building size of 100 square metres. They can be principal buildings that contain an accessory use; and

(c) a watershed plan did not apply to the present application and the Natural Heritage Evaluation undertaken by Michalski Nielsen took into account all other matters specifically required under OPA No. 3; it is inappropriate that there can be no development because a County policy has not been put in place. The requirement for a watershed plan is an OP policy and not a requirement of any zoning by-law. An OP policy does not constitute “other applicable law”. As such, the CBO need not take it into account.

Is a Riding Arena a Permitted Use?

The Law

34Section 34(1) of the Planning Act authorizes councils of municipalities to pass zoning by-laws “for prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality…”

35Zoning by-laws are the means by which the OP is implemented. Accordingly, By-Law 03-56 is deemed to comply with and implement the OP and OPA No. 3.⁴

36Howden J. (as he then was) considered the interpretation of zoning by-laws in AON Inc. v. Peterborough (City)⁵:

Thus, while certainly normal rules of statutory construction are properly held to apply to zoning by-laws, they are a somewhat unusual type of law in their statutorily required inter-relationship with an Official Plan. A proper contextual approach to their interpretation requires that zoning by-laws should be interpreted in their ordinary and plain meaning in light of the by-law as a whole and its policy derivation and basis within the Official Plan. However, it must be borne in mind that it is the zoning by-law which is the applicable law to be applied. Both Official Plans and zoning by-laws rely for their creation and life on the provisions of the Planning Act, and it clearly provides the power to municipalities to enact zoning by-laws as the effective law governing land usage, and buildings, and structures. It is therefore a zoning by-law which must implement or convert the Official Plan to a body of law regulating the use of land and it does so only to the extent that it actually sets forth in its provisions, interpreted in their ordinary sense in light of the policy framework of the official plan and the context of the by-law as a whole.

37In AON, Howden J. determined that the appropriate manner in which to interpret zoning by-laws where some ambiguity or uncertainty of language occurs is to neither interpret the by-law strictly or liberally in the face of two conflicting values: the landowner’s ability to use his property as he deems fit and the interests of the community.⁶

Analysis

38The Township’s OP policies encourage agriculture and there are no policies that limit agricultural operations. The policies recognize that the preservation of agricultural land continues to be of primary importance to the Township.

39The definition of “agricultural uses” in By-Law 03-56 does not provide permission for any form of recreational equine use, but only permits the raising of livestock and other animals for food and fur. The phrase “for food and fur” qualifies and sets out the purpose for which livestock and other animals can be raised. The definition does not permit the raising of livestock and other animals without a stated reason. The definition of “livestock” requires that they are to be “raised for the purpose of human consumption for food, fur and/or leather”.

40I find that a riding arena is not a permitted use: it is not an “agricultural use” as defined in By-Law 03-56. In addition, unlike in the ORMA Zone, a riding arena is not listed as a permitted use within the ORML Zone. I recognize that my interpretation of By-Law 03-56 does not permit the raising of horses for a recreational use and that horses are not generally raised for food and fur. However, although I have considered the by-law’s “policy derivation and basis within the OP”, to interpret By-Law 03-56 as argued by the respondents would require me to ignore the by-law’s ordinary and plain meaning.

41Given my finding, it is not necessary for me to decide whether the riding arena is an “accessory building” or a “principal building”. However, considering the definitions of accessory and principal building in By-Law 03-56, I would have found that the riding arena is an accessory building. The main use on the lot is not conducted in Ms. Pickering’s riding arena. Rather, the riding arena is secondary or incidental to the principal buildings. I would have decided that the activities conducted in a riding arena are accessory uses: they are not essential or integral to the principal use of the subject property, which is to board horses. As such, the building would be subject to provisions setting out its location: behind the existing barn at approximately 100 metres from the front lot line, and provisions that restrict its size to 100 square metres.

42For the foregoing reasons, I find that the construction of the riding arena did not comply with the applicable sections of By-Law 03-56 as it was not a permitted use.

Was the CBO Required to Consider OPA No. 3 and the “Major Development” Policy?

Requirements for Major Development

43The Township acknowledged that the construction of the riding arena constituted “major development” as set out in OPA No. 3. That policy prohibits major development in the Natural Linkage Area, where the subject property is located, unless:

(a) a watershed plan, prepared by the County of Simcoe, has been completed;

(b) the major development conforms with the watershed plan; and

(c) a water budget and conservation plan, prepared by the County of Simcoe, has been completed.

44It is not disputed that the above noted plans were not prepared and the proposed riding arena was not reviewed in accordance with the requirements of OPA No. 3. Rather, a Natural Heritage Evaluation was completed.

The Law

45Section 24(1) of the Planning Act requires that no by-law shall be passed for any purpose that does not conform with an Official Plan.

46Site Plan approval is required before a building permit is to be issued because site plan approval is “other applicable law”.⁷

Analysis

47The riding arena constituted major development in the Natural Linkage Area. I find that the Natural Heritage Evaluation peer-reviewed by the Township’s engineering firm did not obviate the mandatory requirement of a watershed plan, water budget and water conservation plan. As a result, the construction of the riding arena did not comply with the major development policy in OPA No. 3.

48Site plan approval is “other applicable law”. The CBO was required to take into account the fact that the Site Plan Agreement did not conform to OPA No. 3; he should have found the Agreement deficient and should not have issued the building permit.

Was the building permit issued in contravention of section 8(2) of the Building Code Act, 1992?

49Section 8(2) of the Building Code Act provides that the CBO shall issue a permit unless the proposed building will contravene the Building Code Act, the building code, or any other applicable law. “Other applicable law” includes a zoning by-law.⁸

50I find that the riding arena did not comply with Zoning By-Law 03-56. As such, the building permit was issued in contravention of the Building Code Act.

Should the CBO’s decision to issue the building permit be rescinded?

51Section 25(4) of the Building Code Act gives the right to a judge on appeal to rescind the order or decision and take any other action that the judge considers the CBO ought to take. For those purposes, the judge may substitute his or her opinion for that of the CBO.

52The standard of review of a CBO’s decision depends on the nature of the decision. As noted in Toronto District School Board v. Toronto (City)⁹:

[Q]uestions of law are reviewed on a standard of correctness. Questions of fact are entitled to deference. Questions of mixed fact and law are reviewed on a standard reflecting the degree to which the decision is a question of law or a question of fact.

53The standard of review finds itself on a continuum between correctness and patent unreasonableness. As noted in Rotstein v. Oro-Medonte (Township)¹⁰:

The standard of review of any decision is understood to be a product of several factors on a continuum between correctness at the least deferential end and patent unreasonableness at the most deferential. In regard to a decision of a CBO, Molloy, J. held that, generally, decisions based on law or jurisdiction should attract a correctness standard and those arising from a factual base within the expertise of the Chief Building Official would be reviewed on a standard of reasonableness.¹¹

54As the court noted in Toronto District School Board v. Toronto (City)¹²:

…Municipal planning and zoning are specialized areas which fall within the expertise of the CBO. Most of the determinations made by CBOs in the context of by-law interpretation are mixed questions of fact and law. This requires a significant degree of deference for all but purely legal questions. For most issues, the standard of review will be reasonableness…[T]o be upheld on a reasonableness standard, the decision must fall within a range of possible, acceptable outcomes which are defensible in respect of both the facts and the law.

55In this case, the CBO’s decision related to a question of law, namely: whether or not the riding arena was a permitted use under By-Law 03-56. This question turns on the interpretation of the uses permitted under the ORML Zone of By-Law 03-56 and on the need for compliance with the mandatory provisions of OPA No. 3. Accordingly, I find that the standard of review of the CBO’s decision is one of correctness.

56Even if the question is one of mixed fact and law and the standard of review is reasonableness, to be upheld on a reasonableness standard, the decision must fall within a range of possible, acceptable outcomes, which are defensible in respect of both the facts and the law.¹³ I find that the decision of the CBO does not fall within the range of possible, acceptable outcomes defensible in respect of both the facts and the law, and is not entitled to a significant degree of deference. There were interpretation issues raised during the minor variance application process and there was a lack of compliance with the major development provisions of OPA No. 3 which had been put in place to preserve a significant geological feature in this province.

57Accordingly, the CBO’s decision to issue the building permit is hereby rescinded.

Should the building permit be revoked?

58Section 8(10) of the Building Code Act provides that the CBO may revoke a building permit if it was issued on incorrect information or if it was issued in error.

59I find that the building permit was issued in error based on incorrect information because the riding arena did not conform to By-Law 03-56. Accordingly, the building permit should be revoked.

Additional Issues Raised by the Respondents

60I do not accept the Township’s position that the applicants have failed to utilize their administrative remedy and should not be permitted to seek relief from this court because they did not appeal amending By-Law 11-30 and have its interpretation put before the Ontario Municipal Board. The applicants are entitled to a determination of their rights that depend on the interpretation of a by-law.¹⁴ In addition, amending By-Law 11-30 assists the applicants: it establishes a minimum setback of 100 metres from the front lot line or behind the dwelling unit, whichever is more restrictive.

61The respondents raised a concern regarding delay in having this matter heard. The application was issued in a timely manner, on September 12, 2011, before the riding arena was constructed and just over two weeks after the building permit was issued. The respondents did not take issue with the applicants’ reply submission that any delay in having this matter determined was occasioned in large part by the inability to schedule the necessary cross-examinations and full-day hearing date.

Conclusion

62For the foregoing reasons, this Court declares that:

(i) the decision of the Chief Building Official for the Township of Adjala-Tosorontio, dated the 25^th day of August, 2011, to grant Permit No. 042-11 was made in error because the application for the building permit did not comply with all applicable law as required by the Building Code Act, 1992;

(ii) the decision of the Chief Building Official to issue the building permit is hereby rescinded;

(iii) the building permit is declared to be invalid; and

(iv) the building permit is hereby revoked, pursuant to section 8(10) of the Building Code Act, 1992.

Costs

63If the parties cannot agree on costs, I will receive written submissions, not to exceed three pages in length, plus a costs outline and any relevant offers. Submissions from the applicants are to be provided by June 23, 2015, with responding materials from the respondents to follow by July 3, 2015. Any reply by the applicants should be filed by July 13, 2015. Costs Submissions shall be no more than three pages in length, exclusive of any Costs Outline or Offers to Settle. If no submissions are received by July 13, 2015, the issue of costs will be deemed to have been settled as between the parties.

Footnotes

1. 1Paul Pickering died in the course of these proceedings and Tuire Pickering is now the sole owner of the subject property.
2. 2S.O. 1992, c.23.
3. 3R.S.O. 1990, c.P.13.
4. 4St. Mary’s Cement Inc. (Canada) v. Clarington (Municipality), 2012 ONCA 884 at para. 21.
5. 51999 CarswellOnt 924 at para. 18.
6. 6AON, supra at para. 19.
7. 7Ross v. Muskoka Lakes (Township), 2004 CarswellOnt 19 at para. 29; Quay West v. Toronto (City), 1989 CarswellOnt 516 at para. 8.
8. 8Loblaws Inc. v. Ancaster (Town), Chief Building Official, 1992 CarswellOnt 508 (Ont. S.C.) at para. 47.
9. 92014 ONSC 3605 at para. 18.
10. 102002 CarswellOnt 4411.
11. 11Runnymede Development Corp. v. 1201262 Ontario Inc. (2000), 2000 CanLII 22337 (ON SC), 47 O.R. (3d) 374 (S.C.).
12. 12Supra at para. 18.
13. 13Ibid.
14. 14Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 14.05 (3)(d).