CITATION: Sheppbonn Ltd. v. Ann Borooah, 2015 ONSC 4587
COURT FILE NO.: CV-15-519351
DATE: 2015-07-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHEPPBONN LTD. Applicant
– and –
ANN BOROOAH IN HER CAPACITY AS THE CHIEF BUILDING OFFICIAL OF THE CITY OF TORONTO Respondent
COUNSEL: Isaac Tang, for the Applicant Rodney Gill, for the Respondent
HEARD: July 6, 2015
FAIETA, J.
REASONS FOR JUDGMENT
INTRODUCTION
[1] The respondent refused to issue a building permit that would have authorized interior renovations to the applicant’s one-storey building in order for it to be used as a day nursery to accommodate up to 58 children on the basis that the building permit application failed to comply with various “applicable law” requirements.
[2] The applicant appeals the respondent’s decision and asks this Court to require the respondent to issue a building permit to permit a day nursery on the property in accordance with its building permit application subject to the applicant clearing all reasonable building code issues and obtaining approval under the Day Nurseries Act, R.S.O. 1990, c. D. 2.
[3] For the reasons described below, I have answered the questions raised by this appeal as follows:
(1) Is this application subject to site plan control? No.
(2) Is this application subject to park levies? No.
(3) Is the payment of $1,436.73 in development charges required? No.
(4) Is the payment of $1,367.94 in education development charges required? No.
(5) Is a 1.5 metre landscape buffer adjacent to the parking area required? Yes.
BACKGROUND
Residence and Chiropractic Office
[4] The applicant owns a one-storey building located at 91 Sheppard Avenue East, Toronto, that was constructed in about 1972 by Dr. Clark under the authority of a building permit issued by the former Borough of North York, now the City of Toronto. The permit authorized the building for use as a single family residence on the ground floor with a chiropractic office in the basement.
[5] In 1991 the City of North York, now the City of Toronto, amended its zoning by-law to designate this property and other properties along Sheppard Avenue as a Special Commercial Area Zone (C6) to permit certain commercial uses as well as existing residential uses.
[6] The applicant acquired the property in October 2005. The property consists of a one-storey building, a detached two car garage and a paved parking lot.
Commercial Office
[7] From December 2006 until May 2011 the applicant leased the property, including the entire building, for use as a commercial office.
[8] The property has been vacant since May 2011.
Proposed Fitness Club
[9] In November 2012 the applicant agreed to lease the property to the Toronto Fitness Club Inc. In January 2013 the Club applied for a building permit for authorization to make interior alterations to both floors of the property in order to accommodate a health and wellness school.
[10] On February 26, 2013 the City refused to issue the permit for the following reasons:
Examination of your building permit application revealed that certain requirements of the Ontario Building Code and /or other applicable by-law have not been satisfied. You are required to provide the information identified in the attached Notice(s).
Planning Act – Site Plan Control
Form of Approval: Site Plan Approval Contact: Director of Community Planning …
DC (Development Charges) Form of Approval: Confirmation of payment prior to building permit issuance Contact: Toronto Building
EDC (TCDSB Education Dev. Charge) Form of Approval: Confirmation of payment prior to building permit issuance Contact: Toronto Building
Parkland Dedication/Park Levy
Form of Approval: Appraisal letter and payment made to Building Division Contact: Randy Jones
[Landscape Buffer]
Your property … is subject to Zoning By-law No. 7625…Where a parking area is located along and adjacent to a property line abutting Sheppard Avenue, a minimum 1.5 m wide landscaped buffer shall be provided along such property line. The proposed parking area is 0 m from the property line abutting Sheppard Avenue.
[11] The applicant did not appeal this decision.
[12] Instead, in August 2013, the applicant brought a motion to the Ontario Municipal Board (OMB) under section 114(7) of the City of Toronto Act, 1997¸ S.O. 1997, c. 26 (“COTA”) for a determination of whether: (a) site plan control applies to the interior alterations proposed by the building permit application; and, (2) the proposed alterations will substantially increase the usability of the property.
[13] On May 15, 2014 the OMB decided that it had jurisdiction to make a determination as to whether site plan control applies in this instance. The OMB further found that the proposed alterations to the building did not constitute “development” as defined by s. 114 of the COTA. The OMB rejected the argument that, since there were no building permits issued by the City when the conversions took place over the years, this application consists of a conversion from a residential use to a commercial use. The uncontradicted evidence before the Board show that no alterations were required for the conversions to different uses over the period of 1972 to 2011, and therefore no building permits were required for such conversion.
[14] On October 9, 2014 the Ontario Divisional Court granted the City’s application for leave to appeal the OMB’s decision on the issue of whether the OMB has the jurisdiction under COTA s. 114(7) to decide whether the proposed construction is subject to site plan control. The City did not seek leave to appeal the OMB’s finding that the proposed alterations did not constitute “development” on these facts.
[15] The Ontario Divisional Court heard this appeal on May 12, 2015 and the appeal is pending.
Proposed Day Nursery
[16] On November 7, 2014 the applicant applied for a building permit to convert the property to a day nursery that would accommodate 58 children. The application proposes to remove several walls, replace windows and install a six-stall bathroom on the basement level. It also proposes to install several interior walls and washrooms on the ground floor.
[17] On December 19, 2014 and December 23, 2014 the respondent refused to issue a building permit for the proposed alterations on grounds which mirrored the reasons it gave on February 26, 2013 in relation to the earlier application with the addition of: 1) an architectural general review; and 2) a Letter of Approval under the Day Nurseries Act with respect to the use of the existing facility, as modified with the proposed alterations, for use a day nursery.
ANALYSIS
[Building Code Act, 1992](https://www.canlii.org/en/on/laws/stat/so-1992-c-23/latest/so-1992-c-23.html)
[18] The Building Code Act, 1992¸S.O. 1992, c. 23 (“BCA”), along with the Building Code, O. Reg. 332/12, governs the regulation of the construction, renovation, change of use, and demolition of buildings. Its primary objective is to ensure public safety.
[19] Under s. 8(1) of the BCA, no person shall construct or demolish a building or cause a building to be constructed or demolished, unless a permit for the construction has been issued by the Chief Building Official.
[20] Conversely, s. 8(2) of the BCA provides the Chief Building Official shall issue a building permit unless amongst other things: 1) the proposed construction will contravene the Act, the building code or any other applicable law; 2) the application for the permit is not complete; 3) any fees due have not been paid. A chief building officer has no discretion to refuse to issue a building permit when all statutory requirements have been fulfilled.[^1] [emphasis added]
Standard of Review
[21] Section 25 of the BCA provides that:
(1) a person who considers themselves aggrieved by an order or decision made by a Chief Building Official may appeal the order or decision to the Superior Court of Justice within 20 days after the order or decision is made ; and,
(2) a judge may affirm or rescind the order or decision and take any other action that the judge considers the Chief Building Official ought to take in accordance with the BCA and the regulations and, for those purposes, the judge may substitute his or her opinion for that of the official.
[22] The standard of review was outlined by the Supreme Court of Canada in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 51-64. The standard of correctness applies to questions of law. Questions of fact and questions of mixed fact and law are entitled to deference applying a standard of reasonableness.[^2] I adopt the statement of Justice Hackland in Berjawi v. Ottawa (City), 2011 ONSC 236, [2011] O.J. No. 379, at para. 12:
Considering these principles, it must be recognized that 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 the facts and both the law.
[23] In my view, the questions raised in this appeal are questions of law and, as a result, I have applied the standard of correctness.
Issue #1: Is this application subject to site plan control?
[24] Subsection 114(5) of the COTA provides that no person shall undertake any “development” unless a site plan approval is obtained. Subsection 114(1) of the COTA defines “development” as follows:
“development” means the construction, erection or placing of one or more buildings or structures on land or the making of an addition or alteration to a building or structure that has the effect of substantially increasing the size or usability thereof, or the laying out and establishment of a commercial parking lot or of sites for the location of three or more trailers or of sites for the location of three or more mobile homes as defined in subsection 46 (1) of the Planning Act or of sites for the construction, erection or location of three or more land lease community homes as defined in subsection 46 (1) of the Planning Act.
[emphasis added]
[25] There is no dispute that the City’s site plan control by-law applies to the property. At issue is whether the proposed alterations constitute “development” within the meaning of s. 114(1) of the COTA which, the parties agree, turns on the question of whether the proposed alterations have the effect of substantially increasing the usability of the building.
[26] The respondent submitted one affidavit in response to this appeal, that being the affidavit of Wade Tam, a professional engineer, who is employed by the City of Toronto as Manager of Plan Review, Toronto Building, for the North District of the City. He oversees the review of building permit applications on behalf of the Chief Building Official.
[27] In considering this application, the City measured the effect of the proposed alterations against the last use of the building that was authorized by a building permit rather than against its most recent actual use. Mr. Tam explained the respondent’s reasoning as follows:
When Toronto Building determines whether or not the proposed alterations to a building in a building permit application attracts site plan control, it necessarily has to consider the existing building and the prior use of the building. Where an applicant alleges a prior use of the building that would have required a building permit but for which no permit was obtained, Toronto Building makes the determination of whether or not site plan control applies by making reference to that last use of the building that was authorized by a building permit. Toronto Building cannot simply rely on the statements of applicants regarding what the prior use of the building was in order to determine if site plan control applies.
The proposed construction sought in the 2014 Permit Application calls for the removal of several existing interior walls on the basement level, the replacement of windows on the basement level, the installation of six washrooms on the basement level, the installation of a kitchen on the basement level, the installation of several interior walls on the ground floor, and the installation of washrooms on the ground floor. Further, the proposed use conversion from mixed use of residential and medical office to a day nursery will substantially increase the usability of the building because of the expected number of occupants and the nature of the proposed use. Accordingly, Toronto Building staff determined that the proposed alterations constituted development, as that term is defined in section 114 of the City of Toronto Act, 2006.[^3]
[emphasis added]
[28] On the other hand, the applicant relies upon the evidence of Janice Robinson, a land use planner, for her view that: (1) whether there is an increase in the usability of a building as a result of an alteration should be measured against its actual use; and (2) there will be no increase in the usability of the building as a result of the proposed interior alterations.
[29] Ms. Robinson states:
The Site is not being converted from a single family home to a day nursery. The building permits [are] being sought to permit the conversion of the Site from commercial offices to a day nursery.
It is my opinion that since the building was already being used exclusively for commercial uses that are permitted by the zoning by-law and the conversion of use is from one permitted commercial use to another, there will be no increase in usability as a result of the proposed interior alterations.
The Site has had a commercial parking area that has served the Site since 1972 and the proposed use complies with all standards of the zoning by-law, including parking requirements. No site works are required to comply with the use.[^4]
[emphasis added]
[30] The proper interpretation of the definition of “development” is informed by the following principle described by the Supreme Court of Canada in Bell ExpressVu Limited Partnership. v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[31] A plain reading of the definition of “development” suggests that the effect of the proposed alteration should be measured against its actual use. In my view, there is nothing in the definition of “development” or the COTA, nor did the respondent direct me to any such provision, to support the respondent’s view that the effect of the proposed alterations should be measured against the last actual use of the building that was authorized by a building permit. If it had been the intent of the Legislature to assess the effect on the proposed alteration in the way advanced by the City then surely the definition of “development” would have been drafted differently in order to make this limitation clear.[^5]
[32] The respondent’s position is based on its view that the applicant was required to obtain a building permit in 2006 when the building commenced being used solely as a commercial office and, had it sought a permit at that time, the application would have also been subject to the City’s site plan control requirements. Leaving aside the questions of whether the applicant should have applied for a building permit in 2006, and whether it would have been required to obtain site plan approval at that time, it is inappropriate, absent express language, to interpret and apply the site control plan provisions of the COTA in a manner which permits it to become an indirect means of enforcing the BCA. The BCA contains various enforcement tools which includes inspection and order powers (section 12); prosecution (section 36) and obtaining a restraining order (section 38).[^6] In an appropriate case, the respondent has enforcement options under the BCA.
[33] In any event, even if the respondent’s approach to interpretation of “development” is correct, the uncontradicted land use planning opinion of Ms. Robinson is that there is no increase in usability of the building even if respondent’s approach to assessing the effect of the proposed alterations is used. On cross-examination, Ms. Robinson gave the following answers:
Q: Is there an increase in the usability of the site for a conversion from a dwelling on the ground floor medical offices on the basement level to a day nursery as proposed in the building permit sought by Sheppbonn?
A: It is my opinion that it is not an increase in usability.
Q: So even if you are considering it residential on the ground floor and these medical offices in the basement to a day nursery is not an increase?
A: No. And the reason is that a medical office is a fairly intensive use, as commercial uses go, and I think that the two are very comparable in terms of level of usability.[^7]
[34] Whether there is a significant increase in usability regardless of whatever measure is applied is a land use planning question. Site plan control and zoning by-laws are two land use planning instruments. This is recognized in the COTA as both instruments are found under the heading “Land Use Planning.”
[35] Ms. Robinson is a land use planner with over 30 years of experience in the field. She provided a Form 53, Acknowledgement of Expert’s Duty, dated April 2, 2015. I prefer Ms. Robinson’s opinion that the proposed alterations will not increase the usability of the building, regardless of whether the increase is measured against the pre-2006 use or the post -2006 use of the property, over the opinion provided by Mr. Tam. Mr. Tam is an engineer with a great deal of experience in matters related to the application of the Ontario Building Code. On cross-examination Mr. Tam testified that, despite the opinion quote above, he was testifying as a “factual” witness and not as an expert witness. He admitted that he was not a land use planner nor was he qualified to be a land use planner. He did not deliver a Form 53, Acknowledgement of Expert’s Duty. Clearly, Mr. Tam does not have the requisite land use planning expertise to provide an opinion on whether the proposed alteration of the building satisfies the definition of “development” under the site plan control provisions of the COTA. On cross-examination Mr. Tam also testified that no one in the City’s planning department was consulted before the decision was made by the respondent to require a site plan application as a condition of obtaining a building permit.
[36] In summary, the question of whether the proposed alterations to the building would result in a substantial increase in the usability of the building is to be determined by having regard to the last use of the building rather than the last use of the building that was authorized by a building permit. Accordingly, given that no deference is afforded on a question of law, I find that the respondent erred in law in interpreting the meaning of “development” under s. 114 of the COTA. Further, regardless of which test is applied, I rely on the only land use planning evidence before this Court and find that the proposed alteration will not substantially increase the usability of the building. Accordingly, this application is not subject to site plan control.
Issue #2: Is this application subject to park levies?
[37] The Toronto Municipal Code is a compilation of by-laws that govern the City of Toronto. Chapter 415 of the Code is entitled “Development of Land.” It requires a conveyance of land for park purposes, or the payment of money in lieu thereof, as a condition of development. “Development” is defined to include “…the making of an addition or alteration to a building or structure that has the effect of substantially increasing the size or usability of the building or structure.” The parties took the position that the interpretation of these words should be consistent with the interpretation of the same phrase found in section 114.
[38] For the reasons described under Issue #1, I find that the parkland dedication/park levy does not apply to the Application.
Issue #3: Is the payment of $1,436.73 in development charges required?
[39] The City has passed a by-law under the Development Charges Act, 1997, S.O. 1997, c. 27, in order to impose a charge on the development of land in the City. Article 1 of Chapter 415 of the Toronto Municipal Code is entitled “Development Charges.” It requires the payment of a development charge in respect of development that requires a building permit.
[40] Section 415-7C(1)(b) provides an exemption from development charges as follows:
In the case of a non-residential building or structure, or the non-residential uses in a mixed-use building or structure, which is being redeveloped for non-residential purposes
In the case of the conversion of an existing non-residential building or structure to another non-residential use where there is no demolition, no development charge will be imposed on the existing non-residential gross floor area so converted.
[emphasis added]
[41] The respondent submits that the above exception does not apply as the existing use is residential rather than non-residential.
[42] In my view, there is no requirement for the applicant to pay a development charge under the Toronto Municipal Code in respect of this application as the building has been solely used for a commercial use since 2006.
Issue #4: Is the payment of $1,367.94 in education development charges required?
[43] The Toronto Catholic District School Board has passed by-law 2013 No. 178 under the authority of the Education Act, R.S.O. 1990, c. E. 2 to impose charges on the development of land in the City. Section 11 of the by-law requires the payment of a development charge for non-residential uses. Section 13 of the by-law provides the following exception:
Notwithstanding paragraph (a), an education development charge shall be imposed under section 11 against any additional gross floor area of any non-residential development in excess of the gross floor area of the non-residential building or structure being replaced subject to the following calculation:
If the gross floor area of the non-residential part of the replacement building exceeds the gross floor area of the non-residential part of the building being replaced, the exemption applies with respect to the portion of the education development charge calculated in accordance with the following formula:
Exempted portion: = GFA (old) x EDC / GFA (new)
[44] The respondent submits that the development charge is payable as the space is being converted from residential to non-residential.
[45] For the same reasons as given for the development charge, the respondent’s position is incorrect given that the last use of the building was solely commercial.
Issue #5: Is a 1.5 metre landscape buffer adjacent to the parking area required?
[46] Section 29(1) of the City of Toronto’s Zoning By-Law 7625 states that no person shall use, cause or permit the use of any land, building or structure except in accordance with the following provisions. Section 29(7) of this zoning by-law states:
Where a parking area is located along and adjacent to a property line abutting Sheppard Avenue, a minimum 1.5 metre wide landscaped buffer shall be provided along such property line.
[47] The applicant submits that the landscape buffer requirement was added to the City’s zoning by-law in 2002. Accordingly, a landscape buffer was not a requirement of the zoning by-law that existed at the time that the parking lot that currently exists on the Property was established in 1972. The applicant submits that the City’s requirement for a landscape buffer will interfere with its “acquired rights” to use the Property for a range of permitted uses under the zoning by-law including a day nursery use.
[48] The applicant submits that it did not expect that a change from one commercial use to another commercial use would trigger a requirement to add a landscape buffer.
[49] In my view, the applicant does not have any “acquired rights” that would protect it from the application of the City’s zoning by-law in respect of a new land use that it wishes to introduce to the Property. The Property was not being used as a day nursery or anything resembling a day nursery at the time that the landscape buffer requirement was added to the zoning by-law in 2002. The proposed day care activity is too remote from the residential/medical office use of the Property at the time the zoning by-law was amended in order to be protected as a legal non-conforming use. See Saint-Romauld (City) v. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898, at para. 39.
[50] I dismiss the applicant’s appeal in respect of the requirement of a 1.5 metre landscape buffer.
CONCLUSION
[51] For the reasons given above, I allow the appeal other than in respect of the requirement to provide a 1.5 metre landscape buffer adjacent to the parking area.
[52] I direct that the respondent issue a building permit to the applicant to permit a day nursery in accordance with the building permit application submitted on November 7, 2014, subject to the applicant clearing all reasonable building code issues (including the provision of a 1.5 metre landscape buffer and a general architectural review) and obtaining a letter of approval in compliance with the Day Nurseries Act.
[53] I ask that the parties make their best efforts to resolve the question of costs. Should either party seek its costs of this application, then they may submit their costs submissions, no more than five pages in total, within two weeks of today’s date. Each party may submit their reply submissions, no more than five pages in length, within three weeks of today’s date.
Mr. Justice M. Faieta
Released: July 20, 2015
CITATION: Sheppbonn Ltd. v. Ann Borooah, 2015 ONSC 4587
COURT FILE NO.: CV-15-519351
DATE: 2015-07-20
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHEPPBONN LTD. Applicant
– and –
ANN BOROOAH IN HER CAPACITY AS THE CHIEF BUILDING OFFICIAL OF THE CITY OF TORONTO Respondent
REASONS FOR JUDGMENT
Mr. Justice M. Faieta
Released: July 20, 2015
[^1]: 1562850 Ontario Ltd. v. Toronto (City) Chief Building Official, [2004] O.J. No. 1555, at para. 19. [^2]: Toronto District School Board v. Toronto (City), 2014 ONSC 4575, [2014] O.J. No. 4575 (Div. Ct.), at para. 18. [^3]: Affidavit of Wade Tam, sworn April 17, 2015, paras. 27-30. [^4]: Affidavit of Janice A. Robinson, sworn April 2, 2015, paragraph 31. [^5]: See Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at paras. 64-65, where this observation was made in relation to other circumstances. [^6]: See Jeffrey L. Levitt & John Mascarin, Annotated Ontario Building Code Act, 2012 Edition, LexisNexis Canada Inc., 2011 for a review of these provisions. [^7]: Cross-Examination of Janice Robinson, June 11, 2015, Questions 75 and 76.