COURT FILE NO.: CV-19-941
DATE: 2021-07-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KERRI SCHUETTEL & ROLF SCHUETTEL
- and –
THE CORPORATION OF THE TOWN OF MINTO & TERRY KUIPERS, C.B.O. FOR THE TOWN OF MINTO
- and –
QUALITY DEVELOPMENTS INC.
Steven O’Melia, for the Applicants
Michael Van Bodegom, for the Respondents
Kevin Thompson, for the Intervenor
HEARD: March 12 and April 1, 2021
The Honourable Justice Catrina D. Braid
REASONS ON APPLICATION AND MOTION
I. OVERVIEW
[1] Kerri and Rolf Schuettel live in the town of Minto. In 2016, the Schuettels challenged a zoning by-law amendment that was proposed to permit development on property that is directly behind their home. They came to an agreement with the town, which included a term that amended the zoning by-law to require that all development on the property would be limited to one storey.
[2] Quality Developments Inc. (“Quality”) purchased the property and obtained building permits for townhouse units that have living space on the upper level. The Schuettels brought an application seeking a declaration that the building permits do not comply with the zoning by-law, and an order prohibiting the chief building official from issuing any further permits that do not comply with the by-law. The key issue in this case is the interpretation of the zoning by-law and whether the upper living space in the units is a second storey or a mezzanine. The applicants also state that one of the townhouse units does not comply with the setback requirements.
[3] The applicants also seek a declaration and order restricting the use of a small piece of municipally owned land. Finally, they have brought a motion to request a stay of construction until the case has been decided, and to amend their pleadings in order to request an appeal of the building permits.
[4] The following issues arise on this hearing:
A. What was the proper procedure for the applicants to have taken in order to contest the decision of the chief building official?
B. Should the court grant leave to amend the application?
C. Should the court grant a stay of construction?
D. Do the building permits comply with the zoning by-law?
E. Should an order be made with respect to the Hammerhead Lands?
[5] For the reasons set out below, the court grants an order directing that the town prevent the developer from using the municipally owned land. The motion and application are otherwise dismissed.
II. FACTS
Background
[6] Kerri and Rolf Schuettel own property backing onto a former school site located at 24 George Street North, Harriston, ON (the “Property”), which is in the town of Minto. In 2016, the town of Minto passed a zoning by-law amendment in order to permit development on the Property. The Schuettels were concerned about the development’s density and appealed to the Ontario Municipal Board (the “OMB”).
[7] Prior to the OMB hearing, the Schuettels came to an agreement with the town. The OMB adopted and passed the terms of the Minutes of Settlement, which included the following relevant amendments to the by-law:
i. there shall be a one-storey height limitation for all development on the lands;
ii. the townhouses shall have a minimum rear yard setback of 5.64 m.; and
iii. the town shall retain ownership of the lands immediately behind the Schuettels’ property, which the parties referred to as the Hammerhead Lands. The town shall install a gate as approved by the town’s Fire Chief to ensure that the Hammerhead Lands can only be used for emergency vehicle turnaround purposes. The town agrees that the Hammerhead Lands shall not be used for parking, storage, private amenity space, or any other purpose associated with private development.
[8] Ideally, the Schuettels wanted the Property restricted to a seniors’ community. However, it is not lawfully possible for a zoning by-law to restrict a development to be solely occupied by retired senior citizens. The Schuettels negotiated a one-storey restriction for the proposed development as an indirect way of ensuring that the construction would be low density.
[9] Quality purchased the Property and are constructing 23 dwellings within 6 townhouse blocks, with 3-4 homes in each block. Of the 23 townhouse units, 11 of the units are what Quality has referred to as “bungalofts,” which is described as a unit with living space in the attic. The exterior appearance of the townhouse buildings is the same whether or not there is living space in the upper level. Within each block of townhouses, the outer two units do not have an upper level. Both of the two centre units have a staircase and an upper level floor plan, including two bedrooms and a bathroom on the upper level.
[10] Terry Kuipers is the chief building official for the town of Minto, and is responsible for issuing building permits. Mr. Kuipers reviewed the applications for the building permits and determined that the proposed construction did not fall within any of the enumerated grounds for denying a permit. He believes that the living space in the attics is properly described as a mezzanine as opposed to a second storey, and that the proposed units do not breach the zoning by-law. Between September 2018 and November 2020, Mr. Kuipers issued six building permits to Quality.
[11] Notably, the town’s zoning by-law expressly excludes an upper level mezzanine within its definition of a storey:
A storey is “a horizontal division of a building from a floor to the ceiling directly above such floor, but does not include any mezzanine, gallery, balcony or other overhang, the floor area of which does not exceed 40% of the least dimension of the room in which the said overhang is located, and does not include a basement or cellar.”
[12] Mezzanines are not defined in the zoning by-law. Although the Ontario Building Code (Division A, Article 1.4.1.2) (the “OBC”) is not applicable law for purposes of determining compliance with the town’s zoning by-law, the OBC’s definition of mezzanine is as follows:
[M]ezzanine means an intermediate floor assembly between the floor and ceiling of any room or storey and includes an interior balcony.
[13] The Schuettels were provided with copies of the first two building permits in October of 2018. The townhouses that were constructed pursuant to these building permits have since been sold and are currently occupied by third parties.
[14] On December 20, 2019, a building permit was issued and posted for a third townhouse block. The applicants submit that they were not given notice of this permit until June 30, 2020. On July 7, 2020, a building permit was issued and posted for a fourth townhouse block. On November 3 and 4, 2020, building permits were issued for the last two townhouse blocks. The applicants have brought a separate application seeking to appeal the last two permits under the Building Code Act, 1992, S.O. 1992, c. 23 (the “BCA”).
[15] In May and June of 2018, counsel for the Schuettels wrote several letters to express concern that the development proposal for the Property did not appear to comply with the zoning by-law that was negotiated in the Minutes of Settlement. Although the Schuettels were primarily concerned with the living space in the upper level of the townhouses, they also raised concerns regarding non-compliance with a setback requirement.
[16] The Schuettels commenced an application in the Superior Court seeking declarations and orders, effectively asking the court to interpret the legislation to find that the zoning by-law was not complied with when the building permits were issued, and seeking to prevent the issuance of further building permits. The Schuettels did not file an appeal under s. 25(1) of the BCA. At the time the application was issued on July 19, 2019, building permits for two of the six townhouse blocks had been issued, and one of the blocks was owned and occupied by third-party buyers.
[17] After the application was commenced, the respondents still issued new building permits and construction continued. All of the dwellings have been sold to third parties, none of whom have been served with the notice of application.
[18] Quality was not named as a respondent on this application. Quality states that the application was a complete surprise, as it had already made financial commitments and entered into agreements of purchase and sale for some of the units, along with commitment agreements for other units. Quality continued to market the units and maintained a model home sales office after the application was issued.
[19] Quality states that it has relied on the lack of appeals in advancing the development. As of December 11, 2020, the development was completely sold out. Some of the units are fully constructed, and are owned and occupied by third parties. Other units have been sold to buyers who have sold other properties in reliance on their purchases in this development.
III. THE APPLICATION
[20] The Schuettels originally named the town of Minto and Minto’s chief building official, Terry Kuipers, as respondents in the notice of application. Upon learning of the application, the developer, Quality Developments Inc., sought the consent of the applicants to intervene. Quality only received the applicants’ consent after it prepared a motion to be added as an intervenor. Quality is not a respondent on this application.
[21] The original Notice of Application seeks the following declarations:
a) that Mr. Kuipers, the chief building official, issued building permits that did not comply with the zoning by-law because some of the units had a second storey or had a deficient rear yard setback; and
b) that the town has not complied with the Minutes of Settlement by failing to address the non-conformities with the zoning by-law.
[22] The original Notice of Application also seeks the following order:
i. that the chief building official be prohibited from issuing any further building permits for the property for construction that does not comply with the zoning by-law, including construction in excess of one storey.
IV. ANALYSIS
A. What Was the Proper Procedure for the Applicants to Have Taken in Order to Contest the Decision of the Chief Building Official?
[23] The legislative framework relevant to building permits is set out in the BCA, as amended. The BCA states that each municipality shall appoint a chief building official (“CBO”). The CBO is expected to establish operational policies for the enforcement of the BCA and the Building Code, to coordinate and oversee the enforcement of the BCA and the Building Code and to exercise powers and perform duties in accordance with the standards established by the Code of Conduct.
[24] No person shall construct a building unless a permit has been issued by the CBO: see s. 8(1) of the BCA. The CBO is required to issue the permit unless the proposed construction will contravene the BCA, the Building Code or any other applicable law. If a building permit is applied for and there are no enumerated grounds to deny it, the CBO has a statutory obligation to issue the building permit and does not have the discretion to do otherwise: see BCA, s. 8(2).
[25] The CBO cannot issue a building permit if it would be a contravention of the requirements of a zoning by-law: see Oriole Park Resort Inc. v. Middlesex Centre (Municipality) (2008), 52 M.P.L.R. (4th) 98 (Ont. S.C.).
[26] Section 25(1) of the BCA states that a person who considers themselves aggrieved by a decision made by the CBO may appeal the decision to the Superior Court within 20 days after the decision is made. When the 20-day appeal period lapses, the applicant may seek leave to proceed with an appeal upon such conditions as the judge considers appropriate, if the judge is satisfied that there are reasonable grounds for the appeal and for applying for the extension: see s. 25(2). On appeal, a judge may affirm or rescind an order or decision, or take any other action that the judge considers the CBO ought to have taken and may substitute their opinion for that of the CBO: see s. 25(4).
[27] When an appeal is launched under s. 25(1), a judge may stay the operation of the CBO’s decision until the disposition of the appeal, pursuant to s. 25(7) of the BCA.
[28] With respect to the matter before the court, the original notice of application is framed as a Rule 14 application. Rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits an application to be brought to determine rights that depend on the interpretation of a municipal by-law. The applicants did not initially appeal the building permits through this application, but instead sought declaratory relief that indirectly challenges the zoning compliance of the permits. They have since brought a motion seeking leave to amend their pleadings to add an appeal under s. 25(1) of the BCA.
[29] The applicants state that the application is forward-looking, seeking to prevent further construction that does not comply with the by-law. If the court finds that the building permits did not comply with the zoning by-law, the applicants submit that the permits are void ab initio. They suggest that the owners of completed units could apply for minor variances. They ask that the units that have not been completed be built no more than one storey in height.
[30] The BCA sets out a comprehensive scheme to challenge building permits issued by a CBO within 20 days after they are issued. It also allows the aggrieved party to request a stay of the construction. The process to appeal the decision of a CBO is exclusively available under s. 25 of the BCA and cannot be circumvented by way of a separate Rule 14 application for declaratory relief under the Rules of Civil Procedure: see Metro1 Development Corp. v. Toronto (City), 2014 ONSC 4225, 26 M.P.L.R. (5th) 324, at paras. 24-26; Toronto District School Board v. Toronto (City), 2014 ONSC 3605, 25 M.P.L.R. (5th) 140, at paras. 7-8; and Dysart (Municipality) v. Haliburton Forest & Wild Life Reserve Ltd., 2016 ONSC 956, 49 M.P.L.R. (5th) 321.
[31] Although Rule 14.05(3)(d) permits an application for the determination of rights that depend on the interpretation of a municipal by-law or a statute, and that description arguably might extend in the abstract to suggestions that an order made by a building inspector or CBO exceeded the properly interpreted limits of authority extended by the BCA, courts have repeatedly held that challenges to such orders must be pursued by the appeal procedure specifically mandated by the legislature in s. 25 of the BCA: see Birani Homes Ltd. v. Corp. of the City of London et al., 2015 ONSC 1034, 33 M.P.L.R. (5th) 329, at para 24.
[32] This is substantively an appeal of the CBO’s decisions to issue building permits. These decisions can only be challenged in court under s. 25(1) of the BCA. Therefore, the original application is not properly constituted.
B. Should the Court Grant Leave to Amend the Application?
[33] The applicants have brought a motion seeking leave to amend the application to add the following relief:
i. an order pursuant to s. 25 of the BCA that all building permits applied for or issued after the commencement of this application be rescinded, and that all construction carried out under such permits be removed;
ii. an order extending the time for appealing under the BCA on the basis that Mr. Kuipers concealed the issuance of post-application building permits and did not require that they be posted in a conspicuous place as required; and
iii. that the construction be stayed until the court determines the application.
[34] In oral submissions, the applicants recognized that third parties’ rights may be impacted and withdrew the request for the removal of construction that has taken place since the issuance of the application.
[35] The applicant states that the proposed amendments relate to consequential relief that may be granted by the court if it determines that the construction on the Property does not comply with the applicable zoning by-law. The motion was argued at the same time as the application.
[36] On a motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that cannot be compensated for by costs or an adjournment: see Rule 26.01. The onus of proving prejudice is on the party alleging it unless a limitation period has expired. In that case, the onus shifts and the party seeking the amendment must introduce evidence to explain the delay and displace the presumption of prejudice: see Caal Caal v. Hudbay Minerals Inc., 2020 ONSC 415.
[37] The applicants seek to amend the Notice of Application to request an order extending the time for appealing under the BCA. Section 25(2) of the BCA permits a judge to extend the 20-day appeal timeframe if the judge is satisfied that there are reasonable grounds for both the appeal and the extension.
[38] The proposed amendments are requests made under the BCA to appeal the building permits and to stay construction until the completion of the proceedings. An appeal of building permits is dramatically different from the original application that sought declaratory relief by way of a statutory interpretation. If the amendments were made, the application would advance a new cause of action and revive a missed limitation period.
[39] Since the 20-day limitation period has already passed, there is a presumption of prejudice. I shall therefore consider whether I would exercise my discretion to extend the time for the commencement of an appeal under s. 25(2) of the BCA. If it would not be appropriate to extend the time to appeal because of the missed limitation period, then the applicants have not displaced the presumption of prejudice. I shall therefore consider the two-part test under s. 25(2) to determine whether to extend the time to appeal.
i. Are There Reasonable Grounds for the Extension?
[40] The proposed amendments request an appeal of all building permits applied for or issued after the commencement of the application. Permits for the first two townhouse blocks were issued and provided to the applicants in October of 2018, well before the application was issued in July 2019. Therefore, the proposed amendments are not relevant to the first two townhouse blocks.
[41] On November 23, 2020, the applicants issued a new Notice of Application in a separate court file (CV-20-1549), which is a BCA appeal of the building permits for the final two blocks. Any request for relief under s. 25 of the BCA relating to the last two permits should be addressed in that proceeding, which was commenced shortly after the permits were issued. To the extent that the applicant seeks the current amendment to challenge the final two building permits, I decline to grant that amendment, as it would be a duplication of the other application.
[42] I shall therefore consider whether an amendment should be granted to extend the time to appeal the third and fourth building permits. At the very latest, these permits came to the attention of the applicants in June and early July 2020. The motion to amend pleadings was brought approximately four months later on November 17, 2020.
[43] The applicants are experienced landowners who have previously dealt with the municipality. At all times, they have been represented by experienced counsel and have also received advice from a qualified land use planner. However, there has been no reasonable explanation for the failure to commence an appeal of the CBO’s decision in accordance with the clear statutory mandate. Further, there is no explanation as to why the applicants did not bring a motion to convert the application until November 2020, despite being cautioned by Quality’s counsel that, in the absence of any appeal, Quality would continue with construction.
[44] The short appeal period set out in s. 25(1) specifically allows for disputes to be addressed in court prior to further steps being taken in reliance on the CBO’s decision. To permit the applicants to appeal at this late date would be inconsistent with the legislature’s clear intent expressed in s. 25(1) to provide for the expeditious resolution of such appeals.
[45] The relief sought by the applicants would have a significant negative impact on third-party purchasers. Units that do not comply with zoning by-laws may be unmarketable. If a stay had been granted pursuant to s. 25(7), Quality could have avoided entering into agreements with buyers, lenders and contractors, and could have averted the serious financial consequences that may occur at this late stage of construction. This type of situation is what is sought to be avoided by the short limitation period set out in the comprehensive BCA. Since there was no appeal, Quality was well within their rights to honour their contractual obligations to continue with construction and to comply with their obligations to construction lenders.
[46] The applicants have not provided satisfactory evidence to explain the delay. There are no reasonable grounds to permit an extension.
ii. Are There Reasonable Grounds for the Appeal?
[47] The primary issue in this case is whether the living area on the upper level of the townhouses constitutes a second storey or a mezzanine. There is also an issue of whether a projection on the first building is a minor architectural feature or whether there has been non-compliance with the setback requirement. These issues involve questions of mixed fact and law.
[48] The by-law definition of storey is ambiguous and could be interpreted in different ways. The definition excludes mezzanines, galleries, balconies or other overhangs that do not exceed 40% of the least dimension of the room in which the overhang is located. It is unclear what is meant by the “least dimension”, which ordinarily would refer to the length or width of a room. In addition, mezzanine, gallery, balcony and overhang are not defined.
[49] Minto’s CBO, Terry Kuipers, believes that the upper level living area is a mezzanine and therefore is not a second storey. Hugh Handy, a land use planner, provided evidence on behalf of the developer, Quality, stating that Mr. Kuipers’ interpretation was a logical one. On the other hand, Scott Patterson, a land use planner, disagrees. He has provided evidence on behalf of the applicants and has explained his own interpretation and states that the living space is not a mezzanine.
[50] The applicants have also raised a concern about a projection that juts out from the foundation on the first unit into the rear yard by 25.5 inches and runs approximately one-eighth of the building length. They submit that the building fails to meet the setback requirements as a result. It has not been repeated on other buildings within the development. Mr. Kuipers believes that the projection is a minor architectural feature and therefore does not take away from the calculation of the setback.
[51] The applicants submit that the court should not rely on the evidence of Mr. Kuipers, and he should not be qualified as an expert, for the following reasons:
a) he does not have any formal training in land use planning or interpreting municipal zoning by-laws;
b) he is a party to this proceeding and is therefore not an objective, independent expert witness;
c) when the application was launched, Mr. Kuipers met with representatives of Quality and planned how to respond to the application; and
d) the applicants argue that he was quarrelsome and evasive during cross examination, and then purported to change some of his answers once examination was completed. The applicants wanted to explore why his answers changed, and he refused to attend for further examination.
[52] During submissions, the applicants suggested that Mr. Kuipers refused to continue his cross-examination in the agreed format. However, the cross-examination of Mr. Kuipers had concluded, subject to undertakings. Sometime later, the applicants demanded to re-examine Mr. Kuipers. He offered to answer further questions in writing or over Zoom upon receipt of the questions that they wished to explore. The applicants declined to proceed in that fashion and did not bring a motion to the court to address the issue. In these circumstances, absent consent of Mr. Kuipers or further court order, the applicants did not have the right to re-examine the witness and have no valid reason to criticize his refusal to re-attend for further examination.
[53] I do not accept the applicants’ submissions that Mr. Kuipers is not qualified. This application deals solely with issues of building and construction matters that are within the expertise of a CBO. Courts have recognized that municipal planning and zoning are specialized areas that fall within the expertise of a CBO, particularly when applied to decisions relating to the issuance of building permits: see Toronto District School Board v. Toronto (City). Mr. Kuipers qualifies as a participant expert: see Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, at para. 60.
[54] This application is a review of Mr. Kuipers’ decision, and his reasons for that decision are inherently admissible. There is no evidence that Mr. Kuipers failed to exercise independent judgment when he made determinations while reviewing building permits. I do not accept the submission that he is biased; he simply continues to believe that his initial decision is correct. It is appropriate for this court to consider the factors that Mr. Kuipers took into account when he decided to issue the building permits.
[55] Terry Kuipers has been a CBO since 2006. He has earned Ministry of Municipal Affairs qualifications with respect to building structures and numerous types of buildings.
[56] Municipal planning and zoning are specialized areas that 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, which are entitled to considerable deference due to the nature of the matters and the expertise of the decision-maker. For most issues, the standard of review will be reasonableness: see Berjawi v. Ottawa (City), 2011 ONSC 236, 79 M.P.L.R. (4th) 280, at paras 9-12; and 2332980 Ontario Inc. v. Toronto (City) Chief Building Official, 2017 ONSC 460, 57 M.P.L.R. (5th) 331, at paras. 9, 21-26.
[57] When making a permit decision, the CBO is bound to act within the statutory parameters under s. 8 of the BCA. Those parameters include the CBO’s observations of proposed structure, the provisions of the BCA and the highly technical Code itself, and “any other applicable law”. As to the BCA, CBOs receive training and use it to a limited extent, but they are far from being trained in law or statutory interpretation. On the other hand, in dealing with the Building Code, they are acting close to the core of their specialized knowledge and experience. As to “other applicable law”, that term may encompass the local zoning by-law or a law external to the work and training of the CBO. In the latter case, the CBO may seek advice from other municipal officials, such as the municipal planner or the municipality's lawyer. In the case of the zoning by-law, depending on the nature of the particular issue, the CBO may well bring valuable experience, particularly where the issue focuses on structural observations and conclusions: see Rotstein v. Orio-Medonte (Township) (2002), 34 M.P.L.R. (3d) 266 (Ont. S.C.) at para. 16.
[58] The burden is on the applicants to prove, on a balance of probabilities, that the CBO’s decision was not reasonable: see 1218897 Ontario Ltd. v. Toronto (City) Chief Building Official (2005), 2005 CanLII 39872 (ON SC), 14 M.P.L.R. (4th) 217 (Ont. S.C.) at para. 4.
[59] I find that Mr. Kuipers’ decisions fall within the range of reasonable outcomes. His decisions are entitled to deference. Though such deference does not mean that the applicants’ appeal would automatically be futile, they have not satisfied me that there are reasonable grounds for the appeal, as required in s. 25(2) of the BCA.
Conclusion re: Leave to Amend
[60] Since there are no reasonable grounds to permit an extension of time to appeal and the applicants have not demonstrated reasonable grounds to appeal, I would not grant an order extending time for an appeal under the BCA. The applicants have not displaced the presumption of prejudice and have not introduced evidence to explain the delay.
[61] As a result, the motion to amend the application is dismissed.
C. Should the Court Grant a Stay of Construction?
[62] The applicants have brought a motion seeking a temporary order suspending all building permits and prohibiting the issuance of any further building permits until the court has issued its ruling on the merits of the application. At the completion of submissions on this matter, I advised counsel that I would not be granting a temporary stay of construction. These are my reasons for that decision.
[63] I have already found that the BCA contains a comprehensive scheme to challenge building permits issued by a CBO and allows the aggrieved party to request a stay of the construction pursuant to s. 25(7) of the Act. Having failed to appeal the permits, the applicants have lost the benefit of the statutory regime under s. 25 of the BCA, including a stay.
[64] Since the request for a stay of construction is made outside of s. 25(7) of the BCA, it is a request for an interlocutory injunction. It is notable that the applicants have not formally requested an injunction, even though they seek that remedy.
[65] In RJR-MacDonald Inc. v. Canada (Attorney General) 1994 CanLII 117 (SCC), [1994] 1 SCR 311, the Supreme Court of Canada set out the three-part test that courts must apply when considering a motion for an interlocutory injunction or a stay:
i. a preliminary assessment must be made on the merits of the case to ensure that there is a serious question to be tried;
ii. it must be determined whether the applicant would suffer irreparable harm if the application were refused; and
iii. an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
[66] Quality concedes that there is a serious issue to be tried, namely zoning compliance.
[67] In this particular case, the applicants have not demonstrated that they would suffer irreparable harm if the motion were denied. Without the stay, construction would continue and the development would have more density than was intended by the applicants when they entered into the Minutes of Settlement. Whether or not the townhouses are built with living space in the attic, the physical appearance of the units would remain the same. On the other hand, a stay would cause irreparable financial harm to Quality and potentially to third party purchasers of the units. The development is fully sold out and purchasers may not have a home to move into if construction stops. This will negatively affect innocent buyers who will be unable to take possession. The fact that the applicants have failed to give notice to the purchasers also militates against granting the stay.
[68] The applicants have not brought the injunction request in a timely fashion, and there would be significant prejudice to Quality and the non-parties if it were granted. The applicants’ failure to do so weighs against the granting of the stay.
[69] Finally, a party who moves for an injunction is required to give an undertaking as to damages or seek an order dispensing with the undertaking: see Rule 40.03. The applicants have not given an undertaking to pay any damages that may be suffered by Quality if the injunction were granted but the applicants were ultimately unsuccessful on the application. They have not provided disclosure of their assets sufficient to recover any reasonable award of damages. They have not sought to be relieved of the mandatory requirement and have not provided evidence as to why this is an exceptional circumstance.
[70] The undertaking as to damages is an essential prerequisite, without which an injunction cannot be granted: see Guelph Taxi v. Guelph Police Service, 2016 ONSC 3671, 55 M.P.L.R. (5th) 140.
[71] The request for a stay is therefore dismissed.
D. Do the Building Permits Comply with the Zoning By-law?
[72] I have previously found that the application was not properly constituted and that leave should not be granted to amend the Rule 14 application to add an appeal under the BCA. As a result of my decision on these issues, I decline to address the question of whether the building permits comply with zoning by-laws.
E. Should an Order be Made with Respect to the Hammerhead Lands?
[73] Although it is not specifically requested in the Notice of Application or Motion, the applicants seek an order requiring the town to abide by the terms of the Minutes of Settlement, namely to require the town to prevent the developer from using the municipally-owned Hammerhead Lands. This request was mentioned in the applicants’ factum, oral submissions and draft order. The town has not raised a concern about lack of notice of this request, even though it was not in the formal Notice of Application. I shall therefore consider the issue.
[74] The applicants state that Quality has been occupying the Hammerhead Lands for parking and storage. The applicants submit that the agreement means the lands are not supposed to be used or occupied by the developer, and seeks orders to require that the town and Quality comply with these obligations.
[75] The respondents submit that the paragraphs dealing with the Hammerhead Lands in the Minutes of Settlement were meant to be a long term prohibition against parking, etc., when the development was completed, and that the interim occasional minor use during construction does not breach the agreement.
[76] I do not accept this submission. The Minutes of Settlement do not contain any such qualification permitting the use of the land for the otherwise prohibited purposes during construction. I find that it is appropriate to make an order with respect to the Hammerhead Lands. Although the applicants’ draft order requires that the town erect a fence, the Minutes of Settlement do not require that the town install a fence and I decline to make that order.
[77] Quality was granted intervenor status as another interested party in the litigation, with all the rights and liabilities of the other parties, pursuant to Rule 13.01. In their draft order presented to the court during submissions, the applicants sought a mandatory order requiring Quality to cease using the Hammerhead Lands. However, this relief was not sought in the application, factum or oral submissions. It would be improper for the court to make any such order directing Quality to comply when they were not given notice of such a request.
V. CONCLUSION
[78] For all these reasons, this court makes the following orders:
This court orders that the town of Minto shall ensure that the municipally-owned Hammerhead Lands (land to the immediate West of the development property as described in the Minutes of Settlement entered into between the town and the applicants dated December 6, 2016) are only used for emergency turnaround purposes and are not used for parking, storage, snow piling or other purposes associated with the development property;
This court orders that the town of Minto shall forthwith erect a gate, as approved by the town’s Fire Chief, between the development property and the Hammerhead Lands, as required by the Minutes of Settlement; and
All other relief sought in the motion and application are dismissed.
VI. COSTS
[79] The respondents and the intervenor have been successful on the majority of the issues and are entitled to costs.
[80] In the event that the parties cannot agree as to costs, they are directed to provide written submissions with respect to costs of the Application and the Motion. The submissions shall be no longer than three typed pages, double-spaced, in addition to any relevant Bill of Costs and written Offers to Settle.
[81] The respondents and the intervenor shall provide costs submissions by July 30, 2021. The applicants shall provide any response by August 13, 2021.
[82] In the event that submissions are not received from any party by August 13, 2021, costs shall be deemed settled. Costs submissions shall be filed by email to Kitchener.SCJJA@ontario.ca, and marked for the attention of Justice Braid.
_______________________________
Braid, J.
Released: July 9, 2021