the digest of municipal & planning law

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The Digest ofMUNICIPAL & PLANNING LAW

Editor in Chief: John Mascarin, M.A., LL.B.Aird & Berlis LLP

Cited 4 D.M.P.L. (2d) (2009) 4 D.M.P.L. (2d), July 2009, Issue 7

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CASES DIGESTED IN THIS ISSUE*

Abbotsford (City), Abbotsford Families United v. See Abbotsford Coquitlam (City), Monaco v. See Monaco v. Coquitlam (City).Families United v. Abbotsford (City). Cronkhite v. Nackawic (Town) (2009), 2009 NBQB 110, 2009 Car-

Abbotsford Families United v. Abbotsford (City) (2009), 2009 Car- swellNB 149, 73 C.C.E.L. (3d) 251, P.C. Garnett J. (N.B. Q.B.) 227swellBC 850, 2009 BCSC 463, E.M. Meyers J. (B.C. S.C.) 241, 242 Death, Neighbourhoods of Windfields Ltd. Partnership v. See

Aberdeen v. Langley (Township) (2008), 2008 BCCA 420, 2008 Car- Neighbourhoods of Windfields Ltd. Partnership v. Death.swellBC 2235, 60 C.C.L.T. (3d) 235, 84 B.C.L.R. (4th) 220, 50 M.P.L.R. Dixon v. Powell River (City) (2009), 2009 CarswellBC 762, 2009 BCSC(4th) 1, 440 W.A.C. 116, 261 B.C.A.C. 116, Frankel J.A., Neilson J.A., 406, N. Garson J. (B.C. S.C.) 235Newbury J.A. (B.C. C.A.) 220 Edmonton (City), Leung v. See Leung v. Edmonton (City).

Aberdeen (Rural Municipality) No. 373 v. Metanczuk (2008), 2008 Car- Enbridge Ontario Wind Power LP, Re (2009), 2009 CarswellOnt 1706,swellSask 837, 2008 SKQB 487, J.D. Koch J. (Sask. Q.B.) 209 S.J. Sutherland Member (O.M.B.) 258

Armstrong, Uxbridge (Township) v. See Uxbridge (Township) v. Entre Nous Femmes Housing Society, Vancouver Sea to Sky RegionArmstrong. Assessor Area No. 9 v. See Vancouver Sea to Sky Region Assessor Area

Aurora (Town), Linlis Development Inc. v. See Linlis Development Inc. No. 9 v. Entre Nous Femmes Housing Society.v. Aurora (Town).

Forbes v. Caledon (Town) (2009), 2009 CarswellOnt 1192, Price J. (Ont.Baillargeon v. Carroll (2009), 2009 CarswellOnt 633, Kelly J. (Ont.

S.C.J.) 204, 248, 253S.C.J.) 207

Gibsons (Town), Sadler v. See Sadler v. Gibsons (Town).Baillargeon v. Carroll (2009), 2009 CarswellOnt 1939, J.E. Kelly J. (Ont.

Green v. Swift Current (City) (2009), 2009 SKQB 110, 2009 Carswell-S.C.J.) 226Sask 198, P.A. Whitmore J. (Sask. Q.B.) 203, 218Barnett v. Cariboo (Regional District) (2009), 2009 BCSC 471, 2009 Car-

Hunt, North Pender Island Trust Committee v. See North Pender IslandswellBC 898, McKinnon J. (B.C. S.C.) 217Trust Committee v. Hunt.Beier v. Vermilion River (County) Subdivision & Development Appeal

Jackson, Ruffolo v. See Ruffolo v. Jackson.Board (2009), 55 M.P.L.R. (4th) 181, 2009 CarswellAlta 551, 2009Kennedy v. London (City) (2009), 2009 CarswellOnt 1328, L.C. LeitchABCA 151, J. Watson J.A. (Alta. C.A.) 211

R.S.J. (Ont. S.C.J.) 223, 225Caledon (Town), Forbes v. See Forbes v. Caledon (Town).Lakeland (Rural Municipality 521), Smith v. See Smith v. LakelandCariboo (Regional District), Barnett v. See Barnett v. Cariboo (Regional

(Rural Municipality 521).District).Langley (Township), Aberdeen v. See Aberdeen v. Langley (Township).Carroll, Baillargeon v. See Baillargeon v. Carroll.Leask (Village), Parsons v. See Parsons v. Leask (Village).Clarington (Municipality), Newcastle Recycling Ltd. v. See Newcastle

Recycling Ltd. v. Clarington (Municipality). Leung v. Edmonton (City) (2009), 2009 CarswellAlta 549, 2009 ABCA149, E. Picard J.A. (Alta. C.A.) 212Classic Leisure Wear Inc., Watt v. See Watt v. Classic Leisure Wear Inc.

Conconi, North Pender Island Local Trust Committee v. See North Liddy v. Vaughan (City) Committee of Adjustment (2009), 2009 Cars-Pender Island Local Trust Committee v. Conconi. wellOnt 1746, D. Bellamy J. (Ont. Div. Ct.) 234

*

Digests or summaries of the most recent and significant decisions of Canadian courts and tribunals, written with a focus on the legal issues involved in eachdecision. More than one digest may be written for each decision.

4 D.M.P.L. (2d), July 2009 2

Linlis Development Inc. v. Aurora (Town) (2009), 2009 CarswellOnt Ruffolo v. Jackson (2009), 2009 CarswellOnt 1961, Kelly J. (Ont.1689, J. Wilson J., Jennings J., Karakatsanis J. (Ont. Div. Ct.) 214, 215, S.C.J.) 208216 Ryan v. Sault Ste. Marie (City) (2009), 55 M.P.L.R. (4th) 206, 2009

London (City), Kennedy v. See Kennedy v. London (City). ONCA 344, 2009 CarswellOnt 2208, D. Watt J.A., J. MacFarland J.A.,Martin v. Meldon Forestry Equipment Ltd. (2009), 2009 CarswellOnt R.G. Juriansz J.A. (Ont. C.A.) 221

1869, B.R. Warkentin J. (Ont. S.C.J.) 236, 237Sadler v. Gibsons (Town) (2009), 56 M.P.L.R. (4th) 80, 2009 BCSC 138,

Meldon Forestry Equipment Ltd., Martin v. See Martin v. Meldon2009 CarswellBC 1133, Cohen J. (B.C. S.C.) 259

Forestry Equipment Ltd.Sault Ste. Marie (City), Ryan v. See Ryan v. Sault Ste. Marie (City).Metanczuk, Aberdeen (Rural Municipality) No. 373 v. See AberdeenSmart Centres Inc. v. Toronto (City) (2009), 61 O.M.B.R. 129, 2009(Rural Municipality) No. 373 v. Metanczuk.

CarswellOnt 1421, J.R. McKenzie V-Chair (O.M.B.) 255Monaco v. Coquitlam (City) (2009), 2009 BCSC 141, 2009 CarswellBC1135, [2009] B.C.J. No. 205, Warren J. (B.C. S.C. [In Chambers]) 205 Smith v. Lakeland (Rural Municipality 521) (2009), 2009 SKQB 86,

Municipal Property Assessment Corp., 1518756 Ontario Inc. v. See 2009 CarswellSask 163, R.D. Laing C.J.Q.B. (Sask. Q.B.) 238, 239,1518756 Ontario Inc. v. Municipal Property Assessment Corp. 240

Nackawic (Town), Cronkhite v. See Cronkhite v. Nackawic (Town). Swift Current (City), Green v. See Green v. Swift Current (City).Neighbourhoods of Windfields Ltd. Partnership v. Death (2009), 55

Torbay (Town) v. Planchat (2009), 2009 CarswellNfld 68, 2009 NLTDM.P.L.R. (4th) 159, 2009 CarswellOnt 1756, 2009 ONCA 277, J.C.43, A.E. Faour J. (N.L. T.D.) 252MacPherson J.A., P. Rouleau J.A., R.J. Sharpe J.A. (Ont. C.A.) 243,

Toronto (City), Smart Centres Inc. v. See Smart Centres Inc. v. Toronto244, 246(City).Newcastle Recycling Ltd. v. Clarington (Municipality) (2009), 2009

CarswellOnt 1747, Mulligan J. (Ont. S.C.J.) 249 Toronto (City), Vicari v. See Vicari v. Toronto (City).Niagara Escarpment Commission, Wahl Estate v. See Wahl Estate v. Uxbridge (Township) v. Armstrong (2009), 2009 CarswellOnt 1635, 2009

Niagara Escarpment Commission. ONCJ 125, De Filippis J. (Ont. C.J.) 206North Pender Island Local Trust Committee v. Conconi (2009), 55

Vancouver Sea to Sky Region Assessor Area No. 9 v. Entre NousM.P.L.R. (4th) 175, 2009 BCCA 174, 2009 CarswellBC 1076, FrankelFemmes Housing Society (2009), 2009 BCSC 352, 2009 CarswellBCJ.A. (B.C. C.A. [In Chambers]) 245667, T.R. Brooke J. (B.C. S.C.) 228, 230North Pender Island Local Trust Committee v. Conconi (2009), 2009

Vaughan (City) Committee of Adjustment, Liddy v. See Liddy v.BCSC 328, 2009 CarswellBC 604, B.J. Brown J. (B.C. S.C.) 247, 251,Vaughan (City) Committee of Adjustment.254

North Pender Island Trust Committee v. Hunt (2009), 55 M.P.L.R. (4th) Vermilion River (County) Subdivision & Development Appeal Board,163, 2009 CarswellBC 1018, 2009 BCCA 164, Groberman J.A., Huddart Beier v. See Beier v. Vermilion River (County) Subdivision &J.A., Tysoe J.A. (B.C. C.A.) 250, 256 Development Appeal Board.

O’Flanagan v. Rossland (City) (2009), 56 M.P.L.R. (4th) 1, 2009 Car- Vicari v. Toronto (City) (2009), 2009 CarswellOnt 1833, Aston J. (Ont.swellBC 1084, 2009 BCCA 182, Frankel J.A., Hall J.A., Smith J.A. S.C.J.) 222(B.C. C.A.) 213

Wahl Estate v. Niagara Escarpment Commission (2009), 2009 Carswell-Parsons v. Leask (Village) (2008), 2008 SKPC 144, 2008 CarswellSaskOnt 1929, J.V. DeMarco H.O. (N.E.H.O.) 210, 233718, T. White Prov. J. (Sask. Prov. Ct.) 219, 224

Watt v. Classic Leisure Wear Inc. (2008), 43 M.P.L.R. (4th) 274, 2008Planchat, Torbay (Town) v. See Torbay (Town) v. Planchat.CarswellOnt 982, 59 O.M.B.R. 23, Kiteley J. (Ont. Div. Ct.) 231, 232Powell River (City), Dixon v. See Dixon v. Powell River (City).

PROUD Port Dalhousie, Re (2009), 2009 CarswellOnt 1096, S.B. 1518756 Ontario Inc. v. Municipal Property Assessment Corp. (2009),Campbell V-Chair (O.M.B.) 257 2009 CarswellOnt 1412, Carnwath J., Kruzick J., Wilson J. (Ont. Div.

Rossland (City), O’Flanagan v. See O’Flanagan v. Rossland (City). Ct.) 229

Judgment orders: (416) 609-3800; Fax (416) 298-5094

3 4 D.M.P.L. (2d), July 2009

Makuch states in his Canadian Municipal and PlanningLaw, at p. 115:

The courts, as a result of this inferior legal positionANIMAL CONTROL IN NEW[of municipalities], have traditionally interpretedBRUNSWICK: A SPHERE OF narrowly statutes respecting grants of powers tomunicipalities. This approach may be described asJURISDICTION?“Dillon’s rule”, which states that a municipality

(PART I) may exercise only those powers expressly con-ferred by statute, those powers necessarily or fairly

by J. Andre Daigle implied by the expressed power in the statute, andthose indispensable powers essential and [page689] not merely convenient to the effectuation ofthe purposes of the corporation.1. Introduction

The Municipalities Act2 of New Brunswick contains sectionsMunicipalities owe their existence to provincial legislation. that lend themselves well to this narrow interpretation. ForThey are often referred to as “creatures of statute” and their instance, section 11 of the Municipalities Act provides for aexistence and authority are found in the provincial statute list of by-laws which may be adopted by council.3 Other sec-that created them. Traditionally, legislative assemblies have tions of the Municipalities Act deal with specific powers thatprovided municipalities with a prescriptive laundry-list of a municipality may exercise, such as the issuance of grantspowers. In other words, they were only able to exercise spe- (section 90.01), the licensing of amusement devices (sectioncific local powers that were outlined in the enabling statute. 91), authorizing begging and soliciting (section 91.1), adopt-However, there is a recent trend by most provincial governing codes for maintenance and occupancy of buildings andments to provide broader powers to their municipal counter- premises (section 93) and establishing curfews (section 95),parts, and the courts are recognizing this legislative drafting to name a few.exercise by exercising deference where municipal govern- Along with these specific powers, municipalities may regu-ments have a clear legislative mandate. late animals within their limits. This topic alone would be of

limited interest if it were not for changes that occurred inIn a not-too-distant past, municipal powers were traditionally1994. The provincial government introduced a legislativeinterpreted by what became known as “Dillon’s Rule.” Thischange4 in order to repeal and replace the former provisionsinterpretation was articulated many times, such as in R. v.on animal control. Although there are limited reports on theGreenbaum1 at paragraphs 22 and 24:motives behind the changes,5 the government arguably pro-

Municipalities are entirely the creatures of provincial vided broad authority to municipalities wishing to deal withstatutes. Accordingly, they can exercise only those pow- animal control.ers which are explicitly conferred upon them by a pro-

The relevant provisions are outlined below:vincial statute.

96. For the purposes of this section, an animal that is[. . .]

defined by partial breed is defined by reference to theThere is also the question of how the by-law itself breed of either its dam or sire.should be interpreted when determining whether or not (1) Subject to subsection (2), the council of a munici-the by-law finds authority within a provincial statute. In pality may make by-lawsCity of Verdun v. Sun Oil Co., [1952] 1 S.C.R. 222,

(a) respecting animal control;Fauteux J. wrote for the Court that “municipalities de-

(b) respecting the keeping of animals;rive their legislative powers from the provincial Legis-(c) respecting disturbances by animals;lature and must, consequently, frame their by-laws(d) respecting the protection of persons and pro-strictly within the scope delegated to them by the Legis-perty from animals;lature” (p. 228). This is a statement of principle that a

by-law which exceeds a municipality’s jurisdiction ever (e) respecting the seizure of animals on private orso slightly will be declared ultra vires. As Stanley public property;

1[1993] 1 S.C.R. 674, 14 M.P.L.R. (2d) 1 [hereinafter Greenbaum].2R.S.N.B. 1973, c. M-22 [unless otherwise stated, hereinafter Municipalities Act].3The preamble of section 11 reads as follows:

11. (1) In addition to any other powers given by this Act, a municipality may make by-laws for the following purposes: [. . .]4Bill 94 — An Act to Amend the Municipalities Act, 3rd Session, 52nd Legislature, New Brunswick, 43 Elizabeth II, 1994.5See Journals — Legislative Assembly - Province of New Brunswick, Third Session of the 52nd Legislative Assembly, No. 31 November 30, 1994, No. 32December 1, 1994, No. 39 December 14, 1994, No. 40 December 15, 1994.


4 D.M.P.L. (2d), July 2009 4

(f) respecting the licensing of animals; paragraph (1)(b) commits an offence punishable underPart II of the Provincial Offences Procedure Act as a(g) defining fierce or dangerous animals, includingcategory B offence. [Emphasis added.]defining them by breed, cross-breed or partial

breed; It is interesting to note this new provision was adoptedaround the same time that Alberta enacted its new municipal(h) prohibiting or regulating the keeping of fiercelegislation and the Supreme Court of Canada began adoptingor dangerous animals;a deferential review of expanded municipal powers. Al-(i) providing that a judge of the Provincial Court tothough New Brunswick is quite far from having adoptedwhom a complaint has been made, alleging that asuch sweeping changes as the provinces of Alberta,6 Britishanimal has bitten or attempted to bite a person,Columbia7 or Ontario,8 the Legislative Assembly did providemay summon the owner of the animal to appearmunicipalities with broad authority in the area of animal con-and to show cause why the animal should not betrol to an extent that it could be considered a “sphere ofdestroyed and may, if from the evidence producedjurisdiction.”it appears that the animal has bitten or has at-

tempted to bite a person, make an order directing Although there is no specific definition of what constitutes a“sphere of jurisdiction”, it is generally acknowledged to be(i) that the animal be destroyed, oran area in which a municipality has broad or general catego-(ii) that the owner or keeper of the animalries of functions9 or areas where municipalities are free tokeep the animal under control; andregulate, require or prohibit.10

(iii) respecting any other matter or thing in re-lation to animals within the municipality.

(2) The Lieutenant-Governor in Council may make reg- 2. The Widening Scope — Legislative Changes andulations respecting exceptions to any of the powers to Judicial Interpretationsmake by-laws given to the council of a municipality The Greenbaum decision arguably reflects one of the lastunder subsection (1). strict interpretations of municipal authority. Up and until(3) Subject to subsection (4), notwithstanding that spe- then, the courts strictly construed municipal powers by nar-cific powers are given in paragraphs (1)(a) to (i) to the rowly interpreting the purpose and wording of the provincialcouncil of a municipality to make by-laws in relation to enabling legislation.11

animals, no person, court, tribunal or other body shall However, this strict interpretation took a historical turn inconstrue the giving of those specific powers so as to Shell Canada Products Ltd. v. Vancouver (City),12 wherelimit the general powers given in paragraph (1)(j) and Justice McLachlin’s dissenting judgment began to refocusparagraph (1)(j) shall be construed so as to give the the role of the judiciary with respect to local governments.council the broadest possible powers to make by-laws Ironically, the Greenbaum decision became the “launchpad”that the council considers advisable and necessary re- for what has become know as the “benevolent construction”specting animals within the municipality, subject to any doctrine established in Shell.exceptions that the Lieutenant-Governor in Council

In Shell, the City of Vancouver had resolved to declare themay establish under subsection (2).

City a “Shell Free” zone as a result of the firm’s business(4) If a conflict exists between any by-law made under activities outside the municipality. The City subsequentlysubsection (1) and the provisions of this Act, any other limited its business dealings with Shell. Justice McLachlinAct of the Legislature or any Act of the Parliament of stated that the motives behind the attack on the municipalCanada or any regulation or statutory instrument made resolution was not the refusal of continuing business deal-under any of those Acts, the provisions of those Acts or ings with Shell, but rather the motives and reasons for coun-of the regulation or statutory instrument, as the case cil’s choice. In discussing the proper exercise of judicial re-may be, shall prevail. view, Justice McLachlin recognized the important role(5) A person who fails to comply with the provisions of carried out by municipalities in the public interest. Distin-an order made under the provisions of a by-law under guishing the role of the courts from that of local elected offi-

6Municipal Government Act, R.S.A. 2000, c. M-26.7Community Charter, S.B.C. 2003, c. 26.8Municipal Act, 2001, S.O. 2001, c. 25.9Garcea, Joseph, “Modern Municipal Statutory Frameworks in Canada”, Vol. 1, Issue 1, May 2004, p. 18, online: Revue Gouvernance Homepage:www.revuegouvernance.ca.10Lidstone, Donald, A Comparison of New and Proposed Municipal Acts of the Provinces, presented at the Meeting of the Federation of Canadian Municipali-ties in Regina, Saskatchewan, September 23, 2002, p. 18.11Greenbaum, supra note 1 at para. 23.12[1994] S.C.J. No. 15, 1994 CarswellBC 115, 20 M.P.L.R. (2d) 1 [herinafter Shell].


5 4 D.M.P.L. (2d), July 2009

cials, she stated that the courts should only intervene where nicipal bodies as community representatives. [Emphasisthere was sufficient reason, as they were the most familiar added.]with local conditions and in the best position to determine Justice McLachlin stressed that courts “. . .should adopt awhat is in the public interest. The courts should only inter- generous, deferential standard of review toward the decisionsfere with council’s decisions if there were good and suffi- of municipalities”14 and they should only intervene when thecient reasons (Citing Kuchma13 at para. 17). municipality acted in a clearly ultra vires exercise. This “be-

nevolent construction” in interpreting municipal enablingJustice McLachlin stated that the Courts often do the oppo-legislation has since been adopted in subsequent decisions bysite. In other words, they do intervene. At paragraphs 18-19,this same court.she states that courts often intervene in local decisions inap-

propriately and that they should recognize the vital roleplayed by local governments:

(a) AlbertaThe weight of current commentary tends to be critical The province of Alberta is arguably the first province toof the narrow, pro-interventionist approach to the remove away from the prescribed list of regulatory powers byview of municipal powers, supporting instead a more establishing a comprehensive legislative framework that al-generous, deferential approach: S. M. Makuch, Cana- lows municipalities to exercise broad powers in specificdian Municipal and Planning Law (1983), at pp. 5-6; sectors.15McDonald, supra; Arrowsmith, supra, at p. 219. Such

The Municipal Government Act16 establishes that municipali-criticism is not unfounded. Rather than confining them-ties have natural person powers (section 6) and general juris-selves to rectification of clear excesses of authority,diction to pass by-laws in various matters (section 7). Sec-courts under the guise of vague doctrinal terms such astion 8 establishes specific powers to regulate or prohibit, as“irrelevant considerations”, “improper pur-well as provide for a system of licences, permits or approv-pose”,“reasonableness”, or “bad faith”, have not infre-als. Of particular interest is section 9, which outlines an in-quently arrogated to themselves a wide and sweepingtention to give broad authority in the matters given topower to substitute their views for those of the electedmunicipalities:representatives of municipalities. To the same effect,

9. The power to pass bylaws under this Division isthey have “read in” principles of statutory constructionstated in general terms tosuch as the one which states that a by-law cannot affect

(a) give broad authority to councils and to respect“common law rights” unless the statute confers author-their right to govern municipalities in whateverity to do so “in plain language or by necessary implica-way the councils consider appropriate, within thetion”; City of Prince George v. Payne, [1978] 1 S.C.R.jurisdiction given to them under this or any other458, at p. 463. The result is that, to quote McDonald (atenactment, andp. 79), “despite the court’s protestations to the con-

trary, they do, in fact, interfere with the wisdom which (b) enhance the ability of councils to respond tomunicipal councils exercise”. present and future issues in their municipalities.

In the matter of United Taxi Drivers’ Fellowship of SouthernRecent commentary suggests an emerging consensusAlberta v. Calgary (City),17 the City of Calgary adopted athat courts must respect the responsibility of electedby-law to freeze the number of license plates issued for tax-municipal bodies to serve the people who elected themies. Although the by-law was adopted in 1993, the provinceand exercise caution to avoid substituting their views ofsubsequently adopted the new legislation referenced above inwhat is best for the citizens for those of municipal coun-1994, which included a provision that the existing by-lawcils. Barring clear demonstration that a municipal deci-was deemed to have the same effect as if it had been passedsion was beyond its powers, courts should not so hold.under the new legislation.In cases where powers are not expressly conferred but

may be implied, courts must be prepared to adopt the The Supreme Court of Canada ultimately decided that the“benevolent construction” which this Court referred to City had the authority to limit the number of licenses issuedin Greenbaum, and confer the powers by reasonable im- for taxis. In rendering its decision, it recognized that theplication. Whatever rules of construction are applied, “broad and purposive approach” to interpreting municipalthey must not be used to usurp the legitimate role of mu- authority was appropriate in its judicial review exercise,18

13Kuchma v. Tache (Rural Municipality), [1945] S.C.R. 234.14Shell, supra note 12 at para. 24.15Mascarin, John, “General Grants of Municipal Power To Be Broadly Interpreted” (2004), 1 D.M.P.L. (2d), April 2004, Issue 16, p. 299.16R.S.A. 2000, c. M-26.17[2004] S.C.J. No. 19, 2004 CarswellAlta 355, 46 M.P.L.R. (3d) 1 [hereinafter United Taxi].18Ibid. para. 6.


4 D.M.P.L. (2d), July 2009 6

thus further repelling the strict canons of construction. Jus- particular interest is section 8, which indicates to the courtstice Bastarache established that this interpretive approach that municipal powers are to be interpreted broadly:23

had evolved in parallel with the modern method of drafting 8. (1) The powers of a municipality under this or anymunicipal legislation, which has since been adopted by vari- other Act shall be interpreted broadly so as to conferous provincial governments. Recognizing the contribution broad authority on the municipality to enable the mu-made by Justice McLachlin in Shell, the Supreme Court of nicipality to govern its affairs as it considers appropriateCanada stated that the “. . .shift in legislative drafting reflects and to enhance the municipality’s ability to respond tothe true nature of modern municipalities which require municipal issues.greater flexibility in fulfilling their statutory purposes” (para.

(2) In the event of ambiguity in whether or not a munic-6).

ipality has the authority under this or any other Act toIn recognizing the statute as newly drafted legislation with a pass a by-law or to take any other action, the ambiguityclear break from its past, the Court stated that the statutory shall be resolved so as to include, rather than exclude,interpretation of municipal enabling legislation must be the powers the municipality had on the day before this Actsubject of a broad and purposive review (paras. 7, 8): came into force.

Alberta’s Municipal Government Act follows the mod- Section 8 was the subject of discussion in Croplife Canada v.ern method of drafting municipal legislation. The legis- Toronto (City).24 The City of Toronto enacted a by-law thatlature’s intention to enhance the powers of its munici- regulated the use of pesticides within the City. As it did notpalities by drafting the bylaw passing provisions of the have express authority under the general by-law provisionsAct in broad and general terms is expressly stated in s. of the Municipal Act, the municipality adopted a by-law9. Accordingly, to determine whether a municipality is under section 130. Recognizing the regulation of pesticidesauthorized to exercise a certain power, such as limiting as an important municipal issue, the City acted under thisthe issuance of taxi plate licences, the provisions of the general welfare provision, which read as follows:Act must be construed in a broad and purposive

130. A municipality may regulate matters not specifi-manner.

cally provided for by this Act or any other Act for pur-A broad and purposive approach to the interpretation of poses related to the health, safety and well-being of themunicipal legislation is also consistent with this Court’s inhabitants of the municipalityapproach to statutory interpretation generally. The con- Using the broad and purposive approach, the trial judge in-textual approach requires “the words of an Act . . . to be terpreted section 130 as giving municipalities the authority toread in their entire context and in their grammatical and act in what it considered issues of local importance, evenordinary sense harmoniously with the scheme of the though it was found in Part III of the Municipal Act. TheAct, the object of the Act, and the intention of Parlia- appellants argued that by doing so, the trial judge had erredment”: [. . .] This approach is also consistent with s. 10 as he elevated the general welfare provision to the status of aof Alberta’s Interpretation Act, R.S.A. 2000, c. I-8, sphere of jurisdiction, which was detailed in Part II.which provides that every provincial enactment must be

The Court of Appeal rejected the appellant’s submission.given a fair, large and liberal construction and interpre-

They referred to the then section 9, which read as follows:tation that best ensures the attainment of its objects.

9. (1) Sections 8 and 11 shall be interpreted broadly soWith regard to section 9 of the Municipal Government Act,19as to confer broad authority on municipalities,the Court also stated that the legislature did not intend to

(a) to enable them to govern their affairs as theylimit municipal powers, but rather sought to enhance the saidconsider appropriate; andpowers.20 If the legislators wish to depart from the previous(b) to enhance their ability to respond to municipallegislation, they must to do so in express terms.21

issues.Even though section 9 was in Part II of the Act, the appellate

(b) Ontario court established that there was no language in section 9 thatThe Municipal Act, 2001,22 confers broad powers, or spheres the broad interpretation was to be limited in any way to Partof jurisdiction, upon municipalities in sections 10 and 11. Of II. Rather, it stated that section 9 was to be utilized when

19Supra note 16.20Supra note 17 at para. 11.21Ibid.22Supra note 8.23Note: section 8 has since been replaced with section 9 as a result of recent amendments to the Municipal Act, 2001, ibid.24[2005] O.J. No. 1896, 2005 CarswellOnt 1877, 10 M.P.L.R. (4th) 1 (C.A.), leave to appeal dismissed at [2005] S.C.C.A. No. 329, 2005 CarswellOnt 6587[hereinafter Croplife]; see also Rust-D’Eye, George & Bar-Moshe, Ophir, The Ontario Municipal Act: A User’s Manual 2007 (Thomson Carswell, Toronto,2007) p. 21.


7 4 D.M.P.L. (2d), July 2009

interpreting other parts of the legislation. Referring to United As it did so in Croplife,29 the Court also construed the muni-Taxi,25 the Court stated the following: cipal powers in light of section 8 of the Interpretation Act,30

which reads as follows:In light of the development of the jurisprudence in thisarea over the last twelve years and the clear adoption by 8. Every enactment must be construed as being reme-the Supreme Court of a generous approach that accords dial, and must be given such fair, large and liberal con-deference to municipal governments, it would take clear struction and interpretation as best ensures the attain-legislative language to return to Dillon’s Rule when in- ment of its objects.terpreting those parts of the new Act not contained in If the municipality is determined to have acted within its ju-Part II: see United Taxi, supra at para. 11. risdiction, the Court establishes a second stage, which re-

It is interesting to note that, although the general welfare pro- quires us to examine the decision itself. The standard of re-vision of the statute was not located anywhere near the spe- view at this stage is that of patent unreasonableness.cific spheres of jurisdiction, it was interpreted as providing Adopting the principles established by Justice McLachlin inthe City with another source of authority for powers not spe- Shell, the Court recognized that the judiciary should not becifically addressed elsewhere in the statute. It should also be too eager to substitute its views for that of the local electo-noted that section 130 has since been repealed and replaced rate. Rather, the courts should also apply a “benevolent con-with similar provisions found in subsections 10(2)(6) and struction” in examining the decision made by local councils11(2)(6) of the same legislation. with the end result not having the effect of usurping the role

of municipal bodies as community representatives.31

In reviewing the City’s decision to identify a pile of dirt as(c) British Columbiabeing a nuisance, the Court concluded that the municipality’sIn Nanaimo (City) v. Rascal Trucking Ltd.,26 the City hadaction was intra vires. It also concluded that it was in the bestadopted a resolution declaring a pile of dirt a nuisance. Usinginterest of the municipality to act as it did since it was re-the broad and purposive approach, the Supreme Court ofsponding to an issue of local concern (i.e. the pile of dirt hadCanada established a two-stage analysis in determining mu-affected the neighbourhood because of the dust and councilnicipal powers.exercised its powers to suppress what had become aAt the first stage, courts must first establish whether the mu-nuisance).nicipality acted within its jurisdiction. The first stage re-This brief review of Rizzo in Nanaimo requires further analy-quires that the standard of review be that of correctness. Thesis. For instance, the central issue in Rizzo was a question ofCourt reasoned that municipalities do not posses any greaterstatutory construction. Rizzo establishes the principle thatcompetence and expertise than the courts which would other-statutory interpretation requires the courts to pay particularwise warrant deference.27 It also outlined that the exercise ofattention to the scheme of the legislation and the legislature’sdetermining whether the municipality acted within its juris-object or intention, as well as the context of the words used32diction is to be analysed with a broad and purposive con-in order to determine the ultimate purpose of the legislation.struction. Referring to both Greenbaum and Rizzo & RizzoThe Court stated the following at paragraphs 21-22:Shoes Ltd. (Re),28 the Court stated the following at paragraph

20: Although much has been written about the interpreta-This conclusion follows recent authorities dictating that tion of legislation (see, e.g., Ruth Sullivan, Statutory In-statutes be construed purposively in their entire context terpretation (1997); Ruth Sullivan, Driedger on theand in light of the scheme of the Act as a whole with a Construction of Statutes (3rd ed. 1994) (hereinafterview to ascertaining the legislature’s true intent. See “Construction of Statutes”); Pierre-Andre Cote, The In-Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at terpretation of Legislation in Canada (2nd ed. 1991)),paras. 21-23, M & D Farm Ltd. v. Manitoba Agricul- Elmer Driedger in Construction of Statutes (2nd ed.tural Credit Corp., [1999] 2 S.C.R. 961, at para. 25, and 1983) best encapsulates the approach upon which I pre-the B.C. Interpretation Act, s. 8. fer to rely. He recognizes that statutory interpretation

25Supra note 17.26[2000] 1 S.C.R. 342, 9 M.P.L.R. (3d) 1 [hereinafter Nanaimo].27Ibid. para. 29.28[1998] 1 S.C.R 27 [hereinafter Rizzo].29Supra note 24.30R.S.B.C. 1996, c. 238.31Supra note 26, at para. 36.32Supra note 28, at para. 23.


4 D.M.P.L. (2d), July 2009 8

cannot be founded on the wording of the legislation sider in order to properly determine the legislator’s intentalone. At p. 87 he states: (para. 17):

[. . .] The context of legislation involves a number ofToday there is only one principle or approach,factors. The overall context in which a provision wasnamely, the words of an Act are to be read in theiradopted can be determined by reviewing its legislativeentire context and in their grammatical and ordi-history and inquiring into its purpose. The immediatenary sense harmoniously with the scheme of thecontext of art. 9(1) can be determined by analysing theAct, the object of the Act, and the intention ofBy-law itself. This review will enable us to determineParliament.[. . .]whether the City has the power to adopt the impugned

I also rely upon s. 10 of the Interpretation Act, R.S.O. provision. We will accordingly address each of these1980, c. 219, which provides that every Act “shall be contextual indicia: history, purpose and the By-lawdeemed to be remedial” and directs that every Act shall itself.“receive such fair, large and liberal construction and Prior to conducting our analysis, we will briefly consider re-interpretation as will best ensure the attainment of the cent interpretations rendered in the province of Quebec.object of the Act according to its true intent, meaningand spirit”. [Emphasis added.]

(d) QuebecThe Court also recognized that the legislative history of a The Province of Quebec included a general welfare provi-statutory provision could provide a possible intention of the sion for its cities and towns in the Cites et villes, Loi sur les34

parliament or legislative assembly’s intention, as well as a which was interpreted in 114957 Canada Ltee (Spray-Tech,review of Hansard (paras. 31, 35): Societe d’arrosage) v. Hudson (Ville).35 Although it has

since been incorporated into new municipal legislation, it did[. . .] in my opinion, the use of legislative history as aallow the Supreme Court of Canada to interpret once again atool for determining the intention of the legislature is angeneral welfare provision in light of this new wave of muni-entirely appropriate exercise and one which has oftencipal statutory construction. The section in question reads asbeen employed by this Court. [. . .]follows:

Although the frailties of Hansard evidence are many,410. The council may make by-laws:this Court has recognized that it can play a limited role(1) To secure peace, order, good government, healthin the interpretation of legislation. Writing for the Courtand general welfare in the territory of the municipality,in R. v. Morgentaler, [1993] 3 S.C.R. 463, at p. 484,provided such by-laws are not contrary to the laws ofSopinka J. stated:Canada, or of Quebec, nor inconsistent with any special

. . .until recently the courts have balked at admit- provision of this Act or of the charter;ting evidence of legislative debates and speeches. The Court stated there were various provincial statutes with. . . The main criticism of such evidence has been such specific language and these provisions allowed munici-that it cannot represent the “intent” of the legisla- palities flexibility to meet new local challenges (para. 19):ture, an incorporeal body, but that is equally true of Section 410 C.T.A. is an example of such a general wel-other forms of legislative history. Provided that the fare provision and supplements the specific grants ofcourt remains mindful of the limited reliability and power in s. 412. More open-ended or “omnibus” provi-weight of Hansard evidence, it should be admitted sions such as s. 410 allow municipalities to respond ex-as relevant to both the background and the purpose peditiously to new challenges facing local communities,of legislation. without requiring amendment of the provincial enabling

legislation. [. . .]36The Supreme Court of Canada also applied Montreal (Ville)v. 2952-1366 Quebec inc.33 Referring to the context of its While balancing the interest of judicial review and recogniz-enabling legislation, the Court stated that the legislative his- ing a legitimate local exercise, the Court stated that constru-tory and purpose of the by-law were relevant factors to con- ing municipal powers must have regard for statutory lan-

33[2005] S.C.J. No. 63, 2005 CarswellQue 9633, 15 M.P.L.R. (4th) 1.34L.R.Q., c. C-19.35[2001] S.C.J. No. 42, 2001 CarswellQue 1268, 19 M.P.L.R. (3d) 1.36We direct the reader’s attention to a reference made to the New Brunswick Municipalities Act. It is unclear why subs. 190(2) is referenced as this provision iscurrently non-existent and generally found in the section dealing with unsightly premises. However, the First Schedule refers to giving local governments broadpowers with respect to service delivery. The First Schedule must be read along with the enabling provision, which read as follows:

7(1) A municipality may provide any of the services contained in the First Schedule.

[. . .]


9 4 D.M.P.L. (2d), July 2009

guage that outlines a broad grant of authority. At paragraphs sary to the exercise of those powers that [authorization26-27, the Court stated: has] to be found in the enabling provisions, by neces-

sary inference or implicit delegation”; Arcade Amuse-In Shell, supra, at pp. 276-77, Sopinka J. for the major-

ments, supra, at p. 414, quoted in Greenbaum, supra, atity quoted the following with approval from Rogers,

p. 695. [Emphasis added.]supra, s. 64.1:

The above context and evolution of new interpretations pro-In approaching a problem of construing a munici-vided by the courts serve as the proper context for the analy-pal enactment a court should endeavour firstly tosis of New Brunswick’s municipal sphere of authority withinterpret it so that the powers sought to be exer-respect to animal control.cised are in consonance with the purposes of the

corporation. The provision at hand should be con-strued with reference to the object of the munici-pality: to render services to a group of persons in alocality with a view to advancing their health, wel-fare, safety and good government.

J. Andre Daigle, LL.M. is the Solicitor for the City of Di-In that case, Sopinka J. enunciated the test of whether eppe, New Brunswick. He is the current Chair of the Munici-the municipal enactment was “passed for a municipal pal Law Section of the CBA-NB. This paper was originallypurpose”. Provisions such as s. 410(1) C.T.A., while researched for The Widening Scope of Municipal Jurisdic-benefiting from the generosity of interpretation dis- tion course of the Osgoode Hall Law School LL.M. Munici-cussed in Nanaimo, supra, must have a reasonable con- pal Law Program. The current publication follows the gener-nection to the municipality’s permissible objectives. As ous advice and assistance of the course instructor, Georgestated in Greenbaum, supra, at p. 689: “municipal by- Rust-D’Eye of WeirFoulds LLP in Toronto.laws are to be read to fit within the parameters of theempowering provincial statute where the by-laws aresusceptible to more than one interpretation. However,courts must be vigilant in ensuring that municipalitiesdo not impinge upon the civil or common law rights of

Editor’s Note: The research for this article was undertakencitizens in passing ultra vires by-laws.”prior to the Supreme Court of Canada’s judgment in New

Dillon’s Rule established that municipalities could only exer- Brunswick (Board of Management) v. Dunsmuir, 2008 Car-cise powers conferred by statute, those necessarily or fairly swellNB 124, 2008 SCC 9, J.E. 2008-547, D.T.E. 2008T-implied by the said power or those deemed indispensable and 223, 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm.not only convenient. After having determined that the power L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 1, 170 L.A.C.to regulate pesticide use was a proper municipal exercise, the (4th) 1, 291 D.L.R. (4th) 577, 164 A.C.W.S. (3d) 727, 329court further stated that restricting business activities was a N.B.R. (2d) 1, [2008] 1 S.C.R. 190, 844 A.P.R. 1, 95 L.C.R.necessary effect of exercising these powers (para. 29): 65, which simplified and collapsed the three standards of re-

view into two standards. None of the decisions cited in thisWithout drawing distinctions, By-law 270 could notarticle applied the “reasonableness simpliciter” standard ofachieve its permissible goal of aiming to improve thereview. Accordingly, the references to the standards of re-health of the Town’s inhabitants by banning non-essen-view contained in this article can conform to New Brunswicktial pesticide use. If all pesticide uses and users were(Board of Management) v. Dunsmuir by utilization of thetreated alike, the protection of health and welfare wouldnew “correctness” and “reasonableness” standards.be sub-optimal. For example, withdrawing the special

status given to farmers under the by-law’s s. 4 wouldwork at cross-purposes with its salubrious intent. Sec-tion 4 thus justifiably furthers the objective of By-law270. Having held that the Town can regulate the use of

Part II of this article will appear in Issue 8 (August 2009),pesticides, I conclude that the distinctions impugned bywhere the author considers the history and context as well asthe appellants for restricting their businesses are neces-the interpretation of the enabling legislation, as well as itssary incidents to the power delegated by the provincepurpose.under s. 410(1) C.T.A. They are “so absolutely neces-

First Schedule

ServicesAny service deemed by the council to be expedient for the peace, order and good government of the municipality and for promoting the health, safety andwelfare of the inhabitants of the municipality including, without restricting the generality of the foregoing, the following: [. . .]


4 D.M.P.L. (2d), July 2009 10

CIVIL PRACTICE AND PROCEDURE due to mold associated with grow-ops — City revoked occu-pancy permit for property and posted notice that grow-op

203. Limitation of actions — Actions involving municipalhad been found — Tenant moved out, plaintiff made repairs

corporations — Notice of claim — General princi-to remedy all complaints but potability hazard, and city

ples –––– Section 314 of Urban Municipality Act, 1984, lim-maintained revocation of permit — Plaintiff commenced ac-

iting damages to period within one year of service of state-tion against city — Plaintiff applied for stay of revocation of

ment of claim, should not be confined to action for damagesoccupancy permit and for permission to remove notice

when only one part of section deals with such actions.posted — Application granted — By-law authorizing entry

Green v. Swift Current (City) (2009), 2009 SKQB 110, into private dwelling without judicial authorization presented2009 CarswellSask 198, P.A. Whitmore J. (Sask. Q.B.). serious question to be tried — Exercise of such power cre-

ated significant risk of breaching rights under CanadianCharter of Rights and Freedoms, which might itself consti-tute irreparable harm — Serious harm was done to plaintiff’sESTOPPELreputation, causing loss of income and potential future loss

204. Estoppel in pais — Particular classes — Availability from difficulty finding tenants — Evidence only of “exces-against municipal corporation –––– Property owners used sive” hydro use from one year ago was slim to justify intru-property for commercial purposes, including outside storage sion for inspection, which found little evidence of use asof vehicles, machinery and equipment — Town passed zon- grow-op — Plaintiff had explained all “indicia” found — In-ing by-law prohibiting outdoor storage in property’s loca- spector was not qualified to express opinions on plumbing,tion — Town charged owners with non-conforming use, but and no evidence of mold was put forward despite vigorousdropped charges — In 2007, town issued order requiring inspection — City failed to demonstrate on balance ofowners to erect screening around outdoor storage area and probabilities that there was grow-op on property — Balancepave parking and loading areas — Owners complied with or- of convenience lay with plaintiff, and allowing him to re-der — Owners negotiated sale of property but purchaser remove city’s notice and resume occupation was appropriate.quired town consent to continued use of property — Town

Monaco v. Coquitlam (City) (2009), 2009 BCSC 141, 2009refused consent — Owners applied for declaration as to law-CarswellBC 1135, [2009] B.C.J. No. 205, Warren J. (B.C.fulness of continued use of property for commercial pur-S.C. [In Chambers]).poses — Application granted — Owners established non-

conforming use of property for outside storage of machinery, 206. By-laws — Enforcement — Practice and proce-equipment and vehicles, preceding relevant by-law — With- dure — Miscellaneous –––– Defendants were convicted,drawal of charges laid in 2005 did not give rise to legal es- pursuant to by-laws, with failing to licence and register 29toppel precluding assertion of illegal non-conforming use — dogs, keeping more than three dogs on lot with detached sin-Owners reasonably interpreted town’s 2007 order to pave gle family dwelling, operating kennel without licence, andand fence outdoor storage area as representation that it would selling dogs and/or cats on land in rural zone — Defendantsacquiesce in non-conforming use so long as changes were appealed — Appeal allowed; convictions set aside — Delaymade — Doctrine of estoppel did not override zoning that resulting from two-month adjournment of trial date was ex-was in place, but was defence to position that non-con- pressly waived by defendants; two-month intake period fur-forming use was now unlawful — While estoppel was not ther reduced total institutional delay; if defendants’ requestgenerally applied to municipal corporation, rule was not ab- for second pre-trial was attributed to them, institutional delaysolute — Owners complied with lawful order of town to was 9.5 months — Justice of peace rightly focused on actualtheir financial detriment in good faith and in reliance on prejudice, and reasonably concluded that s. 11(b) of Cana-town’s implied representation that this would constitute com- dian Charter of Rights and Freedoms was not infringed —pliance with by-law. However, Charter proceedings concerning unreasonableForbes v. Caledon (Town) (2009), 2009 CarswellOnt 1192, search or seizure under s. 8 and trial proceedings were unfairPrice J. (Ont. S.C.J.). to defendants — Procedure adopted was confusing, although

defendants’ counsel contributed to that confusion — Justiceof peace reserved judgment on motion based on submissions,subsequently allowed evidence to be adduced about motion

MUNICIPAL LAWat trial proper, ruled that prosecution evidence should be ex-

205. By-laws — Enforcement — Practice and proce- cluded, and then convicted defendants based on defence evi-dure — Miscellaneous –––– Under by-law on residential dence — Prosecution did not adduce evidence that defend-risks from marijuana grow-ops, city sent inspector to plain- ants did not have licences for their dogs or to operatetiff’s rental property due to notice of high energy consump- kennel — Apart from defence testimony, and notwithstand-tion — Inspector found what he concluded were indicia of ing Charter motion, municipality failed to prove first threegrow-op, including plumbing described as potability hazard counts — In these circumstances, and having regard to con-


11 4 D.M.P.L. (2d), July 2009

fusing procedure adopted, it was unfair to convict defendants ment — On November 20, 2007, city commenced actionon defence testimony — There was nothing to support con- against electors for $395,000 in damages — On February 19,viction on fourth count — Fact that defendants registered 2008, judge allowed appeal of council’s decision and orderedbusiness for breeding and sale of dogs and cats did not mean city to appoint auditor to conduct compliance audit ofthat such animals were sold or offered for sale. mayor — Electors applied for declaration that mayor acted in

conflict of interest contrary to s. 5(1) and (2) of MunicipalUxbridge (Township) v. Armstrong (2009), 2009 Cars-Conflict of Interest Act — Application dismissed — MayorwellOnt 1635, 2009 ONCJ 125, De Filippis J. (Ont. C.J.).did not violate s. 5 of Act when she participated in closed

207. Council members — Conflict of interest — Miscella- meeting on November 12, 2007 and thereafter participated inneous –––– Trustee of school board had daughter who was ratification of decision to sue electors for breach of settle-teacher employed by board and son who had been approved ment — Mayor did not have any personal interest, pecuniaryto be on list of supply teachers — Trustee participated in or otherwise, in action taken by city against electors —meeting held to discuss and approve budget recommenda- Mayor was not party to action and she did not achieve anytions to reduce board’s deficit, although teacher layoffs was benefit from city commencing action against them — Therepotential outcome — Trustee subsequently wrote emails to was no evidence that subject matter in closed session meet-other trustees concerning long term supply contracts and pro- ing was connected to appeal regarding compliance audit —gram cuts — Trustee moved for provision of insurance for Mere presence at closed meeting does not raise issue of con-trustees that were subject of conflict of interest allegations — flict pursuant to Act — Council’s vote to commence litiga-Elector brought application for declaration that trustee acted tion against electors was in open session, and mayor did notin conflict of interest contrary to s. 5 of Municipal Conflict discuss issue nor did she vote — Allegation that mayor’sof Interest Act, and for order that trustee’s seat on board be purpose in discussing or voting on matter of commencing lit-vacated and that he be disqualified from office — Declara- igation against electors was to discourage elector from pur-tion issued that trustee breached s. 5 of Act and that his seat suing appeal was of no consequence, as appeal would havewas vacant; trustee not disqualified for any particular period been continued by co-appellant QM — In any event, defenceof time — Trustee committed number of acts of conflict of of inadvertence pursuant to s. 10(2) of Act was available tointerest — Issues regarding conflicts of interest arose prior to mayor.budget meeting, and significant steps were taken by board to

Ruffolo v. Jackson (2009), 2009 CarswellOnt 1961, Kelly J.address those issues — Two legal opinions were provided to(Ont. S.C.J.).all trustees prior to meeting and information session was

held; what would constitute conflict of interest was made209. Development control — Development agreementsclear — Neither of statutory defences of inadvertence or er-and conditions — Conditions — Miscellaneous –––– Waterror of judgment outlined in s. 10(2) of Act were available tosupply — Defendant T Ltd. was developer of subdivisionstrustee — Trustee’s actions could not be excused as theywithin municipalities including plaintiff municipality (mu-could not be viewed as reasonable when judged against ob-nicipality) — Shareholder of defendant was also sole officerjective standard of reasonable person — Trustee’s awarenessand director of defendant water supplier, L Ltd., which pur-that he was in conflict of interest precluded defence of inad-chased treated water from provincial Crown corporationvertence — Trustee considered advice provided to him onwhich obtained water from nearby city — Municipalitynumerous occasions and simply chose to disregard it — Asmade agreement with T Ltd. and another developer grantingsuch, defence of error in judgment was not available.other developer right to construct water pipeline to particular

Baillargeon v. Carroll (2009), 2009 CarswellOnt 633, Kellysubdivision, MR — Following year, municipality agreed to

J. (Ont. S.C.J.); additional reasons at (2009), 2009 Carswell-extend agreement to phase II of RM — Municipality rezoned

Ont 1939, J.E. Kelly J. (Ont. S.C.J.).land one mile from MR development, creating new BE sub-division on other side of highway — BE developers, who208. Council members — Conflict of interest — Miscella-were required as condition of subdivision, to provide waterneous –––– Electors entered into minutes of settlement re-supply, made agreement with L Ltd. to supply pipeline andgarding wrongful dismissal action against city on June 22,water to BE — L Ltd. began building pipeline from MR site2006 — On May 14, 2007, elector and QM applied to cityto BE site — Meanwhile, municipality passed zoning bylawclerk requesting compliance audit regarding mayor’s cam-requiring builders of pipelines in municipality to have devel-paign finances — On May 22, 2007, council deferred consid-opment permit, and created public water utility (utility)eration of application to future date, but mayor did not par-which required as many customers as possible to carry outticipate in debate or decision — On June 4, 2007, elector andmandate — Municipality brought application for interlocu-QM commenced appeal of council’s decision, and mayortory injunction to restrain defendants from continuing to con-was granted standing as intervenor — On November 12,struct pipeline and to remove pipeline already built — Appli-2007, at closed meeting at which mayor was present, councilcation granted in part — Balance of convenience was bestdiscussed litigation involving electors — As result of meet-served by granting interlocutory relief to extent of restraininging, council voted that city bring action against electors fordefendants from continuing with construction of water pipe-conduct allegedly in contravention of settlement agree-


4 D.M.P.L. (2d), July 2009 12

lines on subject lands, but order not extending to requirement cision — Leave to appeal granted — Composition of SDABthat defendants remove any water pipeline or part thereof al- panel that made re-hearing decision could possibly give riseready built — Municipality had serious question to be to reasonable apprehension of bias — Questions related totried — Application was neither vexatious nor frivolous — If evidence admission and merits of SDAB decision did notinterlocutory injunction was not granted, municipality would meet criteria for grant of leave.suffer irreparable harm by reason of its inability to govern Beier v. Vermilion River (County) Subdivision &effectively within limits of its territorial jurisdiction, and Development Appeal Board (2009), 55 M.P.L.R. (4th) 181,monetary value of interference with municipality’s rights 2009 CarswellAlta 551, 2009 ABCA 151, J. Watson J.A.would be impossible to assess — To avoid unduly delaying (Alta. C.A.).defendants, injunction was to be in effect for six months untilMay 31, 2009. 212. Licensing and regulation — Miscellaneous –––– Ap-

plicants appealed clean-up order issued by city and appealAberdeen (Rural Municipality) No. 373 v. Metanczukwas dismissed, and then they appealed to court of appeal —(2008), 2008 CarswellSask 837, 2008 SKQB 487, J.D. KochAppeal was struck for failure to file appeal books and appli-J. (Sask. Q.B.).cation to restore appeal to list was dismissed — Applicants

210. Development control — Development approval — brought application for leave to appeal decision refusing toPractice and procedure — Development appeal restore appeal — Application dismissed — Applicants failedboard –––– Niagara Escarpment Commission (NEC) condi- to raise errors of law, discretion or misapprehension oftionally approved application by ski club to demolish eight facts — Appeal had no reasonable chance of success, did noton-slope residential units and restore sites for use as part of involve serious question of general importance, and wasgladed ski trail — Estate of owner of one of units appealed without merit.decision — Ski club brought motion to dismiss appeal as

Leung v. Edmonton (City) (2009), 2009 CarswellAlta 549,frivolous, vexatious or without merit under s. 25(8.1)(a) of2009 ABCA 149, E. Picard J.A. (Alta. C.A.).Niagara Escarpment Planning and Development Act — Mo-

tion dismissed — Ski club alleged that estate was attempting 213. Local and other public improvements — Local im-to use development permit process to address landlord-tenant provement by-laws — Attacking by-law — Grounds —issues that were beyond scope of Act — Legitimate ques- Ultra vires –––– City enacted by-law setting parameters oftions as to whether proposal accords with Niagara Escarp- proposed parcel tax roll to finance building of reservoir —ment Plan (NEP) were best left to full hearing of merits — About 80 percent of property owners within proposed localDevelopment of gladed ski trails would involve removal of service area voted in favour of project — Petitioners, whosetrees on escarpment slope, matter that concerned both objec- property was also in area, opposed method of cost recoverytives and development criteria of NEP and purpose of Act — for project — Petitioners unsuccessfully petitioned to setIt could not be said with certainty that tree removal should be aside by-law as being ultra vires because it did not conformaddressed solely at implementation stage — Appeal as it re- to requirements of Community Charter, and as discrimina-lated to tree removal had merit — Appeal as it related to tory and unfair — Chambers judge found that cost recoverygrading had merit, since estate should be given opportunity formula adopted in by-law was not contrary to provisions ofto present evidence to show that grading and drainage issues Community Charter and that city’s decision was not patentlymight result in environmental harm — Project viewed as unreasonable — Appeal by petitioners dismissed — It waswhole raised valid substantive issues under NEP — Based on permissible under relevant legislation for city to adopt localmaterials filed, ski club had not shown that appeal was vexa- area service by-law that imposed owner’s share of costs oftious — Discretion not exercised to refuse to hold hearing local area service based on taxable area and maximum devel-under s. 25(8.1)(a) of Act because ski club had not shown opment potential — Chambers judge correctly concludedthat appeal did not disclose planning justification, was not in that “zoning considerations” do not render by-law invalid sopublic interest, was without merit, or was frivolous or long as taxable area is based on physical characteristics ofvexatious. parcel — Combination of permitted zoning density and ac-Wahl Estate v. Niagara Escarpment Commission (2009), tual physical area in gross hectares of parcel resulted in taxa-2009 CarswellOnt 1929, J.V. DeMarco H.O. (N.E.H.O.). ble area based on physical characteristics of property, as re-

quired by legislative scheme — Future alterations in zoning211. Development control — Development permits — Ju-could be addressed to ensure equitable treatment of indivi-dicial review — Development appeal board –––– B unsuc-dual taxpayers — City’s decision to exclude certain parcelscessfully applied for development permit to expand his busi-from being subject to by-law was exercise of municipal dis-ness — B appealed to Subdivision and Appeal Board —cretion and should not be interfered with — Ultimate effectsFirst panel dismissed appeal in April 2009 — April decisionof by-law are proper considerations for municipal councilwas quashed and sent for re-hearing in January — Januaryconcerned with policy issues.panel also dismissed appeal — Make-up of January panel

had composition that was similar to April’s panel — B O’Flanagan v. Rossland (City) (2009), 56 M.P.L.R. (4th) 1,brought application for leave to appeal SDAB’s January de- 2009 CarswellBC 1084, 2009 BCCA 182, Frankel J.A., Hall


13 4 D.M.P.L. (2d), July 2009

J.A., Smith J.A. (B.C. C.A.); affirming (2007), 2007 Car- relevant submissions in coming to decision — ApplicantsswellBC 1638, 2007 BCSC 1063, 36 M.P.L.R. (4th) 100, F. were not treated unfairly — Town decided to allow publicMaczko J. (B.C. S.C.). submissions on decision arising out of contractual right, and

in doing so it provided fair process — Applicants had full214. Municipal council — Judicial review — Availabil- opportunity to make submissions, and to respond to submis-ity –––– Town divided open space property into parcels and sions made — Applicants’ submissions were considered byconveyed them to 13 abutting landowners, including former town in reaching its decision — Email from councillor didowners of lands of applicants — Each parcel was subject to not show that town vote was pre-determined — Applicantseasement in favour of town prohibiting building of fence attended general committee meeting but chose not to makewithout permission of town — Applicants, who were subse- oral submissions on email or on any other issue.quent purchasers, sought permission from town to build

Linlis Development Inc. v. Aurora (Town) (2009), 2009fence around their property that was subject to easement —CarswellOnt 1689, J. Wilson J., Jennings J., Karakatsanis J.Other landowners objected to applicants’ request — Town(Ont. Div. Ct.).council refused request to build fence, after process that in-

cluded consideration of representations from 13 landowners 216. Municipal council — Judicial review — Miscellane-subject to easement, including applicants, submissions from ous –––– Town divided open space property into parcels andbuilding department, and legal counsel — Applicants conveyed them to 13 abutting landowners, including formerbrought application for judicial review — Application dis- owners of lands of applicants — Each parcel was subject tomissed on other grounds — Argument that decision of town easement in favour of town prohibiting building of fencewas unauthorized planning decision and therefore was ultra without permission of town — Applicants, who were subse-vires was not accepted — Decision of town to refuse to grant quent purchasers, sought permission from town to buildpermission to build fences was not statutory power of deci- fence around their property that was subject to easement —sion within meaning of Judicial Review Procedure Act Other landowners objected to applicants’ request — Town(JRPA) — Town made discretionary decision after consider- council refused request to build fence, after process that in-ing relevant submissions with respect to its contractual pro- cluded consideration of representations from 13 landownersperty rights as defined by terms of easement — There was no subject to easement, including applicants, submissions fromright to review decision of town pursuant to JRPA — Public building department, and legal counsel — Applicantsnature of hearing conducted by town, informed by s. 2 of brought application for judicial review — Application dis-Municipal Act, 2001, made decision of town exercising its missed — Letter written by town solicitor prior to transfer ofproperty rights reviewable as part of machinery of govern- property, which was non-binding proposal to begin discus-ment decision making which affected rights and interests and sions with landowners, was not relevant to inquiry as tosubject to general duty to act fairly — If there was breach of scope and meaning of easement — It was terms of easement,those duties, remedies of prohibition and certiorari could be not letter, that bound parties — Easement confirmed in veryavailable to applicants. broad terms rights related to any possible municipal service,

including storm or other water management — EasementLinlis Development Inc. v. Aurora (Town) (2009), 2009specifically contemplated continued use of property as openCarswellOnt 1689, J. Wilson J., Jennings J., Karakatsanis J.space, and did not permit buildings, structures or fences —(Ont. Div. Ct.).As asserted by town, terms of easement were not comparable

215. Municipal council — Judicial review — Grounds — to easement granted pursuant to s. 47 of Planning Act —Procedural fairness –––– Town divided open space property Terms of easement were clear, and far more broad than ease-into parcels and conveyed them to 13 abutting landowners, ment granted for storm water management purposes pursuantincluding former owners of lands of applicants — Each par- to Act.cel was subject to easement in favour of town prohibiting

Linlis Development Inc. v. Aurora (Town) (2009), 2009building of fence without permission of town — Applicants,

CarswellOnt 1689, J. Wilson J., Jennings J., Karakatsanis J.who were subsequent purchasers, sought permission from

(Ont. Div. Ct.).town to build fence around their property that was subject toeasement — Other landowners objected to applicants’ re- 217. Municipal council — Meetings of council — Typesquest — Town council refused request to build fence, after of meetings — In-camera or closed –––– Director wasprocess that included consideration of representations from elected member of Cariboo Regional District Board of Di-13 landowners subject to easement, including applicants, rectors (“CRD”) — On October 10 (all dates 2008), CRDsubmissions from building department, and legal counsel — held open meeting which was then closed to public via reso-Applicants brought application for judicial review — Appli- lution pursuant to s. 90(1)(d) of Community Charter —cation dismissed — Given clear terms and broad scope of While agenda published on October 3 stated there were vari-terms of easement, it was open to town to consider concerns ous items for discussion in camera, director’s conduct wasof all 13 landowners affected by easement — Town did not not listed — At in-camera session, report of chief adminis-improperly consider extraneous, irrelevant, collateral factors trative officer (“CAO”) dated September 20, and updatedoutside scope of easement — Town appropriately considered October 8, was circulated to address director’s “behaviour


4 D.M.P.L. (2d), July 2009 14

and its negative effect on CRD staff” — CRD passed resolu- it specifically authorized city to determine amount of efflu-ent to be applied to its own lands — City did not breach irri-tion, reviewable in one year, restricting director’s ability togation agreement by failing to provide sufficient volumesinteract with staff except via email or written correspondenceand pressures of effluent, thereby causing plaintiffs loss —addressed to CAO — All copies of report were collected andCooperation between all parties was critical to operation ofdirector’s motion to retain copy was ruled out of order andirrigation system — While regulator provided by city mal-not recorded in minutes — Director’s attempts at later meet-functioned, causing interruption in supply of effluent toings to highlight alleged procedural errors or obtain copies ofplaintiffs, agreement stated that city was not liable for failurereport or minutes of in-camera meetings in order to provideto provide continuous supply “for whatever reason” — Citythem to legal counsel, were rejected — At further in-camerawas justified in terminating irrigation and lease agreementsmeetings on December 11 and 12, after new board wasbased on breach of implied term that parties would cooperatesworn in, resolutions were passed re-affirming impugnedwith each other in good faith for benefit of all users of irriga-resolution — While resolution was passed authorizing re-tion system.lease of report to director under strict undertakings, director

did not agree to undertakings and he had not seen report Green v. Swift Current (City) (2009), 2009 SKQB 110,since original meeting — Director brought petition for order 2009 CarswellSask 198, P.A. Whitmore J. (Sask. Q.B.).setting aside resolution and for disclosure of report — Peti-

219. Municipal liability — Negligence — Flooding fromtion granted — Director attended meeting with no prior no-sewage system –––– Property owners’ sewage system con-tice and no information about his alleged misconduct — Di-sisted of septic tank connected to municipal sewer system —rector was never given opportunity to consult counsel orSolid waste accumulated in one compartment of tank whilestudy and respond to vague allegations — CRD’s duty ofliquid waste overflowed into second compartment — Solidprocedural fairness was not observed in October 10 meeting,waste had to be pumped out manually — Liquid waste wasnor cured in meetings that followed — While board such asautomatically pumped out to municipal sewer system byCRD is entitled to govern its own internal procedure by reg-pump in owners’ home — Valve on pump normally permit-ulating conduct of its members, such procedure must accordted flow of liquid in only one direction — Owners noticedwith principles of natural justice — Process employed byodour of raw sewage and discovered liquid in their base-CRD in attempt to discipline one of its members did not ac-ment — Pump had stopped working and had to be re-cord with such principles — It remained unknown whetherplaced — Owners’ water heater and furnace also had to bedirector’s conduct merited discipline in first place.replaced — No one inspected pump to determine cause of

Barnett v. Cariboo (Regional District) (2009), 2009 BCSC problem or whether valve had malfunctioned — Owners471, 2009 CarswellBC 898, McKinnon J. (B.C. S.C.). brought action against municipality for damages for negli-

gence — Action dismissed — Municipality did not have218. Municipal liability — Miscellaneous –––– Breach of duty of care regarding maintenance of owners’ sewage sys-contract — D and husband entered into agreements with city tem equipment — No finding of fault could have been madeto irrigate their agricultural land with effluent from city sew- against municipality since evidence did not establish howage lagoons — Irrigation agreement was renewed in 1996 damage occurred — Municipality provided compelling evi-with couple’s son M added as party — Couple also entered dence indicating there was no blockage in main sewer line sointo lease agreement to lease certain lands from city which problem must have been caused by failure of owners’were being irrigated with effluent — Couple sold their lands, pump — Owners’ sewage system worked fine after pumpother than home quarter, to M — Under terms of irrigation was replaced.agreement, city would make reasonable efforts to ensure

Parsons v. Leask (Village) (2008), 2008 SKPC 144, 2008continuous supply of effluent during irrigation period, but

CarswellSask 718, T. White Prov. J. (Sask. Prov. Ct.).was not liable for failure to provide continuous supply of ef-fluent — In 2002 irrigation season, M advised city that he 220. Municipal liability — Negligence — Miscellane-had trouble getting required pressure and flow to his water ous –––– Plaintiff was riding his bicycle downhill towardslines — In 2003, disputes occurred between parties and M’s blind curve — Plaintiff veered to right to avoid cube vaninteractions with city became confrontational and abusive — coming over centre line — Plaintiff lost control of bicycle,City terminated irrigation and lease agreements for funda- travelled through gap between two barriers at side of road,mental breach of contract — D and M brought action against and fell down ravine — Plaintiff sustained spinal cord injury,city for breach of contract, alleging unlawful termination of with result that he had almost no sensation and almost no useagreements as result of which they suffered loss — Action of his body from chest down — Plaintiff suffered chronicdismissed — Plaintiffs failed to prove that city breached neuropathic pain, and was also diagnosed with mild trau-lease agreement by requiring too much effluent to be applied matic brain injury — Plaintiff was 50 years old at time ofto city-owned lands, thereby causing reduced crop yields — accident — Plaintiff brought action against driver and ownerOn evidence, there was no over application of effluent ap- of van (“Z defendants”) and against municipality — Trialplied to pivots in 2003 crop year, period to which any dam- judge found Z defendants and municipality liable in propor-ages were limited — Lease agreement was determinative as tion of 25:75, respectively, and awarded damages of


15 4 D.M.P.L. (2d), July 2009

$5,647,773 — Defendants appealed — Appeal allowed in firming (2008), 55 M.P.L.R. (4th) 191, 2008 CarswellOntpart — Issue of contributory negligence had to be remitted 8928, Tranmer J. (Ont. S.C.J.).for retrial — Trial judge erred in failing to consider specifi-

222. Municipal liability — Negligence — Property main-cally whether plaintiff had been taking reasonable care fortenance — Miscellaneous –––– Sidewalks — On bright,his own safety — Trial judge was entitled to accept experts’sunny day on December 6, 2003, 67-year-old plaintiff wasuncontroverted evidence that existence of gap between barri-walking at fairly brisk rate in small-heeled walking shoesers constituted departure from applicable highway safetywhen she stepped in divot in sidewalk and fell flat on herstandards — Trial judge’s conclusions on this point were notface, resulting in nosebleed — Plaintiff had more nosebleedsclearly wrong — Municipality’s suggestion that even with-between accident and December 23, 2003, which requiredout gap, plaintiff would likely have been seriously injured,insertion of catheter and two hospital stays of five days andcould not succeed in light of trial judge’s findings that bar-almost one week respectively — Plaintiff had four follow-uprier served its intended purpose, directing plaintiff along sidehospital visits from January 19, 2004 to March 29, 2004 andof highway, but that he was then propelled through gap downhad no further nosebleeds — After fall, plaintiff no longerravine — It was not necessary to decide question of appor-had energy to participate in art shows and she was unable totionment of liability, since question of plaintiff’s contribu-shake her feelings of depression, even with assistance of psy-tory negligence, and hence respective proportions of defend-chiatrist and medication for clinical depression that she tookants’ negligence would be subject of new trial.from February 2004 until early 2005 — Plaintiff brought ac-

Aberdeen v. Langley (Township) (2008), 2008 BCCA 420, tion for damages — Action dismissed — Divot was seven2008 CarswellBC 2235, 60 C.C.L.T. (3d) 235, 84 B.C.L.R. inches wide and 2.5 or three inches long from south to north,(4th) 220, 50 M.P.L.R. (4th) 1, 440 W.A.C. 116, 261 which was chip out of northernmost slab of concrete, andB.C.A.C. 116, Frankel J.A., Neilson J.A., Newbury J.A. deepest part was one inch where it abutted concrete slab im-(B.C. C.A.); additional reasons at (2009), 64 C.C.L.T. (3d) mediately south, but was quite shallow at its northernmost1, 90 B.C.L.R. (4th) 294, 2009 CarswellBC 895, 2009 point — While plaintiff suffered from migraines that madeBCCA 160, Frankel J.A., Neilson J.A., Newbury J.A. (B.C. her dizzy, was on dizziness-inducing medications, and hadC.A.); reversing in part (2007), 35 M.P.L.R. (4th) 233, previous episodes of her knees giving way, divot was most[2007] B.C.J. No. 1515, 2007 CarswellBC 1615, 2007 BCSC likely cause of her fall — However, sidewalk was in state of993, Groves J. (B.C. S.C.). repair that was reasonable in circumstances, or, alternatively,

city did not know and could not reasonably have been ex-221. Municipal liability — Negligence — Property main-pected to know divot created hazard for pedestrians — Citytenance — Miscellaneous –––– Sidewalks — Plaintiffhad inspected sidewalk three days before accident, and didslipped and fell on patch of ice on city sidewalk while walk-not note any hazards.ing her daughter to school in winter — Plaintiff’s actionVicari v. Toronto (City) (2009), 2009 CarswellOnt 1833,against city for damages, claiming that her fall and resultingAston J. (Ont. S.C.J.).injuries were caused by city’s gross negligence in failing to

maintain its municipal sidewalks, was allowed — City was 223. Municipal liability — Negligence — Property main-held liable for 75 percent of agreed-upon damages — Appeal tenance — Parks and recreation grounds –––– Cyclist fellby city dismissed — Trial judge found that there was no con- while riding his bicycle on pathway in city park — Cyclistsideration given to weather on day before fall or whether city had bought bike week prior, and had previously only riddenshould decide to treat sidewalks earlier than normal next day, as child and for few years in early 1980’s — Cyclist had rid-when it knew conditions were highly conducive to icing; that den on path twice before, and on return trip, he collided withcity lacked sufficient written criteria to permit supervisors fixed steel post bollard placed 46.4 metres north of street, inand operators to determine when to activate non-routine op- middle of pathway, where pathway dipped down and curvederations, such as calling out sidewalk operators earlier; that to left — Bollard was so placed in order to restrict vehicularcity configured its routes so that 11 schools were included in access beyond point where billboard was erected — Whileone route area, and that operator took his entire shift to ser- originally yellow, bollard had become rusted — As he ap-vice priority one sidewalks; that operator did not differenti- proached bollard, it appeared to cyclist that there was tightate between priority one and priority two sidewalks; and that squeeze between bollard and right fence, so he stayed right,he did not adapt his daily route to given weather conditions but handlebars or pedals on left side of his bike clipped bol-as he should — These findings supported trial judge’s con- lard and he fell — Cyclist was travelling at 10 to 12 kilome-clusion that city was grossly negligent — Trial judge applied tres per hour and he did not see bollard until shortly beforeproper legal test and city had not demonstrated any palpable he hit it — Cyclist brought action against city for dam-and overriding error in his application of that test to facts ages — Action allowed — While pathway was also used bybefore him. commuters and pedestrians accessing university, pathwayRyan v. Sault Ste. Marie (City) (2009), 55 M.P.L.R. (4th) was recreational trail, and was marked as such by parks by-206, 2009 ONCA 344, 2009 CarswellOnt 2208, D. Watt law sign erected at various points along pathway and inJ.A., J. MacFarland J.A., R.G. Juriansz J.A. (Ont. C.A.); af- city’s bike map — Section 4(4)(f) of Occupiers’ Liability


4 D.M.P.L. (2d), July 2009 16

Act does not require that notice of recreational trail include of street, in middle of pathway, where pathway dipped downexclusion of liability that results from such characteriza- and curved to left — Bollard was so placed in order to re-tion — Assumption of risk is deemed by s. 4(3) of Act and is strict vehicular access beyond point where billboard was er-not dependent on city giving notice that it has limited liabil- ected — While originally yellow, bollard had becomeity — Pathway was “premise” pursuant to s. 4(4)(f) of rusted — As he approached bollard, it appeared to cyclistAct — Cyclist’s entry on to pathway was for purpose of rec- that there was tight squeeze between bollard and right fence,reational activity, he paid no fee, and was not provided with so he stayed right, but handlebars or pedals on left side of hisliving accommodation by city — Therefore, pursuant to s. bike clipped bollard and he fell — Cyclist was travelling at4(3) of Act, cyclist was deemed to have willingly assumed 10 to 12 kilometres per hour and he did not see bollard untilall risks and thus was owed lessened duty of care described shortly before he hit it — Cyclist brought action against cityin s. 4(1) of Act — City acted with reckless disregard tofor damages — Action allowed — While pathway was alsowards cyclists by placing single bollard in unusual and thus used by commuters and pedestrians accessing university,unexpected location on pathway without warning devices pathway was recreational trail, and was marked as such byand without taking steps to ensure bollard was more visi- parks by-law sign erected at various points along pathwayble — City was 40 per cent liable and cyclist was 60 per cent and in city’s bike map — Section 4(4)(f) of Occupiers’ Lia-liable — Cyclist contributed to his own damages by failing bility Act does not require that notice of recreational trail in-to use reasonable care or take proper precautions for his own clude exclusion of liability that results from such characteri-safety — Cyclist had ridden past bollard on two occasions, zation — Assumption of risk is deemed by s. 4(3) of Act andone of which was on his outgoing trip — Cyclist was not is not dependent on city giving notice that it has limited lia-paying sufficient attention as he rode along pathway. bility — Pathway was “premise” pursuant to s. 4(4)(f) of

Act — Cyclist’s entry on to pathway was for purpose of rec-Kennedy v. London (City) (2009), 2009 CarswellOnt 1328,reational activity, he paid no fee, and was not provided withL.C. Leitch R.S.J. (Ont. S.C.J.).living accommodation by city — Therefore, pursuant to s.

224. Municipal liability — Nuisance — Flooding –––– Pro- 4(3) of Act, cyclist was deemed to have willingly assumedperty owners’ sewage system consisted of septic tank con- all risks and thus was owed lessened duty of care describednected to municipal sewer system — Solid waste accumu- in s. 4(1) of Act — City acted with reckless disregard to-lated in one compartment of tank while liquid waste wards cyclists by placing single bollard in unusual and thusoverflowed into second compartment — Solid waste had to unexpected location on pathway without warning devicesbe pumped out manually — Liquid waste was automatically and without taking steps to ensure bollard was more visi-pumped out to municipal sewer system by pump in owners’ ble — City was 40 per cent liable and cyclist was 60 per centhome — Valve on pump normally permitted flow of liquid liable — Cyclist contributed to his own damages by failingin only one direction — Owners noticed odour of raw sew- to use reasonable care or take proper precautions for his ownage and discovered liquid in their basement — Pump had safety — Cyclist had ridden past bollard on two occasions,stopped working and had to be replaced — Owners’ water one of which was on his outgoing trip — Cyclist was notheater and furnace also had to be replaced — No one in- paying sufficient attention as he rode along pathway.spected pump to determine cause of problem or whether

Kennedy v. London (City) (2009), 2009 CarswellOnt 1328,valve had malfunctioned — Owners brought action againstL.C. Leitch R.S.J. (Ont. S.C.J.).municipality for damages for nuisance — Action dis-

missed — Owners failed to establish problem originated in226. Municipal liability — Practice and procedure — Ac-municipal sewer system — Mere fact that odour of raw sew-tions — Costs — Quantum –––– Trustee of school boardage emanated from basement did not mean municipal sewerhad daughter who was teacher employed by board, and sonsystem was source of effluent — No adequate explanationwho had been approved to be on list of supply teachers —was provided as to how sewage backed up into owners’Trustee participated in meeting held to discuss and approvebasement — Effluent could have originated in either or bothbudget recommendations to reduce board’s deficit, althoughseptic tank and municipal sewer system — Municipality pro-teacher layoffs was potential outcome — Trustee subse-vided compelling evidence indicating there was no blockagequently wrote emails to other trustees concerning long termin main sewer line and that very high water table was impor-supply contracts and program cuts — Trustee moved for pro-tant contributing factor.vision of insurance for trustees that were subject of conflict

Parsons v. Leask (Village) (2008), 2008 SKPC 144, 2008of interest allegations — Judge granted elector’s application

CarswellSask 718, T. White Prov. J. (Sask. Prov. Ct.).for declaration that trustee acted in conflict of interest con-trary to s. 5 of Municipal Conflict of Interest Act, and for225. Municipal liability — Occupier’s liability –––– Cy-order that trustee’s seat on board be vacated and that he beclist fell while riding his bicycle on pathway in city park —disqualified from office — Upon further submissions, electorCyclist had bought bike week prior, and had previously onlywas entitled to costs fixed at $46,420.11, which was amountridden as child and for few years in early 1980’s — Cyclistthat trustee could reasonably expect to pay for application ofhad ridden on path twice before, and on return trip, he col-this nature — Municipal Conflict of Interest Act has no pro-lided with fixed steel post bollard placed 46.4 metres north


17 4 D.M.P.L. (2d), July 2009

vision for either board, Minister of Education or any ethics low-income housing which necessarily involved residentialcommissioner to bring application to remove trustee from purpose — Manner in which property was occupied (actualboard who acts in conflict of interest — Act requires elector occupation by charity) and used (wholly used for charitableto bring application in their personal capacity at their ex- purposes) were vital considerations and determinative ofpense to have these issues dealt with by court, but had trustee whether property was exempt — Form of tenure (e.g., li-succeeded on application, his costs would have been fully in- cense or lease) and use made by licensee or tenant wasdemnified by available insurance coverage — While issues neither vital to issue nor determinative of outcome.were not complex, materials filed were significant, numerous Vancouver Sea to Sky Region Assessor Area No. 9 v.affidavits were filed, and almost all affiants were extensively Entre Nous Femmes Housing Society (2009), 2009 BCSCcross examined — Trustee took certain positions in his affi- 352, 2009 CarswellBC 667, T.R. Brooke J. (B.C. S.C.).davit which he contradicted in cross-examination, which re-

229. Municipal tax assessment — Property subject to as-quired elector to file additional affidavits and conduct cross-sessment — Real property — Water lots –––– Appellantexaminations to point out that certain positions taken by trus-corporation owned former cruise ship, which operated astee were incorrect.floating restaurant and banquet facility — Appellant hadBaillargeon v. Carroll (2009), 2009 CarswellOnt 1939, J.E.agreement with Toronto Port Authority, owner of lakebed

Kelly J. (Ont. S.C.J.); additional reasons to (2009), 2009beneath ship, for occupation of space — Land, consisting of

CarswellOnt 633, Kelly J. (Ont. S.C.J.).lakebed and ship, were assessed by respondent Municipal

227. Municipal officers and employees — Termination of Property Assessment Corp. for taxation purposes — Appli-service — Judicial review — Duty of fairness –––– C was cation judge upheld assessment of ship as “structure” forhired by town of Nackawic on December 18, 1989, and be- $269,703 and assessment of berthing space as “land” forcame Town Manager in August 2002 — Title was later $774,275 — Appeal by appellant dismissed — Applicationchanged to Chief Administrative Officer — In September judge made no error of law or fact — Ship was “structure”2007, number of complaints regarding C’s conduct were within meaning of s. 1(1)(e) of Assessment Act since it hadmade to Labour Relations Committee — Over next several been located within its current premises, tied to adjoiningmonths investigation was conducted — On January 21, dock and connected to public utilities since 1977 — Appel-2008, C was suspended with pay — On June 18, 2008, C lant intended it to remain on current premises perma-was dismissed — C brought application for judicial review nently — Ship occupied land owned by Port Authority, andof town’s decision to terminate her employment — Applica- not berthing space in water above land — Application judgetion dismissed — Town had duty of fairness and fulfilled it correctly referred to licence agreement itself, which did notvarious ways — Town hired two independent investigators, just include surface water but land under water, which wasarranged problem solving workshops, provided C with list of “land” under definition in Act — Appellant was in posses-allegations, and provided C opportunities to address coun- sion of that land, as ship sat on water surface and occupiedcil — Town provided written reasons for decision to dismiss almost entire portion of licensed premises — Licence agree-her — Contrary to submissions of C, she did know nature of ment did not give control of land to Port Authority.complaints against her and was given ample opportunity to 1518756 Ontario Inc. v. Municipal Property Assessmentrespond to these allegations — C knew reason for her Corp. (2009), 2009 CarswellOnt 1412, Carnwath J., Kruzickdismissal. J., Wilson J. (Ont. Div. Ct.).Cronkhite v. Nackawic (Town) (2009), 2009 NBQB 110,

230. Municipal tax assessment — Tax exemptions — Tax2009 CarswellNB 149, 73 C.C.E.L. (3d) 251, P.C. Garnett J.

exempt properties — Charitable institutions — Miscella-(N.B. Q.B.).

neous –––– Property Assessment Appeal Board (“Board”)228. Municipal tax assessment — Practice and procedure found that ENF Housing Society and RD Housing Societyon assessment appeals and objections — Appeal — Ap- (“respondents”) were in “actual occupation” of propertiespeal by way of stated case –––– Property Assessment Ap- that were “wholly in use for charitable purposes” as requiredpeal Board (“Board”) found that ENF Housing Society and by s. 396(1)(c)(i) of Vancouver Charter, and therefore ex-RD Housing Society (“respondents”) were in “actual occupa- empt from taxation — Assessor appealed decision oftion” of properties that were “wholly in use for charitable board — Appeal dismissed — Subject properties were heldpurposes” as required by s. 396(1)(c)(i) of Vancouver Char- for charitable purposes and used for charitable purposes, andter, and therefore exempt from taxation — Assessor appealed there was evidence before Board that respondents were in ac-decision of board — Appeal dismissed — Subject properties tual occupation — Board found, and there was evidencewere held for charitable purposes and used for charitable before Board to support finding, that individual tenants’ resi-purposes, and there was evidence before Board that respon- dential use was part of charitable purpose of respondentsdents were in actual occupation — Board found, and there which was provision and operation of residential low-incomewas evidence before Board to support finding, that individual housing which necessarily involved residential purpose —tenants’ residential use was part of charitable purpose of re- Manner in which property was occupied (actual occupationspondents which was provision and operation of residential by charity) and used (wholly used for charitable purposes)


4 D.M.P.L. (2d), July 2009 18

were vital considerations and determinative of whether pro- argued was enlargement of use — Moving parties opposedperty was exempt — Form of tenure (e.g., license or lease) applications, which were refused — Municipal board al-and use made by licensee or tenant was neither vital to issue lowed appeal by respondents — Moving parties made re-nor determinative of outcome. quest that board review its decision — Chair of board issued

review decision refusing to grant review request — MovingVancouver Sea to Sky Region Assessor Area No. 9 v.parties brought application for leave to appeal — Applica-Entre Nous Femmes Housing Society (2009), 2009 BCSCtion granted on other grounds — Some of issues raised by352, 2009 CarswellBC 667, T.R. Brooke J. (B.C. S.C.).moving parties concerned questions of fact or, at best, mixed

231. Planning appeal boards and tribunals — Jurisdic- fact and law — Section 96 of Ontario Municipal Board Acttion — Miscellaneous –––– Respondents sought develop- precludes appeals other than on questions of law — Rejec-ment of vacant parcel of land for three detached houses — tion of factual issues raised by moving parties did not consti-Respondents applied to committee of adjustment for minor tute legal error — It was also argued that there was failure tovariances to zoning by-law and consents to sever land — Ac- give adequate reasons for decision but, taking purposive ap-cording to approved plans, lane relating to easement would proach, review decision contained broad grounds revealingbe paved and would be entrance to common elements condo- general substance of reasoning behind it — Circumstances inminium on which three houses would be built — Neighbours which review board was deciding were narrow: whether re-affected by current and proposed uses were strongly opposed quester had raised arguable case that any of five enumeratedto what they argued was enlargement of use — Moving par-

bases for ordering review had been established — Decisionties opposed applications, which were refused — Municipal

of review board touched on each of four grounds advancedboard allowed appeal by respondents — Moving parties

by requestor.made request that board review its decision — Chair ofboard issued review decision refusing to grant review re- Watt v. Classic Leisure Wear Inc. (2008), 43 M.P.L.R.quest — Moving parties brought application for leave to ap- (4th) 274, 2008 CarswellOnt 982, 59 O.M.B.R. 23, Kiteley J.peal — Application granted — Good reason existed to doubt (Ont. Div. Ct.); additional reasons at (2008), 2008 Carswell-correctness of review decision — Review decision was silent Ont 6983, Kiteley J. (Ont. Div. Ct.).as to contents of affidavit which indicated that proposed usehad to be considered within legal context — Review board 233. Planning appeal boards and tribunals — Practicedisposed of issue on basis that original board had made de- and procedure — Hearing — Dispensing with hear-termination based on evidence before it; yet original board

ing –––– Niagara Escarpment Commission (NEC) condition-had proceeded on planning and engineering evidence —

ally approved application by ski club to demolish eight on-There was no legal opinion evidence on point since it had

slope residential units and restore sites for use as part ofbeen rejected by board — It appeared that review board did

gladed ski trail — Estate of owner of one of units appealednot appreciate that, in paragraph of original decision, original

decision — Ski club brought motion to dismiss appeal asboard arrived at legal conclusion and in so doing, may have

frivolous, vexatious or without merit under s. 25(8.1)(a) ofextended scope and extent of rights-of-way — Review board

Niagara Escarpment Planning and Development Act — Mo-did not appreciate that original board may have decided

tion dismissed — Ski club alleged that estate was attemptingquestion of law that was beyond jurisdiction of originalto use development permit process to address landlord-tenantboard since such determination of question of title to landissues that were beyond scope of Act — Legitimate ques-had to be made by court — While distinction between deal-tions as to whether proposal accords with Niagara Escarp-ing with easement as free-standing issue and dealing with itment Plan (NEP) were best left to full hearing of merits —incidental to administrative function of approving variancesDevelopment of gladed ski trails would involve removal ofwas relevant to work of board, review decision contained notrees on escarpment slope, matter that concerned both objec-such distinction.tives and development criteria of NEP and purpose of Act —

Watt v. Classic Leisure Wear Inc. (2008), 43 M.P.L.R.It could not be said with certainty that tree removal should be

(4th) 274, 2008 CarswellOnt 982, 59 O.M.B.R. 23, Kiteley J.addressed solely at implementation stage — Appeal as it re-

(Ont. Div. Ct.); additional reasons at (2008), 2008 Carswell-lated to tree removal had merit — Appeal as it related to

Ont 6983, Kiteley J. (Ont. Div. Ct.).grading had merit, since estate should be given opportunityto present evidence to show that grading and drainage issues232. Planning appeal boards and tribunals — Miscellane-might result in environmental harm — Project viewed asous –––– Respondents sought development of vacant parcelwhole raised valid substantive issues under NEP — Based onof land for three detached houses — Respondents applied tomaterials filed, ski club had not shown that appeal was vexa-committee of adjustment for minor variances to zoning by-tious — Discretion not exercised to refuse to hold hearinglaw and consents to sever land — According to approvedunder s. 25(8.1)(a) of Act because ski club had not shownplans, lane relating to easement would be paved and wouldthat appeal did not disclose planning justification, was not inbe entrance to common elements condominium on whichpublic interest, was without merit, or was frivolous orthree houses would be built — Neighbours affected by cur-vexatious.rent and proposed uses were strongly opposed to what they


19 4 D.M.P.L. (2d), July 2009

Wahl Estate v. Niagara Escarpment Commission (2009), cil meeting, mayor declined to provide him with assurance2009 CarswellOnt 1929, J.V. DeMarco H.O. (N.E.H.O.). that matter was “over” — Objectors applied for declaration

that city lacked legal authority to institute civil proceedings234. Planning appeal boards and tribunals — Practice or threaten to do so, for defamation of its reputation as muni-and procedure — Hearing — Miscellaneous –––– Stay of cipal government — City filed then withdrew statement ofappeal hearing pending determination of application for judi- defence, and gave notice to objectors that it would not appearcial review — City issued AM construction permit — After at hearing — Application granted — City lacked legal basisshed and rear yard structures were built, city decided that it to bring civil proceedings for defamation of its governinghad made error and minor variances were required — Com- reputation, or to threaten to do so, including in manner con-mittee of Adjustment (COA) granted AM four minor vari- tained in three letters — Common law causes of action mustances — Appeal of COA’s decision was scheduled to be be applied in manner that is consistent with Canadian Char-heard by Ontario Municipal Board (OMB) next day — AM’s ter of Rights and Freedoms — Charter enshrined value ofabutting neighbour applied for stay of OMB hearing pending freedom of expression is paramount and local governmentsdetermination of application for judicial review — Applica- have resort to other means to protect their reputations fromtion dismissed — Neighbour would not suffer irreparable citizens who publish critical commentary about governmentharm if application were refused and OMB hearing pro- itself — It is antithetical to notion of freedom of speech andceeded next day — Neighbour was mistaken that onus at citizens’ rights to criticize their governments concerninghearing would be reversed, as OMB hearing is de novo hear- their governing functions, that such criticism should be chil-ing and recent changes to Planning Act do not change led by threat of suit in defamation.onus — Hearing before COA took place in less than 30 min-

Dixon v. Powell River (City) (2009), 2009 CarswellBC 762,utes whereas hearing before OMB was set for two full days,2009 BCSC 406, N. Garson J. (B.C. S.C.).where there would be ample opportunity before OMB for

neighbour to ensure her position was heard and dealt with236. Subdivision control — Severance of land — Consentfairly — Neighbour would be in better position before OMBto sever — Miscellaneous –––– On August 31, 1999, appli-than she was before COA as she would have more time tocant entered into 21-year lease for cottage property, includ-present her case, all evidence would be heard in public, anding term incorporating offer to purchase cottage lot uponany defects in process leading to OMB hearing was effec-completion of application for severance or plan of subdivi-tively cured by proceedings before OMB — Greater harmsion — On May 18, 1999, transfer was registered conveyingwould be in not proceeding with OMB hearing next day, asland including cottage lot to respondent, subject to terms andthere neighbour would have opportunity to have hearing deconditions of lease — Respondent commenced action overnovo before board that had expertise and statutory authorityinterpretation of lease, and parties entered into minutes ofto make proper determination as to whether minor variancesettlement requiring respondent to cooperate in applicationapplication ought to be accepted based on principles offor plan of subdivision, which applicant was required toAct — At same time, AM would be provided with expedientcomplete within five years, and if successful, respondent wasmethod to have application decided on merits — Interests ofto sell applicant cottage lot for $20,000 — Five year deadlinejustice did not call for stay.was May 26, 2009, and lease expired September 1, 2012 —Liddy v. Vaughan (City) Committee of AdjustmentApplicant did not submit formal application for approval of(2009), 2009 CarswellOnt 1746, D. Bellamy J. (Ont. Div.subdivision — Applicant sought to add cottage lot to lotCt.).owned by neighbours who had no interest in cottage lot,were not parties to minutes of settlement or original lease,235. Powers of municipal corporation — Miscellane-and were not parties to litigation — Applicant applied forous –––– To institute defamation proceedings — City soughtdetermination of rights under minutes of settlement and forapproval for $6.5 million project using “alternative electordeclaration confirming that terms “severing”, “subdivisionprocess”, which led to public discussion on merits of project,application”, “plan of subdivision” and “subdivide” in min-method of obtaining community approval, and mayor andutes of settlement included consent under s. 53 of Planningcouncil’s management of city’s affairs and finances — Ap-Act — Application dismissed — There is no legislative defi-plicant objectors each published views in opposition to city’snition of “subdivision” or “severing” which contemplatessteps: NH published letter in online community newspaper,splitting larger parcel to add it to another — Concept of lotto which WB added online comment suggesting possibleaddition is antithesis of subdivision — Furthermore, fact thatcriminal behaviour by city council, and member of cityonce added to lot, property merges with it and cannot be soldcouncil PA published email opposing council’s steps — Cityoff separately from it, conflicts with concepts of severance orretained counsel and delivered letters to each objector refer-subdivision — Lot addition is not same as severance or planring to objectors’ statements as defamatory and actionable,of subdivision — Parties intended to create separate lot, andputting objectors on notice to refrain from defaming city, anddid not intend to convey cottage property to neighbouringdemanding retraction and publication of apology — Onlineproperty from which no severance would be permitted in fu-community newspaper refused WB’s attempts to issue apol-ture — Objective evidence of factual matrix underlying ne-ogy and retraction, and despite his public retraction at coun-


4 D.M.P.L. (2d), July 2009 20

gotiation of contract did not include prospect of bare land lot plan, lacked substance and form, and was passed in breach ofaddition to uninterested third party — Respondent did not principles of natural justice — Application dismissed —breach covenant in minutes of settlement when it conveyed Planning and Development Act, 2007 did not specify con-land to third party by way of lot addition. tents of application to amend zoning by-law — Application

process was handled very informally — Requiring writtenMartin v. Meldon Forestry Equipment Ltd. (2009), 2009application outlining proposals, reasons for it, and criteriaCarswellOnt 1869, B.R. Warkentin J. (Ont. S.C.J.).that council must take into account for rezoning, would make

237. Subdivision control — Subdivision plans — Miscel- sense — Such documentation would assist not only councillaneous –––– On August 31, 1999, applicant entered into 21- but also interested ratepayers to better understand proposal,year lease for cottage property, including term incorporating rezoning criteria and avoiding such applications — No suchoffer to purchase cottage lot upon completion of application documentation was available for this rezoning by-law, butfor severance or plan of subdivision — On May 18, 1999, neither by-law nor Act required anything specific with re-transfer was registered conveying land including cottage lot spect to application — While application did lack form andto respondent, subject to terms and conditions of lease — substance, no basis existed for concluding it failed to meetRespondent commenced action over interpretation of lease, requirements set out in by-law.and parties entered into minutes of settlement requiring re- Smith v. Lakeland (Rural Municipality 521) (2009), 2009spondent to cooperate in application for plan of subdivision,

SKQB 86, 2009 CarswellSask 163, R.D. Laing C.J.Q.B.which applicant was required to complete within five years,

(Sask. Q.B.).and if successful, respondent was to sell applicant cottage lotfor $20,000 — Five year deadline was May 26, 2009, and 239. Zoning — Attacking validity of zoning by-laws —lease expired September 1, 2012 — Applicant did not submit Grounds — Non-conformity with municipal plan ––––formal application for approval of subdivision — Applicant Owner of golf course proposed condo development on por-sought to add cottage lot to lot owned by neighbours who tion of property, and applied to municipality for by-law re-had no interest in cottage lot, were not parties to minutes of zoning portion to multi-unit residential — Municipality’ssettlement or original lease, and were not parties to litiga- hearing on application was delayed due to public noticetion — Applicant applied for determination of rights under problems — Municipality passed by-law rezoning area tominutes of settlement and for declaration confirming that permit development — Local environmental association ap-terms “severing”, “subdivision application”, “plan of subdi- plied for judicial review of by-law, on basis that it did notvision” and “subdivide” in minutes of settlement included comply with development plan, lacked substance and form,consent under s. 53 of Planning Act — Application dis- and was passed in breach of principles of natural justice —missed — There is no legislative definition of “subdivision” Application dismissed — Municipality’s development planor “severing” which contemplates splitting larger parcel to specified required analysis for rezoning for lake-oriented res-add it to another — Concept of lot addition is antithesis of idential development, which did not occur, so argument as tosubdivision — Furthermore, fact that once added to lot, pro- breach of plan was premised on development being lake-ori-perty merges with it and cannot be sold off separately from ented — Article 6.3(14) of development plan provided thatit, conflicts with concepts of severance or subdivision — Lot all residential development must be deemed by council to beaddition is not same as severance or plan of subdivision — either lake-oriented or non lake-oriented, based on plan’sParties intended to create separate lot, and did not intend to definitions — Municipality did not articulate reasons for ap-convey cottage property to neighbouring property from proving by-law until affidavit of reeve was filed in applica-which no severance would be permitted in future — Objec- tion — Affidavit stated that municipal council found that de-tive evidence of factual matrix underlying negotiation of velopment was non lake-oriented because it was intended tocontract did not include prospect of bare land lot addition to attract golfers and seniors rather than boaters, and would notuninterested third party — Respondent did not breach cove- have room for boat storage on lots — Municipality’s deci-nant in minutes of settlement when it conveyed land to third sion that proposal was oriented away from lake did not lackparty by way of lot addition. rationality and so no basis existed for interfering with it —

Municipality had jurisdiction to make decision, which didMartin v. Meldon Forestry Equipment Ltd. (2009), 2009not breach any provisions of plan or Planning and Develop-CarswellOnt 1869, B.R. Warkentin J. (Ont. S.C.J.).ment Act, 2007.

238. Zoning — Attacking validity of zoning by-laws —Smith v. Lakeland (Rural Municipality 521) (2009), 2009

Grounds — Miscellaneous –––– Owner of golf course pro-SKQB 86, 2009 CarswellSask 163, R.D. Laing C.J.Q.B.

posed condo development on portion of property, and ap-(Sask. Q.B.).

plied to municipality for by-law rezoning portion to multi-unit residential — Municipality’s hearing on application was 240. Zoning — Attacking validity of zoning by-laws —delayed due to public notice problems — Municipality Grounds — Procedural error — Notice –––– Owner ofpassed by-law re-zoning area to permit development — Lo- golf course proposed condo development on portion of pro-cal environmental association applied for judicial review of perty, and applied to municipality for by-law rezoning por-by-law, on basis that it did not comply with development tion to multi-unit residential — At municipality’s September


21 4 D.M.P.L. (2d), July 2009

10, 2008 hearing for proposal, local environmental associa- to demonstrate that city failed to make adequate disclosure orfailed in its duty of procedural fairness.tion objected that public notice only appeared once in local

newspaper so did not comply with s. 207(3)(a) of Planning Abbotsford Families United v. Abbotsford (City) (2009),and Development Act, 2007 — Municipality placed ad for 2009 CarswellBC 850, 2009 BCSC 463, E.M. Meyers J.October 8 hearing but newspaper cut off bottom portion of (B.C. S.C.).site map in ad so municipality adjourned meeting until Octo-

242. Zoning — Attacking validity of zoning by-laws —ber 18, readvertising for two weeks — Municipality passedPractice and procedure — On quashing zoning by-law —by-law rezoning area to permit development — AssociationStanding –––– City passed zoning amendment by-law al-applied for judicial review of by-law, on basis that it did notlowing bingo hall to operate slot machines and personal playcomply with development plan, lacked substance and form,bingo machines — Not-for-profit corporation had one mem-and was passed in breach of principles of natural justice —ber who deposed that there were approximately ten otherApplication dismissed — Association admitted that noticepersons who were actively involved in operations of its or-provided by municipality complied with s. 207(3) of Act, butganization — Member was long-time resident of city, butargued it did not comply with principles of natural justice —she did not reside in vicinity of bingo hall, and there was noProcedural fairness arguably required that land ownersevidence as to where other persons lived — Corporation al-whose rights would be directly affected by rezoning applica-leged that public debate up to and including public hearingtion receive notice — By-law did not directly affect legalwas premised on assumption that if owner of bingo hall wasrights of any land owner, so procedural fairness requirementsnot allowed to expand, it would shut its operations, whichfor notice did not arise — In absence of procedural fairnesswould cause loss of revenue to city and various organizationsrequirement for notice, no basis existed for imposing require-that received funding from bingo operations — Corporationments on municipality beyond what Act provided.alleged that city did not disclose certain letters which indi-

Smith v. Lakeland (Rural Municipality 521) (2009), 2009 cated that lost revenue would be replaced by direct accessSKQB 86, 2009 CarswellSask 163, R.D. Laing C.J.Q.B. funding from province — Corporation petitioned for order(Sask. Q.B.). setting aside zoning amendment by-law — Petition dis-

missed — Corporation had standing to bring petition —241. Zoning — Attacking validity of zoning by-laws — There was no reason why corporation representing views ofGrounds — Procedural error — Procedural fairness –––– only one member would be insufficient to justify standing, ifProperty owner submitted rezoning application to allow ex- that one member had sufficient interest in by-law being chal-isting bingo hall to add 125 slot machines and for facility to lenged — Corporation’s position with respect to possible ef-operate as provincial community gaming centre — Follow- fect of expansion of bingo facility on entire city was neithering application, there was correspondence between bingo op- unreasonable nor beyond argument — Expansion of bingoerator and city which dealt with prospect of closing bingo hall to allow gambling was matter of legitimate public debatefacility if expansion was not allowed, and consequent poten- for residents of city — Corporation represented one or moretial loss of revenue to city and various organizations that re- voters who were entitled to challenge by-law as of right.ceived funding from bingo operations — City received let-

Abbotsford Families United v. Abbotsford (City) (2009),ters from province indicating that lost revenue would be

2009 CarswellBC 850, 2009 BCSC 463, E.M. Meyers J.replaced by direct access funding from province — On July

(B.C. S.C.).5, 2007, city planner submitted report to council recom-mending adoption of zoning amendment to allow 125 slot 243. Zoning — Enforcement of zoning by-laws — Miscel-machines plus 192 personal play bingo machines — Report laneous –––– Developer and city brought successful applica-listed correspondence received by city regarding funding — tion, and landlords were ordered to cease using their proper-Draft by-law and report were posted on city’s website, but ties as lodging houses — Application judge found thatcorrespondence which report listed was not posted — Report generally landlords purchased houses to rent out bedroomswas referred to at first reading of by-law, which was open on room-by-room and short-term basis to individual tenants,meeting with media present — Sole member of not-for-profit added extra bedrooms without building permits or with per-corporation alleged that when she was unable to find infor- mits that misrepresented use, and insured properties as room-mation regarding proposed by-law on city’s website, city ing houses and student housing — Landlords contended thattold her to file formal request for information with city — properties operated as single dwelling establishments for va-Corporation petitioned for order setting aside zoning amend- rious groups of tenants, mostly students — Landlords ap-ment by-law on grounds of breach of procedural fairness for pealed — Appeal allowed in part on other grounds — Appli-failing to disclose letters — Petition dismissed — While re- cation judge identified broad range of factors to consider inport was available on city’s website, full information regard- relation to definitions of two categories of houses and ap-ing correspondence was not available there — Corporation plied those factors individually to houses in question — Ap-did not ask for specific information — To require local gov- plication judge found that essence of relationship was one ofernment which posts information on its website to post all “lodger” and “proprietor” as defined in by-law — Applica-information imposes too rigid standard — Corporation failed tion judge essentially found that there was no relationship


4 D.M.P.L. (2d), July 2009 22

between renters other than their use and occupation of single there was serious question to be tried with respect to sum-rooms rented for short-term accommodation — There was mary trial judge’s interpretation of by-law and finding thatno legal error in application judge’s treatment of relevant he was not entitled to rely on legal non-conforming use pro-statutory provisions and case law — Section 35(2) of Plan- tection — Prohibiting resort from operating would have neg-ning Act did not bar application judge from considering as ative financial impart on C since it was capable of generatingrelevant factor how renters related amongst themselves when some profit, and it was doubtful whether, if appeal suc-determining whether they constituted single housekeeping ceeded, he could obtain compensation for any loss — “Irrep-establishment. arable harm” test was satisfied — Balance of convenience

test tipped scale in favour of trust committee — Public inter-Neighbourhoods of Windfields Ltd. Partnership v. Deathest will suffer if conduct which court has found to contra-(2009), 55 M.P.L.R. (4th) 159, 2009 CarswellOnt 1756,vene valid by-law is allowed to continue — On record, there2009 ONCA 277, J.C. MacPherson J.A., P. Rouleau J.A.,was no basis on which to find that trust committee had acqui-R.J. Sharpe J.A. (Ont. C.A.); reversing in part (2009), 54esced in resort operating in contravention of by-law for ex-M.P.L.R. (4th) 247, 2009 CarswellOnt 89, Howden J. (Ont.tended period, or that it was not diligent in taking enforce-S.C.J.); additional reasons to (2008), 49 M.P.L.R. (4th) 183,ment proceedings.2008 CarswellOnt 5025, Howden J. (Ont. S.C.J.); and af-

firming (2008), 49 M.P.L.R. (4th) 183, 2008 CarswellOntNorth Pender Island Local Trust Committee v. Conconi

5025, Howden J. (Ont. S.C.J.).(2009), 55 M.P.L.R. (4th) 175, 2009 BCCA 174, 2009 Car-swellBC 1076, Frankel J.A. (B.C. C.A. [In Chambers]).244. Zoning — Enforcement of zoning by-laws — Prac-

tice and procedure on enforcement –––– Developer andcity brought successful application, and landlords were or- 246. Zoning — Judicial interpretation of zoning by-dered to cease using their properties as lodging houses — laws — Interpretation — Terms in by-laws — Miscella-By-law affected 30 houses where rooms were rented to stu- neous –––– Developer and city brought successful applica-dents — Restraining was order issued — In additional rea- tion, and landlords were ordered to cease using their proper-sons, it was determined that order would not be enforced un- ties as lodging houses — Application judge found thattil after April 30, 2009 — This was so as to not jeopardize generally landlords purchased houses to rent out bedroomsstudents whose rentals in zone were not in any way their er- on room-by-room and short-term basis to individual tenants,ror or fault — It was found that responsibility for illegal use added extra bedrooms without building permits or with per-lay with owners and students should not be jeopardized — mits that misrepresented use, and insured properties as room-Landlords appealed decision of application judge — On con- ing houses and student housing — Landlords contended thatsent, operation of order was amended from April 30, 2009 to properties operated as single dwelling establishments for va-June 30, 2009 — Appeal was dismissed in all other respects. rious groups of tenants, mostly students — Landlords ap-

pealed — Appeal allowed in part on other grounds — Appli-Neighbourhoods of Windfields Ltd. Partnership v. Deathcation judge identified broad range of factors to consider in(2009), 55 M.P.L.R. (4th) 159, 2009 CarswellOnt 1756,relation to definitions of two categories of houses and ap-2009 ONCA 277, J.C. MacPherson J.A., P. Rouleau J.A.,plied those factors individually to houses in question — Ap-R.J. Sharpe J.A. (Ont. C.A.); reversing in part (2009), 54plication judge found that essence of relationship was one ofM.P.L.R. (4th) 247, 2009 CarswellOnt 89, Howden J. (Ont.“lodger” and “proprietor” as defined in by-law — Applica-S.C.J.); additional reasons to (2008), 49 M.P.L.R. (4th) 183,tion judge essentially found that there was no relationship2008 CarswellOnt 5025, Howden J. (Ont. S.C.J.); and af-between renters other than their use and occupation of singlefirming (2008), 49 M.P.L.R. (4th) 183, 2008 CarswellOntrooms rented for short-term accommodation — There was5025, Howden J. (Ont. S.C.J.).no legal error in application judge’s treatment of relevant

245. Zoning — Enforcement of zoning by-laws — Prac- statutory provisions and case law — Section 35(2) of Plan-tice and procedure on enforcement –––– C bought 34 acres ning Act did not bar application judge from considering asof island property on which he built various buildings includ- relevant factor how renters related amongst themselves whening residence, guest cabins which he made available for determining whether they constituted single housekeepingrental by public, shed used as meeting and banquet facility, establishment.recreational facilities, and dock — Trust committee appliedfor declaration that C was using property as commercial re- Neighbourhoods of Windfields Ltd. Partnership v. Deathsort, contrary to trust area zoning by-law and land use by- (2009), 55 M.P.L.R. (4th) 159, 2009 CarswellOnt 1756,law, and for injunctive relief — Application was granted on 2009 ONCA 277, J.C. MacPherson J.A., P. Rouleau J.A.,basis that C’s use of property did not comply with zoning by- R.J. Sharpe J.A. (Ont. C.A.); reversing in part (2009), 54law or new land use by-law — C appealed and applied for M.P.L.R. (4th) 247, 2009 CarswellOnt 89, Howden J. (Ont.stay of proceedings, including execution of as yet un-entered S.C.J.); additional reasons to (2008), 49 M.P.L.R. (4th) 183,order of trial judge, pending determination of his appeal — 2008 CarswellOnt 5025, Howden J. (Ont. S.C.J.); and af-Application for stay dismissed — Trust committee conceded firming (2008), 49 M.P.L.R. (4th) 183, 2008 CarswellOntthat C had generally met low threshold for determining that 5025, Howden J. (Ont. S.C.J.).


23 4 D.M.P.L. (2d), July 2009

247. Zoning — Judicial interpretation of zoning by- but rather irregularity with which continuous use generatedlaws — Interpretation — Terms in by-laws — Miscella- evidence of it — No evidence existed of new or modifiedneous –––– C bought 34 acres of island property zoned activities creating undue additional or aggravated problems“R1” — Over several years, C built various buildings on pro- for town or neighbours — Intensification of use for storageperty including residence, guest cabins which he made avail- of vehicles, which use had existed continuously, went alongable for rental by public, shed used as meeting and banquet with proportionate lessening of use for storage of machinery,facility, recreational facilities, and dock — Trust committee equipment or other goods, so overall use had not changed —applied for declaration that C was using property as commer- Given owner’s compliance with town’s 2007 order, towncial resort, contrary to trust area zoning by-law and land use was estopped from claiming that use was not legal non-con-by-law — Application granted — Reading zoning by-law as forming use.whole, it was clear that accommodation of temporary public

Forbes v. Caledon (Town) (2009), 2009 CarswellOnt 1192,guests was not expressly permitted in R1 zone — C’s claim

Price J. (Ont. S.C.J.).that term “habitation” in context of zoning by-law referred tofitness of building for occupation and had nothing to do with 249. Zoning — Legal non-conforming use — Discontinu-duration of occupation could not be accepted because it was ance — Miscellaneous –––– In 1954, plaintiff obtained per-not harmonious with scheme of by-law — It would not dis- mission to erect automobile wreckers establishment ontinguish “dwelling” from hotel or other form of temporary farm — 1968 comprehensive zoning bylaw zoned propertypublic accommodation, rendering definition of dwelling agricultural, which did not permit auto wrecking, scrapmeaningless in context of zoning by-law; and it would lead yards, tire storage, or garbage collection, but non-con-to absurd result because guest cabin was residential building, forming uses were permitted to continue — Parcel A-3 waswith narrow definition of residential use — Resort was avail- owned in 1968 by plaintiff’s sister, was sold in 1972, andable to public, despite units having restricted access, because was severed in 1985 and transferred to plaintiffs, subject toany member of public could book unit — Shed as used did restrictions registered on title, including agricultural-usenot come within R1 zone — Nothing in zoning by-law per- only — A-3 had scrap, metal and farm machinery beforemitted use of dock by paying guests to moor their boats — 1968, but during non-ownership years there was no storageUse of property did not comply with new land use by-law, of tires, white goods, auto wrecking, or scrap yard — Inwhich created set of zones allowing for temporary commer- 1990’s, plaintiffs obtained certificate of approval from Min-cial accommodation distinct from those zones allowing for istry of Environment for tire storage on parcels A-3 and B,more permanent accommodation — With use of term “resi- but application erroneously identified zoning as industrialdence”, land use by-law imposed sense of permanency in oc- and did not refer to registered restriction — Parcel B wascupancy of “dwellings” not found in zoning by-law — As used by plaintiffs for scrap yard and white goods storagenone of disputed units were used as residences, they ran before 1968, but from 1972 to 1982, then owner P used it forafoul of land use by-law and were not permissible. tire storage and auto wrecking, having obtained minor vari-

ance and rezoning bylaw to recognize those uses — B wasNorth Pender Island Local Trust Committee v. Conconire-acquired in 1982 — Plaintiffs applied for declaration of(2009), 2009 BCSC 328, 2009 CarswellBC 604, B.J. Brownright to continue auto wrecking, scrap yard, landfill and gar-J. (B.C. S.C.).bage collection — Municipality counter-applied for declara-

248. Zoning — Legal non-conforming use — Change in tion that uses were contrary to zoning by-law and for injunc-use — Miscellaneous –––– Property owners rented property tion preventing them — Application dismissed — Counter-in 1976, and purchased it in 1986 — Owners used property application granted in part — Plaintiffs were enjoined fromfor commercial purposes, including outside storage of vehi- carrying on scrap yard, landfill, or garbage business on bothcles, machinery and equipment — Town passed by-laws parcels, and also auto wrecking and tire storage on A-3 —prohibiting outdoor storage in zone where property was lo- Plaintiff established various non-conforming uses on A-3cated — In 2007, town issued order requiring owners to before bylaw came into force in 1968, but during period ofscreen storage area and pave loading areas — Owners com- non-ownership from 1972 to 1982, there was no storage ofplied with order — In 2007, owners negotiated sale of pro- tires, auto wrecking, scrap yard or storage of white goods —perty but prospective purchaser required confirmation that When plaintiffs acquired A-3, they were deemed to havetown consented to continued use of property for commercial known of severance conditions, and even if plaintiffs be-purposes — Town refused consent — Owners applied for lieved they had right to deposit materials on property, theydeclaration as to lawfulness of continued use of property for implicitly agreed to discontinue such use — While plaintiffscommercial purposes — Application granted — Owners es- relied on issuance of certificate of approval in support of re-tablished non-conforming use of property for outside storage quest for relief, issuance of certificate cannot fetter munici-of machinery, equipment and vehicles, preceding relevant pality’s right to control land use under its comprehensiveby-law — Seasonal use did not defeat claim of continuous zoning by-law — Application was misleading and inaccu-use — Any apparent gaps in use of property for commercial rate, and therefore municipality could not be said to have ac-storage did not reflect actual gaps beyond seasonal variation quiesced in expansion of tire storage into A-3 — When P


4 D.M.P.L. (2d), July 2009 24

owned B from 1972 to 1982, it was used for tire storage and 124, 2008 CarswellBC 625, 2008 BCSC 391, J.K. Bracken J.(B.C. S.C.).auto wrecking — While plaintiff might have used B for

scrap yard or white goods storage before 1968, uses did not251. Zoning — Legal non-conforming use — Miscellane-continue during P’s ownership, rather, they were only re-ous –––– C bought 34 acres of island property zoned “R1” —sumed after plaintiffs re-acquired property in 1982, after pro-Over several years, C built various buildings on property in-longed discontinuance.cluding residence, guest cabins which he made available for

Newcastle Recycling Ltd. v. Clarington (Municipality) rental by public, shed used as meeting and banquet facility,(2009), 2009 CarswellOnt 1747, Mulligan J. (Ont. S.C.J.). recreational facilities, and dock — Trust committee applied

for declaration that C was using property as commercial re-250. Zoning — Legal non-conforming use — Jurisdiction sort, contrary to trust area zoning by-law and land use by-and powers –––– Respondent H was registered owner of wa- law — Application granted — Reading zoning by-law asterfront parcel of land on island and appellant was local trust whole, it was clear that accommodation of temporary publiccommittee which had regulatory land zoning powers with re- guests was not expressly permitted in R1 zone — C’s claimspect to island — In 1910 provincial government had built that term “habitation” in context of zoning by-law referred towharf and shed adjacent to it for storage of goods arriving by fitness of building for occupation and had nothing to do withboat — By 2003 shed occupied about 1,560 square feet on duration of occupation could not be accepted because it waswater lot and 113 square feet on land lot — H purchased not harmonious with scheme of by-law — Resort was availa-land lot in 1993 and used shed as office, storage space and ble to public, despite units having restricted access, becauseresidence — When neighbours complained that residential any member of public could book unit — Shed as used diduse was contrary to zoning of both land and water lots, gov- not come within R1 zone — Nothing in zoning by-law per-ernment tried to have H removed — Appellant instituted this mitted use of dock by paying guests to moor their boats —action in 1996 — Trial judge determined that high water Because use was not permitted under zoning by-law, it wasmark divided shed, with largest portion of shed lying directly not lawful non-conforming use under new land use by-lawabove water lot and remainder on land lot — However, trial by operation of s. 911 of Local Government Act.judge concluded that due to historic use and impracticality of

North Pender Island Local Trust Committee v. Conconidividing one building into two different zones, entire shed(2009), 2009 BCSC 328, 2009 CarswellBC 604, B.J. Brownshould be governed by C-1 commercial zone that applied toJ. (B.C. S.C.).land lot — Portion of shed over water would be unusable if

governed by water zoning since neither commercial nor resi-252. Zoning — Legal non-conforming use — Scope of ex-dential uses were allowed under that zoning — Appellantemption –––– Property owner obtained permit to repairand other neighbours were concerned that permitted com-cabin — Upon commencement of repairs, owner found seri-mercial use of land lot included related residential use ofous structural problems and when he attempted to shore upminimum 400 square feet so that H would only have to provefoundation, floor collapsed, as wooden foundation had sig-that his present use came within permitted commercial zon-nificant rot — Owner dismantled what remained, and applieding to continue residential use — Appellant appealed claim-for permit to rebuild cabin of same size, on same site, usinging trial judge erred in declaring that land lot zoning appliedmaterials salvaged from original structure — Town tookto shed when major portion of shed was located above waterview that this was total demolition, and refused permit tolot — Appeal allowed — Trial judge found that by-laws af-continue work — Eastern Regional Appeal Board allowedfecting both parts of shed were valid, implying they had le-owner’s appeal — Town appealed — Appeal dismissed —gitimate and valid planning purpose — Therefore, to reachNo development was permitted in watershed area — How-result he did, trial judge must have determined that waterever, s. 108 of Urban and Rural Planning Act, 2000 permitszoning was patently unreasonable as it applied to shed —continuation of non-conforming use unless 50 per cent ofHowever, this reasoning was flawed, since where by-law isvalue of building was destroyed — Board did not err in find-enacted for legitimate and valid planning purposes, resultinging that less than 50 per cent of value of development wasdetriment to owner is one that must be endured in public in-destroyed, thereby permitting saving provisions of s. 108 ofterest — Legislation addresses this detriment by allowing le-Act to apply — Board took into account value of entire de-gal non-conforming uses — Accordingly, order declaringvelopment, including use of land, in determining whether 50land lot zoning to apply to all of shed was set aside and waterper cent threshold had been reached — Board took view thatlot zoning to most of shed was subject to such lawful non-land also had value for recreational and agricultural pur-conforming use as H could establish under Local Govern-poses — Board had sufficient evidence before it to have rea-ment Act.sonably come to its conclusion — Board had sufficient evi-

North Pender Island Trust Committee v. Hunt (2009), 55 dence before it to consider, within context of itsM.P.L.R. (4th) 163, 2009 CarswellBC 1018, 2009 BCCA interpretation of Act, scope of owner’s development —164, Groberman J.A., Huddart J.A., Tysoe J.A. (B.C. C.A.); Since it was accepted that one of underlying purposes of s.reversing (2008), 82 B.C.L.R. (4th) 130, 43 M.P.L.R. (4th) 108 of Act was fairness to landowners whose lawful use had


25 4 D.M.P.L. (2d), July 2009

become non-conforming, it was reasonable for board to in- to absurd result because guest cabin was residential building,terpret statute in way it did, in circumstances presented to it. with narrow definition of residential use — Resort was avail-

able to public, despite units having restricted access, becauseTorbay (Town) v. Planchat (2009), 2009 CarswellNfld 68,any member of public could book unit — Shed as used did2009 NLTD 43, A.E. Faour J. (N.L. T.D.).not come within R1 zone — Nothing in zoning by-law per-

253. Zoning — Legal non-conforming use — What con- mitted use of dock by paying guests to moor their boats —stitutes –––– Property owners used property for commercial Use of property did not comply with new land use by-law,purposes, including outside storage of vehicles, machinery which created set of zones allowing for temporary commer-and equipment — Town passed zoning by-law prohibiting cial accommodation distinct from those zones allowing foroutdoor storage — In 2007, town issued order requiring more permanent accommodation — With use of term “resi-owners to screen storage area and pave loading areas — dence”, land use by-law imposed sense of permanency in oc-Owners complied with order — Owners negotiated sale of cupancy of “dwellings” not found in zoning by-law — Asproperty but purchaser required town consent to continued none of disputed units were used as residences, they ranuses — Town refused consent — Owners applied for decla- afoul of land use by-law and were not permissible.ration as to lawfulness of continued use of property for com- North Pender Island Local Trust Committee v. Conconimercial purposes — Application granted — Evidence estab-

(2009), 2009 BCSC 328, 2009 CarswellBC 604, B.J. Brownlished that non-conforming use of property for outside

J. (B.C. S.C.).storage of machinery, equipment and vehicles use precededrelevant by-law and was continuous from then on — Vehi- 255. Zoning — Rezoning land — Rezoning for develop-cles left on property were “stored” rather than “parked” — ment — Miscellaneous lands –––– Appellants wanted to re-Storage locations on property varied depending on what was develop jointly-owned property situated in area zoned as em-being stored, so confining findings of non-conforming use to ployment regeneration area — Property was currently usedall areas ever used for storage would be unreasonable — by appellants as film studio and related administrative of-Non-conforming use continued as far as possible in circum- fices — Appellants proposed mixed-use commercial, butstances — Evidence of seasonal use did not defeat claim of substantially retail, development scheme — City opposedcontinuous use, since property never reverted to any other development which it thought would destabilize employmentuse but was used for storage to extent that owners found district and preclude city’s hoped for vision for area as studiomarket or need in own businesses — Seasonal nature of district — Appellants appealed application to amend formerbusinesses for which storage was required dictated that their 1994 official plan and zoning by-law (“site-specific applica-storage use was also seasonal — Apparent gaps in use of tions”), and appealed official plan amendments to currentproperty for commercial storage did not reflect actual gaps 2002 official plan and 1994 plan and zoning by-law 130-beyond seasonal variation but irregularity with which contin- 2008 (“city instruments”) — Appeals of site-specific appli-uous use generated evidence of it — Given owner’s compli- cations were not approved and appeals were therefore dis-ance with town’s 2007 order, town was estopped from claim- missed; appeals of official plan amendments were alloweding that use was not legal non-conforming use. and not approved; appeal of zoning by-law 130-2008 was al-

lowed and by-law was repealed — Neither city instrumentsForbes v. Caledon (Town) (2009), 2009 CarswellOnt 1192,nor site-specific applications represented good land use plan-Price J. (Ont. S.C.J.).ning — City instruments were more reflective of knee-jerk

254. Zoning — Nature and scope — Accessory uses — reaction triggered by site-specific applications than reasonedCommercial operation in residential area –––– C bought planning initiative — City instruments bore absolutely no re-34 acres of island property zoned “R1” — Over several lationship to city’s policy study and were in fact significantyears, C built various buildings on property including resi- recalibration of employment district’s policy framework —dence, guest cabins which he made available for rental by Regarding site-specific applications, these did not satisfy testpublic, shed used as meeting and banquet facility, recrea- set out in policy, which was that they had regard for impacttional facilities, and dock — Trust committee applied for they would visit on surrounding employment lands thatdeclaration that C was using property as commercial resort, would not be redesignated — Evidence presented tended tocontrary to trust area zoning by-law and land use by-law — address only positive impacts of redesignation and only onApplication granted — Reading zoning by-law as whole, it existing businesses and did not deal with issue of retail con-was clear that accommodation of temporary public guests tagion — Accordingly, status quo applying to employmentwas not expressly permitted in R1 zone — C’s claim that district in question was to remain in effect.term “habitation” in context of zoning by-law referred to fit-

Smart Centres Inc. v. Toronto (City) (2009), 61 O.M.B.R.ness of building for occupation and had nothing to do with

129, 2009 CarswellOnt 1421, J.R. McKenzie V-Chairduration of occupation could not be accepted because it was

(O.M.B.).not harmonious with scheme of by-law — It would not dis-tinguish “dwelling” from hotel or other form of temporary 256. Zoning — Zoning by-laws — Miscellaneous –––– Re-public accommodation, rendering definition of dwelling spondent H was registered owner of waterfront parcel of landmeaningless in context of zoning by-law; and it would lead on island and appellant was local trust committee which had


4 D.M.P.L. (2d), July 2009 26

regulatory land zoning powers with respect to island — In sal represented good planning and was in public interest; and1910 provincial government had built wharf and shed adja- appropriate mechanism for securing retention, maintenancecent to it for storage of goods arriving by boat — By 2003 and protection of heritage features on site was Site Planshed occupied about 1,560 square feet on water lot and 113 Agreement and Heritage Easement agreements — With re-square feet on land lot — H purchased land lot in 1993 and spect to built heritage resources which were recognized byused shed as office, storage space and residence — When District Guidelines, PDVC proposal would appropriately re-neighbours complained that residential use was contrary to vitalize them, leaving them better than they were found.zoning of both land and water lots, government tried to have PROUD Port Dalhousie, Re (2009), 2009 CarswellOntH removed — Appellant instituted this action in 1996 — 1096, S.B. Campbell V-Chair (O.M.B.).Trial judge determined that high water mark divided shed,

258. Zoning — Zoning variances — General princi-with largest portion of shed lying directly above water lotples –––– Wind power company (E) leased lot from R’s forand remainder on land lot — However, trial judge concludedpurpose of locating wind turbines — Foundation of one tur-that due to historic use and impracticality of dividing onebine was laid accidentally almost seven meters from where itbuilding into two different zones, entire shed should be gov-should have been laid under zoning by-law — Committee oferned by C-1 commercial zone that applied to land lot —adjustment refused application of E and R’s for minor vari-Portion of shed over water would be unusable if governed byance to permit turbine to be located on site of foundation —water zoning since neither commercial nor residential usesE and R’s appealed — P, who owned lot abutting subjectwere allowed under that zoning — Appellant and otherproperty opposed variance — Appeal allowed; variance au-neighbours were concerned that permitted commercial use ofthorized — Expert evidence indicated that variance was mi-land lot included related residential use of minimum 400nor and that authorizing it would have no negative impactsquare feet so that H would only have to prove that his pre-over what had already been approved by zoning by-law —sent use came within permitted commercial zoning to con-Turbine would be no closer to P’s property and presented notinue residential use — Appellant appealed claiming trialsafety, noise or shadow flicker issues other than those identi-judge erred in declaring that land lot zoning applied to shedfied and found negligible or acceptable at time of passing ofwhen major portion of shed was located above water lot —zoning by-law — Both official plan and zoning by-law al-Appeal allowed — Trial judge found that by-laws affectinglowed for location of wind turbines on subject property andboth parts of shed were valid, implying they had legitimateit was appropriate use of land — P was really opposing tur-and valid planning purpose — Therefore, to reach result hebine being approved in or near its particular location in firstdid, trial judge must have determined that water zoning wasplace and admitted he was hoping E would provide him withpatently unreasonable as it applied to shed — However, thisanother lot on which to build retirement home — However,reasoning was flawed, since where by-law is enacted for le-it was not appropriate to use OMB for leverage purposes andgitimate and valid planning purposes, resulting detriment toP left experts’ evidence unchallenged — In circumstances,owner is one that must be endured in public interest — Leg-there was no public benefit from moving turbine distanceislation addresses this detriment by allowing legal non-con-which was essentially width of its foundation, and which ex-forming uses — Accordingly, order declaring land lot zoningercise would be highly costly to E.to apply to all of shed was set aside and water lot zoning to

most of shed was subject to such lawful non-conforming use Enbridge Ontario Wind Power LP, Re (2009), 2009 Cars-as H could establish under Local Government Act. wellOnt 1706, S.J. Sutherland Member (O.M.B.).

North Pender Island Trust Committee v. Hunt (2009), 55M.P.L.R. (4th) 163, 2009 CarswellBC 1018, 2009 BCCA164, Groberman J.A., Huddart J.A., Tysoe J.A. (B.C. C.A.); PUBLIC LAWreversing (2008), 82 B.C.L.R. (4th) 130, 43 M.P.L.R. (4th)

259. Elections — Practice and procedure on controverted124, 2008 CarswellBC 625, 2008 BCSC 391, J.K. Bracken J.elections — In municipal elections — Irregularities — By(B.C. S.C.).election officials –––– Municipal election was held, includ-

257. Zoning — Zoning by-laws — Restrictive land ing for four councillors — Preliminary results were an-uses — Heritage –––– PDVC made application for approval nounced on election night — Final determination of resultsof development proposal — Application granted in part — reversed placement of fourth and fifth candidates, changingBoard found that PDVC’s development proposal constituted which one was elected councillor — Four electors filed peti-good planning and was in public interest and approved Offi- tion seeking order declaring election invalid for non-compli-cial Plan Amendment No. 31 (“OPA 31”), Zoning By-law ance with Local Government Act of British Columbia — Pe-2006-228 and PDVC’s site plan and heritage permit applica- tition dismissed — Evidence of deputy chief election officertions, with certain modifications and amendments and sub- was accepted that she took tally sheets only to calculatorject to certain conditions — PDVC proposal complied with elsewhere in town hall, in view of scrutineers, and so con-Ontario Heritage Act, Planning Act, Regional Plan, city’s duct did not breach s. 124 of Act — No evidence supportedOP, Neighbourhood Plan and District Guidelines — Propo- allegation that deputy officer opened ballot boxes on her


27 4 D.M.P.L. (2d), July 2009

own — No objections were raised at time with procedure of ducted in good faith, and error was mere oversight — Irregu-not counting questionable ballots until end of count, and larity did not materially affect result of election — Evidenceelectors did not establish breach of ss. 128 and 130 of Act — accepted that election results were accurate — Mistake madeWhile tally sheets were important, they were not included in in misordering tally sheets and tabulating results was discov-ss. 131-133 of Act, and in any event, deputy officer deposed ered and corrected before official election results werethat tally sheets remained with election material — Chief declared.election officer conceded that he erred by not notifying can- Sadler v. Gibsons (Town) (2009), 56 M.P.L.R. (4th) 80,didates of date, time and place of determination of official 2009 BCSC 138, 2009 CarswellBC 1133, Cohen J. (B.C.results as required by s. 135(2) of Act — Although error S.C.).compromised transparency of election, it did not warrantdeclaration that election was invalid — Election was con-


4 D.M.P.L. (2d), July 2009 28

WORDS AND PHRASES*

Wahl Estate v. Niagara Escarpment Commission (2009), 2009SUBDIVISIONCarswellOnt 1929 (N.E.H.O.), at para. 32 DeMarco H.O.

OntarioWHEEL ROW♦ Based upon [the definition in Black’s Law Dictionary (8th ed.)] “subdivi-Saskatchewansion” contemplates the dividing of land into smaller lots or parcels. The term

does not extend to the consolidation of lands or a lot addition, the effect of ♦ A wheel row is a length of pipe with wheels on it and sprinklers attachedwhich is to create a larger parcel of land out of two or more smaller ones. to the pipe.

(Municipal law)(Municipal law)Green v. Swift Current (City) (2009), 2009 SKQB 110, 2009 Car-

Martin v. Meldon Forestry Equipment Ltd. (2009), 2009 Cars- swellSask 198 (Sask. Q.B.), at para. 24 Whitmore J.wellOnt 1869 (Ont. S.C.J.), at para. 28 B.R. Warkentin J.

VEXATIOUS

Ontario

♦ The vexatious aspect differs from the no planning justification, withoutmerit, and frivolous aspects of section 25(8.1)(a) [of the Niagara Escarp-ment Planning and Development Act, R.S.O. 1990, c. N.2] by including anelement of improper motivation . . .

(Municipal law)

NOTICE AND DISCLAIMER: All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, ortransmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior writtenconsent of the publisher (Carswell).

Carswell and all persons involved in the preparation and sale of this publication disclaim any warranty as to accuracy or currencyof the publication. This publication is provided on the understanding and basis that none of Carswell, the author/s or other personsinvolved in the creation of this publication shall be responsible for the accuracy or currency of the contents, or for the results ofany action taken on the basis of the information contained in this publication, or for any errors or omissions contained herein.

*An alphabetical list of individual words and phrases that are given judicial consideration in the cases digested in this issue. Whenever possible, the entries aretaken verbatim from the judgment.


ISSN 1181-9006

The Digest ofMUNICIPAL & PLANNING LAW

Editor in Chief: John Mascarin, M.A., LL.B.Aird & Berlis LLP

Cited 4 D.M.P.L. (2d) (2009) 4 D.M.P.L. (2d), August 2009, Issue 8

Published 12 times per year by Production Editor: Tara Russell Subscription Rate is $480 for 12 issues perCARSWELL, A DIVISION OF annumTHOMSON REUTERS CANADA LIMITED © 2009 Thomson Reuters Canada LimitedOne Corporate Plaza2075 Kennedy Road Customer RelationsToronto, Ontario Toronto 1-416-609-3800M1T 3V4 Elsewhere in Canada/U.S. 1-800-387-5164

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CASES DIGESTED IN THIS ISSUE*

Adams v. McDougall (Municipality) (2008), 2008 CarswellOnt 7215, 52 East Hawkesbury (Township), Solaris Energy Partners Inc. v. SeeM.P.L.R. (4th) 289, L.L. Gauthier J. (Ont. S.C.J.) 295 Solaris Energy Partners Inc. v. East Hawkesbury (Township).

Flett’s Springs (Regional Municipality) No. 429, Stewart v. See StewartAgate Developments Ltd. v. United Gulf Investments Ltd. (2009), 2009v. Flett’s Springs (Regional Municipality) No. 429.NSSC 160, 2009 CarswellNS 282, G.R.P. Moir J. (N.S. S.C.) 271

Gordon v. Markham (Town) (2009), 2009 CarswellOnt 2608, Echlin J.Airport Taxicab (Pearson Airport) Assn. v. Toronto (City) (2009), 2009(Ont. Div. Ct.) 285CarswellOnt 2905, Perell J. (Ont. S.C.J.) 265

Guy v. Toronto (City) (2008), 2008 CarswellOnt 7626, 53 M.P.L.R. (4th)Andrex Developments (1985) Ltd. v. Colwood (City) (2009), 2009 Car-231, Stong J. (Ont. S.C.J.) 261swellBC 1292, 2009 BCCA 222, Finch C.J.B.C., Hall J.A., Saunders J.A.

Holmes v. Kingston (City) (2009), 2009 CarswellOnt 2462, Pedlar J. (Ont.(B.C. C.A.) 270S.C.J.) 278Baynes Sound Area Society for Sustainability v. Comox Strathcona

Jaysid Construction Ltd., Re (2009), 2009 CarswellOnt 2837, C. Hefferon(Regional District) (2009), 2009 CarswellBC 1088, 2009 BCSC 565,Member (O.M.B.) 300R.D. Wilson J. (B.C. S.C.) 291, 294

Kingston (City), Holmes v. See Holmes v. Kingston (City).Calgary (City), Concorde Group v. See Concorde Group v. CalgaryLake Waseosa Ratepayers’ Assn. v. Pieper (2008), 58 O.M.B.R. 304, 44(City).

M.P.L.R. (4th) 294, 2008 CarswellOnt 985, Molloy J. (Ont. Div.Cardozo v. Niagara Escarpment Commission (2009), 2009 CarswellOntCt.) 2902554, T. Vigod H.O. (N.E.H.O.) 276

Lake Waseosa Ratepayers’ Assn. v. Pieper (2008), 2008 CarswellOntChestermere (Town), Shane Homes Ltd. v. See Shane Homes Ltd. v.7527, Bellamy J., J. Wilson J., Swinton J. (Ont. Div. Ct.) 289Chestermere (Town).

Markham (Town), Gordon v. See Gordon v. Markham (Town).Classic Leisure Wear Inc., Watt v. See Watt v. Classic Leisure Wear Inc.

McDougall (Municipality), Adams v. See Adams v. McDougallColwood (City), Andrex Developments (1985) Ltd. v. See Andrex (Municipality).

Developments (1985) Ltd. v. Colwood (City).Middlebrook v. Timmins (City) (2009), 2009 CarswellOnt 1289, 2009

Comox Strathcona (Regional District), Baynes Sound Area Society for ONCA 220, J. Simmons J.A., S.T. Goudge J.A., Winkler C.J.O. (Ont.Sustainability v. See Baynes Sound Area Society for Sustainability v. C.A.) 288Comox Strathcona (Regional District). Montevallo Developments Ltd. v. Municipal Property Assessment

Concorde Group v. Calgary (City) (2009), 2009 CarswellAlta 642, 2009 Corp., Region No. 9 (2008), (sub nom. Municipal Property AssessmentABPC 170, C. Hunt J.A. (Alta. C.A.) 273 Corp. v. Montevallo Developments Ltd.) 246 O.A.C. 1, 2008 Carswell-

De Meyer, Northern Sunrise (County) v. See Northern Sunrise (County) Ont 8044, Bellamy J., Carnwath J., J. Macdonald J. (Ont. Div. Ct.) 283,v. De Meyer. 284

DeFaria, R. v. See R. v. DeFaria. Municipal Property Assessment Corp. v. Montevallo Developments Ltd.Dixon v. Powell River (City) (2009), 2009 CarswellBC 762, 2009 BCSC See Montevallo Developments Ltd. v. Municipal Property Assessment

406, N. Garson J. (B.C. S.C.) 260, 287 Corp., Region No. 9.

*

Digests or summaries of the most recent and significant decisions of Canadian courts and tribunals, written with a focus on the legal issues involved in eachdecision. More than one digest may be written for each decision.

4 D.M.P.L. (2d), August 2009 2

Municipal Property Assessment Corp., Region No. 9, Montevallo Solaris Energy Partners Inc. v. East Hawkesbury (Township) (2009),Developments Ltd. v. See Montevallo Developments Ltd. v. Municipal 2009 CarswellOnt 2651, 2009 CarswellOnt 2650, M.C. Denhez MemberProperty Assessment Corp., Region No. 9. (O.M.B.) 297

Niagara Escarpment Commission, Cardozo v. See Cardozo v. Niagara Stewart v. Flett’s Springs (Regional Municipality) No. 429 (2009), 2009Escarpment Commission. CarswellSask 52, 2009 SKPC 20, R.D. Jackson Prov. J. (Sask. Prov.

Niagara-on-the-Lake (Town), Niagara River Coalition v. See Niagara Ct.) 282River Coalition v. Niagara-on-the-Lake (Town). Tadros v. Peel Regional Police Service (2009), 2009 ONCA 442, 2009

Niagara River Coalition v. Niagara-on-the-Lake (Town) (2009), 2009 CarswellOnt 2953, K. Feldman J.A., M. Rosenberg J.A., R.A. Blair J.A.CarswellOnt 2910, J.W. Quinn J. (Ont. S.C.J.) 292, 293, 296 (Ont. C.A.) 301, 302

Northern Sunrise (County) v. De Meyer (2009), 2009 ABCA 205, 2009 Timmins (City), Middlebrook v. See Middlebrook v. Timmins (City).CarswellAlta 773, C. Fraser C.J.A., J. Cote J.A., J. Watson J.A. (Alta.

TKS Holdings Inc. v. Ottawa (City) (2009), 2009 CarswellOnt 2819,C.A.) 272, 274, 275Master C. MacLeod (Ont. S.C.J.) 280

Ottawa (City), Siemens Canada Ltd. v. See Siemens Canada Ltd. v.Toronto (City), Airport Taxicab (Pearson Airport) Assn. v. See AirportOttawa (City).

Taxicab (Pearson Airport) Assn. v. Toronto (City).Ottawa (City), TKS Holdings Inc. v. See TKS Holdings Inc. v. OttawaToronto (City), Guy v. See Guy v. Toronto (City).(City).Toronto Police Services Board, Van v. See Van v. Toronto Police ServicesPeel Regional Police Service, Tadros v. See Tadros v. Peel Regional

Board.Police Service.Pieper, Lake Waseosa Ratepayers’ Assn. v. See Lake Waseosa United Gulf Investments Ltd., Agate Developments Ltd. v. See Agate

Ratepayers’ Assn. v. Pieper. Developments Ltd. v. United Gulf Investments Ltd.Powell River (City), Dixon v. See Dixon v. Powell River (City). Van v. Toronto Police Services Board (2008), 2008 CarswellOnt 8282,Prowse v. Richmond Hill (Town) (2009), 2009 CarswellOnt 2406, C.W. Kilian D.J. (Ont. S.C.J.) 267

Carnwath J., J. Wilson J., Jennings J. (Ont. Div. Ct.) 281 Vancouver (City) v. Zhang (2009), 2009 CarswellBC 145, 2009 BCSC 84,R. v. DeFaria (2008), 2008 ONCJ 687, 2008 CarswellOnt 8194, B. Duncan Stromberg-Stein J. (B.C. S.C.) 263, 264, 266

J. (Ont. C.J.) 268Vancouver (City) v. Zhang (2009), 2009 CarswellBC 1309, 2009 BCSC

Richmond Hill (Town), Prowse v. See Prowse v. Richmond Hill (Town).614, Stromberg-Stein J. (B.C. S.C.) 269

Rideau Lakes (Township), Salevsky v. See Salevsky v. Rideau LakesWatt v. Classic Leisure Wear Inc. (2008), 43 M.P.L.R. (4th) 274, 2008(Township).

CarswellOnt 982, 59 O.M.B.R. 23, Kiteley J. (Ont. Div. Ct.) 286Salevsky v. Rideau Lakes (Township) (2009), 2009 CarswellOnt 2813,Windsor (City), Windsor Family Credit Union Ltd. v. See WindsorPower J. (Ont. S.C.J.) 262, 277

Family Credit Union Ltd. v. Windsor (City).Shane Homes Ltd. v. Chestermere (Town) (2009), 2009 CarswellAltaWindsor Family Credit Union Ltd. v. Windsor (City) (2009), 2009 Cars-721, 2009 ABCA 185, K. Ritter J.A., M. Paperny J.A., P. Rowbotham

wellOnt 3059, 2009 ONCA 450, Feldman J.A., Juriansz J.A.,J.A. (Alta. C.A.) 299MacFarland J.A. (Ont. C.A.) 298Siemens Canada Ltd. v. Ottawa (City) (2009), 2009 CarswellOnt 1845,

D.L. Corbett J. (Ont. S.C.J.) 279 Zhang, Vancouver (City) v. See Vancouver (City) v. Zhang.


3 4 D.M.P.L. (2d), August 2009

They had the authority to impose and collect a tax on dogs,6

prevent and regulate their straying or running at large, aswell as for the killing of such dogs found running at largeANIMAL CONTROL IN NEWcontrary to law.7 This power remained constant for county

BRUNSWICK: A SPHERE OF governments in subsequent legislation8 until repealed by theMunicipalities Act in 1966.9JURISDICTION?

(PART II)(b) Towns Prior to 1966by J. Andre DaigleOf the three levels of local government in existence prior to1966, towns appeared to have the broadest authority with re-gard to general by-law control. In 1903, the Towns Incorpo-1. Animal Control in New Brunswickration Act10 provided councils with the following authority:A broad and purposive approach must be applied in order to

64. The town council, in addition to all powers of mak-understand the full extent of the animal control powers in theing by-laws and ordinances, rules or regulations vestedMunicipalities Act regarding animal control, especially within them by the terms of this Chapter, shall have the soleregards to subsection 96(3), as discussed in Part I of this arti-power and authority to make by-laws for the good rulecle (Issue 7, July 2009). The history and context of the ena-and government of the said town, and for the better car-bling legislation as well as its purpose must be considered.rying out of the provisions in this chapter contained;When interpreting provincial statutes, one must arguably in-[. . .] and for the more particular defining of the powersclude a consideration of section 17 of the Interpretation Act,1of the said town council, but not in any way or mannerwhich requires that legislation be deemed remedial, and shallto limit the same to the objects hereinafter mentioned,receive such fair, large and liberal construction and interpre-the said town council shall have the power to make by-tation in order to best achieve its objective.laws for the several purposes following, within theAs in United Taxi Drivers’ Fellowship of Southern Alberta v.town, that is to say:Calgary (City)2 and Nanaimo (City) v. Rascal Trucking Ltd.,3

[. . .]this legislative provision assisted the courts in establishingthe context for reviewing such enabling legislation. (26) To restrain, regulate or prevent the running atThe legislative history of municipal animal control powers large of horses, cattle, swine, goats, sheep, dogsalso contributes toward appreciating the evolution of munici- and other animals, geese and poultry, and to im-pal powers. Today, cities, towns and villages find their au- pound the same;thority within the Municipalities Act. The current legislation (27) To impose a tax by way of license on thewas adopted in 19664 and consolidated within the revised owners or harborers of dogs, and to regulate andstatutes exercise of 1973. Prior to 1966, local government prevent dogs from running at large, and to providestructure included separate legislation for counties, towns for killing of such as are found so running at largeand villages. Since 1966, powers have been consolidated into contrary to any law or by-law after public noticesection 96 as outlined in Part I of this article. given; [Emphasis added.]

This broad authority given to towns remained relatively in-tact11 until repealed and replaced by the Municipalities Act in(a) County Governments Prior to 19661966.12County governments first obtained their existence and au-

thority to regulate dogs in the Municipalities Act in 1877.5

1R.S.N.B. 1973, c. I-13.2[2004] S.C.J. No. 19, 2004 CarswellAlta 355, 46 M.P.L.R. (3d) 1 [hereinafter United Taxi].3[2000] 1 S.C.R. 342, 9 M.P.L.R. (3d) 1 [hereinafter Nanaimo].4S.N.B. 1966, c. 20.5C.S.N.B. 1877, c. 99.6Ibid. subs. 96(22).7Ibid. subs. 96(38).8See the Municipalities Act, S.N.B. 1903, c. 165, subs. 95(22), 95(37), the Municipalities Act, 2 George V., 1912, c. 6, subs. 95(22), 95(37), MunicipalInstitutions and Associations, R.S.N.B. 1927, c. 178, subs. 95(22), 95(37), the Counties Act, S.N.B. 1952, c. 44, subs. 109(24), 109(25).9S.N.B. 1966, c. 20.10C.S.N.B. 1903, c. 166.11See the Towns Incorporation Act, R.S.N.B. 1927, c. 179, subs. 64(26), 64(27), Towns Act, R.S.N.B. 1952, c. 234, subs. 77(15), 77(16).12S.N.B. 1966, c. 20.


4 D.M.P.L. (2d), August 2009 4

(c) Villages Prior to 1966 tional expenses. What about rats? How are we going toregulate rats?In contrast to towns, villages had limited powers with re-

gards to adopting by-laws. Their powers resembled a pre- Hon. Mr. SMITH: Well, this is certainly an option for ascriptive list of powers such as those found in the current municipality. If they want to enact a bylaw under thislegislation. The first Villages Incorporations Act13 provided section, they can do so. If they don’t want to be both-as follows: ered with horses and cats . . . and I was going to say

something, but I won’t. This is enabling legislation.18134. It shall be the duty of the council of every villageand every council shall have the power to pass such by- From 1977 to 1994, the province made minimal changes tolaws as it may deem expedient for all or any of the fol- the legislation affecting the control of animals.19 However, inlowing purposes: 1994 the Legislative Assembly introduced language to estab-

[. . .] lish a clear mandate for municipalities in controlling animalswithin their limits, subject only to limitations that could be(5) Restraining and regulating the running at largeimposed provincially or federally. The relevant sections areof dogs, and imposing a tax on the owners, posses-repeated below:sors or harbourers of dogs and killing dogs running

at large; 96. (2) The Lieutenant-Governor in Council may makeThis list of powers remained largely unaffected in subse- regulations respecting exceptions to any of the powersquent changes14 until it was repealed and replaced by the to make by-laws given to the council of a municipalityMunicipalities Act in 1966.15 under subsection (1).

(3) Subject to subsection (4), notwithstanding that spe-cific powers are given in paragraphs (1)(a) to (i) to the(d) Municipalities Act — Since 1966council of a municipality to make by-laws in relation toSince the adoption of the Municipalities Act in 1966, theanimals, no person, court, tribunal or other body shallprovince has focused primarily on standardizing the statutoryconstrue the giving of those specific powers so as toframework to control dogs (i.e. their running at large, seizinglimit the general powers given in paragraph (1)(j) andand impounding, licensing, destroying, as well as finingparagraph (1)(j) shall be construed so as to give theowners, etc.) by providing the same powers to all municipali-council the broadest possible powers to make by-lawsties. However, in 1977, the province introduced a changethat the council considers advisable and necessary re-that would allow municipalities to control more than dogs;16

specting animals within the municipality, subject to anythe change allowed municipalities to control animals inexceptions that the Lieutenant-Governor in Councilgeneral.may establish under subsection (2).It appears to have been at the request of local governments(4) If a conflict exists between any by-law made underthat representatives of the provincial government initiatedsubsection (1) and the provisions of this Act, any otherthe changes to include the control of other animals.17 TheAct of the Legislature or any Act of the Parliament offollowing represents part of an exchange that occured in theCanada or any regulation or statutory instrument madelegislature:under any of those Acts, the provisions of those Acts orMr. FRENETTE: Mr. Chairman, changing the wordof the regulation or statutory instrument, as the case“animals” might correct that problem. I suggest to youmay be, shall prevail. [Emphasis added.]that people are going to start calling the municipal of-

fice or the police department about a cat on the door- This new language appears to have provided a clear limita-step. There are chronic complainers in every municipal- tion on municipal powers. However, unless there is such aity, and if you do this, I think you are going to be limitation, local governments do appear to have broadgetting all kinds of calls over something which, in my powers.estimation, is going to mean additional expenses to themunicipality. While I appreciate the fact that you want

2. Application of the “Benevolent Approach”to correct the problem maybe as far as horses are con-cerned, it seems to me that just to put “animals” there is Without a factual basis upon which to apply the above-notedgoing to load the municipalities with all kinds of addi- research, it is difficult to determine the extent of hypothetical

1310 George V. 1920, c. 56.14See the Villages Incorporation Act, R.S.N.B. 1927, c. 180, subs. 125(5) and the Villages Act, R.S.N.B. 1952, c. 242, subs. 123(5).15S.N.B. 1966, c. 20.16S.N.B. 1977, c. 35, s. 6.17Synoptic Report of the Proceedings of the Legislative Assembly of New Brunswick, Volume V, Fredericton, NB, 1977, p. 1851.18Ibid. p. 1852.19See S.N.B. 1981, c. 52, s. 13, S.N.B. 1983, c. 56, s. 10, S.N.B. 1989, c. 27, s. 7, S.N.B. 1990, c. 61, s. 89.


5 4 D.M.P.L. (2d), August 2009

situations in which a municipality would decide to exercise (b) an instrument of a legislative nature, includingits powers in animal control. However, there are starting an order, licence or approval, made or issued underpoints for such an analysis. a provincial or federal Act or regulation. [. . .]

The above-noted case law establishes a two-stage approach Section 14 was commented on in The Ontario Municipalto reviewing municipal decisions. If a municipality is exer- Act: A User’s Manual — 2007.23 The authors state that thiscising its authority within its legislative jurisdiction, the next language appears to mandate the traditional “paramountcystage is to examine the decision itself. And, as long as this doctrine” as a method of resolving conflicts between by-lawsdecision attempts to address an issue of local concern, it and provincial or federal legislative instruments. However, itshould be viewed with a standard of patent unreasonableness is also noted that other principles of conflict resolution rec-by the courts. The courts should then exercise deference and ognized by the courts include the “dual compliancy test,”be discouraged from substituting council’s views with their that of “express contradiction,” or the “principle of subsidi-own. ary,” to name but a few.24

In order to determine whether a municipality is acting withinits jurisdiction, the courts will interpret the enabling legisla-tion by using a broad and purposive approach in order to as-

3. Conclusioncertain the context and overall intent of the legislator. Withregards to animal control in New Brunswick, the Legislative Although the province of Alberta was the first to take a pro-Assembly has attempted to provide municipalities with a gressive step toward drafting broad municipal powers inbroad mandate in addressing issues of local concern. What 1994, it is clear that the Province of New Brunswick under-used to be general welfare provisions appears to have ma- took a similar legislative exercise with respect to grantingtured into a specific sphere of competence. animal control powers at the same time. Today, the courtsFor instance, dog control has historically been an area in have established a climate that clearly recognizes and re-which municipalities could prohibit or regulate their running spects broad grants of authority to municipal governments.at large, require their licensing, as well as have dogs de- As expressed in Croplife Canada v. Toronto (City)25 andstroyed for running at large or for unacceptable behaviour. In 114957 Canada Ltee (Spray-Tech, Societe d’arrosage) v.1977, the provincial government decided that municipalities Hudson (Ville),26 these broad grants of authority can becould play a larger role by allowing them to regulate animals found in various locations within the enabling statute.generally.

Although the enabling legislation granting animal control toThe changes brought forth in 1994 granted broad legislativemunicipalities has not yet been interpreted by the courts inauthority to municipalities. Specifically, subsection 96(3) ofNew Brunswick, an argument can be made that the inclusionthe Municipalities Act, when combined with section 17 ofof subsection 96(3) of the Municipalities Act lends itself wellthe Interpretation Act,20 create a similar legislative contextto a broad grant of authority, subject only to legislative limi-as applied in United Taxi, Nanaimo, and Rizzo & Rizzotations adopted by either the provincial or federal govern-Shoes Ltd. (Re),21 where the lower courts are reminded toments. The potential is therefore present for the courts tocarefully consider the legislative intent to delegate broadconsider recognizing a municipal sphere or area of compe-powers to municipalities.tence with respect to animal control.

The only legislative limitations to this broad power are out-lined in subsections 96(2) and 96(4) where either the provin-cial or federal governments may adopt statutes or regulations

J. Andre Daigle, LL.M. is the Solicitor for the City of Di-that would limit the municipal exercise. This legislative limi-eppe, New Brunswick. He is the current Chair of the Munici-tation is similar to that found in Ontario’s Municipal Act,pal Law Section of the CBA-NB. This paper was originally200122 which reads as follows:researched for The Widening Scope of Municipal Jurisdic-

14. (1) A by-law is without effect to the extent of any tion course of the Osgoode Hall Law School LL.M. Munici-conflict with, pal Law Program. The current publication follows the gener-

(a) a provincial or federal Act or a regulation made ous advice and assistance of the course instructor, Georgeunder such an Act; or Rust-D’Eye of WeirFoulds LLP in Toronto.

20Supra note 1.21[1998] 1 S.C.R 27.22S.O. 2001, c. 25.23Rust-D’Eye, G., Bar-Moshe, O., & James, A. (Thomson Carswell, Toronto, 2007).24Ibid. pp. 47-49.25[2005] O.J. No. 1896, 2005 CarswellOnt 1877, 10 M.P.L.R. (4th) 1 (C.A.), leave to appeal dismissed at [2005] S.C.C.A. No. 329, 2005 CarswellOnt 6587.26[2001] S.C.J. No. 42, 2001 CarswellQue 1268, 19 M.P.L.R. (3d) 1.


4 D.M.P.L. (2d), August 2009 6

CIVIL PRACTICE AND PROCEDURE Supervisor could not explain delay — Laneway was the onlylaneway in area described and reference to subway station

260. Limitation of actions — Actions involving municipal was clear — Notice included plaintiff’s address and phonecorporations — Effect of Charter of Rights and Free- number — Injustice to plaintiff if claim barred far out-doms –––– City sought approval for $6.5 million project us- weighed any prejudice to municipality.ing “alternative elector process”, which led to public discus-

Guy v. Toronto (City) (2008), 2008 CarswellOnt 7626, 53sion on merits of project, method of obtaining communityM.P.L.R. (4th) 231, Stong J. (Ont. S.C.J.); additional reasonsapproval, and mayor and council’s management of city’s af-at (2009), 2009 CarswellOnt 388, A.J. Stong J. (Ont. S.C.J.).fairs and finances — Applicant objectors each published

views in opposition to city’s steps: NH published letter inCONSTRUCTION LAWonline community newspaper, to which WB added online

comment suggesting possible criminal behaviour by city262. Statutory regulation — Building permits — Compel-council, and member of city council PA published email op-ling issuance — Availability of remedy –––– Applicant’sposing council’s steps — City retained counsel and deliveredboathouse built in 1916 was located on unopened townshipletters to each objector referring to objectors’ statements asroad allowance and lake — Township assessed and collecteddefamatory and actionable, putting objectors on notice to re-realty taxes on boathouse for decades, and 2005 tax billfrain from defaming city, and demanding retraction and pub-showed boathouse owner as “owner” — In order to effectlication of apology — Online community newspaper refusedrepairs in 1965, boathouse owner’s and township’s predeces-WB’s attempts to issue apology and retraction, and despitesors entered into agreement permitting reconstruction in ac-his public retraction at council meeting, mayor declined tocordance with local building by-law, with removal upon 90provide him with assurance that matter was “over” — Objec-days notice if right of way was required for municipal pur-tors applied for declaration that city lacked legal authority toposes — In 1984, Parks Canada, which had legal jurisdictioninstitute civil proceedings or threaten to do so, for defama-over lake bed, informed boathouse owner’s predecessor thattion of its reputation as municipal government — City filedunless ownership could be proved, boathouse would have tothen withdrew statement of defence, and gave notice to ob-be removed from Crown property by November 1, 1985 —jectors that it would not appear at hearing — ApplicationOn August 6, 1987, council informed boathouse owner’sgranted — City lacked legal basis to bring civil proceedingspredecessor that motion was passed requiring removal offor defamation of its governing reputation, or to threaten toboathouse by April 1, 1988, but later vote deferred furtherdo so, including in manner contained in three letters — Com-action until later time — In 2005, boathouse owner com-mon law causes of action must be applied in manner that ismenced repairs, and was issued “order to comply” — Parksconsistent with Canadian Charter of Rights and Freedoms —Canada refused to issue permit because boathouse ownerCharter enshrined value of freedom of expression is para-was not owner of, nor did he have consent of owner of adja-mount and local governments have resort to other means tocent upland property on which boathouse sat, namely, town-protect their reputations from citizens who publish criticalship — Township refused to issue building permit withoutcommentary about government itself — It is antithetical toapproval of, or confirmation of lease agreement with, Parksnotion of freedom of speech and citizens’ rights to criticizeCanada — Boathouse owner applied for order compellingtheir governments concerning their governing functions, thattownship to issue necessary permits — Boathouse ownersuch criticism should be chilled by threat of suit incomplied with requirements of Building Code Act, 1992, anddefamation.therefore, application should be granted — Application dis-Dixon v. Powell River (City) (2009), 2009 CarswellBC 762,continued with respect to Parks Canada — 1965 agreement2009 BCSC 406, N. Garson J. (B.C. S.C.).constituted licence from township in favour of boathouseowner’s predecessor on title, and township’s acquiescence in261. Limitation of actions — Actions involving municipaltransfer of building to boathouse owner was evidence ofcorporations — Non-repair of highways and streets —township’s intention to honour licence in favour of boat-Notice of claim and injury — Sufficiency –––– Plaintiffhouse owner — At no time was boathouse owner notifiedsuffered a broken wrist when she slipped on snow-coveredthat right of way was required for municipal purposes —ice in laneway March 11 — Plaintiff brought action for dam-Agreement was still in effect — Owner of property hasages for negligence — Plaintiff had sent handwritten letterprima facie right to preserve his property and right shouldby ordinary mail advising municipality of accident Marchnot be denied absent compelling reason — It was incumbent16 — Letter was received March 22 — Letter stated thaton township to bring such information to court, and vaguelaneway ran between two streets that were in fact perpendic-reference to Navigable Waters Protection Act was not suffi-ular to each other — Municipality claimed action was stat-cient — Should township subsequently decide that boathouseute-barred for failure to meet notice requirements of s.should be removed pursuant to 1965 agreement, it must284(5) of Municipal Act — Action allowed — Municipalitydemonstrate good faith — It would be bad faith for townshipsuffered no prejudice as letter not acted on until April 12 —


7 4 D.M.P.L. (2d), August 2009

to now attempt to enforce its August 1987 motion to notify structures, and prohibiting them from placing any structuresboathouse owner to remove boathouse. on street — Application granted — There was breach of s.

71 of relevant by-law, as permanent structures encroached onSalevsky v. Rideau Lakes (Township) (2009), 2009 Cars-city street and constituted obstruction of city street — TherewellOnt 2813, Power J. (Ont. S.C.J.).was no evidence that city acted for improper purpose in

MUNICIPAL LAW seeking to enforce s. 71 of by-law — There was no evidencethat respondents were target of propaganda campaign waged263. Attacks on by-laws and resolutions — Grounds —by Chinese officials to expert political and economic pres-Charter of Rights and Freedoms — Freedom of expres-sure on federal and provincial governments, resulting in citysion –––– Respondents were practitioners of spiritual disci-acting for improper purpose in enforcing by-law.

pline known as Falun Gong or Falun Dafa — Persecution ofadherents to this discipline in China had been widely docu- Vancouver (City) v. Zhang (2009), 2009 CarswellBC 145,mented — Commencing in August 2001, practitioners in 2009 BCSC 84, Stromberg-Stein J. (B.C. S.C.); additionalVancouver participated in sit-in hunger strike in front of Chi- reasons at (2009), 2009 CarswellBC 1309, 2009 BCSC 614,nese Consulate, setting up cloth banners and makeshift shel- Stromberg-Stein J. (B.C. S.C.).ter — Large billboard, 8 feet high and 100 feet long, was set

265. Attacks on by-laws and resolutions — Remedies —up and was covered with posters, photographs andJudicial review –––– Examination of councillor — Munici-messages — Small meditation hut was set up, also coveredpal Code required taxi and limousine operators picking upwith posters and writing — Both structures encroached onpassengers in city to have city-issued business licences, withcity street — Over number of years, city attempted to reachexception for vehicles only taking passengers to airport withsatisfactory solution, but respondents now took position thatpermits issued by Minister of Transport — Airport taxi asso-had right to maintain structures — City brought applicationciation and airport limousine operators association arguablyfor injunction requiring respondents to remove structures,fell within exception, because in December 1996, Greaterand prohibiting them from placing any structures on street —Toronto Airport Authority (GTAA) became operator of air-Application granted — There was breach of s. 71 of relevantport, and since that date it, and not Minister, issued permitsby-law, as permanent structures encroached on city streetto taxis and limousines — City took position that thereafterand constituted obstruction of city street — Respondents’associations were not entitled to exemption under Municipalprotest vigil, including structures, was expressive contentCode — Associations were still covered under exceptionwithin meaning of s. 2(b) of Canadian Charter of Rights andunder s. 156(3) of Municipal Act, 2001 (MA) — However,Freedoms — However, respondents’ method of expression,when City of Toronto Act, 2006, which contained noinsofar as it involved structures, was excluded from protec-equivalent exception, replaced MA, interpretation of excep-tion of s. 2(b) of Charter — Method or form of expression,tion in Code became meaningful — Six-member licensingerection of permanent structures, was incompatible with fun-and standards committee approved motion by council-damental purpose of street — Section 71 of by-law, whichlor/chair for removal of exemption and city enacted forerun-required respondents to express themselves by means thatner to impugned bylaw — Councillor allegedly made com-did not involve structures, did not restrict respondents’ ex-ments to media suggesting city’s motivation was to securepressive freedom under Charter.bargaining leverage with GTAA and city of MississaugaVancouver (City) v. Zhang (2009), 2009 CarswellBC 145,over regulation of taxis and limousines at airport — Council2009 BCSC 84, Stromberg-Stein J. (B.C. S.C.); additionalrepealed forerunner bylaw to permit study of issue — How-reasons at (2009), 2009 CarswellBC 1309, 2009 BCSC 614,ever, no study was done, because of belief that with GTAA’sStromberg-Stein J. (B.C. S.C.).takeover, exemption had no practical effect — On council-

264. Attacks on by-laws and resolutions — Grounds — lor’s motion, council voted in favour of impugned exemptionImproper motive –––– Respondents were practitioners of removal bylaw — Associations sought to quash impugnedspiritual discipline known as Falun Gong or Falun Dafa — bylaw — Judge granted associations’ applications for inter-Persecution of adherents to this discipline in China had been locutory injunctions enjoining city from enforcing bylaw,widely documented — Commencing in August 2001, practi- finding prima facie case of bad faith and serious issue fortioners in Vancouver participated in sit-in hunger strike in trial — Pursuant to R. 39.03 of Rules of Civil Procedure,front of Chinese Consulate, setting up cloth banners and associations served summons to examine councillor — Citymakeshift shelter — Large billboard, 8 feet high and 100 feet moved to quash summons — Motion dismissed — Evidencelong, was set up and was covered with posters, photographs of influential role and persuasive force of councillor pro-and messages — Small meditation hut was set up, also cov- vided foundation for associations to show necessary institu-ered with posters and writing — Both structures encroached tional quality from which to argue that councillor’s evidenceon city street — Over number of years, city attempted to might be probative of whether council acted in bad faithreach satisfactory solution, but respondents now took posi- when it enacted bylaw removing airport exemption — Coun-tion that had right to maintain structures — City brought ap- cillor was committee chair and was driving force who intro-plication for injunction requiring respondents to remove duced bylaws and urged fellow councillors to enact by-


4 D.M.P.L. (2d), August 2009 8

laws — Councillor’s comments to media suggested he at tiff was entitled to use reasonable force to get them out of hisleast was motivated by desire to secure negotiating leverage house.in dealings with GTAA and city of Mississauga and that he Van v. Toronto Police Services Board (2008), 2008 Cars-was prepared to act without obtaining recommended wellOnt 8282, C.W. Kilian D.J. (Ont. S.C.J.).study — Intention of legislative body can be determined only

268. By-laws — Enforcement — Practice and proce-by assessing its collective action, and evidence of conduct ofdure — Appeal –––– Appellant accused, CD, was chargedindividual might be probative of intention of collective.with 19 counts of failing to remove election signs within 48

Airport Taxicab (Pearson Airport) Assn. v. Toronto hours after election, in violation of municipal by-law — CD(City) (2009), 2009 CarswellOnt 2905, Perell J. (Ont. argued that of 4000 to 5000 signs deployed, all but 19 wereS.C.J.); leave to appeal refused (2009), 2009 CarswellOnt collected — CD took position that he exercised due dili-3703, J. Wilson J. (Ont. Div. Ct.). gence — CD, acting as his own counsel, sought to introduce

his son, RD, as defence witness — Trial judge excluded RD266. By-laws — Enforcement — Miscellaneous –––– Re-

because he had been in court already and had heard all ofspondents were practitioners of spiritual discipline known as

proceeding thus far — Trial judge rejected defence of dueFalun Gong or Falun Dafa — Persecution of adherents to

diligence and found CD guilty — CD appealed his convic-this discipline in China had been widely documented —

tion — Appeal allowed — Acquittals were entered with re-Commencing in August 2001, practitioners in Vancouver

spect to all charges — Not open to dispute that candidate forparticipated in sit-in hunger strike in front of Chinese Consu-

major party in federal election in metropolitan riding wouldlate, setting up cloth banners and makeshift shelter — Large

have posted great number of signs and that 19 left standingbillboard, 8 feet high and 100 feet long, was set up and was

represented small fraction — Undisputable high success ratecovered with posters, photographs and messages — Small

of removal efforts weighed heavily in favour of conclusionmeditation hut was set up, also covered with posters and

of due diligence — Fact that municipality sent letters to allwriting — Both structures encroached on city street — Over

candidates reminding them of removal by-law and stressingnumber of years, city attempted to reach satisfactory solu-

that offenders would be prosecuted did not serve to increasetion, but respondents now took position that had right to

legally acceptable standard of care — While letter mightmaintain structures — City brought application for injunc-

have inspired greater effort to comply, it could not have ef-tion requiring respondents to remove structures, and prohib-

fect of rendering legally insufficient that which would beiting them from placing any structures on street — Applica-

considered due diligence absent letter — Standard of care settion granted — There was breach of s. 71 of relevant by-law,

by law is fixed and does not rise with level of enthusiasm foras permanent structures encroached on city street and consti-

enforcement — Duty of care in this case was not imposed ontuted obstruction of city street — None of exceptions to s. 71

large profit-making corporation but on undertaking thatin by-law applied to respondents’ structures.

largely depended on volunteers or, at best, on limited contri-Vancouver (City) v. Zhang (2009), 2009 CarswellBC 145, bution-based budget.2009 BCSC 84, Stromberg-Stein J. (B.C. S.C.); additional R. v. DeFaria (2008), 2008 ONCJ 687, 2008 CarswellOntreasons at (2009), 2009 CarswellBC 1309, 2009 BCSC 614, 8194, B. Duncan J. (Ont. C.J.).Stromberg-Stein J. (B.C. S.C.).

269. By-laws — Enforcement — Practice and proce-267. By-laws — Enforcement — Miscellaneous –––– Plain- dure — Miscellaneous –––– Costs — Respondents, mem-tiff claimed that he was repairing fence in his home when bers of Falun Gong spiritual group, participated in hungertwo men came to door, identified themselves as fire inspec- strike in front of Chinese consulate in Vancouver, setting uptors, but did not show identification when asked, and tried to banners, makeshift shelter, large billboard and meditationforce their way in to his house — Plaintiff claimed that he hut — Structures evolved from temporary to permanent —believed he was victim of home invasion — Plaintiff claimed Petitioner’s application for injunction requiring respondentshe had hammer in his hand, but did not raise it, at which to remove structures, consisting of hut and billboard, frompoint two men retreated and he closed door — Two men street in front of consulate and prohibiting them from placingcalled police and plaintiff also called police — Police came any structures on street was granted — Trial judge foundto plaintiff’s house and forced his door open — Plaintiff there was breach of s. 71 of relevant city by-law, as perma-tried to push police officer out of door — Plaintiff was nent structures encroached onto street and constituted ob-charged with assault police, but charges were dropped when struction, and that method of respondents’ expression wasplaintiff entered into recognizance to keep peace — Fire in- not protected under s. 2(b) of Canadian Charter of Rights andspectors testified that they did show their identification and Freedoms — Parties made submissions on costs — Peti-plaintiff went berserk, threatening them with sledge ham- tioner was entitled to its costs — General rule in R. 57(9) ofmer — Plaintiff brought action against police services Rules of Court, 1990 is that costs should follow event —board — Action dismissed — Plaintiff’s claim that he did There were no special circumstances present to warrant exer-not know men were fire inspectors was not credible — Fire cise of court’s residual discretion to depart from generalinspectors did not have right of warrantless entry and plain- rule — This was not public interest litigation which could


9 4 D.M.P.L. (2d), August 2009

justify departure from R. 57(9) of Rules, as issues raised re- (2007), 32 M.P.L.R. (4th) 306, 2007 CarswellBC 683, 2007quired application of established constitutional principles — BCSC 469, R.D. Wilson J. (B.C. S.C.).Respondents had direct interest in case and pursued litigation

271. Development control — Development agreementsto protect their desire to continue protesting — Court had al-and conditions — Conditions — Land dedication ––––ready considered whether erection of structures on cityPlaintiff acquired large tract of ocean front land divided bystreets engages protection under s. 2(b) of Charter — Re-road, including mile strip from road to ocean, and 1,200spondents had not demonstrated their inability to bearacres of raw land on western side of tract — By 2002, oceancosts — Respondents unnecessarily prolonged proceeding byside development had final subdivision approval for phaseunsuccessfully attempting to transfer it to trial list and by ig-one, and settled concept drawings for phase two — Plain-noring opportunities provided by petitioner to avoidtiff’s obligations to provide recreational lands by July 31,litigation.2003, on account of ocean side development were secured by

Vancouver (City) v. Zhang (2009), 2009 CarswellBC 1309, way of $59,700 letter of credit issued on August 12, 2002 —2009 BCSC 614, Stromberg-Stein J. (B.C. S.C.); additional Plaintiff sold western tract to defendant pursuant to Octoberreasons to (2009), 2009 CarswellBC 145, 2009 BCSC 84, 2002 agreement of purchase and sale — Because plaintiffStromberg-Stein J. (B.C. S.C.). had planned to transfer recreational lands from western part

to discharge obligations under ocean side development,270. Development charges and levies — Developmentagreement provided that defendant would assist plaintiff bycharges — Imposition by by-law — Amendment –––– De-conveying to municipality up to five acres from block 2 or 6veloper desirous of obtaining sewer services submitted peti-to be credited to plaintiff’s obligations, referred to plaintiff’stion — Petition recited that costs would be collected by wayletter of credit given to municipality, and provided for cir-of annual charge against properties, based on assessed valuecumstances in which defendant must indemnify plaintiff ifof land only — City passed by-law in that respect — Cityletter of credit was cashed — While agreement assumed ar-reconsidered basis upon which it would provide sewer ser-rangements between municipality and plaintiff had been set-vice and required amended petition — Second petition statedtled, neither acreage, location, nor July 31, 2003 closing datethat developer agreed that city could impose charges as pro-had been agreed to — Municipality would not accept deed tovided by s. 646(4) of Municipal Act, including but not lim-lands from western side, unless development plans for thatited to annual charge against assessed value of land only —side became more defined — On July 31, 2003, plaintiff paidCity responded with second by-law, and charges to devel-$60,760.55 cash in lieu — Plaintiff brought action underoper for recovery of construction costs were based on as-agreement for reimbursement — Action dismissed — Con-sessed value of land — City adopted by-laws that would laytract did not require defendant to develop western part, but itfoundation for imposition of parcel tax to recover remainingdid require defendant to develop western part to extent nec-unrecovered capital costs — Developer brought successfulessary for performance of agreement between plaintiff andpetition to set aside by-laws authorizing preparation of parcelmunicipality, and it prescribed consequences of failure bytax roll — City appealed — Appeal allowed; matter remitteddefendant — Defendant undertook no obligation to conveyfor determination in accordance with reasons for judg-parkland for benefit of plaintiff’s development until either ofment — Petition judge addressed sufficiency of assent tothree events occurred: transfer of up to five acres to munici-change in form of taxation and found it had not been given,pality, municipality was no longer prepared to extend timenor had second by-law authorized parcel tax, after discount-for transfer, or letter of credit was called — Letter of crediting reference to s. 646(4) of Act in petition and by-law — Inreferred to in agreement secured promise to convey up toso concluding, petition judge required, of both petition andfive acres on western side, and text did not support interpre-by-law, degree of certainty that was not required — By refer-tation that defendant must indemnify plaintiff on whateverring to s. 646(4)(a), and not limiting levy to property valueletter of credit existed for ocean side development — Astax, petition left open to city discretion as to form tax wouldnone of required events occurred, defendant was under notake, to be determined when council exercised city’s taxingobligation to indemnify plaintiff — There was no letter ofpower — Nothing in language of petition detracted fromcredit for up to five acre parcel, as only letter of credit se-plain meaning that developer assented to all modes of costcured plaintiff’s general obligation to provide residentialrecovery contemplated by s. 646(4) — Fresh assent was notlands, or cash in lieu, and it said nothing about five acrerequired before city could impose parcel tax, and second by-transfer — Furthermore, letter that existed only applied tolaw permitted parcel tax recovery of construction costs — Itfirst phase of development on ocean side, and those obliga-was best to remit issue of content of by-laws and their com-tions were discharged.pliance with Community Charter relating to creation of par-Agate Developments Ltd. v. United Gulf Investmentscel tax roll to court below for consideration of those issuesLtd. (2009), 2009 NSSC 160, 2009 CarswellNS 282, G.R.P.by court initially charged with that responsibility.Moir J. (N.S. S.C.).

Andrex Developments (1985) Ltd. v. Colwood (City)(2009), 2009 CarswellBC 1292, 2009 BCCA 222, Finch 272. Development control — Development agreementsC.J.B.C., Hall J.A., Saunders J.A. (B.C. C.A.); reversing and conditions — Conditions — Miscellaneous –––– Pro-


4 D.M.P.L. (2d), August 2009 10

perty had three dwellings, one of them being house with and did not use geotechnical science — As weak as evidencefoundation, respectively occupied by grandmother, mother, might have been, it was relevant and legislature did not pro-and son — Son applied for permit to construct home with vide jurisdiction to overrule board’s view that encroachmentfoundation to replace trailer — Development appeal board on creek by proposed residence was not change in use, meet-approved proposed construction — County appealed — Ap- ing criteria of s. 687(3) of Act.peal dismissed — Board’s decision to permit conversion of Northern Sunrise (County) v. De Meyer (2009), 2009third dwelling from trailer to house with foundation was ABCA 205, 2009 CarswellAlta 773, C. Fraser C.J.A., J. Cotewithin its remedial jurisdiction pursuant to s. 687(3) of Mu- J.A., J. Watson J.A. (Alta. C.A.).nicipal Government Act — Board purported to impose con-

275. Development control — Development permits — Ju-dition on authorized development, of waiver of liability to berisdiction and powers — Development appeal board ––––registered against title to property — Board did not considerProperty had three dwellings, one of which was house withpossibility of waiver of liability as relevant to whether devel-foundation, respectively occupied by grandmother, mother,opment could be permitted — Having decided to grant per-and son — Son applied for permit to construct home withmit on merits, Board took steps to address county’s concernsfoundation to replace trailer — Development appeal boardabout their potential liability for development on environ-approved proposed construction — County appealed — Ap-mentally sensitive lands — Board had discretion to insistpeal dismissed — Board acted within its remedial jurisdic-upon effective waiver and indemnity to address county’stion under s. 687(3) of Municipal Government Act — Boardconcerns.properly found that erection of third residence was matter forNorthern Sunrise (County) v. De Meyer (2009), 2009development regulations, by which it was not bound, rather

ABCA 205, 2009 CarswellAlta 773, C. Fraser C.J.A., J. Cotethan land use by-law, by which it would have been — Third

J.A., J. Watson J.A. (Alta. C.A.).dwelling was allowed 20 years ago by planning board’s deci-

273. Development control — Development permits — Ju- sion to grant exemption from Planning Act, and associateddicial review — Development appeal board –––– Applicant permit issued for son’s mobile home dwelling — Changes inCG was not compliant with original development permit’s by-law did not revoke exemption or alter fact that threeconditions when it installed light emitting diode (“LED”) dwellings were permitted use of property — In finding thatsigns that were much too large — CG brought application replacement of dwelling would conform with prescribed usefor leave to appeal from unsuccessful appeal of permit to in by-law, board recognized that proposed development wasSubdivision and Development Appeal Board (“SDAB”) — of conversion of existing development — Board’s exerciseApplication dismissed — Permit conditions upheld by of discretion did not involve error of law — While board’sSDAB were based on by-law validity of which has not been finding that son provided acceptable geotechnical analysis aschallenged — SDAB did not intend to interfere with exercise required under by-law to waive minimum setback was defec-of Minister’s discretion — Section 20(10) of Historical Re- tive, error did not make any difference to result — In uniquesources Act authorized Minister to attach conditions to ap- circumstances, board had discretion to make determinationprovals — Minister required that applicant “also” comply without placing much weight on analysis, and determinationwith City by-laws about outdoor signs. of weight to be placed on evidence was excluded from juris-

diction on appeal — Board had discretion to consider analy-Concorde Group v. Calgary (City) (2009), 2009 Carswell-sis as relevant to whether or not to apply s. 687(3) of Munici-Alta 642, 2009 ABPC 170, C. Hunt J.A. (Alta. C.A.).pal Government Act, even if it did not fit by-law.

274. Development control — Development permits — Ju-Northern Sunrise (County) v. De Meyer (2009), 2009

dicial review — Development appeal board –––– PropertyABCA 205, 2009 CarswellAlta 773, C. Fraser C.J.A., J. Cote

had three dwellings, one of them being house with founda-J.A., J. Watson J.A. (Alta. C.A.).

tion, respectively occupied by grandmother, mother, andson — Son applied for permit to construct home with foun- 276. Development control — Development permits —dation to replace trailer — Development appeal board ap- Practice and procedure –––– Application to commission forproved proposed construction — County appealed — Appeal development permit to alter grades to improve air and sur-dismissed — Board’s decision to permit conversion of third face water drainage associated with new vineyard develop-dwelling from trailer to house with foundation was within its ment on existing lot was conditionally approved — Two per-remedial jurisdiction pursuant to s. 687(3) of Municipal Gov- sons appealed decision to hearing office — Appellants statedernment Act — While board’s approach to whether son pro- that they wished to appeal, as adjusting grading to allow forvided acceptable geotechnical analysis as required by by-law new vinifera grapes would create opportunity for fruit flies,in order to waive minimum setback was defective, error did typically attracted to vineyards — Manager of commissionnot make any difference to result — Determination of weight wrote to hearing office requesting that officer consider dis-to be placed on evidence was excluded from appeal jurisdic- missing appeals pursuant to s. 25(8.1) of Niagara Escarp-tion — Board erred in finding that son’s analysis was accept- ment Planning and Development Act — Appeals dismissed;able geotechnical analysis, since son offered unqualified en- no hearing to be conducted in relation to appeals — Cultiva-gineering opinions in document, not specific to his property, tion of land and growing crops, including grapes, was ex-


11 4 D.M.P.L. (2d), August 2009

empt under regulation from requirement for development house should be removed pursuant to 1965 agreement, itmust demonstrate good faith — It would be bad faith forpermit — It was alteration of grades to improve air and sur-township to now attempt to enforce its August 1987 motionface water drainage associated with new vineyard develop-to notify boathouse owner to remove boathouse.ment that required development permit — Absent any sub-

mission indicating that development permit was not in Salevsky v. Rideau Lakes (Township) (2009), 2009 Cars-accordance with plan, and given that concern about fruit flies wellOnt 2813, Power J. (Ont. S.C.J.).appeared to be linked to increased vineyard development

278. Municipal liability — Negligence — Property main-rather than alternation of grading which was subject of per-tenance — Miscellaneous –––– Plaintiff was university stu-mit, there was no planning justification for appeal — In ab-dent who had just exited arena at 10:00 p.m. on April 12,sence of any evidence provided by appellants to link their2004 in dark area to meet her mother, who was parked onconcern to grading adjustments, appeal was without meritopposite side of street — Plaintiff located her mother’s car,and frivolous in sense that patently no substantive issue hadlooked both ways, and proceeded at normal walking pace to-been raised.wards car — Plaintiff’s shoe got caught in crack and wedged

Cardozo v. Niagara Escarpment Commission (2009), momentarily, causing her to fall and sustain transverse frac-2009 CarswellOnt 2554, T. Vigod H.O. (N.E.H.O.). ture of base of her left, fifth metatarsal — Crack ranged in

width from 1.25 to 5 centimetres and depth ranged from 0.15277. Municipal council — Powers — Miscellaneous –––– to 1.04 centimetres — Plaintiff brought action against cityHow exercisable — Applicant’s boathouse built in 1916 was for damages for injuries sustained — Action dismissed —located on unopened township road allowance and lake — City could not rely on Minimum Maintenance Standards forTownship assessed and collected realty taxes on boathouse Municipal Highways regulation as complete defence tofor decades, and 2005 tax bill showed boathouse owner as claim, as minimum standards applied to motor vehicles,“owner” — In order to effect repairs in 1965, boathouse which left open question of whether road was reasonablyowner’s and township’s predecessors entered into agreement maintained for other uses that might reasonably be expectedpermitting reconstruction in accordance with local building on university campus — No state of disrepair from view-by-law, with removal upon 90 days notice if right of way point of vehicular traffic was established and evidence didwas required for municipal purposes — In 1984, Parks Can- not support establishing standard of repair that would reason-ada, which had legal jurisdiction over lake bed, informed ably be expected from position of pedestrian using cross-boathouse owner’s predecessor that unless ownership could walk — City was aware that increased volume of pedestriansbe proved, boathouse would have to be removed from Crown randomly crossed road in general area of accident, ratherproperty by November 1, 1985 — On August 6, 1987, coun- than using crosswalks which were located 175 and 236 yardscil informed boathouse owner’s predecessor that motion was away — Evidence did not support finding that higher stan-passed requiring removal of boathouse by April 1, 1988, but dard of care was required by city given their knowledge oflater vote deferred further action until later time — In 2005, nature of pedestrian traffic in area — Even if such standardboathouse owner commenced repairs, and was issued “order existed, fact that higher volume of pedestrian traffic usedto comply” — Parks Canada refused to issue permit because roadway over extended time without complaints or incidents,boathouse owner was not owner of, nor did he have consent tended more towards finding that road was in state of repairof owner of adjacent upland property on which boathouse that was reasonable in circumstances, rather than failure bysat, namely, township — Township refused to issue building city to keep road in such state of repair — While lack ofpermit without approval of, or confirmation of lease agree- lateral support in plaintiff’s shoe might have increased sever-ment with, Parks Canada — Boathouse owner applied for or- ity of her injury, no adverse finding was made against her,der compelling township to issue necessary permits — Boat- and she would not have been found contributorily negligenthouse owner complied with requirements of Building Code if finding of liability had been made.Act, 1992, and therefore, application should be granted —

Holmes v. Kingston (City) (2009), 2009 CarswellOnt 2462,Application discontinued with respect to Parks Canada —

Pedlar J. (Ont. S.C.J.).1965 agreement constituted licence from township in favourof boathouse owner’s predecessor on title, and township’s 279. Municipal liability — Practice and procedure — Ac-acquiescence in transfer of building to boathouse owner was tions — Discovery — Persons subject to examination ––––evidence of township’s intention to honour licence in favour Project to build light rail transit system in city wasof boathouse owner — At no time was boathouse owner no- aborted — Two separate actions were commenced againsttified that right of way was required for municipal pur- city by stakeholders in light rail corporation and subcontrac-poses — Agreement was still in effect — Owner of property tor respectively, both alleging that city council breachedhas prima facie right to preserve his property and right city’s obligations under project agreement — Plaintiffs andshould not be denied absent compelling reason — It was in- city consented to have cases tried together or one after other,cumbent on township to bring such information to court, and and to hold common examinations for discovery — Stake-vague reference to Navigable Waters Protection Act was not holders and subcontractor took position that they were eachsufficient — Should township subsequently decide that boat- entitled to name separate witness to be examined for discov-


4 D.M.P.L. (2d), August 2009 12

ery on behalf of city — Plaintiffs brought motion for order issues would necessarily be disposed of without trial, aspermitting them to examine for discovery employee and nothing in Act dictates how court will dispose of application,mayor respectively — Motion dismissed — City was only and pursuant to R. 38.10(b) of Rules, applications judgerequired to produce one witness for examinations for discov- might order application or issue to proceed to trial — It wasery — Rules of Civil Procedure provided production of one premature to usurp function of applications judge by deter-witness, with substantial task of informing self with all of mining that trial was necessary — Consolidation was not de-city’s knowledge information and belief respecting subject- sirable at this point — Consolidation issue should be revis-matter — Given deemed undertaking rule, plaintiffs could ited if applications judge ordered trial.not use each other’s examinations if there was not common TKS Holdings Inc. v. Ottawa (City) (2009), 2009 Cars-discovery — Where multiple claims arose from single under- wellOnt 2819, Master C. MacLeod (Ont. S.C.J.).lying transaction, common discovery of common defendantmade sense — No basis existed for moving away from basic 281. Municipal officers and employees — Termination ofprinciple that only one witness need be produced — Struc- service — Judicial review — Miscellaneous –––– Manda-ture chosen by plaintiffs, here being two separate actions, mus — Employer/employee relationship was effectively en-was one consideration but did not dictate how case would ded on August 20, 2007 — Employee was put on leave ofproceed — Mayor was not appropriate witness, given brief absence and continued to receive his salary and benefits —tenure before project termination and impractical oner- In letter dated October 16, 2007, town confirmed that em-ousness for him to prepare for examination — Other speci- ployee was dismissed without cause — Employee appliedfied witness could serve as discovery witness for city. for judicial review seeking reinstatement in order to redress

damage to his reputation — Application dismissed — Reme-Siemens Canada Ltd. v. Ottawa (City) (2009), 2009 Cars-dies sought were available in wrongful dismissal action —

wellOnt 1845, D.L. Corbett J. (Ont. S.C.J.).Remedy of mandamus should not be employed to restoreemployee to employer/employee relationship which was rup-280. Municipal liability — Practice and procedure — Ac-tured and beyond repair.tions — Miscellaneous –––– Consolidation — Plaintiff’sProwse v. Richmond Hill (Town) (2009), 2009 Carswell-heritage building was undergoing renovations when part ofOnt 2406, Carnwath J., J. Wilson J., Jennings J. (Ont. Div.structure collapsed, trapping worker — Ministry of LabourCt.).(MOL) and Chief Building Official intervened, and parts of

two major downtown streets were closed for two months —282. Municipal tax assessment — Miscellaneous –––– De-Work resumed, voids were discovered under parts of founda-fendant municipality assessed plaintiffs in respect of parceltions, MOL issued stop work order, and city issued emer-of land — Plaintiffs brought action for return of $9,240.90,gency demolition order — City took control of site, buildingrepresenting taxes paid to defendant for years 1990 to 2006was partially demolished, stabilized and repaired, and streetinclusive in respect of parcel of land, which was actuallywas re-opened — MOL laid charges stemming from acci-owned by cousin of plaintiff — Action dismissed — Thisdent — Plaintiff brought action against city for damages forwas not situation of double taxation recovery by defendant,delay in building restoration, unwarranted demolition andbut rather incorrectly assessing plaintiffs for parcel rathertrespass, for costs of fighting demolition, and indemnifica-than cousin — Error occurred, but only for taxation yearstion for claims of adjacent business owners arising from1997 onward, when ownership of parcel was erroneouslystreet closing — City added incurred costs to property’s taxjuxtaposed between plaintiffs and cousin — Previous caseroll and sought recovery of other expenditures by way of lienhad determined that salient provisions of Urban Municipalityunder Building Code Act, 1992, which was one of issues inAct, 1984, which was for all intents and purposes same legis-city’s application — Plaintiff amended its statement of claimlation as that before court in this matter, being relevant pro-seeking order striking charges added to tax roll and injunc-visions of Municipalities Act, operated as complete code fortion preventing city from enforcing lien — Plaintiff soughtassessment and payment of property taxes thereby preclud-declaration that city acted improperly and emergency ordering judicial intervention — Distinction between instant case,was invalid — City sought declaration confirming emer-where plaintiff was assessed for property he did not own forgency order and costs recovery order — Plaintiff moved toyears 1997 to 2006, and previous case, where taxpayer wasconsolidate this action with city’s application — Motion dis-assessed improperly on own property, did not change funda-missed — Act authorized application and application wasmental complaint of improper assessment and collection ofproperly constituted — Nothing in statutory language sug-taxes from aggrieved taxpayer — Court was bound by deci-gests that Rules of Civil Procedure do not apply to applica-sion in previous case such that judicial intervention was nottion under Act, and therefore, court has discretion to requirepermissible when dealing with issue involving improper as-issues to be tried together and to consolidate application withsessment or collection of property taxes against municipality.action — In absence of action, application would still be nec-

essary, as once city exercised its emergency powers, it must Stewart v. Flett’s Springs (Regional Municipality) No.proceed to court to have order validated and charges against 429 (2009), 2009 CarswellSask 52, 2009 SKPC 20, R.D.property determined — Use of application did not mean that Jackson Prov. J. (Sask. Prov. Ct.).


13 4 D.M.P.L. (2d), August 2009

283. Municipal tax assessment — Practice and procedure for judicial review — Sections of Assessment Act at issuehad not been considered by court — Timeliness was con-on assessment appeals and objections — Correction ofcern, since much time had passed in procedures beforeerrors and omissions –––– Developer purchased industrialboard — Corporation acted appropriately in seeking board’sproperty and severed it into two lots — One lot was sold inreview of initial decision, and sought judicial review rela-2001, and other was rezoned residential — In 2001 andtively promptly when board confirmed decision three years2002, two lots were assessed as one for property taxes onlater — Determination of merits of application without fur-value of $773,000 under original assessment roll number —ther delay was in interests of justice.Developer filed complaint, and was advised that residential

parcel’s value was now $1.65 million — In 2005, board let Montevallo Developments Ltd. v. Municipal Propertydeveloper withdraw complaint, but directed property assess- Assessment Corp., Region No. 9 (2008), (sub nom.ment corporation to bring complaint in order to assign new Municipal Property Assessment Corp. v. Montevallonumbers, update classifications and divide assessed value of Developments Ltd.) 246 O.A.C. 1, 2008 CarswellOnt 8044,$773,000 between lots — Corporation unsuccessfully moved Bellamy J., Carnwath J., J. Macdonald J. (Ont. Div. Ct.); af-for review by board — Corporation applied for judicial re- firming (2005), 2005 CarswellOnt 9465, J.D. Brownlieview of original and confirming decisions — Application Member (Ont. Assess. Review Bd.).dismissed — Board had discretion to refuse to allow corpo-

285. Planning appeal boards and tribunals — Judicial re-ration to include claim that assessed value be increased —view — Leave to appeal — Miscellaneous –––– PropertyBoard was giving effect to permitted withdrawal of devel-owner purchased 1948 home and in August 2007, submittedoper’s complaint by maintaining assessed value — Nearlydemolition permit application, minor variance application,five years after purchasing property, developer did not knowand site plan control application and was largely unsuccess-by what amount original assessment was reduced by demoli-ful — Board allowed owner’s appeals permitting her to de-tion of warehouse on industrial lot and could not clear up taxmolish existing building and garage and construct newaccounts with purchaser of residential lot — City and corpo-gothic revival brick two-storey dwelling with attached two-ration had been given years to rectify under-assessment —car garage — Board made factual findings, including thatBoard was acting within its discretion to define issues to behome was not “significant building” in conservation districtraised in directed complaint — Board’s decision to precludeplan, was common post-war construction with limited archi-increase in assessed value was rationally related to its find-tectural value, did not meet preservation policies of officialings of delay and resulting prejudice to developer — Boardplans, and proposed building would maintain “village-likedid not make finding of current value on no evidence, butambiance” — Municipality applied for leave to appeal deci-left assessment in place — Having acted in accordance withsion — Application dismissed — Issues raised did not in-its discretionary powers, board’s decision was both correctvolve pure questions of law, and in any event, were not ofand reasonable.sufficient importance to merit attention of Divisional

Montevallo Developments Ltd. v. Municipal Property Court — There was no reason to doubt correctness of deci-Assessment Corp., Region No. 9 (2008), (sub nom. sion — In matters of planning and planning process, defer-Municipal Property Assessment Corp. v. Montevallo ence ought to be shown to board decisions.Developments Ltd.) 246 O.A.C. 1, 2008 CarswellOnt 8044, Gordon v. Markham (Town) (2009), 2009 CarswellOntBellamy J., Carnwath J., J. Macdonald J. (Ont. Div. Ct.); af- 2608, Echlin J. (Ont. Div. Ct.); refusing leave to appealfirming (2005), 2005 CarswellOnt 9465, J.D. Brownlie (2008), 60 O.M.B.R. 334, 2008 CarswellOnt 6473, J.A. AkerMember (Ont. Assess. Review Bd.). Member (O.M.B.).

284. Municipal tax assessment — Remedies — Statutory 286. Planning appeal boards and tribunals — Practiceremedies — Effect of failure to exercise –––– Developer and procedure — Hearing — Rehearing –––– Respondentspurchased industrial property in 1999 and severed it into two sought development of vacant parcel of land for three de-lots — One lot was sold in 2001, and other was rezoned resi- tached houses — Respondents applied to committee of ad-dential — In 2001 and 2002, two lots were assessed as one justment for minor variances to zoning by-law and consentsfor property taxes on value of $773,000 under original as- to sever land — According to approved plans, lane relatingsessment roll number — Developer filed complaint, and was to easement would be paved and would be entrance to com-advised that residential parcel’s value was now $1.65 mil- mon elements condominium on which three houses would belion — In 2005, board let developer withdraw complaint, but built — Neighbours affected by current and proposed usesdirected property assessment corporation to bring complaint were strongly opposed to what they argued was enlargementin order to assign new numbers, update classifications and of use — Moving parties opposed applications, which weredivide assessed value of $773,000 between lots — Corpora- refused — Municipal board allowed appeal by respon-tion unsuccessfully moved for review by board — Corpora- dents — Moving parties made request that board review itstion applied for judicial review of original and confirming decision — Chair of board issued review decision refusing todecisions — Application dismissed — Corporation was not grant review request — Moving parties brought applicationrequired to exhaust statutory appeal rights before applying for leave to appeal — Application granted — Good reason


4 D.M.P.L. (2d), August 2009 14

existed to doubt correctness of review decision — Review commentary about government itself — It is antithetical tonotion of freedom of speech and citizens’ rights to criticizedecision was silent as to contents of affidavit which indicatedtheir governments concerning their governing functions, thatthat proposed use had to be considered within legal con-such criticism should be chilled by threat of suit intext — Review board disposed of issue on basis that originaldefamation.board had made determination based on evidence before it;

yet original board had proceeded on planning and engineer- Dixon v. Powell River (City) (2009), 2009 CarswellBC 762,ing evidence — There was no legal opinion evidence on 2009 BCSC 406, N. Garson J. (B.C. S.C.).point since it had been rejected by board — It appeared that

288. Subdivision control — Severance of land — Miscel-review board did not appreciate that, in paragraph of originallaneous –––– Plaintiff construction company and personaldecision, original board arrived at legal conclusion and in soplaintiff contended that there was genuine issue for trial as todoing, may have extended scope and extent of rights-of-whether defendant city and personal defendant negligentlyway — Review board did not appreciate that original boardmisrepresented to personal plaintiff that he had obtained sev-may have decided question of law that was beyond jurisdic-erance of his property in 1996 — Plaintiffs appealed superiortion of original board since such determination of question ofcourt judgment — Appeal dismissed — Assuming that plain-title to land had to be made by court — While distinctiontiffs could establish this representation at trial, action stillbetween dealing with easement as free-standing issue andhad to fail — Counsel for plaintiffs acknowledged that per-dealing with it incidental to administrative function of ap-sonal plaintiff knew nothing had been registered with con-proving variances was relevant to work of board, review de-cern to severance — Planning Act requires registration forcision contained no such distinction.there to be valid severance — Plaintiffs’ alleged loss was

Watt v. Classic Leisure Wear Inc. (2008), 43 M.P.L.R. caused not by defendants’ representation, as alleged by per-(4th) 274, 2008 CarswellOnt 982, 59 O.M.B.R. 23, Kiteley J. sonal plaintiff, but by law he was unaware of — Defendants(Ont. Div. Ct.); additional reasons at (2008), 2008 Carswell- could not be held accountable for plaintiffs’ error of law.Ont 6983, Kiteley J. (Ont. Div. Ct.). Middlebrook v. Timmins (City) (2009), 2009 CarswellOnt

1289, 2009 ONCA 220, J. Simmons J.A., S.T. Goudge J.A.,287. Powers of municipal corporation — Extent of pow-

Winkler C.J.O. (Ont. C.A.).ers — Miscellaneous –––– To institute defamation proceed-ings — City sought approval for $6.5 million project using 289. Subdivision control — Severance of land — Miscel-“alternative elector process”, which led to public discussion laneous –––– Costs on severance application and appeal —on merits of project, method of obtaining community ap- Property owner applied unsuccessfully to sever her propertyproval, and mayor and council’s management of city’s af- into four lots instead of one — Property owner unsuccess-fairs and finances — Applicant objectors each published fully appealed to Ontario Municipal Board — At appeal,views in opposition to city’s steps: NH published letter in ratepayers association took position that severance shouldonline community newspaper, to which WB added online not be allowed because of risk that further developmentcomment suggesting possible criminal behaviour by city could adversely affect water quality in lake — On motion bycouncil, and member of city council PA published email op- property owner, Review Panel ordered re-hearing of issuesposing council’s steps — City retained counsel and delivered related to water quality — Association successfully broughtletters to each objector referring to objectors’ statements as motion for leave to appeal — Leave to appeal was granteddefamatory and actionable, putting objectors on notice to re- on questions of application of Board’s Rules to decision offrain from defaming city, and demanding retraction and pub- Review Panel for rehearing under s. 43 of Ontario Municipallication of apology — Online community newspaper refused Board Act, whether Review Panel erred in finding that origi-WB’s attempts to issue apology and retraction, and despite nal Board applied wrong test for determining whether pro-his public retraction at council meeting, mayor declined to posed development should be approved, and whether Reviewprovide him with assurance that matter was “over” — Objec- Panel erred in finding that original Board wrongly appliedtors applied for declaration that city lacked legal authority to precautionary principle — Parties made written submissionsinstitute civil proceedings or threaten to do so, for defama- on costs — Costs assessed — Under circumstances, it wastion of its reputation as municipal government — City filed appropriate that no costs be awarded — No order as to coststhen withdrew statement of defence, and gave notice to ob- with respect to motion for leave to appeal — Results on mo-jectors that it would not appear at hearing — Application tion for leave to appeal were divided — As well, this Courtgranted — City lacked legal basis to bring civil proceedings was not in position to decide merits of appeal — Similarly,for defamation of its governing reputation, or to threaten to no costs were ordered with respect to perfection of appeal —do so, including in manner contained in three letters — Com- Merits or outcome of appeal could not be determined — Thismon law causes of action must be applied in manner that is appeal became moot through external circumstances and cer-consistent with Canadian Charter of Rights and Freedoms — tainly through no fault of either of respondents — This ap-Charter enshrined value of freedom of expression is para- peal was clearly moot when property owner withdrew hermount and local governments have resort to other means to application before Board, after which time each party wasprotect their reputations from citizens who publish critical responsible for its own costs.


15 4 D.M.P.L. (2d), August 2009

Lake Waseosa Ratepayers’ Assn. v. Pieper (2008), 2008 water supply — In September 2007, district adopted two by-CarswellOnt 7527, Bellamy J., J. Wilson J., Swinton J. (Ont. laws to amend zoning in subdivisions to permit develop-Div. Ct.); additional reasons to (2008), 58 O.M.B.R. 304, 44 ment — Petitioners applied for orders setting aside by-lawsM.P.L.R. (4th) 294, 2008 CarswellOnt 985, Molloy J. (Ont. for illegality because district contravened mandatory provi-Div. Ct.). sions of s. 890 of Local Government Act — Application

granted — Petitioners alleged that district received informa-290. Subdivision control — Severance of land — Practice tion from proponent and its consultant after close of publicand procedure on severance application — Miscellane- hearing, without affording them reasonable opportunity to beous –––– Leave to appeal — Property owner applied unsuc- heard or to present written submissions on that new informa-cessfully to sever her property into four lots instead of tion — In September 2007, proponent executed covenantone — Property owner unsuccessfully appealed to Ontario under which it was committed to obtaining its potable waterMunicipal Board — At appeal, ratepayers association took to service development from lake which was source of waterposition that severance should not be allowed because of risk for area, until such time as district was able to service devel-that further development could adversely affect water quality opment with potable water from regional water system —in lake — On motion by property owner, Review Panel or- District informed community in March 2006 that water sup-dered re-hearing of issues related to water quality — Associ- ply for proposed development would come from lake — Allation brought application for leave to appeal — Application of preparation done to discuss district’s material on lake wasgranted — Leave to appeal granted on questions of applica- thereupon rendered irrelevant — Public was not afforded op-tion of Board’s Rules to decision of Review Panel for rehear- portunity to be heard or to present submissions on that about-ing under s. 43 of Ontario Municipal Board Act, whether Re- face — That was not fair — By-laws set aside for illegality.view Panel erred in finding that original Board applied

Baynes Sound Area Society for Sustainability v. Comoxwrong test for determining whether proposed developmentStrathcona (Regional District) (2009), 2009 CarswellBCshould be approved, and whether Review Panel erred in find-1088, 2009 BCSC 565, R.D. Wilson J. (B.C. S.C.).ing that original Board wrongly applied precautionary princi-

ple — In reasons for ordering new hearing, Review Panel did292. Zoning — Attacking validity of zoning by-laws —not identify test that it applied to come to that determina-Grounds — Non-compliance with statutory require-tion — Test applicable to requests to Board for rehearingments –––– Dock was used as customs entry point by federalwas matter of some importance to general public — Theregovernment under 99-year lease from NOTL/lower tier mu-was good reason to doubt correctness of Review Panel’s de-nicipality, until municipality re-acquired it in 1992 and gavecision that original panel applied wrong test because Reviewjet boat operator permission to occupy and use dock for itsPanel lifted one sentence from original Board’s decision outamusement ride business — 1993 bylaw authorized execu-of context — Applicable test for dealing with developmenttion of licence agreement granting operator ten year right toissues in municipality and impact of phosphorous on wateruse dock (first agreement), and 2002 bylaw authorized li-quality in area were matters of considerable public impor-cence agreement for eight years (second agreement) — 2008tance that had potential impact on any new development inbylaw authorized new licence agreement for five years, andenvironmentally sensitive lakeshore areas — Review Panelwhile agreement purported to reserve to NOTL right to grantmade no legal error with respect to granting party status toadditional licences to other uses, it was empty right, and hadmunicipality — Matter was question of procedure and withineffect of giving operator monopoly — While NOTL haddiscretion of Panel, and did not involve issues of such impor-adopted disposition policy requiring council to declare landtance to warrant attention of court.surplus, obtain appraisal, and give public notice before sell-Lake Waseosa Ratepayers’ Assn. v. Pieper (2008), 58ing land, NOTL failed to comply with policy by failing toO.M.B.R. 304, 44 M.P.L.R. (4th) 294, 2008 CarswellOntdeclare dock surplus — Ride operated from June to Septem-985, Molloy J. (Ont. Div. Ct.); additional reasons at (2008),ber, with up to 1,440 riders daily, directly generated2008 CarswellOnt 7527, Bellamy J., J. Wilson J., Swinton J.$443,440 in municipal taxes, and had total economic impact(Ont. Div. Ct.).of $77.1 million — Concrete dock was 49 feet wide by 100feet long, augmented by floating structure extending into291. Zoning — Attacking validity of zoning by-laws —water lot, and was surrounded by fence, except on river side,Grounds — Non-compliance with statutory require-which was locked when operator was not using dock — Ac-ments –––– Regional district had jurisdiction over regulationcess was restricted to riders — Dock was designated “con-of land use in and about area where proponent was beneficialservation” in NOTL’s official plan and was zoned “institu-owner of 1,000 acres — Proponent initiated process neces-tional” — Public interest group applied to quash 2008sary to permit it to comprehensively develop some 845 acres,bylaw — Application granted — Bylaw quashed — 2008for more intensive utilization of its land resource than per-bylaw violated s. 270(1) of Municipal Act, 2001 andmitted by existing land regulation — Proponent retained en-NOTL’s own disposition policy and was void on that basisgineering firm to advise it on water service to proposed de-alone — Section 270(1) of Act requires municipality tovelopment, and entered into agreement to report on optionsadopt and maintain policies with respect to sale and otherfor most appropriate method of providing suitable domestic


4 D.M.P.L. (2d), August 2009 16

disposition of land — “Disposition” in s. 270(1) of Act and 294. Zoning — Attacking validity of zoning by-laws —Grounds — Procedural error — Procedural fairness ––––in NOTL’s disposition policy included licence or transfer ofRegional district had jurisdiction over regulation of land usepossession as represented by third agreement — It would bein and about area where proponent was beneficial owner ofwrong and unreasonable for NOTL to consider dock, which1,000 acres — Proponent initiated process necessary to per-was important access point to river to be “no longer requiredmit it to comprehensively develop some 845 acres, for morefor the use of the . . . municipality”.intensive utilization of its land resource than permitted by

Niagara River Coalition v. Niagara-on-the-Lake (Town) existing land regulation — Proponent retained engineering(2009), 2009 CarswellOnt 2910, J.W. Quinn J. (Ont. S.C.J.). firm to advise it on water service to proposed development,

and entered into agreement to report on options for most ap-293. Zoning — Attacking validity of zoning by-laws — propriate method of providing suitable domestic water sup-Grounds — Non-conformity with municipal plan –––– ply — In September 2007, district adopted two by-laws toDock was used as customs entry point by federal government amend zoning in subdivisions to permit development — Pe-under 99-year lease from lower tier municipality (NOTL), titioners applied for orders setting aside by-laws for illegalityuntil NOTL re-acquired it in 1992 and gave jet boat operator because district contravened mandatory provisions of s. 890permission to occupy and use dock for its amusement ride of Local Government Act — Application granted — Peti-business — 1993 bylaw authorized execution of licence tioners alleged that district received information from propo-agreement granting operator ten year right to use dock (first nent and its consultant after close of public hearing, withoutagreement), and 2002 bylaw authorized licence agreement affording them reasonable opportunity to be heard or to pre-for eight years (second agreement) — 2008 bylaw authorized sent written submissions on that new information — In Sep-new licence agreement for five years, and while agreement tember 2007, proponent executed covenant under which itpurported to reserve to NOTL right to grant additional was committed to obtaining its potable water to service de-licences to other uses, it was empty right, and had effect of velopment from lake which was source of water for area, un-giving operator monopoly — While NOTL had adopted dis- til such time as district was able to service development withposition policy requiring council to declare land surplus, ob- potable water from regional water system — District in-tain appraisal, and give public notice before selling land, formed community in March 2006 that water supply for pro-NOTL failed to comply with policy by failing to declare posed development would come from lake — All of prepara-dock surplus — Ride operated from June to September, with tion done to discuss district’s material on lake was thereuponup to 1,440 riders daily, directly generated $443,440 in mu- rendered irrelevant — Public was not afforded opportunity tonicipal taxes, and had total economic impact of $77.1 mil- be heard or to present submissions on that about-face —lion — Concrete dock was 49 feet wide by 100 feet long, That was not fair — By-laws set aside for illegality.augmented by floating structure extending into water lot, and

Baynes Sound Area Society for Sustainability v. Comoxwas surrounded by fence, except on river side, which wasStrathcona (Regional District) (2009), 2009 CarswellBClocked when operator was not using dock — Access was re-1088, 2009 BCSC 565, R.D. Wilson J. (B.C. S.C.).stricted to riders — Dock was designated “conservation” in

NOTL’s official plan and was zoned “institutional” — Pub-295. Zoning — Legal non-conforming use — Change inlic interest group applied to quash 2008 bylaw — Applica-use — Test –––– In 1995, homeowner purchased propertytion granted — 2008 bylaw quashed — 1993 bylaw and firstwhich had been used as farm since 1963 and was zoned ruralagreement did not conform to 1970 official plan because useunder 1982 by-law which prohibited new pits or quarries —of dock by operator was new commercial use and no applica-From 1995 to 1999, homeowner removed aggregate fromtion was made to amend official plan to permit such use —3.06 hectare portion (portion) of property for use in construc-Granting licence under first agreement was contrary to pol-tion business — After receiving complaints, municipality ad-icy aimed at reducing number of non-conforming uses, andvised homeowner that his activities constituted operation ofpolicy aimed at passive recreational development of water-pit or quarry and so contravened by-law — Homeowner suc-front area — 2002 bylaw and second agreement similarly didcessfully had portion rezoned as M2 pit — In 2004, munici-not conform — 2008 bylaw offended both NOTL’s and up-pality decided to enact zoning by-laws distinguishing be-per tier/region’s official plans, which were aimed at increas-tween pits and quarries and prohibited blasting of rock in M3ing public access to river and river lands — Nothing inpit zone — Homeowner’s M2 pit became M3 pit under by-NOTL’s official plan permitted jet boat operation at dock —law — Homeowner was municipal councillor and advisedJet boat operation was large, intense, private, commercial op-residents at council meeting that he would not be operatingeration and did not fit within “conservation” designation, norquarry — To blast rock face on portion to remove sand andwas it permitted “park” use — Because 2008 bylaw offendedaggregate for construction business, homeowner required li-NOTL’s official plan, it contravened s. 24(1) of Planning Actcense under Aggregate Resources Act but license was onlyand was void on that basis alone.available to homeowner if no zoning by-law prohibited such

Niagara River Coalition v. Niagara-on-the-Lake (Town) use or if site had legal non-conforming status pre-dating by-(2009), 2009 CarswellOnt 2910, J.W. Quinn J. (Ont. S.C.J.). law — Homeowner brought application for declaration that


17 4 D.M.P.L. (2d), August 2009

by-law did not prohibit lands from being pit or quarry — Ap- bylaw — Application granted — Bylaw quashed — Jet boatoperation was not permitted use under zoning bylaw — Na-plication dismissed — Application was brought outside 30-ture and intensity of jet boat operation significantly exceededday period for bringing application but was not to be dis-use that prevailed when dock was used by federal govern-missed on that basis — Even if application had been broughtment from 1962 to 1991 — Use made of dock before 1992within time, evidence suggested that any alleged use of pro-could not establish any legal non-conforming use, and evenperty as quarry in decades prior to passing of by-law hadif it could, it was incompatible use — Third agreement wasbeen abandoned well in advance of homeowner acquiringnot consistent with policy that incompatible non-conformingproperty — On day 1982 by-law was passed, none of pro-uses should lapse — Upon commencement of first agree-perty was being lawfully used for pit and quarry so therement, use made of dock by operator was both non-con-could be no legal non-conforming use where use had beenforming and illegal — When 2008 bylaw was passed, thatdiscontinued — Given 1999 rezoning to permit pit anduse continued to be non-conforming and illegal.quarry operations, use of property in 1982 lost much of its

relevance — At most, evidence established that homeowner Niagara River Coalition v. Niagara-on-the-Lake (Town)intended to develop face area for quarry operation and some (2009), 2009 CarswellOnt 2910, J.W. Quinn J. (Ont. S.C.J.).removal of aggregate in furtherance of that intention, and

297. Zoning — Zoning by-laws — Types of zoning by-one single blast of rock face before 2004 by-law — Home-laws — Interim control –––– Solar energy company pro-owner’s intention and steps to prepare rock face for quarryposed to build solar farm, with substantial array of panels, onoperation was not determinative of issue as to whether home-property in township — Property was prime agriculturalowner had committed to using property as quarry and did notland — Township council adopted interim control by-lawestablish commitment that could be equivalent to use — Pro-with stated purpose of giving time to study matter — Town-tected acquired right related only to status quo and did notship did not rezone property as requested by company or ap-protect potential or contemplated use that has not material-prove its site plan, and company filed appeals pertaining toized — As of date of enactment of 2004 zoning by-law, thereproposed zoning and site plan — Company appealed interimwas no status quo relating to any quarry operation and therecontrol by-law — Appeal allowed — Nothing in Planningwas no legal non-conforming use in that regard.Act limited appeal of interim control by-law under s. 38(4) to

Adams v. McDougall (Municipality) (2008), 2008 Cars- assessment of its circumstances at time of adoption or barredwellOnt 7215, 52 M.P.L.R. (4th) 289, L.L. Gauthier J. (Ont. consideration of its merits at time of hearing, seven monthsS.C.J.); additional reasons at (2009), 2009 CarswellOnt later — Significant purpose of interim control by-laws was2567, L.L. Gauthier J. (Ont. S.C.J.). informational — By-law’s purpose was to offer township

breathing space to gather information about solar farms, ana-296. Zoning — Legal non-conforming use — What con- lyze that information and act on it — Township appeared tostitutes –––– Dock was used as customs entry point by fed- have gathered and analyzed information sufficient to under-eral government under 99-year lease from NOTL/lower tier stand solar farm’s implications — Only purpose of by-lawmunicipality, until municipality re-acquired it in 1992 and left unfulfilled was township action on information, throughgave jet boat operator permission to occupy and use dock for official plan amendment or zoning by-laws, but township’sits amusement ride business — 1993 bylaw authorized exe- intention had been overtaken by events — Given company’scution of licence agreement granting operator ten year right appeal, policies and zoning by-law provisions were beforeto use dock (first agreement), and 2002 bylaw authorized li- Board, which could produce any outcome that townshipcence agreement for eight years (second agreement) — 2008 council could — Since matter was in litigation, council couldbylaw authorized new licence agreement for five years, and no longer act on information and board was now functionallywhile agreement purported to reserve to NOTL right to grant only body that could — Interim control by-law could accom-additional licences to other uses, it was empty right, and had plish no further practical purpose — Question of whether by-effect of giving operator monopoly — While NOTL had law had purpose at time of adoption was moot since thereadopted disposition policy requiring council to declare land was no evidence it had purpose now.surplus, obtain appraisal, and give public notice before sell-

Solaris Energy Partners Inc. v. East Hawkesbury (Town-ing land, NOTL failed to comply with policy by failing to

ship) (2009), 2009 CarswellOnt 2651, 2009 CarswellOntdeclare dock surplus — Ride operated from June to Septem-

2650, M.C. Denhez Member (O.M.B.).ber, with up to 1,440 riders daily, directly generated$443,440 in municipal taxes, and had total economic impact 298. Zoning — Zoning by-laws — Types of zoning by-of $77.1 million — Concrete dock was 49 feet wide by 100 laws — Site plan control –––– City developed auditoriumfeet long, augmented by floating structure extending into on land, and later sold land on March 7, 2007 — W Ltd.water lot, and was surrounded by fence, except on river side, operated parking garage on land — W Ltd. brought applica-which was locked when operator was not using dock — Ac- tion to determine if city had potential interest in parking ga-cess was restricted to riders — Dock was designated “con- rage — It was determined that city had no rights or interestservation” in NOTL’s official plan and was zoned “institu- arising from parking agreement dated September 2, 1986 —tional” — Public interest group applied to quash 2008 Application judge found that whatever parking rights or po-


4 D.M.P.L. (2d), August 2009 18

tential property interest city might have maintained was ter- 300. Zoning — Zoning variances — Types of vari-minated on March 7, 2007 when city sold auditorium — Ap- ances — Use –––– Applicant owned three-storey, commer-plication judge found that parking agreement was not stand cial-industrial building in retail warehouse area — Applicantalone document capable of supporting city’s claim to pro- leased units in building to operator of nightclub — Afterperty interest — Application judge found that it clearly sub- visit from by-law enforcement officer, nightclub was orderedordinated to original development agreement — City ap- to cease operations on ground that nightclub was not permit-pealed — Appeal dismissed — City was raising for first ted use — Applicant sought minor variance from provisionstime, on appeal, issue that city had rights of enforcement of of zoning by-law to allow nightclub to operate on subjectparking spaces that were statutory rights under s. 41(10) of property — Municipal committee of adjustment refused ap-Planning Act — Arguing this ground for first time on appeal plication — Applicant appealed — Appeal dismissed — De-was not open to city, both as matter of practice in this court, cision of committee of adjustment was consistent with pro-and because factual record in agreed statement of facts and vincial policy statement as required by s. 3(5) of Planningappended documents did not include all of evidence neces- Act — Nightclub use on subject premises would be contrarysary to fully and properly consider argument for first time at to planned function of retail warehouse area designation inthis level — Application judge fully considered issues raised official plan — All uses except those listed in particular sub-before him and determined that city had no interest in land section were subject to discretion of council — Proposedreferable to parking spaces that were subject of applica- nightclub use did not conform to intent and purpose of offi-tion — There was no error in his conclusions and findings. cial plan, or to uses permitted by by-law — Nightclub use as

proposed by applicant would not be desirable for appropriateWindsor Family Credit Union Ltd. v. Windsor (City) development of property because of its potential adverse im-(2009), 2009 CarswellOnt 3059, 2009 ONCA 450, Feldman pact on surrounding properties — Proposal failed to satisfy s.J.A., Juriansz J.A., MacFarland J.A. (Ont. C.A.); affirming 45(2)(b) of Act, and did not represent good planning — Def-(2008), 2008 CarswellOnt 5941, 75 R.P.R. (4th) 259, 53 inition of “clubs, commercial or private” in by-law did notM.P.L.R. (4th) 202, B.G. Thomas J. (Ont. S.C.J.). include “nightclub” — Nightclub use could only be permit-

ted by amendment to by-law enacted by council pursuant to299. Zoning — Zoning variances — Types of vari- relevant subsection of official plan.ances — Frontage and set back –––– Builder submitted plot

Jaysid Construction Ltd., Re (2009), 2009 CarswellOntplan for house it was going to build to town’s planning de-

2837, C. Hefferon Member (O.M.B.).partment but it was rejected because side yard setback forgarage was 0.28 m short of required 1.5m setback — Builder PRIVACY AND FREEDOM OF INFORMATIONsubmitted revised plot plan which was accepted and founda-

301. Provincial privacy legislation — Collection of per-tion permit was issued — Revised plot plan was not receivedsonal information — Disclosure –––– In 2002 T wasby builder who went ahead with construction on basis ofcharged by Peel regional police with eight counts of sexualoriginal plot plan — When house was sold, builder’s requestassault and sexual exploitation regarding activities at chil-for compliance stamp was denied due to side yard setbackdren’s group home which T had operated since 1998 — Indeficiency — Builder’s variance application was denied on2003 charges were withdrawn and T entered into peace bondground that variance request exceeded discretion of develop-for nine months — Subsequently, T signed Toronto policement officer — Appeal to subdivision and development ap-service authorization forms requesting criminal recordspeal board (SDAB) was dismissed — SDAB’s reason forsearch and vulnerable persons search in relation to his pro-dismissal was that builder had identified error prior to issu-spective employment with another group home — As resultance of foundation permit and took no action to prevent en-of vulnerable persons search, Toronto police contacted Peelcroachment — Builder appealed — Appeal was allowed andpolice who forwarded information it had on withdrawnre-hearing before SDAB ordered — Reasons merely identi-charges — Toronto police mailed summary of searches tofied and repeated builder’s error for which builder sought va-T — Neither Toronto nor Peel police disclosed informationriance — Reasons made no reference to any planning criteriaabout withdrawn charges directly to agencies with which Tat all — In particular, reasons revealed no consideration ofwas seeking employment, as whether or not to disclose thisstatutory criteria set out in s. 687(3)(d) of Municipal Govern-information to agencies was in hands of T — However, onement Act which sets out matters which SDAB should con-of agencies learned of withdrawn charges and T was refusedsider when determining appeal — Town’s contention thatemployment, which he believed was on basis of that infor-such consideration should be presumed could not be ac-mation — T applied for order requiring Peel police to ex-cepted in absence of anything in reasons evening hinting atpunge from any of their records any reference to withdrawnplanning criteria — Reasons which merely repeat issue arecharges — Application judge dismissed application but heldso incomplete as to constitute no reasons at all.that there was nothing in relevant legislation that authorized

Shane Homes Ltd. v. Chestermere (Town) (2009), 2009 release of information about withdrawn charges — Applica-CarswellAlta 721, 2009 ABCA 185, K. Ritter J.A., M. tion judge therefore ordered that Peel police were enjoinedPaperny J.A., P. Rowbotham J.A. (Alta. C.A.). from making any reference to withdrawn charges in response


19 4 D.M.P.L. (2d), August 2009

to any inquiries made to it by any authorized persons — Peel information about withdrawn charges directly to agenciespolice appealed — Appeal was allowed — Peel police dis- with which T was seeking employment, as whether or not toclosed existence of withdrawn charges against T to Toronto disclose this information to agencies was in hands of T —police based on consent forms signed by T for purpose of However, one of agencies learned of withdrawn charges andvulnerable persons search, which T authorized — Pursuant T was refused employment, which he believed was on basisto s. 32(b) of Municipal Freedom of Information and Protec- of that information — T applied for order requiring Peel po-tion of Privacy Act (MFIPPA), chief of police may disclose lice to expunge from any of their records any reference topersonal information with specific consent of affected per- withdrawn charges — Application judge dismissed applica-son — Information regarding withdrawn charges was per- tion but held that there was nothing in relevant legislationsonal information under MFIPPA — Where, as here, proper that authorized release of information about withdrawnconsent is given, there is no basis for injunction to restrain charges — Application judge therefore ordered that Peel po-disclosure — Furthermore, there was no conflict between s. lice were enjoined from making any reference to withdrawn32(b) of MFIPPA and Police Services Act which would op- charges in response to any inquiries made to it by any au-erate to eliminate consent exception to presumption in thorized persons — Peel police appealed — Appeal was al-MFIPPA against disclosure of personal information. lowed — Peel police disclosed existence of withdrawn

charges against T to Toronto police based on consent formsTadros v. Peel Regional Police Service (2009), 2009signed by T for purpose of vulnerable persons search, whichONCA 442, 2009 CarswellOnt 2953, K. Feldman J.A., M.T authorized — Pursuant to s. 32(b) of Municipal FreedomRosenberg J.A., R.A. Blair J.A. (Ont. C.A.); reversingof Information and Protection of Privacy Act (MFIPPA),(2007), 87 O.R. (3d) 563, 162 C.R.R. (2d) 217, 2007 Cars-chief of police may disclose personal information with spe-wellOnt 6392, Somers J. (Ont. S.C.J.).cific consent of affected person — Information regarding

302. Provincial privacy legislation — Constitutional is- withdrawn charges was personal information undersues –––– In 2002 T was charged by Peel regional police MFIPPA — Where, as here, proper consent is given, there iswith eight counts of sexual assault and sexual exploitation no basis for injunction to restrain disclosure — Furthermore,regarding activities at children’s group home which T had there was no conflict between s. 32(b) of MFIPPA and Po-operated since 1998 — In 2003 charges were withdrawn and lice Services Act which would operate to eliminate consentT entered into peace bond for nine months — Subsequently, exception to presumption in MFIPPA against disclosure ofT signed Toronto police service authorization forms request- personal information.ing criminal records search and vulnerable persons search in

Tadros v. Peel Regional Police Service (2009), 2009relation to his prospective employment with another group

ONCA 442, 2009 CarswellOnt 2953, K. Feldman J.A., M.home — As result of vulnerable persons search, Toronto po-

Rosenberg J.A., R.A. Blair J.A. (Ont. C.A.); reversinglice contacted Peel police who forwarded information it had

(2007), 87 O.R. (3d) 563, 162 C.R.R. (2d) 217, 2007 Cars-on withdrawn charges — Toronto police mailed summary of

wellOnt 6392, Somers J. (Ont. S.C.J.).searches to T — Neither Toronto nor Peel police disclosed


4 D.M.P.L. (2d), August 2009 20

WORDS AND PHRASES*

sidered by Justice Day. The definition included the requirement that the clubCLUBS, COMMERCIAL OR PRIVATEbe “operated for profit or gain.”

See NIGHTCLUB.In this Panel’s view to argue that the definition of “commercial club” in aRetail Warehouse (shopping) Area in Markham includes “nightclub” mili-COMMERCIALtates against basic common sense.

See NIGHTCLUB.. . . both case law as well as previous Ontario Municipal Board decisionspresented for consideration, confirm this Panel’s finding that Town of Mark-COMMERCIAL CLUBham policy does not support “nightclub” being included within the defini-tion of “commercial club”.See NIGHTCLUB.

. . . . .NIGHTCLUBThe Board refuses to permit a “nightclub” to operate on the subject property,Ontarioand determines that the definition of “clubs, commercial or private” in By-

♦ With respect to By-law 309-96, the Board follows the decision of Mr. law 309-96 does not include “nightclub”.Justice Day in Sixteenth Warden Ltd. v. Markham (Town) ChiefBuilding Official [1993 CarswellOnt 538 (Ont. Gen. Div.)] . . . in interpret- (Municipal law)ing “club, private or commercial.” The term requires proof that a particularclub has a genuine membership requirement. The term “nightclub” would Jaysid Construction Ltd., Re (2009), 2009 CarswellOnt 2837appear to include an entertainment facility for which there was no member- (O.M.B.), at para. 30, 31, 40, 41, 42, 46 Hefferon (Member)ship requirement, whether or not a cover charge was imposed on patrons.

In the Board’s opinion, the term “nightclub” is much broader in meaning PARKthan the term “commercial club” as the latter term is used in By-law 309-96.

Ontario. . . . .

♦ I agree with counsel for the applicant that “park” should be interpreted asAlthough “commercial club” is not defined in By-law 309-96 except by ex-connoting passive uses.cluding “Private Club” and “Health Club,” the ordinary meaning of “com-

mercial” is “of, engaged in or concerned with commerce”. And “commerce”(Municipal law)is defined to include “financial transactions, especially the buying and sell-

ing of merchandise, on a large scale”. (Oxford Canadian Dictionary, 1998Niagara River Coalition v. Niagara-on-the-Lake (Town) (2009),edition, p 285). This meaning of “commercial” is closely similar to the defi-

nition of “commercial club” in section 2 of (Markham) By-law 118-79 con- 2009 CarswellOnt 2910 (Ont. S.C.J.), at para. 106 J.W. Quinn J.

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*An alphabetical list of individual words and phrases that are given judicial consideration in the cases digested in this issue. Whenever possible, the entries aretaken verbatim from the judgment.


the digest of municipal & planning law

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