



COURT OF APPEAL FOR ONTARIO

CITATION:
Syrowik v.
    Wheeler, 2021 ONCA 819

DATE: 20211117

DOCKET: C69034

MacPherson,
    Simmons and Nordheimer JJ.A.

BETWEEN

David Syrowik and Ursula Syrowik

Applicants
    (Appellants)

and

Stella Wheeler and Sheila Diaz

Respondents
    (Respondents)

Analee Baroudi, for the appellants

David M. Sanders, for the respondents

Heard: November 2, 2021 by video conference

On appeal from the judgment of Justice Jonathon
    C. George of the Superior Court of Justice, dated December 18, 2020 with
    reasons reported at 2020 ONSC 7948.

REASONS
    FOR DECISION

[1]

The appellants appeal from a decision dismissing
    their application under s. 440 of the
Municipal Act, 2001
, S.O.
    2001, c. 25, (the Act) for declaratory and other relief to enforce a
    municipal fence by-law. The by-law at issue is referred to as The Corporation
    of the Municipality of Lambton Shores By-law 80-2008, a By-law to Prescribe the
    Height and Type of Fences (the Fence By-law). Following the appeal hearing,
    we dismissed the appeal for reasons to follow. These are our reasons.

Background

[2]

The appellants and the respondents own
    neighbouring cottages in the Municipality of Lambton Shores (the
    Municipality) on Lake Huron. Both cottages face generally to the north and
    front on an unopened private road allowance that runs along the lake. The
    respondents property lies to the west of the appellants' property. The
    respondents driveway faces west and opens onto a private road that runs generally
    north and south.

[3]

In 2015, the respondents built a privacy fence (the
    Fence) that runs parallel to the east wall of their cottage and their eastern
    property line, which divides their land from the appellants land. The Fence sits
    adjacent to the respondents cottage and runs beyond their cottage towards the
    lake.

[4]

The appellants contend that the Fence is too
    high, that it violates the Fence By-law and that, on occasion, it blocks their
    view of the sunset over the lake. They also contend that, in constructing the Fence,
    the respondents violated the Municipality's site alteration by-law by shoring
    up the fence line with sand without a permit.

[5]

In April 2018, the appellants complained to the Municipality.
    The Municipalitys clerk responded to the appellants' complaints by email dated
    May 25, 2018. She said the Municipality had considered the complaint
    and found no violation of the site alteration by-law. Further, while the Municipality
    believed that the end of the Fence closest to the lake violated a 6.5 feet
    height restriction in the Fence By-law, other factors were relevant: the nature
    and context of the complaint, background information and spirit of the By-law.
    Having considered all the circumstances, the Municipality said it would not be
    conducting any further investigation with respect to the alleged fence
    violation.

The Application Judges Decision

[6]

On the appellants application to enforce the Fence
    By-law under s. 440 of the
Act
, the application judge
    assumed for the purposes of the application that the Fence "is probably
    higher than the Municipality permits." Nonetheless, he declined to make an
    order that the respondents remove or lower the Fence. He found that the Municipality
    had looked into and declined to enforce the Fence By-law for articulable
    reasons. Given that the Municipality had not acted unreasonably or in bad
    faith, he saw no basis on which to intervene and grant the relief requested.


Discussion

[7]

Section 440 of the Act reads as follows:

If any by-law of a
    municipality
or by-law of a local board of a
    municipality under this or any other Act
is contravened, in addition to any other remedy
and to any penalty imposed by the by-law,
the contravention may be restrained by application
    at the instance of a taxpayer
or the
    municipality or local board. [Emphasis added.]

[8]

Both parties submit that the application judge
    erred in concluding that in order to succeed on an application to enforce a
    by-law under s. 440 of the Act, where a municipality has declined to do so, a
    taxpayer is required to show that the Municipality acted unreasonably or in bad
    faith in declining to enforce the by-law.

[9]

We agree. The appellants were not seeking an
    order compelling the Municipality to enforce the Fence By-law. Nonetheless, we
    are satisfied that the evidence the appellants adduced on their application
    lacked sufficient detail to establish a clear breach of the Fence By-law and
    that they were not therefore entitled to an order restraining its
    contravention.

[10]

As we will explain in more detail, the Fence
    By-laws height restrictions, as they apply to the respondents property, are
    determined by reference to the term street. The term street is defined in
    the Fence By-law to mean a public highway which provides the principal means
    of vehicular access to abutting lots and includes its sidewalks and
    boulevards. However, there are no public highways adjacent to the respondents
    property. Rather, an unopened road allowance lies to the north and a private
    road lies to the west of their property. The respondents are otherwise bounded
    by other cottagers.
[1]
Accordingly, whether and how the Fence By-law applies to the respondents
    property is fraught with difficulty. Although served with notice, the
    Municipality declined to appear on the application. Further, the appellants
    adduced no evidence on the application from Municipal officials or employees. Based
    on our review of the record, the appellants evidence is not sufficient to
    demonstrate whether or how the Fence By-Law applies to the respondents
    property.

1.

The Fence By-law Definitions

[11]

The Fence By-law prescribes fence heights by
    reference to their location in a particular yard: front yard, exterior side
    yard, side yard and rear yard.

[12]

It is undisputed that the Fence is of a solid
    type of construction as described in the Fence By-law. The Fence By-law
    specifies that a fence of a solid type of construction shall not exceed the
    following maximum heights:

-

0.91 metres (3 feet) in
front
and
exterior yards
; and

-

2 metres (6.5 feet) in
interior
    side yards
and
rear yards
.

[13]

The difficulty concerning whether or how the Fence
    By-law applies to the respondents property arises because it is not clear that
    the land on which the Fence is located falls within the definition(s) of any of
    the foregoing yards.

[14]

This is because the definition of each yard
    described in the Fence By-law is tied, in turn, to the definition of
    "street". The link occurs either directly through the definition of
    the particular yard in the Fence By-law - or indirectly through references in
    the definition of the particular yard in the Fence By-law to terms defined in either
    Lambton Shores Zoning By-law No. 1 of 2003 (the Zoning By-law) or the Fence
    By-law.

[15]

The problem arises because, as we have said, the
    road and road allowance abutting the respondents property are private, not
    public. If the land on which the fence is located does not fall within one of
    the relevant yard definitions, it is far from clear that the Fence By-law operates
    to prescribe fence height limits on the respondents property at all.

[16]

All the relevant By-law definitions are set out
    in Appendix A with the relevant links underlined. But, by way of example, we
    will set out below the relevant definitions of exterior side yard, front yard
    and side yard in the Fence By-law and show how the definitions are tied to the
    term street.

[17]

For example, the definition of exterior side
    yard in the Fence By-law refers directly to the definition of street. In
    contrast, the definition of front yard in the Fence By-law is tied to the definition
    of street by reference to a term that is defined, and tied to the definition
    of street, in the Zoning By-law. Further, an interior yard is defined by
    reference to a term in the Fence By-law (front yard) that is tied to the
    definition of street through the Zoning By-law.

(i)

Exterior side yard

Fence By-law


Yard, exterior
    side
 means a side yard immediately adjoining a
street
,
    extending from a front yard to the rear lot line;

(ii)

Front yard

Fence By-law


Yard, front

    means a yard that extends across the full width of the lot from the
front lot line
to the nearest wall of the main building
    on the lot;

Zoning By-law


Front Lot line

    means in the case of an Interior Lot, the line dividing the Lot from the
Street
. In the case of a Corner Lot, the shorter Lot
    Line abutting a
Street
shall be deemed the Front
    Lot Line and the longer Lot Line abutting a
Street
shall be deemed the Exterior Side Lot Line. In the case of a Through Lot or a
    Corner Lot whose exterior Lot Lines are the same length, the Lot Line where the
    principle access to the Lot is provided shall be deemed to be the Front Lot
    Line.
[2]


(iii)

Interior Yard

Fence By-law


Yard, side

    means a yard that extends from the
front yard
to
    the rear yard and from the side line of a lot to the nearest wall of the main
    building on the lot.

Fence By-law


Yard, front

    means a yard that extends across the full width of the lot from the
front lot line
to the nearest wall of the main building
    on the lot.

2.

The Appellants Evidence

[18]

The appellants filed two affidavits from a
    registered land use planner to address, among other things, the interpretation
    of the Fence By-law and its application to the Fence. The planner advanced an
    opinion that the Fence is located partly within a front yard and partly within
    a side yard of the respondents property and therefore subject to both a 3 foot
    and 6.5 foot height restriction. In reaching these opinions the planner relied
    in large measure on a 1980 Committee of Adjustment decision and what he
    describes as the intent of the original subdivision plan within which the
    cottages are located. At least implicit in this opinion is a conclusion that
    the northern boundary of the respondents property is a front lot line.

[19]

Based on our review of the record, the land use
    planner's evidence is not sufficient to establish a clear breach of the Fence
    By-law. As a starting point, the planner did not explain the basis for his
    opinion concerning the intent of the original subdivision plan relative to the
    Fence By-law. Nor does his opinion refer to
Wheeler v. Syrowik
, 2017 ONSC 2901, 67 M.P.L.R. (5th) 43 (Div. Ct.), a decision
    addressing the appellants' property, but which described the northern boundary
    of the respondents' land as a side lot line  apparently premised on an
    interpretation of the Zoning By-law proffered by the planner and accepted by
    the Chief Building Official.
[3]

[20]

Most importantly however, the planners opinion
    does not address what we view as the real possibility that the Fence By-law
    does not apply to the respondents lands at all. His reliance on a dated
    Committee of Adjustment decision, and an unexplained opinion concerning the
    intent of the original subdivision plan, are inadequate to displace that
    concern.

Disposition and Costs

[21]

The appeal is dismissed. Costs of the appeal are
    to the respondents on a partial indemnity scale in the agreed upon amount of $12,300
    inclusive of disbursements and applicable taxes.

J.C.
    MacPherson J.A.

Janet
    Simmons J.A.

I.V.B.
    Nordheimer J.A.


Appendix
    A

Fence By-Law

Yard, exterior
    side means a side yard immediately adjoining a
street
, extending from a front yard
    to the rear lot line;

Yard, front
    means a yard that extends across the full width of the lot from the
front lot line
to the nearest wall of the main building on the lot;

Yard, rear
    means a yard that extends across the full width of the lot from the
rear lot line
to the nearest wall of the main building on the lot;

Yard, side
    means a yard that extends from the
front yard
to the rear yard and from
    the side lot line of a lot to the nearest wall of the main building on the lot.

Zoning By-law

Front Lot Line
    means in the case of an Interior Lot, the line dividing the Lot from the
Street
. In the
    case of a Corner Lot, the shorter Lot Line abutting a
Street
shall be
    deemed the Front Lot Line and the longer Lot Line abutting a
Street
shall be
    deemed the Exterior Side Lot Line. In the case of a Through Lot or a Corner Lot
    whose exterior Lot Lines are the same length, the Lot Line where the principle
    access to the Lot is provided shall be deemed to be the Front Lot Line.

Rear Lot Line
    means in the case of a Lot having four or more Lot Lines, the Lot Line farthest
    from and opposite to the
Front
    Lot Line
. If a Lot has less than four Lot Lines,
    there shall be deemed to be no Rear Lot Line.

Side Lot Line
    means a Lot Line other than a Front or Rear Lot Line, and shall include
    Interior Side Lot Line and Exterior Side Lot Line.

Exterior Side
    Lot Line on a Corner Lot, means the longer Lot Line abutting a Street.

Interior Side
    Lot Line means a Side Lot Line other than an Exterior Side Lot Line.





[1]
The
    neighbourhood where the parties' cottages are located is private property. The
    landowners hold title to their individual properties but all else is owned and
    maintained by the Richmond Park Cottagers Association, comprised of the
    homeowners in the neighbourhood. None of the streets in the neighbourhood have
    been assumed by the municipality.



[2]
The exterior lot lines of the respondents property are not the
    same length.



[3]

The
    interpretation accepted by the Chief Building Official was one of two interpretations
    proffered by the planner and not apparently the planners preferred
    interpretation.


