



COURT OF APPEAL FOR ONTARIO

CITATION: Belwood Lake Cottagers Association Inc. v. Ontario
    (Environment and Climate Change), 2019 ONCA 70

DATE: 20190131

DOCKET: C65238

Strathy C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Belwood Lake Cottagers Association Inc. and
    Conestogo 
    Lake Cottagers Association Inc.

Applicants
(Appellants)

and

Ministry of the Environment and Climate Change
and Grand 
    River Conservation Authority

Respondents
(
Respondent
)

Robert G. Doumani and Vedran Simkic, for the appellants

Meagan J. Swan, for the Grand River Conservation
    Authority

Tamara D. Barclay and Heather McIvor, for the respondent
    Ministry of the Environment and Climate Change

Heard: December 19, 2018

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated March 16, 2018, with reasons reported at
    2018 ONSC 1688, 73 M.P.L.R. (5th) 170.

Strathy C.J.O.:

Introduction

[1]

This
    appeal concerns a dispute between the Ministry of the Environment (MOE) and
    two associations representing cottagers in the Grand River Conservation Area
    over the regulatory regime applicable to the construction and operation of the
    cottagers sewage systems.
[1]

[2]

The
    issue is whether the sewage systems are subject to the
Ontario Water
    Resources Act
, R.S.O. 1990, c. O. 40 (
OWRA
) or whether the
Building
    Code Act, 1992
, S.O. 1992, c. 23 (
BCA
) applies. If the
OWRA
applies, the MOE has jurisdiction and an Environmental Compliance Approval
    (ECA) must be obtained for each cottage sewage system. If the
BCA
applies, the local municipalities have jurisdiction.

[3]

The
    applicable scheme is determined by the total design capacity
[2]
of the sewage system(s) located on a particular lot or parcel of land, an
    expression found in s. 53(6.1) of the
OWRA
. Systems with a design capacity
    in excess of 10,000 litres per day (lpd) are generally subject to the
OWRA
.

[4]

The
    land on which the cottages are situated is not covered by a formal plan of
    subdivision. The cottages on Belwood Lake (approximately 335 cottages) and
    Conestogo Lake (approximately 398 cottages) are located on five parcels of land
    registered under the Ontario Land Registry System. The five parcels are owned
    by the Grand River Conservation Authority (GRCA).

[5]

Each
    cottage has its own sewage system. There is no dispute that the individual
    cottagers sewage systems do not have a design capacity in excess of 10,000 lpd.
    A typical system is in the range of 3,000 lpd. The issue is whether the
    relevant lot or parcel of land for the purposes of determining total design
    capacity is one of the five parcels registered on title, or the individual
    cottage lots described in each cottagers lease with the GRCA.

[6]

Since
    the systems located on each of the five registered parcels have a collective
    sewage design flow capacity much greater than 10,000 lpd, the MOEs position is
    that they fall under the
OWRA
and require an ECA.

[7]

The
    cottagers position is that each individual cottage is situated on a separate, legally
    recognized lot leased to them by the GRCA and because their individual sewage
    systems do not exceed the 10,000 lpd statutory threshold, they are regulated by
    the
BCA
. The distinction makes a difference, because if the
OWRA
applies, cottagers will have to apply for an ECA, pay a fee of approximately
    $800, and have their sewage systems inspected. The inspection might reveal
    defects in their sewage systems that would require repair or replacement.

[8]

The
    resolution of this issue depends on the interpretation of the words lot or parcel
    of land in the legislation and their application to the facts of this case.

Relevant Statutory Provisions

[9]

The
OWRA
and the
BCA
are two complementary parts of a regime for the regulation
    of sewage systems in Ontario. Subject to certain provisions of the
Environmental
    Protection Act
, R.S.O. 1990 c. E.19 (
EPA
), the
OWRA
provides that no person shall use, operate, establish, alter, extend, or
    replace new or existing sewage works
[3]
except under and in accordance with an ECA. An ECA contains conditions to
    ensure that sewage works are constructed and operated in a manner that protects
    the environment.

[10]

Section 53(6.1) of the
OWRA
requires that an ECA must be obtained if:

(a) the sewage works have a design capacity in excess
    of 10,000 litres per day;

(b) more than one sewage works is located on a
lot
    or parcel of land
and they have, in total, a design capacity in excess of
    10,000 litres per day; or

(c) the sewage works are not located wholly within
    the boundaries of the
lot or parcel of land
on which is located the
    residence or other building or facility served by the works. [Emphasis added.]

[11]

The
BCA
and
    the
Building Code
, O. Reg. 332/12, generally apply to smaller sewage
    systems that do not meet these thresholds.

Background

Regulation of sewage systems in Ontario

[12]

The legislative
    framework for the approval of cottage sewage systems prior to 1974 is not
    explained by the record. The respondents affiant, Amy Shaw, Guelph District
    Manager of the MOE, deposed that from 1974 to 1988, approvals were conducted by
    the MOE under the
EPA
, with the program being administered through
    municipalities, health units, and conservation authorities.

[13]

In 1997, the Province
    of Ontario transferred the regulation of smaller sewage systems (i.e., systems with
    a design capacity under 10,000 lpd) from the
EPA
to municipalities
    under the
BCA
. Since 1998, larger sewage systems (over 10,000 lpd)
    have been regulated under the
OWRA
and require MOE approval to
    establish, alter, extend, or replace them. However, under a grandfathering
    arrangement, in place from 1998 to 2011, large sewage systems built prior to
    1998 were not required to be approved by the MOE, provided they had not been altered
    or expanded. That grandfathering was removed in 2011 due to an amendment to s.
    53(1) of the
OWRA
, which provided that:

No person shall use,
operate
, establish,
    alter, extend or replace new or existing sewage works except in accordance with
    an Environmental Compliance Approval. [Emphasis added.]

[14]

The result was that,
    effective 2011, operators of large sewage systems were required to obtain an
    ECA, regardless of when the sewage system had been constructed, and whether or
    not it had previously been subject to the grandfathering regime.

The cottages

[15]

For 65 years, the Belwood
    Lake Conservation Area and the Conestogo Lake Conservation Area, two large
    tracts of land located in southwestern Ontario, have been designated as
    conservation land for flood control and water supply reservoir purposes. The
    two areas consist of five separate parcels of land, each designated by a
    Property Identification Number (PIN) registered in Ontarios electronic Land Registry
    System. All five parcels are owned by the GRCA.

[16]

Beginning in the 1940s
    and 1950s, the GRCA leased to the public cottage sites on the shorelines of the
    two lakes under a Cottage Lot Program. There are approximately 733 cottage
    sites within the two conservation areas. The sites generally have 100 feet of
    lake frontage. Each cottage has its own separate lease with the GRCA. The
    leases are for five year renewable terms. Under the lease, each cottager is
    responsible for their own sewage and water systems. Most of the cottages have
    individual septic systems (holding tanks or septic tanks and leaching beds) and
    their own drinking wells.

[17]

While each cottage
    lease refers to a lot number and the boundaries of the lot are shown on a schedule
    attached to the lease, the Cottage Lot Program was developed without either a
    registered plan of subdivision or a registered survey of the five parcels.

[18]

The cottages are
    permanent structures but are not permanent residences. In a decision dated
    April 1, 2005, the Ontario Rental Housing Tribunal determined that the cottages
    located on the subject lands are land lease homes, part of a land lease community
    as defined under the
Tenant Protection Act, 1997
, S.O. 1997 c. 24: see
Putnam v. Grand River Conservation Authority
, [2005] O.R.H.T.D. No.
    12, affirmed by the Divisional Court in (2006), 210 O.A.C. 191 (Div. Ct.).

[19]

There is very little
    evidence about the nature and condition of the sewage systems on the cottage
    lots. There is no evidence of when the sewage systems were constructed, under
    what approvals process, their current condition, or whether they are subject to
    any routine independent inspection. While it may be logical to assume, as the
    appellants urge, that the cottages were built under building permits issued by
    the local municipality, which generally approves the building and the design of
    sewage systems, there is no evidence in the record of the date any such building
    permits were issued and what the associated regulatory approvals for the sewage
    systems entailed. The evidence of the appellants professional engineer was
    that small sewage systems are not inspected after construction, that the owner
    of the system is required to maintain it under the BCA, and that while the
    building authority may inspect the system following installation, it is not
    required to do so. There is no evidence that any building authority has ever
    inspected any of the cottages or lots after the installation of its sewage
    system.

The condition of the lakes

[20]

The respondents
    affiant, Ms. Shaw, deposed that Belwood Lake and Conestogo Lake have previously
    experienced phosphorus pollution. She opined that the proper operation and
    maintenance of septic systems is an important way of reducing phosphorus
    concentrations in the lakes:

Belwood Lake and Conestogo Lake are dam controlled reservoirs
    known to be eutrophic. Both lakes have experienced green and/or blue green
    algae blooms in the past which are likely influenced by high phosphorous
    concentrations. The proper operation and maintenance of septic systems around
    the reservoirs is an important aspect of reducing phosphorus entering into the environment
    and improving water quality within this particular watershed.
[4]

[21]

There was no evidence
    to refute these observations concerning the condition of the two lakes.

The MOEs outreach program

[22]

Beginning
    in 2014, the MOE, in consultation with the GRCA and the two local townships
    where the lakes are located, began an outreach program to explain the
    requirements of the
OWRA
and the need for cottagers to obtain an ECA.

[23]

Ms. Shaw deposed that
    when she first became involved with the issue in 2014, only about 20% of the
    cottagers around Belwood Lake were known to have a valid ECA or a
    municipally-issued building permit, prior to 1998, for their sewage system.
    The majority of cottages on the two lakes were serviced by individual septic
    systems, varying in age, condition, and effectiveness. She deposed that an
    informal survey conducted by MOE staff in 2014 around the two lakes revealed
    that:

·

many of the cottage owners interviewed did not perform routine
    maintenance or have documentation about their system;

·

many did not know what type of system they had or where it was
    located;

·

many cottagers believed that their system may be original (40+
    years old) and, in some cases, had built decks, parking spots or additions over
    their system; and

·

most cottages had their own private drinking water well located
    on the property, some in close proximity to their septic systems.

[24]

While the appellants
    have a healthy scepticism about the results of this survey, they adduced no
    evidence to refute its findings.

The cottagers concerns

[25]

While some 105
    cottagers followed the new regulatory process and obtained ECAs, many others
    resisted. They were no doubt surprised by the change in policy and concerned by
    the need for an inspection of their system, the cost of obtaining an ECA, and the
    potential cost of rectifying deficiencies.

[26]

As a result of these
    concerns, the appellants brought an application for a declaration that each
    cottage was located on a separate lot or parcel of land under the
OWRA
,
    and that the cottagers sewage systems did not fall under the
OWRA
. The
    application turned on the interpretation of a lot or parcel of land for the
    purposes of the
OWRA
. The term lot or parcel of land is not defined
    in the
OWRA
, or its regulations, or in the
BCA
.

Reasons of the Application Judge

[27]

The application judge
    dismissed the application, finding that the cottages were subject to the
OWRA
.
    He noted the evidence about algae problems in the lakes and found that the
    sewage systems on the cottagers lots undoubtedly varied in age, type,
    condition, and performance.

[28]

He found that the
    boundaries of the lots described in the cottagers leases were approximations
    at best and that the lots assigned to them were for identification purposes
    only. He said, [a]t their highest, the actions of the GRCA have created
    leasehold interests in non-surveyed and unofficially delineated lots: at
    para. 24.

[29]

The application judge stated,
    at para. 25, that lot or parcel of land referred to land for which title could
    be legally conveyed from one party to another:

In my view, the appropriate interpretation to be given to the
    phrase lot or parcel of land is a lot or parcel of land, title to which can
    be legally conveyed from one party to another. This interpretation is
    consistent with the purpose of the OWRA, and in particular ensures the
    efficient and sustainable conservation, protection, use and management of
    Ontario's waters in order to promote long term environmental, social and
    economic well-being in the province. To achieve those purposes, implementation
    of the provisions of the OWRA must be based upon foundations of consistency and
    certainty.

[30]

He added, at para. 27,
    that lot or parcel referred to a lot or parcel legally recognized for
    municipal and planning law purposes:

Accordingly, to achieve the stated legislative purposes of the OWRA,
    a "lot or parcel of land" under section 53(6.1) must mean a lot or
    parcel of land that is legally recognized for municipal and planning law
    purposes. I therefore find that each cottage is not located on a lot, thus the
    cottages are collectively located within five parcels of land (ie. the PINs).

[31]

The application judge
    found that the appellants could not rely on the informal descriptions of their
    lots contained in their leases, because this would promote arbitrariness,
    rather than certainty. It would enable any private landowner to avoid
    compliance with the
OWRA
by informally subdividing their land into
    random lots. This, he found, would undermine the legislative purpose of the
OWRA
.

[32]

The application judge rejected
    the appellants argument that because the cottages had been found to be land
    lease homes in land lease communities under the
Tenant Protection Act,
    1997
, the cottages are land lease community homes as defined by s. 46 of
    the
Planning Act
, R.S.O. 1990, c. P.13, and the combined effect of ss.
    46(2.1) and 71 of the
Planning Act
is that each cottage must be
    located on a separate lot or parcel of land under the
OWRA
. In his
    view, s. 46(2.1) deals with land use controls (i.e. what can be constructed
    upon an existing registered lot), not the subdivision of land and, therefore,
    does not impact the definition of a parcel of land under the
Planning Act
.

[33]

Given his
    interpretation of s. 53(6.1) of the
OWRA
and his interpretation of s.
    46(2.1) of the
Planning Act
, the application judge found that each
    cottage was not located on a separate lot, and the cottages were collectively
    located on five parcels of land. Accordingly, he found that the 733 cottages
    fall within the jurisdiction of the
OWRA
, and dismissed the
    application.

The Submissions of the Parties

[34]

The parties
    submissions focus on the meaning of the words lot or parcel of land in both
    the
OWRA
and the
Planning Act
. The appellants advance what
    they say is the plain meaning or the ordinary grammatical meaning, assisted
    by the dictionary definition of a lot or parcel. They say that their lots
    are clearly defined in their leases, their leases are capable of being legally assigned,
    and the use of their properties is recognized by the
Planning Act
.

[35]

The respondent submits
    that the application judges interpretation properly accounts for the principle
    that a lot or parcel of land is one that is legally recognized, assessed, and
    regulated under various provincial statutory schemes. Such a definition gives
    effect to the purpose of the
OWRA
and ensures consistency across the
    province. The nature of the interests created by the private leases between the
    appellants and the GRCA is not dispositive.

Analysis

Standard of review

[36]

Relying on
Canadian
    National Railway Co. v. Canada (Attorney General)
, 2014 SCC 40, [2014] 2
    S.C.R. 135, at para. 33, the appellants submit that the interpretation of the
    statutes is a question of law and reviewable on a correctness standard. The
    respondent says that while the interpretation of a statute is subject to review
    for correctness, the appellants are challenging findings that result from the application
    judges application of the law to his findings of fact. Those are matters of
    mixed fact and law: see
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235, at paras. 36-37.

[37]

The issue of whether
    the application judge correctly interpreted lot or parcel of land in s. 53 of
    the
OWRA
to mean a lot or parcel of land that is legally recognized
    for municipal and planning law purposes, and for which title can be conveyed
    from one party to another, is an extricable question of law of relatively broad
    application that is to be reviewed on the correctness standard. The application
    judges determination of whether the individual cottages fall within the
    definition of a lot or parcel of land, properly interpreted, is a question of
    mixed fact and law entitled to deference. There is no basis to interfere with
    this determination absent a palpable and overriding error or extricable error
    in principle:
Sarnia (City) v. River City Vineyard Christian Fellowship of
    Sarnia
, 2015 ONCA 494, 336 O.A.C. 373, at para. 22.

[38]

I turn to the
    principles of statutory interpretation and their application to this case.

The modern approach

[39]

The
modern approach to statutory interpretation requires a court
    to consider the words of a statute in their entire context and in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament:
Montréal (City) v.
    2952-1366 Québec Inc.
, 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 9-12,
    citing
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para.
    21.

The grammatical and
    ordinary sense of the words

[40]

Both
    parties rely on the leading text by Ruth Sullivan,
Sullivan on the
    Construction of Statutes
, 6th ed. (Markham: LexisNexis Canada, 2014), who
    summarizes the ordinary meaning rule at §3.6:

It is presumed that the ordinary meaning of a legislative text
    is the meaning intended by the legislature. In the absence of a reason to
    reject it, the ordinary meaning prevails.

Even if the ordinary meaning is plain, courts must take into
    account the full range of relevant contextual considerations, including
    purpose, related provisions in the same or other Acts, legislative drafting
    conventions, presumptions of legislative intent, absurdities to be avoided and
    the like.

In light of these considerations, the court may adopt an
    interpretation that modifies or departs from the ordinary meaning, provided the
    interpretation is plausible and the reasons for adopting it are sufficient to
    justify the departure from ordinary meaning.

[41]

Sullivan notes that
    ordinary meaning is not the end of the process of statutory interpretation, it
    is simply the beginning. She refers to the observations of Iacobucci J. in
Chieu
    v. Canada (Minister of Citizenship and Immigration)
, 2002 SCC 3, [2002] 1
    S.C.R. 84, at para. 34, in connection with the interpretation of the
Immigration
    Act
:

The grammatical and ordinary sense of the words employed in s.
    70(1)(b) is not determinative, however, as this Court has long rejected a
    literal approach to statutory interpretation. Instead, s. 70(1)(b) must be read
    in its entire context. This inquiry involves examining the history of the
    provision at issue, its place in the overall scheme of the Act, the object of
    the Act itself, and Parliament's intent both in enacting the Act as a whole,
    and in enacting the particular provision at issue.

[42]

Thus, the plain
    meaning of the words of the statute is only one aspect of the modern approach.
    I will return to the parties submissions on the plain meaning of lot or
    parcel, but I turn next to the purpose of the legislation.

The purpose of the legislation

[43]

The purpose of the
OWRA
,
    as the application judge recognized, is to provide for the conservation,
    protection and management of Ontarios waters and for their efficient and
    sustainable use, in order to promote Ontarios long-term environmental, social
    and economic well-being:
OWRA
, s. 0.1. It does this by prohibiting
    the discharge of pollutants that can impair water quality and by the regulation
    of sewage disposal and sewage works, among other operations.

[44]

This court has noted
    that the
OWRA
creates a wide ambit of protection for Ontario waters:
    see
R. v. Inco Ltd.
(2001), 54 O.R. (3d) 495 (C.A.), at para. 53. As
    the court observed in
Inco
, this broad protection is necessary because
    the damage caused by pollution of waters may not be immediately apparent and
    impairment may be caused by the accumulation of pollutant materials over time:
    at para. 54.

[45]

As I noted earlier,
    the
OWRA
and the
BCA
create a complementary system to
    regulate the construction and operation of sewage works  works that are
    obviously potential sources of pollution. The intent of both statutes is that
    locations generating a lower volume of sewage (less than 10,000 lpd) are
    regulated by municipal building authorities under the
BCA
and the
Building
    Code
, and locations generating a volume of sewage greater than the 10,000
    lpd threshold are regulated by the MOE under the
OWRA
. The words lot
    or parcel of land are used in both the
OWRA
and the
Building Code
to describe the land to which the standard is to be applied.

[46]

The
BCA
and
    the
Building Code
, as their names suggest, establish uniform standards
    of construction, which are enforced by municipalities. In
Ingles v.
    Tutkaluk Construction Ltd.
, 2000 SCC 12, [2000] 1 S.C.R. 298, the Supreme
    Court discussed the purpose of the
BCA
. The court stated, at para. 23:
    The purpose of the building inspection scheme is clear from these provisions:
    to protect the health and safety of the public by enforcing safety standards
    for all construction projects. Those standards apply to smaller sewage
    systems, typically those employed by a single family dwelling. Through this
    jurisdiction, and the jurisdiction of municipalities in relation to zoning,
    planning, and subdivision control, a municipality is able to ensure that
    residents have adequate and safe sewage disposal systems.

[47]

The municipal regime
    is complemented by s. 53 of the
OWRA
, which regulates tracts of land
    that produce a larger volume of sewage in a regulatory framework that focuses
    on the broader environmental impact of sewage on water and watercourses, rather
    than on construction-level requirements only. This is in keeping with the
    expertise of the MOE, as recognized by the case law, and the recognized need to
    consider the collective impact of multiple sources of pollution on the
    environment.

Application of the principles of statutory interpretation

[48]

The scheme and
    purpose of the
OWRA
is to regulate the construction and operation of
    sewage works in order to protect the environment and the public. It entrusts the
    regulation of smaller systems to municipalities under the
BCA
and larger
    systems to the MOE. As outlined above, the dividing line is based on the design
    volume of daily sewage flow on a lot or parcel of land.

[49]

Returning to the
    plain meaning of the statute, the appellants rely on the definitions of
    parcel contained in
Websters Third International Dictionary
, and applied
    in
Ost v. Turnbull
(1977), 81 D.L.R. (3d) 161 (Alta. S.C. (App. Div.)),
    at p. 166:

In Webster's Third International Dictionary there are two
    definitions of parcel, either one of which might apply. The first is "a
    continuous tract or plot of land in one possession no part of which is
    separated from the rest by intervening land in the possession of another";
    the second is "a tract or plot of land whose boundaries are readily
    ascertainable by natural or artificial monuments or markers".

[50]

The appellants say
    that each cottage owner is in possession of a continuous plot of land, the
    boundaries of which are readily ascertainable from the schedule attached to
    their lease.

[51]

Ost v. Turnbull
was concerned with the interpretation of the word homestead in the
Dower
    Act
, 1948 (Alta.), c. 7, a statute that is far removed from the issue
    before us. I find greater assistance in the approach taken by the Ontario
    Building Code Commission (the Commission) in
Fletcher v. Township of
    Southgate
(1 March 2014), Ruling No. 03-52-950, Building Code Commission.
    That decision is instructive because it considered the very issue that is
    before us  namely, the meaning of lot or parcel of land in connection with
    an application for a building permit for a sewage system under the
BCA
.

[52]

In
Fletcher
,
    the applicant for a building permit owned a 123-acre piece of land that was
    operated as a resort and golf course. The land consisted of three contiguous
    part lots. If each part lot were regarded as a separate lot, the
BCA
would apply. On the other hand, if the three part lots were regarded as a
    single lot, the total design sewage flow would exceed 10,000 lpd and the
OWRA
would apply.

[53]

The Commission found
    that the entire parcel of three part lots was the applicable lot. The three part
    lots were a single amalgamated lot and were not capable of being independently
    conveyed without a severance. Since the combined design flow of the sewage
    systems on the three part lots exceeded 10,000 lpd, it was subject to the
    jurisdiction of the MOE.

[54]

In the course of its
    reasons, the Commission gave a helpful overview of the division of regulatory
    authority over sewage systems in Ontario and the rationale for it:

The regulation of on-site sewage system construction in Ontario
    is divided between the Ontario Building Code (OBC) for projects with a total
    daily design sanitary sewage flow of 10,000 litres per day or less and the Ontario
    Water Resources Act (OWRA) for flows over 10,000 litres per day. Review and
    enforcement of proposals under the OBC is done through local municipalities,
    health units, and conservation authorities. In the case of the OWRA, review and
    enforcement is done through the Ministry of Environment (MOE). For all sewage
    applications, the assessment of the total daily design sanitary sewage flow is
    made in accordance with Article 8.2.1.3. of the OBC, which requires
    consideration of Tables 8.2.1.3.A and B, or the highest metered flow of three
    similar establishments.

Although the design, construction and operation of an on-site
    sewage system should be carried out with due consideration to the local
    environment (particularly the groundwater),
the purpose of the division in
    responsibilities for approval is to afford the MOE an opportunity to scrutinize
    proposed larger (over 10,000 litres per day) sewage works relative to the local
    environmental conditions and potential impacts of effluent disposal. In
    particular, the proponent of the larger sewage works must consider the impact
    of dissolved nitrogen species on the local groundwater and down gradient uses
    of the water
(Reasonable Use Policy). [Emphasis added.]

[55]

The Commission
    concluded that the entire 123-acre property was a single lot or parcel. Consent
    of the Land Division Committee would be required to sever the property into
    individual parcels before selling or transferring them.

[56]

Also instructive is
    the decision of the Divisional Court in
Re Kelley and Redmond
(1979), 26
    O.R. (2d) 417 (H.C. (Div. Ct.)). The applicants, Redmond and Feenstra, had
    purchased a piece of land as joint tenants. When their application to sever the
    land was refused, they jointly leased one part to Feenstra for 20 years and the
    other to Redmond for 20 years. The parts were identified on a reference plan,
    but the lots were not severed and the parcel remained in their joint ownership.
    Feenstra applied for and was issued a building permit to build a house on the
    portion of the land described in the reference plan as Part 2. When Redmond
    applied for a building permit with respect to Part 3, it was refused, on the
    ground that the by-law prohibited a second dwelling on a lot. The by-law
    defined lot as a parcel or plot of land, whether or not shown on a
    registered plan of subdivision.

[57]

Redmond argued that
    the land described in his lease was a lot within the meaning of the by-law.
    The Divisional Court rejected this submission, noting that under this
    interpretation, a building permit would have to be issued for any piece of land
    having the necessary dimensions, regardless of whether the land was described
    in any registered or unregistered instrument. The court found, at p. 419, that
    a lot had to have a separate legal identity:

However, it is my opinion that such pieces of land would not be
    "lots" within the meaning of the by-law. In my view, the definition
    of "lot" in s. 3.36 requires a parcel of land which is severed and
    thus has a separate legal identity. This separate legal identity may arise by
    virtue of the parcel or plot of land being shown as a lot on a registered plan
    of subdivision; it may also arise in other ways, such as by being a farm lot
    shown on the original survey of the township; or a separate parcel of land
    established at a time antedating the modern regulatory schemes. This is not
    intended to be an exhaustive list.

[58]

The application judge
    applied a similar approach to the case at bar. I agree with the respondent that
    the application judge correctly interpreted lot or parcel of land in s. 53 of
    the
OWRA
to mean a lot or parcel of land that is legally recognized
    for municipal and planning law purposes, and for which title can be conveyed
    from one party to another. He correctly observed that permitting the appellants
    to rely on the descriptions in their leases, a purely private contractual
    division of the larger registered parcels, would promote arbitrariness rather
    than certainty, thereby undermining the purpose of the
OWRA
: at para.
    26.

[59]

The application
    judges interpretation of the legislation advances the purpose of the
OWRA
by ensuring that high volume sewage systems are subject to the regulatory oversight
    of the MOE under the
OWRA
. By virtue of its mandate and experience,
    the MOE is well-equipped to determine the cumulative effect of the operation of
    several hundred sewage systems on the local environment and to ensure the
    protection of both the cottagers and the environment. The ECA process enables
    the MOE to impose conditions on the construction and operation of sewage works,
    to ensure that the works are built in accordance with prescribed construction
    standards, and that the works are operated in the manner in which they were
    described and for which approval was granted, in order to ensure the ongoing
    protection of the environment in the public interest.

[60]

I do not accept the
    appellants submission that because their cottages are land lease community homes
    as defined in s. 46(1) of the
Planning Act
[5]
,
    they should each be regarded as being situated on a separate lot or parcel of
    land. Section 46(2.1) falls under Part V of the
Planning Act
and
    deals with land use controls. It does not impact the issue of whether the
    individual cottages are situated on a lot or parcel of land. I agree with and
    adopt the reasons of the application judge with respect to that issue.

Order

[61]

For these reasons, I
    would dismiss the appeal, with costs to the respondent in the agreed amount of
    $10,000, inclusive of disbursements and all applicable taxes.

Released: GS  JAN 31 2019

G.R. Strathy C.J.O.

I agree. P. Lauwers J.A.

I agree. B. Zarnett J.A.





[1]

The Grand River Conservation Authority in
tervened in the
    appeal but took no position.



[2]
The term
design capacity is used in both the

OWRA

and the
Building Code
, O. Reg.
    332/12, as the means of categorizing sewage systems. It is not defined
    in the
OWRA
. It is defined in the
Building Code
as the
    total daily design sanitary sewage flow determined in accordance with Article
    8.2.1.3. of Division B: s. 1.4.1.2.



[3]

Sewage works means any works for the collection,
    transmission, treatment and disposal of sewage or any part of such works, but
    does not include plumbing to which the
Building Code Act, 1992
applies:
OWRA
, s. (1)(1).



[4]

The term eutrophic was not defined by the affiant. A
    dictionary definition indicates that it refers to a body of water that is rich
    in nutrients, supporting a dense plant population but depriving the water of
    oxygen.



[5]
Land lease community home is
defined in s. 46(1) of the
Planning Act
as any
    dwelling that is a permanent structure where the owner of the dwelling leases
    the land used or intended for use as the site for the dwelling but does not
    include a mobile home.


