



COURT OF APPEAL FOR ONTARIO

CITATION: Sarnia (City) v. River City Vineyard Christian
    Fellowship of Sarnia, 2015 ONCA 494

DATE: 20150703

DOCKET: C58676

Doherty, Epstein and Tulloch JJ.A.

BETWEEN

The Corporation of the City of Sarnia

Respondent (Applicant)

and

Trustees of River City Vineyard Christian
    Fellowship of Sarnia

Appellant (Respondent)

Murray Klippenstein and Kent Elson, for the appellant

Joseph J. Hoffer and Laura M. McKeen, for the respondent

Reema Khawja and Cathy Pike, for the intervener, Ontario
    Human Rights Commission

Heard: October 28, 2014

On appeal from the judgment of Justice Thomas J. Carey of
    the Superior Court of Justice, dated March 13, 2014, with reasons reported at 2014
    ONSC 1572, 22 M.P.L.R. (5th) 35.

Tulloch J.A.:

A.

Overview

[1]

The River City Vineyard Christian Fellowship of Sarnia (River City) is
    a church located in the Urban Residential Zone 1-27 in the City of Sarnia.
    River City has operated a mens homeless shelter known as the Harbour Inn Mission
    in its church basement since 2006. The City of Sarnia opposed its operation on
    the basis that it breached Sarnias zoning by-law, By-law No. 85 of 2002 (the
    By-law).  River City disagreed and continued operating the shelter.

[2]

In response, Sarnia applied to the Superior Court for an injunction to
    stop River Citys operation of the shelter.  River City brought a
    counter-application seeking a declaration it was not contravening the By-law,
    or in the alternative, to the extent the By-law prohibited the shelter, the
    By-law unjustifiably infringed its freedom of religion as protected by the
Canadian
    Charter of Rights and Freedoms
. In 2014, the applications judge issued an
    injunction against River City, prohibiting it from operating the shelter
    because it was in contravention of the By-law.

[3]

River City appeals on two main grounds, arguing:

1.       The By-law, properly
    interpreted, permits the shelter; and

2.       In the alternative, if the
    By-law prohibits the shelter, the application or enforcement of the By-          law
    infringes s. 2(a) of the
Charter
, and the infringement is not
    justified under s. 1.

[4]

For the reasons that follow, I would dispose of the appeal on the first
    ground.  In my view, the applications judge erred in his interpretation of the
    By-law, and as such, incorrectly found that it did not permit River City to
    operate the shelter.

B.

Background

[5]

River City is located in Urban Residential Zone 1-27 (UR1-27) in the
    City of Sarnia. The By-law lists the permitted uses in UR1-27 as Church,
    school and parking only. Church is defined as follows:

"CHURCH (PLACE OF WORSHIP)" means a building used by
    a religious organization for public worship and church-sponsored community
    activities and projects, and may include as accessory uses a rectory or manse,
    church hall, day nursery or religious school, offices, but shall not include a
    soup kitchen or food bank, unless otherwise permitted by this By-law.

[6]

River City has operated the Harbour Inn Mission, a small mens homeless
    shelter, out of its church basement since 2006. The City of Sarnia informed River
    City very shortly after the Harbour Inn Mission opened that the By-law
    prohibits homeless shelters in UR1-27.

[7]

After some discussion, the City of Sarnia passed a temporary use by-law
    that eventually permitted River City to operate its shelter until one year
    after a permanent mens homeless shelter opened in the community. During the
    term of the temporary use by-law, River City renovated its basement to bring
    the shelter space up to acceptable standards. River City spent about $100,000
    on the renovations. In September 2010, the Inn of the Good Shepherd Lodge, a
    permanent homeless shelter, began accommodating homeless men, setting in motion
    the termination of the Harbour Inn Missions authorization, effective September
    2011.

[8]

In September 2011, River City applied to the City of Sarnia to
    permanently re-zone its property to allow the shelter. City council denied the
    application, spurring an appeal to the Ontario Municipal Board. River City
    later abandoned that appeal because it believed it was entitled to operate the
    shelter as part of the church. The City brought an application for an
    injunction to prohibit River Citys operation of the shelter based on its
    violation of the By-law. River City submitted a counter-application for a
    declaration that the Harbour Inn Mission does not violate the By-law, and if it
    does, that the By-law, to the extent it prohibits River City from sheltering
    the homeless, violates s. 2(a) of the
Charter
and is not saved by s.
    1.

C.

Decision Below

[9]

The applications judge concluded that the By-law forbids operation of a
    homeless shelter on River Citys lot, dismissed River Citys
Charter
claim
    and granted an injunction prohibiting the shelters operation.

[10]

The
    applications judge first reasoned that the shelter was not a church-sponsored
    community activity given the prohibition on soup kitchens and food banks. He
    held that these specific prohibitions indicated intent to narrowly prescribe
    the range of activities which constitute church use.

[11]

Second,
    the applications judge held that because River City had renovated the basement to
    use as a shelter, the shelter did not constitute a use as defined by the
    By-law, which is the purpose for which a lot, building or structure, or any
    combination thereof is designed, arranged, occupied or maintained.

[12]

Third,
    he reasoned that the shelter could not qualify as an accessory use because
    the shelter was not incidental and exclusively devoted to the main use of the
    building as a church.

[13]

Finally,
    the applications judge observed that while River City regarded the shelter as
    part of its spiritual mission, legally, it fell into the By-laws definition of
    emergency shelter. He seems to have impliedly held that for this reason, it
    could not also come within the definition of church.

D.

Analysis

[14]

River
    City appeals to this court and contends that the applications judge erred in
    his interpretation of the By-law, as well as his interpretation and application
    of s. 2(a) of the
Charter
.

[15]

The
    City of Sarnia submits that the applications judge committed no legal errors,
    and as such, the appeal should be dismissed and the injunction enforced.

[16]

As
    stated earlier, I would dispose of this appeal on the first ground, and as a
    result, it is not necessary to address whether the applications judge erred in
    dismissing River Citys
Charter
claim.

[17]

The
    main issue on this appeal is therefore whether the By-law prohibits or permits
    River Citys operation of a homeless shelter in its church basement. Whether
    the By-law prohibits or permits River Citys shelter turns on the
    interpretation of the By-laws definition of church. That definition is as
    follows:

"CHURCH (PLACE OF WORSHIP)" means a building used by
    a religious organization for public worship and
church-sponsored community
    activities and projects
, and may include as
accessory uses
a
    rectory or manse, church hall, day nursery or religious school, offices, but
    shall not include a soup kitchen or food bank, unless otherwise permitted by
    this By-law. [Emphasis added.]

[18]

This
    issue may be divided into two questions:

1.       Does River Citys homeless
    shelter constitute church-sponsored community activities and projects within
    the meaning of the By-law?

2.       Is the shelter permitted as an
    accessory use to the church?

[19]

River
    City argues that a homeless shelter is permitted both under church-sponsored
    community activities and projects and as an accessory use. If either is the
    case, the shelter would fall within the meaning of church, a use permitted in
    UR1-27.

[20]

In
    my view, River Citys homeless shelter falls within the meaning of
    church-sponsored community activities and projects. For the reasons that
    follow, I conclude that the applications judge erred in his interpretation of
    the By-law. Below, I set out the standard of review for the applications
    judges decision and the approach to statutory interpretation. I then explain
    the legal errors made by the applications judge and, finally, I outline why it
    is my view that upon reading the words church-sponsored community activities
    and projects in their entire context and according to their grammatical and
    ordinary meaning, this part of the By-law permits River City to operate the
    Harbour Inn Mission out of its basement.

[21]

I
    would decline to deal with the second aspect of River Citys statutory
    interpretation argument, namely that the shelter also constitutes an accessory
    use. Under s. 3.1(1) of the By-law, accessory uses cannot include accessory
    dwelling units, unless the By-law provides otherwise. The parties did not
    address whether the shelter qualifies as a dwelling unit. Accordingly, it is not
    appropriate for this court to decide the point, and in any event, it is not
    necessary.

Standard of review

[22]

The
    proper interpretation of the By-law is a question of law, reviewable on a
    correctness standard:
Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R.
    235,

at para. 8. Whether River Citys shelter falls within the
    By-laws definition of church, properly interpreted, is a question of mixed
    fact and law, and the applications judges conclusion is therefore entitled to
    some deference absent an extricable error in principle or palpable and
    overriding error: see
Donnell v. Joseph
, 2012 ONCA 240, 94 M.P.L.R.
    (4th) 169, at paras. 10-11.

Principles of statutory interpretation

[23]

The
    general approach to statutory interpretation requires the words of the provision
    here to be read in their entire context and according to their grammatical and
    ordinary meaning, harmoniously with the scheme and object of the By-law as a
    whole and the intention of the drafters:
John Doe v. Ontario (Finance)
,
    2014 SCC 36, [2014] 2 S.C.R. 3, at para. 18.

[24]

Additionally,
    legislative provisions are presumed to be consistent with constitutional norms,
    including the values enshrined in the
Charter
. However, this
    presumption comes into play as an interpretive principle only if a provision is
    genuinely ambiguous, in that it is subject to differing, but equally
    plausible, interpretations:
Bell ExpressVu Limited Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62.

Legal errors made by the applications judge

[25]

In
    my view, the applications judge made three fatal errors in his reasons for
    determining that the Harbour Inn Mission is not a church-sponsored community activity
    or project.

[26]

First,
    the applications judge erred in concluding that the express prohibition on soup
    kitchens and food banks indicates an intention to narrowly prescribe the range
    of activities that constitute church use. While the express prohibition on soup
    kitchens and food banks in churches narrows the range of activities that constitute
    church use to some extent, it does not follow that the intent of the By-law was
    to prohibit other activities of a similar nature.

[27]

According
    to the principle of implied exclusion, [w]hen a provision specifically
    mentions one or more items but is silent with respect to other items that are
    comparable, it is presumed that the silence is deliberate and reflects an
    intention to exclude the items that are not mentioned: Ruth Sullivan,
Sullivan
    on the Construction of Statutes
, 6th ed. (Markham: LexisNexis Canada,
    2014), at § 8.92.

[28]

The
    specificity of the words shall not include a soup kitchen or food bank
    implies that the express prohibitions were intended to be exhaustive. If the
    drafters had intended to prohibit uses analogous to soup kitchens and food
    banks, they could have either expressly prohibited these analogous uses or used
    words in the nature of shall not include accessory uses such as a soup kitchen
    or food bank.

There is no indication that analogous activities are to
    be read in. Therefore, the presumption is that the list of prohibitions was
    intentionally limited to the items specifically mentioned.

[29]

Further, in my view, given the structure of the definition
    of church, the prohibition on soup kitchens and food banks relates to
    accessory uses, and not church-sponsored community activities or projects. It appears
    that the applications judge relied on the prohibition to conclude the shelter
    was not a church-sponsored community activity or project. As it relates to
    accessory uses, the prohibition on soup kitchens and food banks is not helpful
    in deciding whether homeless shelters are church-sponsored community
    activities and projects
.

[30]

Second,
    the applications judge erred by concluding that the renovations to the church basement
    took the shelter outside of the word use, as defined in the By-law. The word
    use is defined in the By-law as follows:

"USE" where it appears as a noun, means the purpose
    for which a lot, building or structure, or any combination thereof is designed,
    arranged, occupied or maintained.

[31]

I
    would note that other than with respect to accessory uses, the definition of
    church in the By-law does not include the word use as a noun. The relevance
    of the definition of use is therefore questionable.

[32]

Assuming
    some relevance, there is no indication in the By-law that the definition of
    use is limited to purposes that existed when the building was first
    constructed. To the contrary, the word is in the definition of use indicates
    a present purpose, rather than the original purpose. Even if the purpose for
    which a building is designed or arranged is interpreted to refer to its
    original design or arrangement, such an interpretation cannot apply to the
    words occupied or maintained. When given their ordinary and grammatical
    meaning, occupy and maintain refer to an ongoing state or action. If the
    church building is currently occupied or maintained as a homeless shelter,
    it qualifies as a use.

[33]

The
    By-law does not expressly provide or imply that church-sponsored community
    activities and projects are restricted to activities or projects that can be
    accommodated without renovations. The applications judge erred by reading in
    such a restriction.

[34]

Third,
    the applications judge erred by attaching relevance to the fact that the
    homeless shelter fits under the By-laws definition of emergency shelter. There
    is no indication in the By-law that church-sponsored community activities and
    projects may not include uses that are defined elsewhere in the By-law. To the
    contrary, there are several examples of uses that fall under two separate
    definitions in the By-law. For example, day nurseries are permitted as
    accessory uses under the definition of church and are specifically included
    under the definition of Day-care Centre.

[35]

Further,
    as River City points out, s. 1.2(3) of the By-law permits uses lawfully in
    existence prior to the passing of the By-law. Because the definition of
    emergency shelter was added to the By-law in 2008, two years after the
    Harbour Inn began operating, the definition of emergency shelter cannot
    prevent the use of the church basement as a shelter. If River City was in compliance
    with the By-law before the definition of emergency shelter was added, the
    addition of that definition could not make it non-compliant.

[36]

The
    City of Sarnia points to
1121472 Ontario Inc. v. Toronto (City)
(1998), 39 O.R. (3d) 535 (C.A.), at p. 540, in which this court held that an
    establishment that met the definition of entertainment facility could not
    also be a restaurant. In my view,
1121472
is distinguishable. It
    turned on whether an entertainment facility may be an accessory use to a restaurant.
    The definition of restaurant did not include an open-ended category analogous
    to church-sponsored community activities and projects. The definition of
    entertainment facility pre-dated the permit issued for the establishment in
    question, and it was also conceded from the outset that if the establishment met
    the definition of entertainment facility, it was not permitted in the area:
    see
1121472 Ontario Inc. v. Toronto (City)
(1995), 26 O.R. (3d) 25
    (S.C.).

[37]

For
    these reasons, the definition of emergency shelter is irrelevant.

[38]

In
    my view, the applications judges conclusion that River Citys shelter does not
    come within the meaning of church-sponsored community activities and projects
    was based on flawed reasoning and is not entitled to deference.

The By-law permits River City
    to operate the Harbour Inn Mission

[39]

In my opinion, River Citys homeless shelter falls within the scope of the
    words church-sponsored community activities and projects, when these words
    are properly interpreted. I begin by outlining the scheme and object of the
    By-law. I then assess the grammatical and ordinary sense of the words church-sponsored
    community activities and projects and the intention of the drafters in
    choosing these words. Finally, I conclude that these words are broad enough to
    permit River City to operate the Harbour Inn Mission without contravening the
    By-law.

[40]

In
    my view, the scheme and object of the By-law is to regulate the use of lands in
    the City of Sarnia with a certain degree of specificity. This intention is
    reflected in the long title of the By-law, which refers to the By-laws purpose
    as to regulate the use of lands and the character, location and use of
    buildings and structures within the City of Sarnia. The preamble to the By-law
    similarly describes it as intended to ensure proper and orderly development
    within the corporate limits of the City of Sarnia. This intention is also
    reflected in the detail with which permitted land uses are set out in the
    By-law as a whole.

[41]

The
    scope of church-sponsored community activities and projects

must be
    interpreted in a manner consistent with the object of the By-law, which is to
    circumscribe the use of land in Sarnia. In other words, these words must have
    an internal limit and are not a license for a church to undertake whatever
    activities or projects it wishes. At the same time, the drafters chose fairly
    broad and permissive language to describe the uses churches were entitled to
    make of their premises.

[42]

I
    turn now to the grammatical and ordinary sense of the words church-sponsored
    community activities and projects and the intention of the drafters of the
    By-law in including these words. The words may be divided into three components
    for ease of analysis: activities and projects, church-sponsored and
    community.

[43]

The
    words activities and projects are, on their own, fairly broad. An activity is
    simply a particular occupation or pursuit:
The Canadian Oxford Dictionary
,
    2d ed.,
sub verbo
activity. A project is variously defined as a
    plan, a scheme, an undertaking that is carefully planned and designed to
    achieve a particular aim, any planned activity or an individual or
    collaborative enterprise undertaken [usually] for industrial or scientific
    research, or having a social purpose:
The Canadian Oxford Dictionary
,
    2d ed.,
sub verbo
project.

[44]

The
    words church-sponsored limit the activities and projects churches may
    undertake on their premises. The ordinary sense of the words church-sponsored
    suggests that the church in question must at least agree with the aims of or
    support the activity or project. What this entails may vary from case to case.

[45]

The
    word community, in its ordinary and grammatical meaning, also limits the
    qualifying activities or projects. The word community connotes a socially
    beneficial use intended to assist or engage the public or some sub-group within
    the general public. In my view, the inclusion of the words community
    activities and projects reveals an intention on the part of the drafters of
    the By-law to allow churches to engage in socially beneficial conduct and
    respond to the needs of the community.

[46]

Although
    the definition of church provides no examples of community activities and
    projects, the words community activities are used elsewhere in the By-law,
    namely in the definition community centre:

"COMMUNITY CENTRE" means land, buildings or
    structures used for community activities, including recreational, cultural,
    educational and institutional uses.

This list of types of community activities suggests
    that a community activity is one that people engage in as a group for a
    socially beneficial purpose.

[47]

The
    use of the word community to modify activities and projects excludes certain
    activities and projects. For example, purely commercial or industrial
    activities or projects would fall outside the meaning of community activities
    and projects because these activities or projects do not serve a community
    purpose. Activities of a private residential nature would also likely fall
    outside the meaning of community activities and projects. Based on the above
    examples of excluded activities, an interpretation of church-sponsored
    community activities and projects that includes homeless shelters is
    sufficiently restrictive to be consistent with the object of the By-law to
    regulate land use to ensure proper and orderly development in Sarnia.

[48]

In
    my view, the Harbour Inn Mission is a church-sponsored community activity or
    project. There is no real dispute that the Harbour Inn Mission is
    church-sponsored, as it is both funded and operated by River City. It
    qualifies as a community project and involves community activities for several
    reasons. The establishment and operation of the shelter has involved
    significant planning and is directed toward a specific aim: to serve the needs
    of a particular part of the community, those who find themselves homeless. The
    shelter runs on the power of the River City community. It is staffed largely by
    volunteers from the church. In other words, the church members work together as
    a group for a socially beneficial purpose: providing shelter for members of the
    community in need. The day-to-day acts involved in both running and living in the
    shelter encompass community activities as the members of the church interact
    with the residents of the shelter.

[49]

I
    would note that this court addressed the question of whether a homeless shelter
    constitutes a community activity in
Lighthouse Niagara Resource Centre v.
    Niagara Falls (City)
(2003), 177 O.A.C. 34. In that case, Lighthouse Niagara
    Resource Centre, a registered charity, decided to establish an emergency youth
    shelter in the City of Niagara Falls. The application judge decided that the
    emergency youth shelter was a permitted use because it fell within the
    definition of Community Building, which was defined as follows in the Niagara
    Falls Zoning By-law:

"COMMUNITY BUILDING" means a building used for
    community activities including, but not so as to restrict the generality of the
    foregoing, arts, crafts, physical, social, charitable and educational
    facilities and not used for any commercial purpose.

[50]

Armstrong
    J.A., writing for the court, agreed that the emergency youth shelter was a
    community building, in part because the words community activities include
    sleeping. He stated that [t]o suggest that sleeping is not a community
    activity is to emasculate the intent of the Zoning By-law:
Lighthouse
    Niagara,
at para. 16.

[51]

The
    City of Sarnia would distinguish
Lighthouse Niagara
on the basis that
    it did not involve a church and that the definition in question included a
    non-exhaustive list of examples of community activities. In my view, these
    are not relevant distinctions. Both cases turn on an interpretation of the
    words community activities; neither interpretation turns on analogies to
    listed examples. Nor does the fact that the present appeal involves a church,
    rather than a community building, necessarily affect the meaning of
    community activities.

[52]

The
    words church-sponsored community activities and projects are therefore at
    least broad enough to include River Citys homeless shelter.

[53]

Finally,
    I would note that I have reached this conclusion without resort to the
    principle that legislation must be interpreted in compliance with
Charter
values. The applications judge did not err by failing to apply this principle,
    as suggested by the intervener.

[54]

The
    Supreme Court has emphasized that
Charter
values are to be used as an
    interpretive principle only when a provision is genuinely ambiguous, and its meaning
    cannot be determined using a contextual analysis: see
Bell ExpressVu
,
    at para.
62;
Pharmascience Inc. v. Binet
, 2006 SCC
    48, [2006] 2 S.C.R. 513, at para.
29. Because the meaning of
    church-sponsored community activities and projects can be determined using a
    contextual analysis, this interpretive principle is unnecessary.

E.

DISPOSITION

[55]

For
    the reasons outlined above, I am of the view that the applications judge erred
    in his interpretation of the By-law. The Harbour Inn Mission constitutes a
    church-sponsored community activity or project, and therefore River Citys
    operation of it does not contravene the By-law.

[56]

I
    would therefore allow the appeal and dismiss the City of Sarnias application
    for an injunction.

F.

COSTS

[57]

The
    parties may make written submissions on the costs of the appeal within 20 days
    of the release of these reasons.

Released:

JUL -3 2015                                     M.
    Tulloch J.A.

DD                                                  I
    agree Doherty J.A.

I
    agree Gloria Epstein J.A.


