



COURT OF APPEAL FOR ONTARIO

CITATION: 2222868 Ontario Inc. v. Grimsby
    (Town), 2020 ONCA 376

DATE: 20200612

DOCKET: C67759

Pepall, van Rensburg and
    Paciocco JJ.A.

BETWEEN

2222868 Ontario Inc.

Applicant (Respondent)

and

The Corporation of the Town of
    Grimsby

Respondent (Appellant)

R. Andrew Biggart, for the appellant

Scott Snider and Shelley Kaufman, for the respondent

Heard: April 28, 2020 by video conference

On appeal from the judgment of Justice Meredith
    Donohue of the Superior Court of Justice, dated November 4, 2019.

Pepall J.A.:


INTRODUCTION

[1]

This appeal concerns the interpretation of a municipal by-law, and in
    particular, the Town of Grimsby Zoning By-law 14-45 (the By-law).

[2]

The respondent, 2222868 Ontario Inc. (2222), purchased a 119-acre
    property (the property) located in the Town of Grimsby on March 30, 2018,
    after reviewing zoning and permitted uses. The property is adjacent to a
    private regional airport that is on the same parcel of land as that of 2222.

[3]

2222 proposed to operate a works yard to store construction machinery
    for a private company. It unsuccessfully applied for site plan approval to
    permit a Works Yard, as that term is defined in the By-law, on part of its
    property. It maintained that its proposed Works Yard was a permitted use in the
    Zone designated as the Utility Zone in the By-law. The appellant, the Town of
    Grimsby (the Town), took the position that the proposed use did not comply
    with its By-law, stating: the use of the subject lands for a works yard for a
    private company which does not deliver a public or quasi-public utility is not
    intended in the terminology contained in either the Zoning By-law or the
    Official Plan.

[4]

2222 brought an application for a determination that a private Works
    Yard is included as a permitted use in the By-law.

[5]

The application judge granted the application and subsequently ordered
    costs of $40,000 on a partial indemnity scale in favour of 2222. The Town
    appeals.

[6]

For the reasons that follow, I would dismiss the
    appeal. The application judge correctly concluded that the By-law permits the
    use proposed by 2222
.

FACTS

(1)

The By-law

[7]

The Town passed the By-law on May 20, 2014. The By-law states that it is
    in conformity with the Official Plan of the Town that was approved by the
    Ontario Municipal Board under the
Planning Act
,
    R.S.O. 1990, c. P.13. The stated purpose of the By-law is to regulate the use
    of land, buildings and structures, to regulate the construction and alteration
    of buildings and structures, and to implement the policies of the Towns
    Official Plan.

[8]

The By-law creates numerous Zones, three of which are Employment Zones:
    the General Employment Zone; the Prestige Employment Zone; and, at issue in
    this appeal, the Utility Zone. Utility is not a defined term in the By-law.

[9]

Section 10 of the By-law describes the permitted uses within each Employment
    Zone. The Utility Zone has four permitted uses: Airport; Utility Corridor;
    Water and Sewage Treatment, Pumping and Storage Facility; and Works Yard.

[10]

Works
    Yard is defined as a facility for the storage and repair of machinery,
    vehicles and equipment.

[11]

The
    By-law provides that where a use is defined, it shall not be interpreted to
    include any other defined use unless it is stated in the definition to the
    contrary: s. 2.5.7. Italicized words in the By-law are to provide clarity and
    to ensure that the By-law and its intent are applied consistently.

[12]

Some
    permitted uses have qualifications. For example, in the Prestige Employment
    Zone, Professional and Administrative Office is a permitted use but Restaurant
    is noted as an Accessory use to that Office use. Accessory use is defined in
    the By-law as a
use
naturally and normally incidental to, subordinate
    to or exclusively devoted to a principal
use
and located on the same
lot
.

[13]

No
    Accessory uses are identified in the Utility Zone. Accordingly, Works Yard is a
    stand-alone use. A Works Yard Permitted Use is not found elsewhere in the
    By-law.

(2)

The Official Plan

[14]

The
    Towns Official Plan received final approval on May 12, 2012. Pursuant to s.
    24(1) of the
Planning Act
, no by-law shall be
    passed that does not conform to an Official Plan that is in effect.

[15]

Pursuant
    to s. 24(4) of the
Planning Act
,
    zoning by-laws are deemed conclusively to conform with an Official Plan where
    there is no outstanding appeal or appeal periods applicable to the relevant
    provisions.

[16]

In
    this case, neither party suggested that there is any outstanding appeal or
    appeal periods relating to the Towns Official Plan.

[17]

2222s property is located in the Utility Area designation of
    the Towns Official Plan. Utility is defined in the Official Plan as all
    public and/or private utilities, including but not limited to licensed
    broadcasting,a water supply, storm or sanitary sewageor any other similar
    works or systems necessary to the public interest.

[18]

Section
    3.9 of the Official Plan describes the Intent, Objectives and Permitted
    Uses of the Utility Area.

[19]

Under
    the heading Intent, the Official Plan states that the Utility Area recognizes
    the existing water treatment plant and pollution control plant and other public
    and private utilities. The Objective is to ensure that utilities are located
    in a manner that maximizes their performance while limiting any land use
    incompatibilities. Lastly, the Permitted Uses within the Utility Area
    designation shall
include

[p]ublic and quasi-public
utility

uses of Town-wide or regional significance including
    existing sewage and water treatment facilities, existing pumping stations,
    airport use, and transmission towers (underline emphasis added).

[20]

As
    the application judge observed, the Official Plan uses language of inclusion in
    the Permitted Uses designation, not prohibition.

[21]

The
    Town states that as a portion of the parcel of land was used for a regional
    airport, 2222s property was designated as a Utility Area in the Official
    Plan.

(3)

The Provincial Policy Statement and the Greenbelt Plan

[22]

Pursuant
    to s. 3 of the
Planning Act
, the Province may
    issue Policy Statements on municipal planning. The Provincial Policy Statement
    states that the Official Plan is the most important vehicle for implementation
    of the Provincial Policy Statement.
Decisions of the
    municipal council shall be consistent with the Policy Statements.

[23]

According
    to the appellant, the Provincial Policy Statement addresses the provincial
    interest in transportation and infrastructure corridors. An airport is treated
    as infrastructure, which also includes transit and transportation corridors and
    facilities. Planning authorities are to plan for and protect corridors and
    rights-of-way for infrastructure, including transportation, transit and
    electricity generation facilities, and transmission systems to meet current and
    future needs. According to the Provincial Policy Statement: Planning
    authorities shall not permit
development
in
planned corridors
that could preclude or negatively
    affect the use of the corridor for the purpose(s) for which it was identified and
    Planning for land uses in the vicinity of
airports
shall
    be undertaken so that:their long-term operation and economic role is protected

[24]

The
    Ontario Government has established a Greenbelt Area for which it has a
    Greenbelt Plan. Pursuant to s. 7 of the
Greenbelt Act
,
2005
, S.O. 2005, c.1, a decision made under the
Planning
    Act
or in relation to a prescribed matter by a municipal council
    shall conform with the Greenbelt Plan and no municipality shall pass a by-law
    that conflicts with the Greenbelt Plan.

[25]

The
    Town states that 2222s lands are located in a Specialty Crop Area within the
    Protected Countryside designation under the Greenbelt Plan, and that with
    certain permitted exceptions such as Infrastructure, a Specialty Crop Area is
    for agricultural use.

APPLICATION JUDGES REASONS

[26]

As
    mentioned, the application judge granted 2222s application and declared that a
    private works yard is a permitted use for the Utility Zone in the By-law. She
    rejected the Towns argument that use must support or be limited to a
    utility.

[27]

The
    application judge considered the contents of the Official Plan and went on to
    note that it speaks of what shall be included in Utility Areas, but does not
    prohibit non-public or quasi-public uses. Moreover, there was no evidence or
    argument that the proposed construction equipment storage use is incompatible
    with the land use objectives. She noted that permitted use does not take its
    context from the name of the zone. For example, Agricultural use is permitted
    in the Prestige Employment Zone.

[28]

Importantly,
    the Town failed to link all uses in the Utility Zone to public or quasi-public
    uses, which it could have done with a qualification or an accessory use
    designation, as seen elsewhere in the zoning tables included in the By-law. The
    application judge concluded that the Towns proposed narrow public uses
    interpretation was not intended; the By-law was unambiguous and clearly-stated.
    As such, there was no need to consult the Provincial Policy Statement or the
    Greenbelt Plan.

[29]

The
    application judge applied this courts decision in
St. Mary's Cement Inc. (Canada) v. Clarington (Municipality)
, 2012 ONCA 884, 299 O.A.C. 357,
at
    para. 17:

The modern principles of statutory
    interpretation apply equally to the interpretation of a municipal by-law and a
    statute [citation omitted]. Thus, the interpretation of a by-law involves
    consideration of the text of the by-law, the intent of municipal council, and
    the purpose and scheme of the by-law as a whole

[30]

The
    application judge concluded her analysis as follows:

The plain language of the by-law permits the use sought by the
    applicant. The by-law did not qualify the use to be for a public purpose. The
    by-law defined Works Yard without any restriction to a public use. The zone
    has already permitted a private airport to operate within the zone. There is no
    suggestion of the proposed use being incompatible.

GROUNDS OF APPEAL

[31]

The
    Town submits that the application judge erred:

a)

in her interpretation of the By-law by permitting a private Works Yard that
    is not in any way related to a Utility use, notwithstanding:


i.

that the lands are designated in the Official Plan as Utility Areas
    and are zoned Utility

in the Towns By-law consistent with the
    Official Plan;


ii.

the context which includes consideration of the Official Plan and the
    permitted uses in the Utility Zone; and


iii.

the applicable statutory and policy regime, which includes the
    Provincial Policy Statement and the Greenbelt Plan; and

b)

in considering compatibility of land use as part of her assessment.

ANALYSIS

[32]

It
    is helpful to first set forth the legal principles applicable to the
    interpretation of a by-law.

·

The interpretation of a by-law is a question of law, reviewable
    on a correctness standard:
Sarnia (City) v. River City
    Vineyard Christian Fellowship of Sarnia
, 2015 ONCA 494, 336 O.A.C.
    373, at para. 22.

·

A zoning by-law is the end-product in law of the planning process
    legislated by
the
Planning Act
:
Rotstein v. Oro-Medonte (Township)
,
    2002 CarswellOnt 4411 (S.C.), at para. 22.

·

The modern principles of statutory interpretation apply equally
    to the interpretation of a municipal by-law and statute. Thus, the
    interpretation of a by-law involves consideration of the text of the by-law,
    the intent of municipal council, and the purpose and scheme of the by-law as a
    whole:
Clarington
, at para. 17.

·

Official Plans are not statutes:
Bele
    Himmell Investments Ltd. v. Mississauga (City)
, 1982 CarswellOnt
    1946 (Div. Ct.), at para. 22. The purpose of an Official Plan is to set out a
    framework of goals, objectives and policies. It establishes the broad
    principles that are to govern the municipalitys land use planning generally:
Goldlist Properties Inc. v. Toronto (City)
, 232 D.L.R. (4th) 298 (Ont. C.A.)
,
    at para. 49.

·

As by-laws are the means by which Official Plans are implemented,
    the terms of an Official Plan aid in the contextual interpretation of the
    by-law:
Clarington
,
at para. 21.

·

Under the

Building Code Act
, 1992
, S.O. 1992, c. 23,

an
    applicant for a building permit must be in compliance with the applicable
    By-law. Unambiguous by-laws provide clarity to the Chief Building Official and
    to a landowner.

[33]

In
    this case, the application judge identified and applied the correct test. She
    examined the Zone and the Permitted Uses contained in the By-law. Works Yard
    was specifically and unambiguously defined in the By-law. A Works Yard was
    identified as a separate Permitted Use and not as an Accessory Use. Had the
    Town intended to link Works Yard to utility use or to public or quasi-public
    uses, it could have done so by including a Qualification or Accessory use
    designation in the By-law as it did for other uses. Instead, the Town opted not
    to do so.

[34]

Furthermore,
    the name of a Zone did not dictate a Permitted Use; this was not the scheme of
    the By-law. For example, as the application judge observed, Agricultural Use
    was permitted in the Prestige Employment Zone.

[35]

As
    mentioned, under the
Planning Act
, zoning
    by-laws are deemed conclusively to conform with an Official Plan in the absence
    of an appeal or appeal period applicable to the relevant provision. Neither
    party in this case suggested that there was an outstanding appeal or appeal
    period. The application judge nonetheless did consider the Official Plan in her
    interpretation of the By-law. She fairly reasoned that it used language of
    inclusion rather than prohibition within the Permitted Uses designation of the
    Utility area. In addition, she noted that the objective of the designation in
    the Official Plan was to ensure that Utilities are located in a manner that
    maximizes their performance while limiting land use incompatibilities. A Works
    Yard was compatible with the uses enumerated in the Utility Area designation of
    the Official Plan.

[36]

In
    these circumstances, I need not comment further on the Provincial Policy
    Statement or the Greenbelt Plan. I would note, however, that the appellant was
    unable to direct the court to any authority reflecting a requirement to have
    recourse to these documents when interpreting a by-law. Furthermore, in oral
    argument, the appellant acknowledged that while it was open to the application
    judge to look at these documents, she was not required to do so.

[37]

I
    would also note that, as mentioned, Works Yard is not found as a Permitted Use elsewhere
    in the By-law. If one were to accept the appellants proposed interpretation, a
    Works Yard unconnected to a utility would be prohibited anywhere in the Town,
    surely an unintended result.

[38]

In
    conclusion, the interpretation of Works Yard in the By-law permitted the use
    advocated by the respondent.

[39]

Lastly,
    I see no error in the application judges statement that there was no evidence
    or argument that the proposed land use of storing construction equipment was in
    any way incompatible with the land use objectives. This was not the drawing of
    an adverse inference; it was simply a statement of fact.

DISPOSITION

[40]

For
    these reasons, I would dismiss the appeal with costs of the appeal fixed in the
    amount of $21,700 on a partial indemnity scale inclusive of disbursements and
    applicable tax to be paid by the Town to the respondent.

[41]

I see no basis on which to interfere with the application judges
    discretionary award of $40,000 in favour of the respondent for costs of the
    application.

Released: June 12, 2020

S.E.P.

S.E. Pepall
    J.A.

I agree. K.
    van Rensburg J.A.

I agree.
    David M. Paciocco J.A.


