



COURT OF APPEAL FOR ONTARIO

CITATION: Southside Construction Management Limited v.
    Ingersoll (Town), 2019 ONCA 459

DATE: 20190604

DOCKET: C66254

Feldman, MacPherson and Simmons JJ.A.

BETWEEN

Southside
    Construction Management Limited

Applicant

(Appellant)

and

The Corporation of the Town of Ingersoll

Respondent

(Respondent in Appeal)

John D. Goudy, for the appellant

Kelly Nenniger, for the respondent

Heard: May 27, 2019

On appeal from the
    judgment of Justice A. Duncan Grace of the Superior Court of Justice, dated
    November 1, 2018, with reasons reported at 2018 ONSC 6561.

REASONS FOR DECISION

[1]

Southside Construction Management Limited appeals from a judgment
    dismissing its application for a declaration concerning the interpretation of s.
    12.3.9.2.4 of Town of Ingersoll, by-law No. 04-4160,
Zoning By-Law
.

[2]

Southside owns an approximately 33-acre parcel of vacant land in
    Ingersoll. The land is adjacent to Highway 401 and is designated generally as a
    Highway Commercial Zone (HC) under s. 12 of the
Zoning By-La
w
.
    In addition, a site-specific provision, s. 12.3.9, designates the land as
    Highway Commercial Zone 9 (HC-9).

[3]

Under the general provisions applicable to the HC Zone, Southsides land
    is subject to a lot coverage cap of 40% for buildings. However, s. 12.3.9.4,
    specifically applicable to the HC-9 zone, also imposes a cap on the gross
    leasable commercial floor area of a community shopping centre. Section
    12.3.9.2.4 of the
Zoning By-Law
reads as follows:

The
gross leasable commercial floor area
for a
    community shopping centre containing
permitted uses
in the HC-9 Zone
    shall not be greater than
4,645 m
2
(50,000
    ft
2
). [Italics in original.]


[4]

Community shopping centre is not defined in the
Zoning By-Law
.
    However, Shopping Centre is defined in the definition section of the
Zoning
    By-Law
, s. 4, which reads, in part, as follows:

In this By-law, unless the context requires otherwise:



SHOPPING CENTRE, means a
building
or group of
buildings
designed, developed, owned and managed as a unit containing six or more
    separated spaces for lease or
occupancy
by commercial
uses
or
business
    or professional offices
. [Italics in original.]

[5]

Relying largely on a submission that a community shopping centre must
    be a type of shopping centre  and therefore consist of six or more separated
    spaces  Southside sought a declaration that s. 12.3.9.2.4 of the
Zoning
    By-Law
does not prohibit development for permitted uses greater than
4,645 m
2
(50,000 ft
2
)
where the development consists of five or fewer separate spaces for lease or
    occupancy.

[6]

The application judge dismissed Southsides application. He noted that
    the genesis of the current provisions in s. 9.3.3.1 of the County of Oxford Official
    Plan (the Official Plan) and s. 12.3.9 of the
Zoning By-Law
(the
    site-specific zoning provision) applicable to Southsides land was a 2006
    proceeding before the Ontario Municipal Board (the OMB).

[7]

In that proceeding, the OMB exempted Southsides land, shown in a
    Service Commercial area of the Official Plan, from a pre-existing Official Plan
    requirement for a retail market impact study for developments over 25,000
ft
2
.
However, a
    requirement for such a study for developments over 50,000
ft
2

remained.

[8]

Section 9.3.3.1 of the Official Plan now provides, in part, as follows:

Community shopping areas offering a range of goods and services
    which cater to the convenience shopping and service needs of community
    residents and the traveling public are a permitted use in the Service
    Commercial designation.

Community shopping areas are permitted to locate in the Service
    Community designation immediately adjacent to the Highway 401 corridor. Such
    community shopping areas will have between 930 and 4,645 square meters (10,000
    to 50,000 square feet) of
gross leasable commercial floor area
.

Development proposals above 4,645
    square meters (50,000 square feet) of
gross leasable commercial floor area
per site will require the preparation of a retail market study ...This impact
    study should evaluate the potential to locate the use in the Central Area as a
    first priority...

[9]

Considering the
Zoning By-Law
as a whole and in the context of
    the applicable Official Plan provisions, the application judge rejected
    Southsides argument that a community shopping centre must be a type of shopping
    centre as defined in s. 4 for three main reasons.

[10]

First, he noted that under s. 2.3.3 of the
Zoning By-Law
the
    definition provisions in s. 4 are to apply to italicized text. No part of the
    phrase community shopping centre in s. 12.3.9.2.4 is italicized.

[11]

Second, he noted that, albeit not italicized, shopping centre appears
    elsewhere in s. 12, namely in s. 12.3.10.1, another site-specific provision of
    the
Zoning By-Law
applicable to a different parcel of land, designated
    as HC-10. He reasoned that some meaning for the term community must have been
    intended and community cannot be merely superfluous. The definitions portion
    of the
Zoning By-Law
provides that the definitions apply unless the
    context requires otherwise; use of the term community changes the context.

[12]

Third, he interpreted the scale limitation in s. 9.3.3.1 of the Official
    Plan as applying to the square footage of a structure accommodating a community
    shopping area without regard to the number of units that the structure would
    contain. In his view, nothing in the Official Plan suggested the number of
    units in such a development was of concern.

[13]

Southside raises three issues on appeal.

[14]

First, Southside argues that the application judge erred by rendering
    the definition of shopping centre in s. 4 of the
Zoning By-Law
surplusage. According to Southside, apart from the definition provision,
    shopping centre appears in only three other places in the
Zoning By-Law
,
    all of which are in s. 12, and two of which use the term community shopping
    centre. Southside argues that it makes little sense to define the term
    shopping centre but use it to mean something other than the definition. It
    makes much more sense that, wherever used together, the words shopping centre
    would have the defined meaning. Accordingly, a community shopping centre must
    be a form of shopping centre.

[15]

We are not persuaded by this argument. As we have said, the application
    judge identified another provision of s. 12 of the
Zoning By-Law
that
    uses the exact term shopping centre, albeit without italics. Particularly
    when considered in light of the application judges other reasons, we see no
    error in his conclusion that some meaning must be ascribed to the word community
    when associated with shopping centre.

[16]

Second, Southside argues that the application judge erred by treating
    the policies in the Official Plan, rather than the terms of the
Zoning By-Law
,
    as the applicable law.

[17]

According to Southside, as written, the
Zoning By-Law
caps
    gross leasable commercial floor area only for a community shopping centre 
    which, because it is a type of shopping centre, must contain six or more
    separated spaces. Where a development contains less than six separated spaces,
    the general 40% coverage cap for buildings applies. This, it says, is consistent
    with Official Plan policies concerning Service Commercial Areas, which are
    intended to accommodate large commercial uses with large site requirements not
    suited to Ingersolls Central Area (i.e., the downtown). Applying a
4,645 m
2
(50,000 ft
2
)
    gross leasable commercial floor area cap to five or fewer individual uses would
    undermine the planned function of Service Commercial Areas as set out in the
    Official Plan.
The application judge erred by finding, in effect, that a
    defined term in the
Zoning By-Law
cannot apply because it does not
    appear in the Official Plan without considering whether application of the
Zoning
    By-Law
definition would conflict with the Official Plan.

[18]

We do not accept this argument. The application judge cited the
    applicable case law concerning the interrelationship between zoning by-laws and
    official plans and their interpretation:
Aon Inc. v. Peterborough (City)
,
    1 M.P.L.R. (3d) 225;
Sarnia (City) v. River City Vineyard Christian
    Fellowship of Sarnia
, 2015 ONCA 494, 42 M.P.L.R. (5th) 1. In our view, the
    application judge did no more than read the
Zoning By-Law
in its
    entire context and interpret it as required under the relevant authorities.
    Considered in context, it would have made no sense to read the by-law as imposing
    a relatively small size limit on a structure with six or more units but no size
    limit other than the 40% lot coverage cap on a structure with five or fewer
    units.

[19]

Third, Southside argues that in rejecting its interpretation of the
Zoning
    By-Law
, the application judge rendered the term community shopping
    centre vague to the extent that s. 12.3.9.2.4 becomes void for uncertainty.

[20]

We reject this argument. There is no requirement that every term in a
    zoning by-law be precisely defined. Where words are not defined, they can be
    interpreted in accordance with their grammatical and ordinary meaning and the
    context in which they are used. Southside has not demonstrated how s.
    12.3.9.2.4 meets the requirements of the void for vagueness test.

[21]

The appeal is dismissed with costs to the respondent on a partial
    indemnity scale fixed in the amount of $6,600 inclusive of disbursements and
    taxes.

K. Feldman J.A.

J.C. MacPherson J.A.

Janet Simmons J.A.


