Ottawa v. Chief Building Official, (2003) 180 O.A.C. 48 (DC)

• Judge: Cusson, Métivier and Linhares de Sousa, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 21, 2003
• Jurisdiction: Ontario
• Citations: (2003), 180 O.A.C. 48 (DC)

Ottawa v. Chief Building Official (2003), 180 O.A.C. 48 (DC)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JA.001

The Corporation of The City of Ottawa (applicant) v. The Chief Building Official of The City of Ottawa, Ms. Arlene Grégoire (respondent) and 1479333 Ontario Inc. (intervenor)

(03-DV-857)

Indexed As: Ottawa (City) v. Chief Building Official of Ottawa (City) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Cusson, Métivier and  Linhares de Sousa, JJ.

November 21, 2003.

Summary:

1479333 Ontario Inc. bought out a dairy farm and applied for a building permit to renovate and construct barns on the property to operate a commercial pig farm. The City of Ottawa passed an interim control bylaw prohibiting intensive livestock operations in the City, which, in the case of the proposed pig farm, meant no more than 750 sows. 1479333 argued that it had a legal noncon­forming use because the dairy farm had operated with 209 cows prior to the interim control bylaw and 1479333 would therefore be entitled to 209 livestock units, which translated into 1,045 sows. The Chief Build­ing Official (CBO) of the City of Ottawa issued a building permit to 1479333 au­thorizing the work to proceed on the proper­ty in connection with the operation of an intensive commercial pig farm consisting of 1,045 sows. The City appealed from the CBO's decision.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 430, allowed the appeal in part. The court held that the CBO was correct in concluding that in granting the permit she did not have to consider the Ontario Water Resources Act, the Fisheries Act and the Environmental Protection Act as "other applicable law" pursuant to s. 8(2) of the Building Code Act. However, the court held that the CBO was wrong in law in finding that 1479333 had a legal noncon­forming use permitting it to conduct a com­mercial pig farm with 1,045 sows. The court amended the building permit to allow for the operation of a pig farm with a maximum of 750 sows in accordance with the interim control bylaw. The City appealed. 1479333 cross-appealed.

The Ontario Divisional Court dismissed the appeal and cross-appeal.

Land Regulation - Topic 2802

Land use control - Exemptions - Noncon­forming use - Use not conforming to zon­ing bylaw - Lawful use prior to zoning - [See Land Regulation - Topic 2803 ].

Land Regulation - Topic 2803

Land use control - Exemptions - Noncon­forming use - Change of - 1479333 On­tario Inc. bought out a dairy farm and applied for a building permit to renovate and construct barns on the property to operate a commercial pig farm - The City of Ottawa passed an interim control bylaw prohibiting intensive livestock operations in the City, which, in the case of the pro­posed pig farm, meant no more than 750 sows - 1479333 argued that it had a legal nonconforming use because the dairy farm had operated with 209 cows prior to the interim control bylaw and 1479333 would therefore be entitled to 209 livestock units, which translated into 1,045 sows - The Chief Building Official (CBO) of the City of Ottawa issued a building permit to 147933 in connection with a pig farm having 1,045 sows - The City appealed - The application judge held that 1479333 did not have a legal nonconforming use and amended the building permit to allow for the operation of a pig farm with a maximum of 750 sows - The Ontario Divisional Court held that the application judge did not err - The application judge correctly applied the factors enunciated in Saint Romuald v. Olivier (S.C.C.) and concluded that the proposed pig farm constituted a change in use from the previ­ous dairy farm - See paragraphs 151 to 164.

Land Regulation - Topic 3215

Land use control - Building or develop­ment permits - Grounds for refusal - Pro­posed construction not in compliance with applicable law - The Chief Building Of­ficial (CBO) of the City of Ottawa issued a building permit in connection with a proposed commercial pig farm - The City appealed - The application judge held that in granting the permit, the CBO did not have to consider the Ontario Water Re­sources Act, the Fisheries Act and the Environmental Protection Act as "other applicable law" pursuant to s. 8(2) of the Building Code Act (BCA) - The ap­plication judge concluded that "applicable law" in s. 8(2) referred to laws that prohib­ited the proposed construction or demoli­tion of the building that was the subject of the permit - The Ontario Divisional Court held that the application judge did not err in concluding that a proper interpretation of "other applicable law" in s. 8(2) of the BCA excluded, as a category, the three environmental statutes in issue - The deci­sion of whether any of the three environ­mental statutes were engaged by the con­struction that was the subject-matter of the building permit had to be based on wheth­er there was a real and logical nexus be­tween the applicable law and the erection of the building in question - See para­graphs 102 to 141.

Land Regulation - Topic 3215

Land use control - Building or develop­ment permits - Grounds for refusal - Pro­posed construction not in compliance with applicable law - The Chief Building Of­ficial (CBO) of the City of Ottawa issued a building permit in connection with a proposed commercial pig farm - The City appealed - The application judge held that in granting the permit, the CBO did not have to consider the Ontario Water Re­sources Act, the Fisheries Act and the Environmental Protection Act as "other applicable law" pursuant to s. 8(2) of the Building Code Act (BCA) and that even if any of those environmental statutes could be considered "other applicable law", they were inapplicable in this case - The On­tario Divisional Court found no error in the application judge's interpretation of the provisions of the three environmental statutes - The application judge applied the correct test and found that there was no rational and necessary nexus between the provisions of those statutes and s. 8(2) of the BCA - He also examined the provi­sions of those statutes in light of the evi­dence before him and could not find that the proposed construction would in any way breach those provisions - See para­graphs 143 to 150.

Land Regulation - Topic 3239

Land use control - Building or develop­ment permits - Judicial review or appeals to courts - [See all Land Regulation - Topic 4143 ].

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - The Chief Building Official (CBO) of the City of Ottawa issued a building permit to 1479333 On­tario Inc. in connection with a proposed commercial pig farm - The City appealed - The issues before the application judge were: (1) whether the CBO was correct in concluding that 1479333 had a legal non­conforming use; and (2) whether the CBO was correct in concluding that in granting the permit, she did not have to consider the Ontario Water Resources Act, the Fisheries Act, and the Environmental Protection Act as "applicable law" pursuant to s. 8(2) of the Building Code Act - The application judge stated that the standard of review to be applied by him was a blend of two tests, namely a standard of correctness for questions of law, and a standard of reason­ableness for questions of fact, with the standard being closer to correctness than reasonableness - The Ontario Divisional Court held that the test stated by the ap­plication judge was correct and that he did not err in the application of the standard of review that he adopted - See paragraphs 94 to 101.

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - The Chief Building Official (CBO) of the City of Ottawa issued a building permit in connection with a proposed commercial pig farm - The City appealed - The application judge held that in granting the permit, the CBO did not have to consider the Ontario Water Resources Act, the Fisheries Act and the Environmental Protection Act as "other applicable law" pursuant to s. 8(2) of the Building Code Act (BCA) and that even if any of those environmental statutes could be considered "other applicable law", they were inapplicable in this case - The City appealed - The Ontario Divisional Court stated that whether the application judge was correct in concluding that the three environmental statutes could not be con­sidered "applicable law" under s. 8(2) of the BCA was a question of law and the applicable standard of review on the appeal was correctness - However, whether a particular set of facts relating to a structure or building actually contravened one of those statutes raised questions of mixed fact and law and the standard of review was on a spectrum going from correctness to palpable and overriding error - See paragraph 92.

Land Regulation - Topic 4143

Land use control - Appeals to the courts - Scope of appeal - The Chief Building Official (CBO) of the City of Ottawa issued a building permit to 1479333 On­tario Inc. in connection with a proposed commercial pig farm with 1,045 sows - The City appealed - The application judge held that the CBO was wrong in law in finding that 1479333 had a legal noncon­forming use permitting it to conduct a commercial pig farm with 1,045 sows - The application judge amended the build­ing permit to allow for the operation of a pig farm with a maximum of 750 sows in accordance with an interim control bylaw passed by the City - On an appeal from the decision of the application judge, the On­tario Divi­sional Court stated that whether the ap­plication judge erred in refusing to recog­nize 1479333's right to a legal non­con­forming use raised questions of mixed fact and law and the standard of review was on a spectrum from correctness to palpable and overriding error - See para­graph 93.

Words and Phrases

Applicable law - The Ontario Divisional Court considered the meaning of the term "applicable law" in s. 8(2) of the Building Code Act, S.O. 1992, c. 23 - See para­graphs 102 to 142.

Cases Noticed:

Saint-Romuald (Ville) v. Olivier et al., [2001] 2 S.C.R. 898; 275 N.R. 1, appld. [para. 22].

4310845 Manitoba Ltd. v. Morris (Rural Municipality) (2001), 161 Man.R.(2d) 202; 24 M.P.L.R.(3d) 236 (Q.B.), consd. [para. 28].

R. v. Cranbrook Swine Inc. et al. (2003), 170 O.A.C. 346 (C.A.), consd. [para. 40].

Pedwell et al. v. Pelham (Town) et al. (2003), 174 O.A.C. 147 (C.A.), consd. [para. 40].

Burns v. Serpa et al., [2001] O.T.C. 399; 54 O.R.(3d) 266 (Sup. Ct.), consd. [para. 53].

Burns v. Perth South (Township) Chief Building Official - see Burns v. Serpa et al.

Cold Spring Farms Ltd. v. Serpa - see Burns v. Serpa et al.

Welwood et al. v. Farrell et al., [2002] O.T.C. 286; 29 M.P.L.R.(3d) 1 (Sup. Ct.), consd. [para. 66].

Welwood v. Huron-Kinloss (Township) Chief Building Official - see Welwood et al. v. Farrell et al.

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577 (S.C.C.), consd. [para. 70].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 96].

Runnymede Development Corp. v. 1201262 Ontario Inc. et al., [2000] O.T.C. 216; 47 O.R.(3d) 374 (Sup. Ct.), consd. [para. 96].

White (William F.) Ltd. v. Toronto (City) et al. (1999), 99 O.T.C. 52; 44 O.R.(3d) 750 (Sup. Ct.), consd. [para. 98].

Greater Toronto Airports Authority v. Mississauga (City) (1998), 87 O.T.C. 1; 43 O.R.(3d) 9 (Gen. Div.), consd. [para. 105].

Phi Delta Beta of London Inc. v. London (City) Chief Building Official (1995), 25 M.P.L.R.(2d) 140 (Ont. Gen. Div.), consd. [para. 110].

Axelrod v. Toronto (City) (1981), 15 M.P.L.R. 143 (Ont. Div. Ct.), refd to. [para. 110].

Walton v. Lincoln (Town) (1997), 39 O.T.C. 246; 43 M.P.L.R.(2d) 291 (Gen. Div.), consd. [para. 111].

Leeds and Grenville v. Gerard, [1991] O.J. No. 1825, consd. [para. 114].

Alaimo v. North York (City) Chief Build­ing Official, [1995] O.J. No. 862 (Gen. Div.), consd. [para. 115].

Mayhew v. Jibb et al., [2002] O.T.C. 342 (Sup. Ct.), consd. [para. 118].

Mayhew v. Hamilton (Township) Chief Building Official - see Mayhew v. Jibb et al.

Rotstein v. North York (City) Chief Build­ing Official (1995), 29 M.P.L.R.(2d) 305 (Ont. Gen. Div.), refd to. [para. 118].

Upper Thames River Conservation Au­thority v. London (1989), 67 O.R.(2d) 784 (Dist. Ct.), consd. [para. 120].

Stacey v. Oxford-On-Rideau (1989), 46 M.P.L.R.(2d) 219 (Ont. Gen. Div.), consd. [para. 120].

Roman Catholic Episcopal Corp. for the Diocese of Peterborough, Ontario v. Cobourg (Town) et al. (1998), 62 O.T.C. 338; 46 M.P.L.R.(2d) 195 (Gen. Div.), consd. [para. 121].

Peacock v. Campbell, [2003] O.T.C. 624 (Sup. Ct.), refd to. [para. 144].

Peacock v. Norfolk (County) Chief Build­ing Official - see Peacock v. Campbell.

Glenelg (Township) v. Davis (1992), 56 O.A.C. 382; 10 M.P.L.R.(2d) 260 (C.A.), refd to. [para. 160].

Heutinck v. Oakland (Township) (1997), 105 O.A.C. 364; 42 M.P.L.R.(2d) 258 (C.A.), refd to. [para. 160].

Nepean (City) v. D'Angelo et al. (1998), 81 O.T.C. 346 (Gen. Div.), refd to. [para. 160].

Rotstein v. Oro-Medonte (Township) et al., [2002] O.T.C. 1011 (Sup. Ct.), dist. [para. 164].

Statutes Noticed:

Building Code Act, S.O. 1992, c. 23, sect. 8(2) [para. 102].

Authors and Works Noticed:

Sullivan, Ruth, Statutory Interpretation (1997), generally [para. 103].

Counsel:

J. Bruce Carr-Harris and Jane M. Bachyn­ski, for the applicant/appellant on the appeal/respondent on the cross-appeal;

William R. Hunter, for the respondent/re­spondent on the appeal and cross-appeal;

Ronald F. Caza and Josée Lafontaine, for the intervenor/respondent on the ap­peal/appellant on the cross-appeal.

This appeal and cross-appeal were heard on September 2 to 4, 2003, at Ottawa, On­tario, before Cusson, Métivier and Linhares de Sousa, JJ., of the Ontario Divisional Court. The following judgment of the Divi­sional Court was delivered by Linhares de Sousa, J., and was released on November 21, 2003.