Bayshore Shopping Centre v. Nepean (Township), [1972] SCR 755

Supreme Court of Canada

Bayshore Shopping Centre v. Nepean (Township), [1972] S.C.R. 755

Date: 1972-03-30

Bayshore Shopping Centre Limited (Plaintiff) Appellant;

and

The Corporation of the Township of Nepean and William Bourne and March Ridge Developments Limited (Defendants) Respondents.

1972: March 10; 1972: March 30.

Present: Fauteux C.J. and Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Municipal law—Zoning by-law—Proposed shopping centre—Individual components included within permitted uses—Whether “shopping centre” a permitted use although not so listed.

The individual respondent, the building inspector of the respondent municipality, had been on the point of granting to the appellant a building permit for the erection of a shopping centre upon certain lands when the respondent development company commenced an action against the municipality alleging that the by-laws of the municipality applicable to the lands in question did not permit the erection of a shopping centre. Therefore the building inspector and the municipality refrained from issuing the building permit. The appellant thereupon served notice of application for an order of mandamus

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compelling such issuance and named as respondents to that application not only the building inspector and the municipality but also the development company. The application, which was opposed by the development company only, was granted by the chambers judge. On appeal, the Court of Appeal allowed the appeal and quashed the order. An appeal to this Court ensued.

The one vital issue upon the appeal was the true construction of By-law 39-62 of the respondent municipality and the determination of whether, upon the proper construction of the said by-law, the appellant was entitled to have the respondent building inspector and the respondent municipality issue to it a building permit or building permits for the construction of the shopping centre in accordance with its application for such permits.

Held: The appeal should be allowed and the order of the judge of first instance restored.

In the zoning by-law in question there was no mention of “shopping centre” in a permitted uses section of any zone but there was set out as permitted uses in Commercial‑Regional C1 Zone the words “retail store”, “a service shop” and “department store”. The Court was of the opinion that the words “retail store” “service shop” and “department store” would as generic terms cover a shopping centre when there were no words in the permitted uses sections of the by-law to make a distinction between these words and a “shopping centre”. The omission of the words “shopping centre” in all the permitted use sections of the by-law far from indicating the intention of the Council to prohibit the erection of such structures indicated that in its view they were already covered in the three different permitted uses referred to above.

The final words of the definition of “retail store”, i.e. “but does not include any other retail outlet otherwise classified or defined in this by-law”, were regarded as clear indication that the Council intended to include within the definition not only a “retail store” but all retail outlets which were not otherwise classified or defined. A shopping centre was nothing but a group of “retail outlets”.

The presence of the words “planned shopping centre” in a section of the by-law applying to all zones and respecting required parking facilities did not indicate that a shopping centre was “otherwise classified”. The suggestion that the inclusion of the

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words “planned shopping centre” in the parking requirement was preparatory for some future amendments which might permit such alleged presently prohibited structures was not accepted.

Thomas C. Watkins Ltd. v. Cambridge Leaseholds Ltd. et al., [1966] S.C.R. v; Oshawa Wholesale Ltd. et al. v. Canadia Niagara Falls Ltd. et al., [1972] 1 O.R. 481, distinguished.

APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from an order of Keith J., directing the issue of a building permit. Appeal allowed.

D.K. Laidlaw, Q.C., for the appellant.

Walter D. Baker, Q.C., for the respondents, William Bourne and Township of Nepean.

W.B. Williston, Q.C., and L.H. Mandel, for the respondent, March Ridge Developments Ltd.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal of Bayshore Shopping Centre Limited from the judgment of the Court of Appeal for Ontario pronounced on December 15, 1971. By that judgment the Court of Appeal for Ontario had allowed an appeal from the order of Keith J., pronounced on November 12, 1971, directing the respondents William Bourne and the Corporation of the Township of Nepean to issue to the appellant a building permit for the erection of a shopping centre upon the lands in question. The said Bourne, the building inspector of the Township of Nepean, had been on the point of granting such a permit when the respondent, March Ridge Developments Limited, commenced an action against the respondent Township of Nepean alleging that the by-laws of that municipal corporation applicable to the lands in question did not permit the erection of a shopping centre. Therefore the respondents Bourne and the Township of Nepean refrained from issuing the building permit for which the appellants had applied. The appellants thereupon served notice of application for the said mandamus compelling such issuance and named as respondents to that application not only the said Bourne and Township of Nepean but the

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said March Ridge Developments Ltd. The respondents Bourne and Township of Nepean have never opposed the issue of the permit nor of an order of the Court directing that they do so issue the said permit and have taken such position before Keith J., the Court of Appeal for Ontario and this Court. The respondent March Ridge Developments Ltd. has opposed the issuance of the permit and the appellant’s application throughout. Keith J., giving no written reasons for his disposition, granted the appellant’s application and refused this respondent’s application for a stay of execution. The Court of Appeal for Ontario in a unanimous judgment pronounced on December 15, 1971, allowed the respondent March Ridge Developments Ltd.’s appeal from the order of Keith J. and quashed his order. The appeal to this Court ensued.

All counsel before this Court agreed that the one vital issue upon the appeal was the true construction of By-law 39-62 of the respondent Township of Nepean and the determination of whether, upon the proper construction of the said by-law the appellant was entitled to have the respondents Bourne and the Township of Nepean issue to it a building permit or building permits for the construction of the shopping centre in accordance with its application for such permits. Other issues had been canvassed before Keith J. and the Court of Appeal for Ontario but in this Court all counsel ignored such other issues and confined their submissions to the one issue of the true construction of the said By-law 39-62.

It was the initial submission of counsel for the appellant that the Court of Appeal for Ontario fell into error in believing that the construction of the said By-law 39-62 could be governed by the judgment of the same Court similarly constituted in Oshawa Wholesale Ltd. et al. v. Canadia Niagara Falls Ltd. et al. which had been argued immediately before the appeal in the present case and which is now reported in [1972] 1 O.R. 481. That appeal also dealt with an application to compel the issuance of a building permit for a shopping centre. The decision and that in the present case were the latest in a few appeals to the

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Court of Appeal for Ontario, at least one of which came to this Court which need to be mentioned upon this point.

In Thomas C. Watkins Ltd. v. Cambridge Leaseholds et al.[1], the learned judge of first instance had granted a mandamus directing the issue of a building permit for the erection of a department store. The majority of the Court of Appeal for Ontario dismissed an appeal from that order but McGillivray J.A. in dissenting reasons would have allowed the appeal and quashed the order upon the basis that the zoning by-law in question had set out five different commercial zones and in only one of them had listed as a permitted use a department store although retail stores were listed as permitted uses in all five zones. The application before the Court was for a department store in one of the other four zones. McGillivray J.A. said in his reasons:

It is reasonable to believe that by making these two items separate and distinct in the by-law they are to bear a different connotation and that the term “retail store” is not sufficiently comprehensive to include department store.

Upon appeal to this Court argued on June 10, 1966, the appeal was allowed in an oral judgment in which this Court expressly adopted the dissenting reasons of McGillivray J.A.

A not dissimilar issue came before Houlden J. in the Oshawa Wholesale Ltd. case, an action to have declared void a building permit already issued for erection of what was termed by an expert witness a “sub-regional shopping centre”. The zoning by-law in question never listed as a permitted use a “sub-regional shopping centre” or even a shopping centre without descriptive adjectives, but did permit “local shopping centre”. These words were defined in the by-law to mean “a group of smaller related stores situate for direct service within a residential neighbourhood unit”. Houlden J. in lengthy and very carefully considered reasons dealt with many issues not here relevant and held that the by-law having specifically permitted one type of shopping centre,

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and it the smallest one according to the expert opinion which he accepted, could not be interpreted to permit a much larger shopping centre under the permitted uses entitled “retail stores” or “supermarkets”. Houlden J. therefore gave judgment for the plaintiff making a declaratory order that the building permit was null and void. The appeal by the developer to the Court of Appeal for Ontario I have already referred to and it is the judgment thereon which that Court adopted in deciding the appeal in the present case against the present appellant Bayshore Shopping Centre Ltd. In his oral reasons Aylesworth J.A. did not merely adopt the reasons of Houlden J. although the learned justice in appeal did point out the very limited permitted use of “local shopping centre”. Aylesworth J.A. went much further and relying on the evidence of the expert witness and upon reference to shopping centres in one American decision and by Roach J.A. in Re Hamilton & Dominion Stores Ltd.[2], neither of which dealt with zoning by-laws, held a shopping centre was a “distinct and separate use not within the terms of the by-law in question…”. Despite the very broad character of the statement in the rationale for the decision, I agree with counsel for the appellant that the judgment in the Oshawa Wholesale case given upon a by-law having the unique feature which I have outlined cannot be taken to have determined the interpretation of the quite different provisions of Bylaw 39-62 in question in this present case.

Therefore I turn to the interpretation of the by-law in question. This is By-law 39-62 of the Township of Nepean enacted on June 11, 1962, as amended. This by-law is a general zoning bylaw concerning the northern part of the township by the provisions of which persons are prohibited from using any land or erecting any building or structure except in conformity with the provisions

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of the by-law. The lands as to which Bayshore as agent for the registered owner Ivanhoe Corporation, applied for the building permit, and which were situate at the intersection of Provincial Highway 7 (Richmond Road) and Bayshore Drive in the Township of Nepean are within the area zoned in the by‑law as COMMERCIAL-REGIONAL C1 ZONE. That zone is the most comprehensive of the commercial zones dealt with in the by-law and if any shopping centre is permitted in the northern part of Nepean Township permission for the erection and use must be found in the permitted uses listed under this Commercial-Regional C1 Zone.

The by-law in ss. 7:1, 7:1:1 and 7:1:2 provides in part for the permitted uses in C1 Zone as follows:

COMMERCIAL—REGIONAL C1 ZONE

7:1:1 Permitted Uses:

A retail store, a service shop and a departmental store for the conducting of any retail business. A commercial and public garage, a clinic, a commercial school, a custom workshop, dry cleaning distributing station and a tailor’s shop. A Church, a library, a business office, an eating establishment, funeral home and chapel and a place of amusement. A hotel, a tavern and a public house. An automobile service station, subject to the provisions of Section 5:10. (Bylaw No. 63-63)

…

7:1:2 Zone Requirements:

For uses other than for automobile service stations (By-law No. 63-63)

Lot Area (Minimum)	Nil
Lot Frontage (Minimum)	Nil
Lot Coverage (Minimum)
a) Commercial	80%
b) on 2nd Storey	50% of lot
Height (Maximum)	60 ft.
Front Yard (Minimum)	75 ft.
Side Yard (Minimum)	Nil

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Except where a Commercial Zone abuts a Residential Zone, a 20 foot side yard shall be required on the side that so abuts
Rear Yard (Minimum)	20% of lot depth
but not necessarily more than 30 feet nor less than 20 feet.
Off-street parking—See Sections 5:17 and 5:18 Off-street loading—see Sections 5:19(a)

A retail store is defined in s. 2.87 as:

2.87 “Retail Store” shall mean a building or part of a building where goods, wares, merchandise, substances, articles or things are offered or kept for sale at retail and includes storage on or about the store premises of limited quantities of such goods, wares, merchandise, substances, articles, or things sufficient only to service such stores but does not include any retail outlet otherwise classified or defined in this By-law;

A service shop is defined in s. 2.92 as:

2.92 “Service Shop” shall mean a building or part of a building where services are provided such as barber’s shop, a ladies hairdressing establishment, a shoe shine shop and other similar services;

and a Department Store is defined in s. 2.26 as:

2.26 “Department Store” shall mean the use of an enclosed building in which various types of commodities are kept for retail sale in separate parts of the one building on two or more floors;

It is not necessary to cite the many other definitions which appear in By-law 39-62. There was filed as an exhibit in the examination of C.J. Magwood, the secretary of Bayshore upon his affidavit a document entitled “Confidential Memorandum for Institutional Investors Bayshore” and counsel for the appellant cited parts of that document to illustrate what was to compose the proposed shopping centre. I quote several paragraphs thereof:

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THE PROJECT

Introduction

Bayshore Shopping Centre (“Bayshore”) will be a regional shopping centre located in the Ottawa Metropolitan Area. Bayshore will consist of department stores operated by The T. Eaton Company Limited (“Eaton’s”) and Hudson’s Bay Company Limited (“The Bay”), a Steinberg’s Food Store and Miracle Mart Department Store operated by Steinberg’s Limited (“Steinberg’s”), and a two-level air conditioned mall serving approximately 100 additional stores. It will have a unique multi-level parking facility with approximately 3,200 parking spaces, of which more than half will be under cover for shopping convenience; each parking level will have direct access to one of the two main shopping levels. The Site

Bayshore will be located on a 23.4 acre site, approximately 7 miles west of Ottawa’s central business district, in the north-west quadrant of the interchange at Richmond Road (Highway 7) and the Queensway, two major arterial roads in the western portion of the Ottawa Metropolitan Area. The map on page 4 shows the location of Bayshore in relation to the City of Ottawa and surrounding communities and shows access routes to Bayshore from these communities.

The Company will purchase the site on or about October 31, 1971 from Ivanhoe Corporation in accordance with and subject to conditions set out in an option agreement dated June 14, 1971.

A small shopping centre now operating on a portion of this site is to be demolished to make room for Bayshore. Existing zoning regulations permit the development and construction of Bayshore as planned and adequate municipal services are available.

It will be seen that the various components of the proposed shopping centre fall within the three definitions I have quoted. Counsel for the appellant has submitted that no component of the proposed shopping centre could fail to be within the permitted uses outlined in s. 7:1:1 quoted above and at the same time be an appropriate unit for a shopping centre. After perusal of the permitted uses I agree with this submission.

There still remains for determination whether a shopping centre is within these permitted uses even

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if every component of the proposed shopping centre would be within one of them. I find little assistance from decisions which purport to indicate the philosophic attitude which the Court should adopt in construing zoning by-laws. No authority need be cited for the proposition that a man’s property is his own which he may utilize as he deems fit so long as in such utilization he does not commit nuisance, entrap the unwary or act in breach of statutory prohibitions, and therefore by-laws restrictive of that right should be strictly construed. Yet it has been said that modern zoning provisions have been enacted to protect the whole community and should be construed liberally having in certain the public interest: R. v. Brown Camps Ltd.[3]; Re Bruce and City of Toronto et al.[4], at p. 67. But such statements usually were made when the Court was considering an application to permit the encroachment into a residential zone of some building which it was alleged would seriously affect the amenities of life of the residents thereof. In this case the lands in question are situate in a general commercial zone and every component of the proposed shopping centre would be the proper subject‑matter of a building permit as a permitted use under the By-law 39-62. I therefore approach the interpretation and application of the by-law without acknowledging any compulsion to consider its provisions either strictly or liberally.

It must be noted, and it is of prime importance, that nowhere in the permitted use sections of Bylaw 39‑62 do the words “shopping centre” either alone or accompanied by any adjective appear. This situation contrasts strongly with that which was present in Thomas C. Watkins Ltd. v. Cambridge Leaseholds Ltd. et al., supra, where a permit was sought for the erection of a department store in a C1 Zone where it was not a listed permitted use but in C5 Zone a department store was so listed. It also contrasts with the Oshawa Wholesale case where a permit was sought for a “sub-regional shopping centre” in a zone where

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it was not a permitted use but in another zone there was listed as a permitted use a “local shopping centre”. In view of such express reference elsewhere in the permitted uses sections of the by-law and its omission in the zone as to which the application for permit was made, the term “retail store” could not be held to cover in the former case, a “department store” and in the latter, a “sub-regional shopping centre”. In the present case there is no mention of “shopping centre” in a permitted uses section of any zone but there is set out as permitted uses in this C1 Regional-Commercial Zone the words “retail store”, “a service shop” and “department store”. McGillivray J.A., in his reasons in the Cambridge Leaseholds case, which this Court as I have pointed out, adopted said:

There can be little doubt, and counsel for the appellant, I believe, agrees, that as a generic term “retail store” would include a department store which is concerned with retail business, but the review of the various sections of the act manifest the intention, in my opinion, of making a distinction between a department store and a retail store.

Applying the same analysis I am of the opinion that the words “retail store” “service shop” and “department store” would as generic terms cover a shopping centre when there are no words in the permitted uses sections of the by-law to make a distinction between these words and a “shopping centre”—a distinction which McGillivray J.A. found in the Cambridge Leaseholds case. I have reached the conclusion that the omission of the words “shopping centre” in all the permitted use sections of the by-law far from indicating the intention of the Council to prohibit the erection of such structures indicated that in its view they were already covered in the three different permitted uses to which I have referred.

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The final words of the definition of “retail store” are significant:

but does not include any other retail outlet otherwise classified or defined in this by-law (the italicizing is my own).

I regard these words as clear indication that the Council intended to include within the definition not only a “retail store” but all retail outlets which were not otherwise classified or defined. Certainly a shopping centre is nothing but a group of “retail outlets”.

Counsel for the respondent March Ridge Developments Ltd. however, submits that a “shopping centre” is otherwise “classified”. He agrees the words were not “defined” in the by‑law but he points to the provisions of s. 7:1:2… off-street parking—See Section 5:17 and 5:18” and cites s. 5:17 the schedule of which reads in part as follows:

SCHEDULE

Type or Nature of Building or Structure	Minimum Required Parking Facilities
6. A retail store, service store, or other vice store, or other similar establishment, a planned shopping centre or department store	1 parking space for each 180 square feet of floor area

It must be noted that s. 5:17 is in a part of the by-law entitled SECTION 5 GENERAL PROVISIONS TO ALL ZONES which part covers very many provisions but does not deal with permitted uses. Secondly, as I have stressed before, there has been no mention of a shopping centre in any permitted uses section and to provide parking regulations for a use which was prohibited seems not only surplusage but contradictory. I am quite unable to accept the suggestion that the inclusion of the words “planned shopping centre” in the parking requirement was preparatory for some future amendments which might permit such alleged presently prohibited structures. Surely the wise time to make such requirements would be when the use were permitted. I am therefore not

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ready to agree that the presence of these words “planned shopping centre” in s. 5:17 indicate that a shopping centre was “otherwise classified”. The meaning I attach to those words is “otherwise in the By-law a permitted use”.

On the other hand, I regard the presence of the words “planned shopping centre” in s. 5:17 as a clear indication that Council had shopping centres in mind when it enacted By-law 39-62 and believed the permitted uses “retail store”, “service store” and “department store”, as well as a “business office” “an eating establishment” and “an automobile service station”, sufficient to authorize a permit for a shopping centre. Council however realized that a shopping centre presented special parking problems. It might well be that the parking appropriate to a retail store would not be appropriate to many retail stores, service stores and department stores all in one group sharing a common great parking area and that the parking requirement should be one referring to the total floor area and not limited to the floor area of each retail store, service store or department store. The Council therefore enacted the provision as to parking requirements found in s. 5:17.

I have found nothing in the By-law 39-62 which would prevent one lot, in this case almost twenty-four acres, being put to various permitted uses. All types of permitted uses may utilize one lot and in fact various permitted uses may occupy the same building although it would appear that a department store must occupy its own building.

Maxwell on Interpretation of Statutes, 12th ed. at p. 264, cites authority, if any need be cited for the proposition that one may have regard to the conduct of those who were responsible for the creation of a provision to ascertain their understanding of its meaning. This By-law 39-62 was, as I have said, enacted on June 11, 1962. Even

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if we may not take judicial notice of the many shopping centres which have been erected in Nepean Township since that date we have the evidence of the secretary of the appellant that there exists today on the very lands which are the subject of the application for building permit for a shopping centre, a much smaller one which had been erected since 1962. Therefore it is apparent that the Council which enacted By-law 39-62 and the building inspector who acted under its direction, have always believed that a shopping centre was a permitted use on Regional-Commercial Zone C-2. In confirmation of this I note that counsel for Nepean Township filed a factum on this appeal and submitted:

By-law 39-62 has been in force since 1962 and, under its authority, shopping centre development has taken place on the site in question and other sites within the Township of Nepean

and further:

…the respondents Nepean and Bourne had or have no grounds upon which to base a rejection of the application for Building Permit

For these reasons I have concluded that the appeal should be allowed and the order of Keith J. pronounced on November 12, 1971, should be restored. The appellant and the respondents, the Township of Nepean and William Bourne, will be entitled to their costs throughout from the respondent March Ridge Developments Limited.

Appeal allowed with costs.

Solicitors for the appellant: McCarthy & McCarthy, Toronto.

Solicitors for the respondents, Township of Nepean and William Bourne: Bell, Baker, Thompson & Oyen, Ottawa.

Solicitors for the respondent, March Ridge Developments Ltd.: Thompson, Rogers, Toronto.