Farr v. The Township of Moore, [1978] 2 SCR 504

Supreme Court of Canada

Farr v. The Township of Moore, [1978] 2 S.C.R. 504

Date: 1978-02-07

Eldon Farr and Helen Farr and Bryan Strangway and Sandra Strangway (Plaintiff) Appellants;

and

The Corporation of the Township of Moore (Defendants) Respondent.

1977: October 20, 21; 1978: February 7.

Present: Laskin C.J. and Ritchie, Spence, Dickson and Beetz JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Municipal law—By-laws—Interpretation—Scope of By-law—Definition of trailer—Mobile home used as residence—The Municipal Act, R.S.O. 1970, c. 284, ss. 354(1), para. 86, 470.

Appellants S and F had each purchased a mobile home in 1971 (in April and July respectively) and had then caused the mobile home to be taken to a site which they owned in the Township; there the wheels were removed and the mobile home set on cement pillars. Electrical, telephone and water connections were made, septic tanks were installed and connected and heating tanks were erected outside each unit. The appellants occupied the units and continued to do so to the date of the trial. In November 1971, the respondent Township enacted a by-law, s. 2 of which prohibited the use “of any trailer for the living, sleeping or eating accommodation of persons…for more than 60 days in any period of 10 consecutive months”. By a writ issued in December 1974 the respondent Township sought an injunction to prohibit the occupation of the premises by the appellants for living purposes. This action was dismissed at first instance but the Court of Appeal reversed the judge of first instance.

Held: The appeal should be allowed.

In both the by-law and The Municipal Act “trailer” is defined as meaning “any vehicle so constructed that it is suitable for being attached to a motor vehicle, and capable of being drawn or propelled by the motor vehicle, and capable of being used for the living, sleeping or eating accommodation of persons, notwithstanding that such vehicle is jacked-up or that its running gear is removed”. The word “vehicle” is not defined in either the by-law or the statute. To find that the mobile homes were “trailers” it would have been necessary to find them “vehicles”. On consideration of the definition of “vehicle” in the Shorter Oxford Dictionary the mobile homes in question should not be so regarded.

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Further the structures judged at the time at which the writs were issued were not suitable for attachment to a motor vehicle for the purpose of being drawn nor if so attached and drawn after alteration were they “suitable for living, sleeping or eating accommodation”. There was no implication of any intention by the Legislature to deal with mobile homes in the legislation in question and the Court should not legislate on the basis that the apparatus in question is somewhat like that which the Legislature so restrictively defined. Since 1976, mobile homes are by name subject to The Planning Act and recreation trailers to The Municipal Act.

APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from a judgment of Holland J. dismissing an action for an injunction under the provisions of s. 470 of The Municipal Act, R.S.O. 1970, c. 284. Appeal allowed.

B.A. Crane, for the appellants.

Lyle F. Curran, Q.C., for the respondent.

The judgment of the Court was delivered by

SPENCE J.—This is an appeal, by leave, from the judgment of the Court of Appeal for Ontario pronounced on January 19, 1976. By that judgment, the Court of Appeal for Ontario allowed an appeal from the decision of Holland J. pronounced on June 24, 1975, wherein he dismissed the action of the respondent for an injunction under the provisions of s. 470 of The Municipal Act, R.S.O. 1970, c. 284, prohibiting the appellants, or any of them, from using or permitting the use of any trailer in the Township of Moore for living, sleeping or eating accommodation contrary to the provisions of By-law 49 of the Township of Moore.

The appellant Bryan Strangway, in April 1971, and the appellant Eldon Farr, in July 1971, had each purchased a thing, I use a most indefinite word, known as a mobile home from dealers in nearby towns. Each of these appellants had caused the mobile home to be drawn by a truck to a site which they owned, there had caused the wheels to be removed from the mobile homes and the framework thereof set on cement pillars. It would appear that the framework was not affixed to the pillars except by its own weight. Each of them then connected the mobile home with the following

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services: An electric line was run into them, a telephone line was installed, water lines were run into the mobile homes and connected with a source of supply, septic tanks were installed and connected to each of the mobile homes, and provision was made for heating the homes by oil heating, the storage of the oil being in tanks erected just outside the mobile homes with connections running into them.

The two sets of appellants proceeded to occupy the said mobile homes as their permanent residences and continued to do so to the date of the trial of the action.

On November 2, 1971, the respondent Township of Moore enacted By-law 49. Section 2 of that by-law provided:

2. The use is prohibited, and the owner or lessee of any trailer is prohibited from permitting the use, of any trailer for the living, sleeping or eating accommodation of persons, within the defined area for more than 60 days in any period of 10 consecutive months.

“Trailer” is defined in the said by-law in para. 1(b) as follows:

“trailer” means any vehicle so constructed that it is suitable for being attached to a motor vehicle for the purpose of being drawn or propelled by the motor vehicle, and capable of being used for the living, sleeping or eating accommodation of persons, notwithstanding that such vehicle is jacked-up or that its running gear is removed;

Finally, by a writ issued on December 3, 1974, more than three years after the enactment of the by-law, the Township of Moore sought an injunction to prohibit the occupation of these premises by these appellants for living purposes. MacKinnon J.A. giving reasons for the Court of Appeal for Ontario said:

It is agreed that the respondents placed their structures within the defined area and that they have used them for living, sleeping and eating accommodation.

As Holland J. pointed out in his reasons for judgment after trial:

The defence is simply that the structures, as of the date of the commencement of the action, were not vehicles and were not “suitable for being attached to a motor

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vehicle for the purpose of being drawn or propelled by a motor vehicle”.

By-law 49 of the Township of Moore was enacted by virtue of the power granted in s. 354(1), para. 86 of The Municipal Act. I quote para. 86 and subparas, (a) and (b):

86. For prohibiting the use, and for prohibiting the owner or lessee of any trailer from permitting the use, of any trailer for the living, sleeping or eating accommodation of persons, within the municipality or one or more defined areas thereof, for more than such number of days, not less than sixty, as the by-law provides, in any period of ten consecutive months.

(a) In this paragraph “trailer” means any vehicle so constructed that it is suitable for being attached to a motor vehicle for the purpose of being drawn or propelled by the motor vehicle, and capable of being used for the living, sleeping or eating accommodation of persons, notwithstanding that such vehicle is jacked-up or that its running gear is removed.

(b) A by-law passed under this paragraph may be made to apply to any trailer whether or not such trailer was used for the living, sleeping or eating accommodation of persons before the by-law was passed.

Although “trailer” is defined in exactly the same terms in both the section of The Municipal Act and By-law 49 of the Municipality, the word “vehicle” which appears in both of these definitions is defined nowhere within the statute of by-law. It is true that there is a definition of “vehicle” in The Highway Traffic Act but I am of the opinion that that definition is of no assistance in determining the issue in this appeal as that statute is quite evidently addressed to a different subject and apparatus appropriate to be dealt with as a vehicle in that statute may be very different from apparatus dealt with in The Municipal Act and any by-laws enacted by virtue of the power granted by the latter.

I turn, therefore, as Holland J. did, to the definition of “vehicle” in the Shorter Oxford Dictionary. The appropriate definition there set out would seem to be as follows:

A means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart, wagon, sledge, etc.

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A receptacle in which anything is placed in order to be moved.

Before there can be any determination that the mobile home is a “trailer”, the mobile home must be found to be a “vehicle”. I am of the opinion that each particular apparatus purchased and installed by each of these appellants was not a “vehicle”. It was not a means of conveyance, although it was provided with wheels, and it was not used for the carriage of persons or goods. The purpose of the apparatus, and it is quite apparent from the evidence, was that it should be hauled quite empty to a site and there placed on the site and used, not for the conveyance of persons or goods, but for the installation of goods, to wit, furniture, and the residence of people. I am of the view that this determination would be sufficient to dispose of the appeal. However, lest there be a difference of opinion thereon, I continue to consider the other aspects of the definition of “trailer” found in the statute and by-law.

Firstly, was the apparatus suitable for being attached to a motor vehicle? Holland J. held that its suitability for such purpose must be determined at the date of the alleged breach of the by‑law. As I have said, the writ was issued on December 3, 1974, and, at that time, and for three years before, the parties had, in each case, set the apparatus on cement pillars, connected each with electrical and telephone lines, with its own sewerage system and septic tank, and its own oil storage. Whether or not the wheels stayed on or had been removed, I am of the opinion that that structure, judged at that time, was not suitable for being attached to a motor vehicle for the purpose of being drawn. Although there was no evidence as to the amount of labour which would have been entailed in the detaching of the various services, the learned trial judge said:

In any event, in my opinion, these structures are not, and were not, at the date of the commencement of the action, “suitable for being attached to a motor vehicle for the purpose of being drawn . . .” I have already described the structures and, from looking at the photographs, it appears to me, although evidence in this connection is lacking, that considerable work would be

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required before the structures could be rendered suitable for being attached to a motor vehicle for the purpose of being drawn.

I am of the opinion that the learned trial judge’s finding was misunderstood by MacKinnon J.A when he said:

As the trial judge pointed out in the instant case, it would not be very difficult to put the wheels and tongue back on and sever the services.

I am of the opinion, on the other hand, that the learned trial judge considered it rather difficult. At any rate, the learned trial judge found as a fact that the apparatus, as it stood on the date of the issuance of the writ, was not suitable for being attached to a motor vehicle for the purpose of being drawn.

I turn then to the next requirement of the definition. The apparatus, and as I have pointed out it must be a vehicle, must be capable of being used for the living, sleeping or eating accommodation of persons. If we were to imagine that this apparatus was a “vehicle” and that, at any rate, as it was being drawn along the highway, it was suitable for being attached to a motor vehicle for the purpose of being drawn thereby, it was not then capable of being used for the living, sleeping or eating accommodation of persons. It was an empty hulk of a residence, albeit with wheels on it, but with no electrical connections, no telephone connections, no water or sewerage connections, and no method of heating. It was no more capable of being used for living accommodation than a carport or garage. Again, I fail to find that the apparatus in question, this mobile home in each case, was within the definition of “trailer”.

The Court was informed that in the year 1976, the Legislature of the Province of Ontario altered its method of dealing with these matters and made provision for mobile homes by name in The Planning Act and for recreation trailers by name in The Municipal Act and in each case provided for the establishment of mobile home parks and trailer parks. This procedure seems to be most understandable but I do not think there can be any implication of an intention to deal with mobile homes in the earlier legislation referring to “trailers”, particularly when “trailers” were so restric-

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tively defined in the section which I have quoted. In my view, the Court is not entitled to legislate by thinking that the apparatus is somewhat like the one which the Legislature so restrictively defined and that the by-law, therefore, should apply.

For these reasons, I would allow the appeal. The appellants are entitled to one set of costs throughout which, of course, as to both the trial and the Court of Appeal for Ontario should be on the County Court scale.

Appeal allowed with costs.

Solicitors for the appellants: Garrett & Fleck, Toronto.

Solicitor for the respondent: Lyle F. Curran, Sarnia.