Supreme Court of Canada
Polai v. City of Toronto, [1973] S.C.R. 38
Date: 1972-06-29
Magdalene Polai (Defendant) Appellant;
and
The Corporation of the City of Toronto (Plaintiff) Respondent.
1972: May 5; 1972: June 29.
Present: Martland, Judson, Ritchie, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Municipal law—Zoning by-law—Contravention—City not to be denied injunction merely because others, in addition to defendant, guilty of similar violations and not restrained—The Municipal Act, R.S.O. 1960, c. 249, s. 486.
Pursuant to the provisions of s. 486 of The Municipal Act, R.S.O. 1960, c. 249, the respondent municipality brought an action against the appellant claiming an injunction restraining her from using certain property for the purpose of a multiple family dwelling house in contravention of its zoning by-law. The trial judge dismissed the action. The Court of Appeal allowed an appeal and granted the injunction. On appeal to this Court, the appellant asked for a restoration of the judgment at trial.
Held: The appeal should be dismissed.
[Page 39]
Where, as in this action, a municipality is seeking to protect and enforce a public right, it should not be denied the remedy of injunction merely because others, in addition to the defendant, are guilty of similar violations and have not been restrained.
APPEAL from a judgment of the Court of Appeal for Ontario, allowing an appeal from a judgment of Haines J. Appeal dismissed.
I.G. Scott, for the defendant, appellant.
D.C. Lyons and M.J. Winer, for the plaintiff, respondent.
The judgment of the Court was delivered by
JUDSON J.—The City of Toronto brought an action against Magdalene Polai claiming an injunction restraining her from using the building known as 169 Warren Road, Toronto, for the purpose of a multiple family dwelling-house in contravention of its zoning by-law. The trial judge dismissed the action. The Court of Appeal allowed an appeal and granted the injunction with a suspension of its operation for a period of twelve months. Mrs. Polai asks in this Court for a restoration of the judgment at trial.
Mrs. Polai bought the property in question in November 1963. There is a finding of fact by the learned trial judge that it was used only as a private detached dwelling-house until she bought it. She bought the property for the purpose of converting it into a multiple dwelling-house. She spent approximately $20,000 in making structural alterations. When these had been completed she had four rentable self-contained dwelling units with private sanitary, cooking and freezing facilities, and all of this work had been carried out without a permit from the city as required by the building by-laws. She herself has occupied the ground floor as a residence and has rented the apartments on the second and third floors.
In 1965 Mrs. Polai was charged with breach of the zoning by-law and convicted. Her appeal
[Page 40]
was dismissed. She continued to use the premises as a multiple family dwellin-house. The writ for an injunction was issued in September of 1966. The principal witness against her were neighbours who objected to her use of the premises.
The trial judge dismissed the city’s action because he found that it maintained a secret “deferred list” of infringers against whom no action, either by presecution or application for an injunction, had been or would be taken. In the Court of Appeal, Schroeder J.A. did not accept this characterization of the list either as to its secrecy or its permanency and rigidity. He expressly found that the committee administering the list had not acted in bad faith or arbitrarily in the discharge of its assumed duties. Jessup J.A and Brooke J.A. thought that the existence and operation of the list amounted to discrimination against Mrs. Polai, but all three judges held that the public has a direct and substantial interest in the enforcement of the by‑law and that this public interest must prevail over the private interest if Mrs. Polai. In may opinion this conclusion is sound.
I do not think that lax enforcement of zoning by-law—and I am by no means sure that it can be called “lax enforcement” in this case—can afford any defence against an application for an injunction under s. 486 of The Municipal Act, which provides:
486. Where any by-law of a municipality or of a local board thereof, passed under the authority of this or any other general or special Act, is contravened, in addition to any other remedy and to any other penalty imposed by the by-law, such contravention may be restrained by action at the instance of a ratepayer or the corporation or local board.
This is a case of persistent and defiant infringement. The defence really amounts to a claim for immunity until the list is disregarded and everybody else prosecuted. This is small comfort to a
[Page 41]
neighbour in an otherwise residential area who is complaining of the infringement. Nor does s. 486 confine the remedy to the municipality. A ratepayer has a right of action. It is no defence against his action to say that there are other cases of infringement which have not been questioned. In this particular case, it is obvious that the immediate neighbours were the ones who were objecting. They gave the evidence. It makes no difference whether they bring the action or the municipality brings the action. The City, in this action, is seeking to protect and enforce a public right, and should not be denied the remedy of injunction merely because others, in addition to the defendant, are guilty of similar violations and have not been restrained.
I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the defendant, appellant: Cameron, Brewin & Scott, Toronto.
Solicitor for the plaintiff, respondent: W.R. Callow, Toronto.
Email this Content