Toronto (City) et al. v. Outdoor Neon Displays Ltd., [1960] SCR 307

Supreme Court of Canada

Toronto (City) et al. v. Outdoor Neon Displays Ltd., [1960] S.C.R. 307

Date: 1960-01-26

The Corporation of The City of Toronto and F.E. Wellwood (Defendants) Appellants;

and

Outdoor Neon Displays Limited (Plaintiff) Respondent.

1959: October 15, 16, 19; 1960: January 26.

Present: Cartwright, Fauteux, Abbott, Martland and Ritchie JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Municipal corporations—Building by-law—Erection and location of signs—Permit required from building inspector—Whether inspector has discretion to refuse when by-law requirements met—Whether delegation of power to inspector—Validity of by-law.

Building by-law No. 9868 of the City of Toronto, passed in 1923, deals, inter alia, with the erection and location of signs on private property and prescribes the standards required to obtain a permit to erect such signs. It places upon the building inspector the duty of ascertaining that these standards are met. The by‑law further provides that a permit will not be issued until the location of the sign has been approved by the building inspector; and that the erection of the sign shall not be commenced until a permit has been obtained from him. The trial judge dismissed the plaintiff’s application for an order directing the defendants to issue a permit for the erection of a neon display sign on the roof of a building in Toronto. The Court of Appeal directed the permit to be issued on the ground, inter alia, of illegal delegation of power to the inspector. The municipality appealed to this Court.

Held: The appeal should be dismissed and the permit issued.

On its proper construction, the by-law does not confer any uncontrolled discretion upon the inspector. If he is satisfied that all the requirements are fulfilled and that there is no applicable prohibitory by-law, he has no discretion to refuse to approve the location of the sign and so refuse a permit. The by-law states with sufficient particularity the grounds on which the approval of the proposed location is to be granted or withheld. Consequently, as the appeal was argued on the footing that all the requirements had been fulfilled, it followed that the permit should be issued.

APPEAL from a judgment of the Court of Appeal for Ontario[1], reversing a judgment of Treleaven J. Appeal dismissed.

Hon. R.L. Kellock, Q.C., and F.A.A. Campbell, Q.C., for the defendants, appellants.

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J.T. Weir, Q.C., and A.M. Austin, for the plaintiff, respondent.

W.R. Jackett, Q.C., and T.B. Smith, for the Attorney General of Canada.

E.J. Houston, for the Attorney-General of Ontario.

The judgment of the Court was delivered by

CARTWRIGHT J.:—This is an appeal from a judgment of the Court of Appeal for Ontario[2] allowing an appeal from a judgment of Treleaven J. and directing the appellant Wellwood forthwith to issue a building permit to the respondent to permit it to erect a neon display sign on the roof of the building known as 131 Front Street West in the city of Toronto.

On January 31, 1958, the respondent made application to the appellants for a building permit for the erection of the sign in question. By letter dated March 21, 1958, the appellant Wellwood advised the respondent that the Board of Control had instructed him to withhold the permit and enclosed a copy of the Board’s direction. This direction is dated March 14, 1958, and is signed by the City Clerk; it reads:

On March 12, 1958, Controller Newman advised the Board of Control that application has been made for a permit to erect an illuminated sign facing University Avenue on the roof of the building at No. 131 Front Street West.

Controller Newman stated that the University Avenue By-law does not cover this location.

The Board decided to request the City Solicitor to draft a By-law and present same to the Committee on Property on March 19, to prohibit the erection of the aforesaid sign and other signs which may be similarly located in full view of University Avenue.

The Board also decided to request the Commissioner of Buildings to withhold the permit for the above-mentioned sign.

The “University Avenue By-law” referred to in this direction prohibits the erection of, inter alia, electric signs on any building or land fronting or abutting on either side of University Avenue between Front Street and College Street. It is not argued that the proposed location of the sign with which we are concerned falls within this prohibition.

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We were informed by counsel that no by-law such as that suggested in the third paragraph of the direction has been passed.

In the course of his cross-examination on an affidavit filed the appellant Wellwood put forward two additional reasons for refusing the permit:

(i) that he had not approved the location of the sign as provided in paragraph 3 of chapter 31 of the building by-law of the Corporation of the City of Toronto being by-law number 9868, and

(ii) that the property known as 131 Front Street West is leased by the City of Toronto to Petrie’s Parking Place Limited by a written lease dated March 21st, 1945, that the said lease provides that the lessee will not assign or sub-let without leave, and that the agreement between Petrie’s and the respondent permitting the latter to erect the sign was a breach of the covenant not to sub-let.

As to the last mentioned ground (ii), the Court of Appeal were unanimously of opinion that it afforded no answer to the respondent’s claim, and on this point I am in full agreement with the reasons of Roach J.A.

The learned judge of first instance gave no written reasons for his decision.

Counsel agree that the following passage in the reasons of Roach J.A. correctly states the footing on which the appeal was argued:

The appeal was argued on the footing that the proposed sign complied with all the standards set forth in By-law No. 9868, that the application to the Building Commissioner was in proper form and that the applicant had complied with every prerequisite required of it in connection with its application for the permit.

By-law no. 9868 was passed by the Council of the Corporation of the City of Toronto on December 10, 1923; it is entitled “A By-law to Regulate the Erection and Provide for the Safety of Buildings”; it is both lengthy and comprehensive, consisting of upwards of 250 printed pages divided into more than 40 chapters.

Chapter 31 is entitled “Signs”. The by-law has been frequently amended but the only amendments made to chapter 31 were passed in April 1936. This chapter prescribes

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in detail what is to be filed in support of the application for a permit to erect a sign located wholly or partly on private property, including:

2. (2) A block plan, showing the street lines or other boundaries of the property upon which it is proposed to erect such sign or advertising device and the location of the sign or advertising device upon the property in relation to other structures upon such property or upon the premises immediately adjoining thereto.

(3) Complete drawings and specifications covering the construction of the sign and its supporting framework.

(4) Drawings of, and such other information with respect to, any building upon which it is proposed to locate the sign or advertising device, as may be necessary to determine whether the structure of such building will carry the additional loads and stresses imposed thereon by the erection of such sign or advertising device without exceeding the stresses specified in this By-law. Such drawings shall in all cases have marked thereon, in figures, the height of such building.

The chapter deals, inter alia, with the strength of buildings on which it is proposed to erect signs, the height of such buildings, the height above roof of partly wooden signs and of all-metal signs; ground signs; maintenance; the repair or removal of dangerous or defective signs; and the location of signs as more particularly set out hereafter. In regard to allowable stresses, live loads and wind pressures on buildings it contains cross-references to other chapters of the by-law.

In addition to section 2(2) quoted above, the following sections of chapter 31 refer particularly to the locations of signs:

Section 5. Clearances.

(1) Every sign or advertising device erected upon the roof of any building shall be so located as to maintain a clear space of at least three feet between the top of the roof or parapet wall of such building and the bottom of such sign.

(2) No sign or advertising device shall be so located upon any building as to obstruct any window, door, scuttle, skylight or fire escape, so as to prevent the free access of firemen to any part of the building in case of fire.

Section 13. Ground Signs.

(3) No such sign or advertising device shall be located adjacent to any dwelling, apartment house or church or so located that the rear part of same is or will be exposed to any street.

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The section of chapter 31 which gives rise to the chief difficulties in this appeal is section 3, which reads as follows:

3. Permit.

(1) A permit shall not be issued by the Inspector of Buildings for the erection of any sign or advertising device located wholly or partly upon private property, until the location of such sign or advertising device has been approved by him.

(2) The erection or installation of any sign or advertising device located wholly or partly upon private property, shall not be commenced until a permit therefor has been obtained from the Inspector of Buildings.

The members of the Court of Appeal were unanimous in construing this section as giving to the Inspector of Buildings an uncontrolled discretionary power to approve or disapprove the proposed location of any sign and to grant or refuse a permit for its erection accordingly. Roach J.A., who wrote the judgment of the majority, dealt with the matter as follows:

The Building Commissioner and the Municipal Corporation now take the position which was supported by their counsel on this appeal, that by virtue of Section 3(1) of By-law No. 9868, the Building Commissioner has the power to refuse a permit if the location of a proposed sign, quite apart from matters of construction, does not meet with his approval and that the location of this particular sign does not meet with his approval. I now deal with that contention without for the time being, taking into consideration, Section 3(1) of the City of Toronto Act, 1939, and the order of the Municipal Board dated February 25th, 1942.

By-law No. 9868 leaves the approval of the location of a proposed roof sign in any area in the absolute discretion of the Building Commissioner. It contains no indicia to be applied by him in reaching his conclusion either to approve or disapprove. If in his uncontrolled and unqualified discretion he thinks it inappropriate that a sign, though complying with every requirement of the By-law, should be erected at a proposed location he may refuse a permit for it. This is an illegal delegation to the Commissioner of a power exercisable only by the Municipal Council. Whether or not, as a matter of civic planning, a sign in a given area should or should not be permitted, is a matter on which the Municipal Council as the governing body of the Municipality, must apply its own judgment; it cannot delegate that function to a municipal official.

Having so construed this section of the by-law the Court of Appeal went on to consider the effect of s. 3 of The City of Toronto Act, 1939 (Ont.), 3 Geo. VI, c. 73. Subsection (1) of that section reads as follows:

(1) The Ontario Municipal Board may approve by-law No. 9868 passed by the council of the said corporation entitled “A By-law to regulate the erection and provide for the safety of buildings” and any by-law passed by the said council amending such by-law or containing provisions

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regulating the erection or providing for the safety of buildings, and upon such approval being given any such by-law shall be deemed to have been validated and confirmed.

On February 25, 1942, the Ontario Municipal Board made an order “under and in pursuance of Section 3 of the City of Toronto Act 1939” that By-law no. 9868 as amended by. 88 specified by-laws be approved. Of the 68 amending by-laws, 61 were passed before and 7 after the enactment of the City of Toronto Act, 1939.

Laidlaw J.A., who dissented, was of the view that s. 3(1) of the City of Toronto Act, 1939 was valid legislation and that the combined effect of that section and of the order of the Municipal Board was to give statutory validity to By-law no. 9868, at all events as regards section 3 of chapter 31 which had not been amended at any time. The majority reached the conclusion that s. 3(1) of the City of Toronto Act, 1939 was ultra vires of the Provincial Legislature, that consequently section 3 of chapter 31 of the by-law had not been validated, that since, as they had construed it, it purported to give to the Building Inspector an uncontrolled discretionary power to refuse an application which complied with every requirement of the by-law it was beyond the powers of the council to enact it, and accordingly ordered that the permit should issue.

The first question is as to the true construction of the by-law and particularly section 3 of chapter 31.

The by-law must be construed as of the date when it was enacted, some 16 years before the passing of the statute which purports to give the Municipal Board power to validate it. In 1923, the rule concisely stated by Middleton J.A. in Forst v. City of Toronto[3], had long been the established law in Ontario. I refer particularly to the following passage:

When the municipality is given the right to regulate, I think that all it can do is to pass general regulations affecting all who come within the ambit of the municipal legislation. It cannot itself discriminate, and give permission to one and refuse it to another and, a fortiori, it cannot give municipal officers the right, which it does not possess, to exercise a discretion and ascertain whether as a matter of policy permission should be granted in one case and refused in another.

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It is not suggested that the Court of Appeal laid down any new rule in that case; it applied well settled rules to the by-law there in question.

It is a rule of construction that if the words of an enactment so permit they shall be construed in accordance with the presumption which imputes to the enacting body the intention of limiting the operation of its enactments to matters within its allotted sphere. I agree with the following statement in McQuillin on Municipal Corporations, 3rd ed., vol. 9, at p. 138:

Furthermore, licensing ordinances will be construed, if possible, as not vesting legislative power or absolute discretion in enforcement officials with respect to the grant or issuance of a license.

When section 3 of chapter 31 of the by-law is read, as it must be, in the context of the rest of the chapter and of the whole by-law, I am unable to construe it as conferring any uncontrolled discretion upon the Inspector.

Chapter 1 of the by-law is entitled “General Provisions”; it contains cross-references to other chapters including chapter 31; it provides by section 1:

The Commissioner of Buildings, shall be the Inspector of Buildings, whose duty it shall be to see that the provisions of this By-law are carried out.

Chapter 2 provides in part:

For the purpose of this By-law,

PERMIT, when issued by the Commissioner, shall mean certification by him to the effect that the plans and specifications submitted for examination and approval, comply, or have been made to comply, with the requirements of this By-law.

As already indicated, chapter 31 deals in several places with the location of signs. In my view, on its true construction it places upon the Inspector the duty of ascertaining that the plans, drawings and specifications filed in support of an application for a permit to erect a sign not only comply with all relevant provisions of the by-law as to method of construction, loads, stresses and so forth, but also show that its proposed location is in accordance with the

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provisions of sections 5(1), 5(2) and 13(3) of chapter 31 quoted above; the purpose of requiring the applicant to file the material required by section 2(2) of chapter 31 is to enable the Inspector to certify as to these matters. No doubt the Inspector would also have to consider whether there was in existence any by-law such as the “University Avenue By-law” referred to above prohibiting the erection of signs in the area in which the sign is proposed to be located.

In my opinion, if the Inspector is satisfied that all the requirements of the by-law are fulfilled and that there is no applicable prohibitory by-law, he has no discretion to refuse to approve the location of the sign and so refuse a permit. The by-law states with sufficient particularity the grounds on which the approval of a proposed location is to be granted or withheld.

As the appeal was argued on the footing set out in the passage from the reasons of Roach J.A. quoted above, it follows that, in my opinion, the order of the Court of Appeal directing the permit to be issued was right and should be affirmed, and it becomes unnecessary to consider the question of the constitutional validity of s. 3(1) of the City of Toronto Act, 1939 since, construed as I think it ought to be, section 3 of chapter 31 of the by-law was passed in due exercise of the powers conferred on the council by the Municipal Act and required no statutory validation.

Counsel for the appellants and for the Attorney General of Ontario invited the Court to express an opinion as to the validity of the 1939 statute even if it should not become necessary for us to do so; but I do not think that we ought to do this. In view of the construction I have placed upon the provisions of the by-law with which we are concerned, anything said as to the constitutional validity of the City of Toronto Act, 1939 would be obiter. The dismissal of the appeal, of course, does not constitute an affirmation of the view of the majority in the Court of Appeal on the constitutional point.

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I would dismiss the appeal with costs. There should be no order as to costs of the Attorneys-General who intervened.

Appeal dismissed with costs.

Solicitor for the defendants, appellants: W.G. Angus, Toronto.

Solicitors for the plaintiff, respondent: McDermott, McMahon, Rogers & Mingay, Toronto.