Bell v. R., [1979] 2 SCR 212

Supreme Court of Canada

Bell v. R., [1979] 2 S.C.R. 212

Date: 1979-04-24

Douglas Bell (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1978: October 31, November 1; 1979: April 24.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Municipal law—Planning—Zoning by-law—Validity of by-law purporting to limit land use—Right of municipality to regulate not only the use of the building but also who used it—Reasonableness—Intention of legislature—The Planning Act, R.S.O. 1970, c. 349, s. 35—The Municipal Act, R.S.O. 1970, c. 284, s. 241(2), 242.

By-law 7625 made by the Council of the Borough of North York pursuant to s. 35 of The Planning Act, R.S.O. 1970, c. 349, purported to set out permitted uses in various land use and residential zones in particular limiting the use of certain residential zones to “dwellings, semi-detached dwellings and duplex dwellings” as defined in the by-law. “Dwelling Unit” was defined as a separate set of living quarters designed or intended for use by an individual or one family alone. “Family” was defined as a group of two or more persons living together and interrelated by bonds of consanguinity, marriage or legal adoption occupying a dwelling unit. The appellant was the tenant of a detached duplex but by arrangements with two other persons unrelated to him he and his fellows shared jointly the costs of the operation of the household. He was convicted for a violation of the by-law. On appeal by way of trial de novo the conviction was set aside and an appeal to the Divisional Court from that decision was dismissed, on the basis that parts of the by-law were unreasonable and ultra vires the municipality. On further appeal the Court of Appeal disagreed and in holding that the appeal should be allowed relied on Polai v. City of Toronto, [1973] S.C.R. 38, as directly in point and binding.

Held (Martland and Ritchie JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Spence and Dickson JJ.: The case of Polai involved a different factual situation in which substantial structural alteration converted a separate self-contained dwelling into a building of many rentable single family units. The appellant here made no

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structural alterations but simply occupied what was and what remained a self-contained residential unit with two other persons who contributed with him in some fashion to the upkeep of the household. The only bar to his so doing was the definition of a “dwelling-unit” as “a separate set of living quarters designed or intended for use or used by an individual or one family alone…” and the definition of “family” as “…a group of two or more persons living together and inter-related by bonds of consanguinity, marriage or legal adoption, occupying a dwelling unit. . .”. The power to enact the by-law comes from s. 35(1) of the Act which in para. 1 authorizes by-laws “For Prohibiting the use of land,…”, in para. 2 “For Prohibiting the erection or use of buildings…”, and in para. 4 for regulating, inter alia, the character and use of buildings. While the doctrine of unreasonableness permitting the declaration of invalidity as to municipal by-laws has been very much limited by the provisions of The Municipal Act, in view of the many possible inequitable applications of the definition of “family”, the by-law in its device of adopting “family” as defined as the only permitted use of a self-contained dwelling unit is oppressive and unreasonable. The legislature did not intend to give authority to make such rules; and the purporting zoning by reference to the relationship of occupants rather than the use of the building is ultra vires of the municipality under the provisions of The Planning Act.

Per Martland and Ritchie JJ. dissenting: While the reasons in Polai in this Court do not refer to the contention of counsel for the appellant therein that the definition of “private detached dwelling house” in the zoning by-law there under consideration was ultra vires, that submission, which had been rejected by the Court of Appeal, was made in argument before this Court. Had it been successful, the appellant would have been entitled to succeed. The judgment of this Court, although not in terms, rejected that argument. The decision that that definition in Polai was intra vires leads to the conclusion that the definitions here in issue are also intra vires. Further the specific provisions of s. 35(1) of The Planning Act empowered the respondent to enact the provisions of the by-law which apply here. The by-law being within the express powers of the respondent to enact, if it was enacted bona fide, and there is no suggestion that it was not, should not be held invalid because some of the consequences of its application might be regarded by the Court as unreasonable.

[Polai v. Corporation of the City of Toronto, [1973] S.C.R. 38, affirming [1970] 1 O.R. 483 distinguished;

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Re Howard v. City of Toronto (1927), 61 O.L.R. 563; Kruse v. Johnson, [1898] 2 Q.B. 91; Scott v. Pilliner, [1904] 2 K.B. 855; Mixnam’s Properties Ltd. v. Chertsey Urban District Council, [1964] 1 Q.B. 214 applied.]

APPEAL from a judgment of the Court of Appeal for Ontario[1] allowing an appeal from a judgment of the Divisional Court[2] dismissing an appeal from a judgment on a trial de novo setting aside a conviction resulting from an alleged violation of a municipal zoning by-law, By‑law No. 7625 of the Borough of North York. Appeal allowed, Martland and Ritchie JJ. dissenting, acquittal by the County Court Judge affirmed.

Barry B. Swadron, Q.C., Gordon Fulton and Susan Himel for the appellant.

John J. Robinette, Q.C., and H. Ibsen, for the respondent.

The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on April 20, 1977. By that judgment, the said Court of Appeal for Ontario allowed an appeal from the decision of the Divisional Court of Ontario pronounced on December 3, 1975, and restored a conviction made by the Justice of the Peace on February 15, 1974.

The appellant had been accused in an Information which read:

that you during the six months ending June 13/73 being within an RM2 Zone use a part of a building, which part is known as 18 Rambler Place, Borough of North York, for the use by other than one family alone, NAMELY, the use by unrelated persons.

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The appellant was convicted by the Justice of the Peace on February 15, 1974, and appealed to the County Court from such conviction. His Honour Judge Hogg, in the County Court of the Judicial District of York, by his judgment of April 25, 1975, allowed the said appeal and quashed the conviction. The Crown appealed to the Divisional Court of the Supreme Court of Ontario and that appeal was dismissed by the judgment of that Divisional Court dated December 3, 1975, the reasons for judgment being given by Estey C.J.H.C., as he then was. The Crown further appealed to the Court of Appeal for Ontario and the Court of Appeal allowed the appeal in the judgment which I have already recited.

The relevant sections of by-law 7625 to be considered, I set out hereunder as follows:

s. 17.1	USES PERMITTED
	Dwellings, Semi-detached
	Dwellings, duplex
s. 2.32.6	“Dwelling, Semi-detached” shall mean a building divided vertically into two dwelling units.
s. 2.32.7	“Dwelling Unit” shall mean a separate set of living quarters designed or intended for use or used by an individual or one family alone, and which shall include at least one room and separate kitchen and sanitary conveniences, with a private entrance from the outside or from a common hallway or stairway inside.
s. 2.36	“Family” means a group of two or more persons living together and inter-related by bonds of consanguinity, marriage or legal adoption, occupying a dwelling unit, and shall include the following:
	(a) Non-paying guests and domestic servants;
	(b) A property owner living alone except for two other persons not related;
	(c) Not more than three foster children under the care of a children’s aid society approved by the Lieutenant Governor in Council under the Child Welfare Act, 1965.

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s. 2.9

“Boarding or Lodging House” shall mean a dwelling in which lodging with or without meals is supplied for gain, but shall not include an hotel, hospital, children’s home, nursing home, home for the aged or other similar establishment.

The Council of the Borough of North York purported to enact the said by-law by virtue of the provisions of s. 35(1) of The Planning Act, R.S.O. 1970, c. 349. I cite the relevant provisions of s. 35(1) of The Planning Act:

35. (1) By-laws may be passed by the councils of municipalities:

1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.

2. For prohibiting the erection or use of buildings or structures for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway.

. . .

4. For regulating the cost or type of construction and the height, bulk, location, size, floor area, spacing, external design, character and use of buildings or structures to be erected within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway, and the minimum frontage and depth of the parcel of land and the proportion of the area thereof that any building or structure may occupy.

It was the opinion of both Estey C.J.H.C., as he then was, giving reasons for the Divisional Court, and of MacKinnon J.A., giving reasons for judgment for the Court of Appeal, that the sole basis for the enactment of the said by-law was the said s. 35(1) and that, therefore, it was unnecessary to consider the general power to enact by-laws appearing in s. 242 of The Municipal Act, R.S.O. 1970, c. 284, or the provisions of s. 241(2) of the said Municipal Act which barred the holding of any by-law enacted by virtue of the powers granted in that Municipal Act being invalid on the grounds of unreasonableness.

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The appellant Douglas Bell and two persons not related by blood, marriage or adoption occupied as co‑occupants a detached duplex at 18 Rambler Place, in the Borough of North York. So far as the landlord was concerned, the appellant Douglas Bell alone was the tenant but by arrangement with his fellows the costs of the operation of the household were shared jointly. There is no doubt that these three people did not come within the permitted uses of a “dwelling unit” in s. 2.32.7 of by-law 7625, and if the prohibition in the said by-law 7625 is to be applied literally, then the occupation by the appellant Douglas Bell as a co-occupant is in contravention of the by-law.

The argument by the appellant before this Court and in the courts below was that the prohibition contained in s. 17.1 of the said by-law, when the definitions of “dwelling, semi‑detached” in s. 2.32.6 and of “dwelling unit” in s. 2.32.7 are considered, was an unreasonable and, therefore, an invalid exercise of the power created by s. 35(1) of The Planning Act.

His Honour Judge Hogg accepted this submission, and in doing so considered several cases to which I shall refer hereafter, adopting the principle set out in Kruse v. Johnson[3], Scott v. Pilliner[4], as further considered in Mixnam’s Properties Ltd. v. Chertsey Urban District Council[5], and concluded:

I think it is open to the Municipality to determine how a dwelling is used but not who can use that dwelling. The community in my opinion has no right to control the relationship of one citizen with another except in so far as that infringes on other citizens rights. I therefore am of the opinion that the By-law in question is unreasonable and is repugnant to our general law, and that it seeks to make unlawful that which is otherwise innocent.

In dismissing the appeal from the County Court Judge’s acquittal of the appellant, Estey C.J.H.C, as he then was, said:

By applying the principles enunciated in the authorities set out above, I come to the conclusion that the portions of the by-law which are relied upon in this prosecution

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are ultra vires the Borough of North York and therefore the appeal must be dismissed. By reason of the nature of these proceedings, it has not been the policy of this court to make any disposition as to costs.

However, in the Court of Appeal for Ontario, MacKinnon J.A., as he then was, based his allowance of the appeal by the Crown upon two separate grounds: firstly, that the courts in Ontario were bound by their own decision in City of Toronto v. Polai[6], as affirmed by this Court under the name Polai v. The Corporation of the City of Toronto[7], and, secondly, that the sections of the by-law attacked were not so offensive or discriminating, in the legal sense, as to be unreasonable and outside the legislative jurisdiction of the municipality and therefore were not ultra vires.

I turn first to consider the Polai case as decided in the courts of Ontario and affirmed in this Court.

Polai, the appellant, had purchased a residence in the College Heights area of the City of Toronto which had been covered by a zoning by-law the terms of which may be likened to, although they are not exactly the same as, the present by-law, and had by structural alterations created a considerable number of self-contained dwelling units therein, the whole without any building permit. She had been prosecuted for a breach of the building by-law, convicted and fined, but continued to occupy and to rent to others the various self-contained dwelling units, and the City of Toronto then began an application for an injunction under the provisions of s. 486 of The Municipal Act, which reads:

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.

The injunction there authorized had been denied by Haines J. and his decision was reversed in the

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Court of Appeal and that disposition was affirmed in this Court. One of the grounds of opposition set out by Polai in her defence upon the injunction was as follows:

5. In the alternative, the Defendant pleads that the definition of “private detached dwelling house” as it appears in the Plaintiffs By-law Number 20623 in Section 2 Subsection 46(b) is ultra vires the Plaintiff.

That defence to the injunction action was not accepted by Haines J. and in the Court of Appeal Schroeder J.A. said:

I entirely agree with the learned Judge’s disposition of these grounds of defence and I find it unnecessary to embark upon a fresh discussion or elaboration of the points involved.

When the appeal from that decision of the Court of Appeal for Ontario in that case came to this Court, section 32 of the appellant’s factum recited:

It is submitted that the definition of “private detached dwelling house” contained in Zoning By‑law No. 20623 is ultra vires the Plaintiff. The Corporation exceeds its powers under The Planning Act when it deviates from use as a criterion and imposes a restriction on the kind of people who may use a property. The definition of “private detached dwelling house” provided in the By-law literally excludes from the permitted use inter alia persons who live in a common law marital relationship, for example.

I was a member of the Court upon the hearing of the appeal when it came to this Court and the major discussion here was the alleged discriminatory application of the provisions of the by-law of the City of Toronto there in question based on the allegation that the municipality kept a secret preferred list of possible infractions of the by-law which council had determined should not be the subject of prosecution and that, therefore, the enforcement in the Polai appeal by application for an injunction should be refused. Judson J. gave reasons for this Court and a perusal of his reasons shows that he considered that ground of appeal alone. I am, therefore, of the opinion that whether or not the Court of Appeal for Ontario were bound by the decision in Polai upon the issue of the ultra vires nature of the provisions of the by-law as

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distinguished from the discriminatory nature of its enforcement, this Court is not bound.

I am, however, of the opinion that the factual situation in Polai cannot be applied to the decision of the present appeal. As I have pointed out, what was done in Polai was very different. There was a separate self-contained residence which had for a very long time been occupied by one family. Polai took that self-contained one-family residence and altered it by structural alterations at a cost of $20,000 so that it was a building containing many single family units which she rented to various tenants and in which, therefore, she carried on a business.

The appellant in the present case made no structural alterations whatsoever. The building when he went into it contained a self-contained dwelling unit and it still contains a self‑contained dwelling unit with exactly the same conveniences as before. The appellant simply occupied it with two others who contributed in some fashion to the upkeep of the household. The only bar to his so doing is the definition appearing in by-law 7625 in s. 2.32.7 of a “dwelling unit” as being “a separate set of living quarters designed or intended for use or used by an individual or one family alone…” and the definition of “family” in s. 2.36 as “…a group of two or more persons living together and inter-related by bonds of consanguinity, marriage or legal adoption, occupying a dwelling unit…”.

The power to enact the by-law in question, as I have said, comes from s. 35(1) of The Planning Act which in para. 1 authorizes by-laws for prohibiting the use of the land, in para. 2 for prohibiting the erection or use of buildings, and in para. 4 for regulating, inter alia, the character and use of buildings.

I am in exact agreement with His Honour Judge Hogg when he said that the by-law in question restricted the occupation to “family” and then defined “family” by reference to consanguinity, marriage and adoption only, and so was not regulating the use of the building but who used it. The same view was reflected by Estey C.J.H.C., as he then was, in giving reasons for the Divisional

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Court, and Brooke J.A. in the Court of Appeal for Ontario, although he was of the view, with which, with respect, I disagree, that that court was bound by the decision of this Court in Polai. Brooke J.A. said:

I do not think personal qualification of this type or other personal characteristics or qualities have ever been suggested here as a proper basis for control of density or any issue relevant to land use or land zoning. Such a submission can only be supported on the basis of the statement in the City of Toronto v. Polai to the effect that municipalities are authorized to ensure the preservation of better residential districts by requiring them to be occupied by persons who are related (and not by unrelated people). This is land zoning by people zoning and is not within the scope of The Planning Act.

In all four courts in argument, the dire result of such a restrictive provision as to the occupation of property was pointed out. Estey C.J.H.C., as he then was, put it well in his reasons when he said:

Both counsel admitted before this court that the effect of such a provision of the By-law is to preclude the sharing of rented accommodations by two adult persons unrelated by blood or marriage, whether or not that accommodation be an apartment. For example, students attending a college in the Borough of North York, could not as tenants share apartment accommodation in or outside the college. There are endless examples, all of which inexorably lead this court to the conclusion that there are consequences which cannot reasonably be considered to have been in the mind of the enacting legislature, and which certainly were not within the contemplation of the provincial legislature when it enacted s. 35 of The Planning Act. Such possible consequences would require the clearest possible language in the ensuing legislation.

That circumstance was regarded as of no telling effect by the Court of Appeal for Ontario, it being said:

The by-law was not “aimed” at unmarried couples or elderly widows or at any other particular individuals, or, indeed at any other particular individuals, or, indeed at anyone’s moral conduct. As has been said in another connection, consequential effects are not the same as legislative subject matter.

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I am in agreement with the view as expressed so aptly by Masten J.A. in Re Howard v. City of Toronto[8], at p. 575:

What is or is not in the public interest is a matter to be determined by the judgment of the municipal council; and what it determines, if in reaching its conclusion it acted honestly and within the limit of its power, is not open to review by the Court…

The question of the relative balance of convenience or detriment to different persons is a matter which the Legislature has committed to the consideration and determination of the municipal council, and their judgment on that question, if bona fide exercised in what they believe to be the public interest, will not be interfered with by the Court: In re Inglis and City of Toronto, 9 O.L.R. 562, per Anglin, J., at p. 568; Re Mills and City of Hamilton (1907), 9 O.W.R. 731.

I also realize that the doctrine of unreasonableness permitting the declaration of invalidity as to municipal by-laws has, by virtue of the provisions set out in The Municipal Act, lately been very much limited but I point out that even as limited the doctrine still exists and in Kruse v. Johnson, supra, Lord Russell, in holding for a strong Divisional Court that the particular by‑law was not ultra vires, said at pp. 99-100:

I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn by-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, “Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.” But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded.

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In view of the many possible inequitable applications of the definition of “family” which I have mentioned above, I am of the opinion that the by-law in its device of adopting “family” as being the only permitted occupants of a self-contained dwelling unit comes exactly within Lord Russell’s words as to be found to be “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men” and, therefore, as Lord Russell said, the legislature never intended to give authority to make such rules and the device of zoning by reference to the relationship of occupants rather than the use of the building is one which is ultra vires of the municipality under the provisions of The Planning Act.

For these reasons, I would allow the appeal, set aside the decision of the Court of Appeal for Ontario, and affirm the acquittal by the County Court Judge.

I am somewhat concerned as to the disposition of costs. This is an appeal in a summary appeal matter within s. 41 of the Supreme Court Act and I am of the opinion that this Court has jurisdiction to grant costs. Costs were not even mentioned in the reasons for acquittal by the learned County Court Judge. In the Divisional Court, it was said “by reason of the nature of these proceedings, it has not been the policy of this court to make any disposition as to costs”. In the Court of Appeal, it was simply said “there will be no costs of these proceedings” and with some reluctance I follow the latter course.

The judgment of Martland and Ritchie JJ. was delivered by

MARTLAND J. (dissenting)—I am in agreement with the reasons for judgment delivered by MacKinnon, J.A., in the Court of Appeal.

With respect to the judgment of this Court in Polai v. The Corporation of the City of Toronto[9],

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while it is true that the reasons for judgment in this Court do not refer to the contention of counsel for the appellant that the definition of “private detached dwelling house” contained in Zoning By-law No. 20623 was ultra vires of the municipality to enact, that submission, which had been rejected by the Court of Appeal, was made in argument before this Court. Had it been successful, the appellant would have been entitled to succeed. The judgment of this Court, although not in terms, rejected that argument. The definition of “private detached dwelling house” in the zoning by-law there in issue is very similar to the combined effect of the definition of “dwelling unit” and “family” in the by-law in issue in the present case.

The definition of “private detached dwelling house” in the by-law considered in the Polai case was as follows:

the whole of a dwelling house occupied or capable of being occupied by one person or two or more persons related by bonds of consanguinity, marriage or legal adoption, with or without one or more full-time domestic servants.

The definition of “dwelling unit” and of “family” in the by-law under consideration in the present case is:

“Dwelling Unit” shall mean:

a separate set of living quarters designed or intended for use or used by an individual or one family alone, and which shall include at least one room and separate kitchen and sanitary conveniences, with a private entrance from outside or from a common hallway or stairway inside.

“Family” means a group of two or more persons living together and inter-related by bonds of consanguinity, marriage or legal adoption, occupying a dwelling unit, and shall include the following:

(a) Non-paying guests and domestic servants;

(b) A property owner living alone except for two other persons not related;

(c) Not more than three foster children under the care of a children’s aid society approved by the Lieutenant Governor in Council under the Child Welfare Act, 1965.

The decision that the definition of “private detached dwelling house” was intra vires of the municipality in the Polai case leads to the conclu-

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sion that the definitions now in issue are also intra vires of the respondent.

I also agree with MacKinnon J.A., that the specific provisions of s. 35(1) of The Planning Act empowered the respondent to enact the provisions of By-law 7625 which apply in this case.

If the by-law was within the express powers of the respondent to enact, as I think it was, and if it was enacted bona fide, and there is no suggestion that it was not, it is my view that a court should not hold the by-law to be invalid because some of the consequences of its application might be regarded by the court as unreasonable. MacKinnon J.A., cited a passage from the judgment of Masten J.A., in Re Howard and City of Toronto[10], at p. 575, as summarizing the principles applicable in this case:

What is or is not in the public interest is a matter to be determined by the judgment of the municipal council; and what it determines, if in reaching its conclusion it acted honestly and within the limit of its powers, is not open to review by the Court:…

The question of the relative balance of convenience or detriment to different persons is a matter which the Legislature has committed to the consideration and determination of the municipal council, and their judgment on that question, if bona fide exercised in what they believe to be the public interest, will not be interfered with by the Court:…

The view expressed by Chief Justice Meredith in Leitch v. Strathroy[11] at p. 669, is to the same effect. It is as follows:

I have discussed the reasonableness of the course which was taken by the council and have expressed the opinion that it was reasonable, but I desire emphatically to disclaim any jurisdiction in the Court to review the action of a municipal council acting within its powers and in good faith. Granting these two things, it is for the council, and not for the Court, to determine whether an arrangement which it enters into is a reasonable one.

I would dismiss the appeal, without costs.

Appeal allowed, no costs in the proceedings, MARTLAND and RITCHIE JJ. dissenting.

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Solicitor for the appellant: Barry B. Swadron, Toronto.

Solicitor for the respondent: C.E. Onley, Toronto.