Min-En Laboratories Ltd. v. Board of Variance of City of North Vancouver et al., [1978] 1 SCR 696

Supreme Court of Canada

Min-En Laboratories Ltd. v. Board of Variance of City of North Vancouver et al., [1978] 1 S.C.R. 696

Date: 1977-01-25

Min-En Laboratories Ltd. Appellant;

and

The Board of Variance of the Corporation of the City of North Vancouver and Prossegger Construction Ltd. Respondents.

1976: December 15; 1977: January 25.

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

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Municipal law—Power of Board of Variance to exempt parties from application of zoning by‑law—Proof of undue hardship—Municipal Act, R.S.B.C. 1960, c. 255, ss. 702, 703, 704, 706 and 709.

The appellant challenged the validity of an exemption to a zoning by-law granted by the first-named respondent to the second-named respondent on the grounds that the latter had failed to show that it was unduly prejudiced by the by-law, while the appellant would be put to considerable expense in re-organizing his property as a necessary result of the exemption. The trial judge found that there was no evidence of undue hardship, and that the Board had exceeded its jurisdiction in granting an exemption that constituted a substantial departure from the by-law and was likely to injure the appellant. His judgment was reversed by the British Columbia Court of Appeal on the grounds that whether or not there was undue hardship was a question of fact to be decided by the Board and that the owner of any property in the zoned area must be subject not only to the zoning by-laws but also to the exempting powers of the Board of Variance.

Held (Spence J. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Martland, Ritchie and Dickson JJ.: Under s. 709 of the British Columbia Municipal Act, the Board of Variance has no power to exempt persons from by-laws that relate to the use of property, but it has broad powers to allow variations in the siting, size and shape of buildings that amount to exemptions from the zoning by-laws. The Courts cannot reduce a power conferred by statute and the power given to the Board of Variance under the Municipal Act must have been intended to relieve the reviewing Courts of the task of distinguishing between degrees of variance. The only point of substance to be decided was whether the second-named respondent would suffer undue hardship by strict application of the zoning by-laws and it was up

[Page 697]

to the Board to decide how much leeway to grant in order to relieve a property owner in the zone from hardship.

Per Spence J., dissenting: The function and jurisdiction of the Board of Variance under s. 709 of the Municipal Act must be determined after consideration of the Act as a whole, notably: s. 702, which authorizes the Council to zone and regulate the use of land bearing in mind, among other factors, the preservation of the amenities and value of the land, the nature of its use and occupancy and the fulfillment of community goals; ss. 703 and 704 which require a public meeting followed by a two-thirds majority vote before zoning by-laws can be passed; and s. 706, which states that property should not be deemed to have been injuriously affected by a zoning by-law and which must apply equally to any amendment thereto. It is the duty of Council to enact and amend zoning by-laws on the basis of certain considerations and following prescribed procedures and ss. 703 and 704 of the Act show that the legislature intended that power to be exercised by Council alone. In the scheme of the Act, s. 709 is confined to minor changes to meet cases of hardship resulting from the strict application of the by-laws and to give the Board the powers allowed in the case at bar permits it informally to amend the by-laws, which it is not empowered to do. A proper interpretation of the Board’s power would be to permit variances only to the extent that they do not eliminate the concept of the area as reflected by the by-law. The variation in question materially affected the concept and therefore should be disallowed. Re Bidie, [1948] 2 All E.R. 995; Lymburn v. Mayland, [1932] A.C. 318; Shannon v. Lower Mainland Dairy, [1938] A.C. 708; Lumsden v. Commissioners of Inland Revenue, [1914] A.C. 877; Oxford v. Sangers, [1965] 1 Q.B. 491; In re W., Spinster, [1962] 1 Ch. 918, and The Queen v. The Judge of the City of London Court, [1892] 1 Q.B. 273, referred to

APPEAL from a judgment of the Court of Appeal for British Columbia reversing a judgment of Anderson J. Appeal dismissed, Spence J. dissenting.

G. Kroll, for the appellant.

J. Molson, for the respondent, Board of Variance.

[Page 698]

B.A. Crane, for the respondent, Prossegger Construction Ltd.

The judgment of Laskin C.J. and Martland, Ritchie and Dickson JJ. was delivered by

THE CHIEF JUSTICE—This appeal, which is here by leave of this Court, concerns the validity of an exemption from the setback provisions of a zoning by-law granted by the North Vancouver Board of Variance pursuant to s. 709(1)(c) of the Municipal Act, R.S.B.C. 1960, c. 255, as amended. The Board’s decision granting the exemption to Prossegger Construction Ltd. was challenged on certiorari by the appellant, an adjoining property owner. Anderson J. quashed the Board’s determination on the ground that the Board exceeded its jurisdiction in making it. His judgment was reversed by a majority judgment of the British Columbia Court of Appeal, Seaton J.A. dissenting.

Section 709(1) of the Municipal Act reads as follows:

709. (1) The Board of Variance shall hear and determine any appeal

(a) by a person who is aggrieved by a decision of any official charged with the enforcement of a zoning by-law or a by-law under subsection (5) of section 711 in so far as that decision relates to an interpretation of the by-law or by-laws or any portion thereof; and

(b) with respect to matters mentioned in subsection (4) of section 705; and

(c) by an applicant for a permit who alleges that enforcement of a zoning by-law with respect to siting, size, or shape of a building or of a structure would cause him undue hardship, in which case the Board may, to the extent necessary to give effect to its determination, exempt the applicant and subsequent owners of the building or structure from the applicable provisions of the zoning by-law; and

(d) with respect to matters mentioned in subsection (3) of section 705 and subsection (7) of section 711.

The properties owned by the appellant and by Prossegger were in industrial zone M-3 under the

[Page 699]

applicable zoning by-law which required that buildings and structures in that zone be sited not less than twenty feet from a lot line. The appellant’s property was a lot with a fifty-foot frontage and a depth of one hundred and forty-seven feet. It had bought the lot without checking the zoning by-law and found later that its proposed use of it for a warehouse would necessitate obtaining an exemption from the setback requirements. On a strict application of the zoning by-law it could not put up a building on its lot that was more than ten feet wide. An owner of the lot immediately to the west, a lot of exactly the same size, obtained an exemption from the zoning by-law to enable it to build to the limit of its fifty-foot frontage. Prossegger had applied earlier than its westerly neighbour for an exemption but because the required notices were not given to adjacent owners, a decision granting the exemption was annulled and Prossegger was allowed to renew its application. Hearings took place, and the appellant objected that its business would be injuriously affected if Prossegger was allowed to build a fifty-foot warehouse on its frontage.

The appellant owned an eighty-foot lot immediately to the east of the Prossegger lot, and the building in which it carried on its laboratory business of scientific soil, air and water analysis was put up in compliance with the by-law. The appellant contended that it relied on the forty‑foot open area, which the by-law envisaged, in erecting its cleaning system and that it would be involved in considerable expense if it had to redesign it. The Board of Variance after hearing representations on behalf of Prossegger and of the appellant granted the exemption.

In quashing the decision of the Board Anderson J. made three findings, as follows:

(1) There was no evidence of undue hardship.

(2) The Board has no jurisdiction to make a determination substantially departing from the zoning by-law.

(3) The Board has no jurisdiction to make any determination injuriously affecting the property of an adjacent owner.

[Page 700]

In his written reasons he pointed to the incongruity of the Board of Variance being allowed to authorize a wide departure from the zoning by-law when the municipal Council could not amend it without meeting statutory requirements. He would read s. 709(1)(c) as permitting only minor variances, especially in view of the fact that no appeal lay against the Board’s determinations under that provision whereas appeals to the County Court judge were provided in respect of determinations under s. 709(1)(a) and (b).

The British Columbia Court of Appeal, in a majority judgment by McFarlane J.A., pointed out that the Board’s exemption did not cover front and rear setbacks but only the side setbacks. It was its view that both Prossegger and the appellant, and indeed any other owner of property in the M-3 industrial zone, must be taken to be subject not only to the zoning by-law but also to the exempting power of a Board of Variance which a municipality is obliged to establish, under s. 708 of the Municipal Act, if it adopts a zoning by-law. The Court was of the view that it was for the Board to determine whether there was undue hardship if the by-law was enforced with respect to the siting of the building which Prossegger proposed to erect, and if it so decided it could grant such exemption in respect of siting as it considered necessary. The decision of the Board was one of fact and was not as such reviewable on certiorari. In his dissenting reasons Seaton J.A. was of opinion that the Board had rezoned rather than merely exempted and thus exceeded its jurisdiction.

I think it important to note that the Board of Variance has no power to exempt in respect of use of land as fixed by the zoning by-law. Its power to allow variances in respect of siting, size and shape of structures is certainly very broad; the power is to exempt, without qualification, and goes beyond the power given to similar bodies in Ontario where it is restricted to allowing “minor variances”. There is no warrant in a court cutting down the

[Page 701]

unqualified exempting power clearly given by the statute. It is for the Board to determine how far the exemption should go in respect of siting, size and shape, and necessarily any exercise of its exempting power by the Board will result in a particular modification of the zoning by‑law. The power given to the Board, in the terms in which it is couched, must have been designed to relieve a reviewing Court from making distinctions of degree in variances.

The only point of substance, in my opinion, raised in this case by the appellant relates to whether there was any evidence of undue hardship. In the context of the situation which arises when an owner seeks to make fuller use of a vacant lot than is permitted by the applicable zoning by-law so far as siting of a building is concerned, the Board may decide that to forbid him any leeway would be undue hardship. How much leeway goes to the unchallengeable power of the Board. The British Columbia Court of Appeal took this view, and I am not persuaded that it was wrong in sustaining against an attack by certiorari the finding and determination of the tribunal of first instance, the Board of Variance.

I would dismiss the appeal with costs.

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal of British Columbia pronounced on January 6, 1976. By that judgment, the said Court of Appeal allowed an appeal from the judgment of the Honourable Mr. Justice Anderson pronounced on November 21, 1975. Mr. Justice Anderson had quashed what was termed a “determination” by the Board of Variance of the Corporation of the City of Vancouver. The decision of the said Board of Variance would appear to be set out in the following excerpt from the minutes of the meeting thereof:

Moved by Mr. King, seconded by Mr. Anderson, THAT the appeal of Peter Kaffka, Architect, on behalf of Prossegger Construction Limited, by Rolf Lang, with respect to the proposed construction of a warehouse at 713 West 15th Street, be approved. CARRIED.

[Page 702]

The meeting adjourned at 11:00 A.M.

I have had the privilege of reading the reasons for judgment upon this appeal to be delivered by the Chief Justice and I accept the facts as set out therein with such additions as I shall deem necessary for the purposes of these reasons. I must, however, differ with the conclusions as set out therein.

The Chief Justice has quoted the provisions of s. 709(1) of the Municipal Act of the Province of British Columbia upon which the application for variance by the respondent Prossegger Construction Ltd. was submitted. It will be seen that the application fell to be considered under the provisions of para. (c) of that subsection. It is not my intention to consider whether or not what is termed in the said para. (c) as “undue hardship” was established. In my view that was a question of fact which lay to be determined by the Board of Variance and it is not a proper matter for review before Anderson J., the Court of Appeal for British Columbia, or this Court unless it could be said that there was no evidence of “undue hardship”. I must note, however, that it is difficult to find such evidence in this case as the respondent Prossegger purchased this 50-foot lot with the intention of erecting a building covering the lot from one sideline to the other and if he did not know that the by-law prohibited such erection then he should have known and could have easily so determined by merely carrying out the proper searches in the proper offices. Had I been a member of the Board of Variance, I would have been of the strongest view that these circumstances did not constitute “undue hardship” but the members of that Board found such a characteristic existed and it may be said that there was some evidence upon which the Board could come to such a conclusion.

I am of the opinion, however, that the function and jurisdiction of the Board of Variance under s. 709(1) may only be determined after consideration of the Municipal Act as a whole and particularly of ss. 702 ff. Therefore, the power of the Board to consider an allegation that the enforcement of a zoning by-law with respect to siting, size or shape of a building would cause undue hardship can only be determined by fitting into the scheme of the

[Page 703]

statute this Board of Variance: See Lord Greene in Re Bidie[1], at p. 998; Lymburn v. Mayland[2], at p. 323; Shannon v. Lower Mainland Dairy[3], at p. 718; Lumsden v. Commissioners of Inland Revenue[4], at p. 892; Oxford v. S angers[5], at p. 499; Re W., Spinster[6], and particularly Lord Esher M.R. in The Queen v. The Judge of the City of London Court[7], at p. 290:

If the learned judge meant to say that, when the meaning of general words is (if you look at them by themselves) clear, that determines their construction at once, even though from the context—from other parts of the same Act—you can see that they were intended to have a different meaning; if he meant to say that you cannot look at the context—at another part of the Act—to see what is the real meaning, then again I say he has laid down a new rule of interpretation, which, unless we are obliged to follow it in the particular case, I would not follow.

It is not necessary to quote those sections in extenso but they may be summarized as follows.

Section 702 authorizes the Council to, by by-law, divide the whole or the portion of any area of the municipality into zones and to regulate the use of the land, buildings and structures within such a zone. By subs. (2) of s. 702, the Council was directed to have due regard to considerations including the promotion of health, safety, finance and welfare of the public, the prevention of overcrowding of land, and the preservation of the amenities peculiar to the zone, the securing of adequate light, air and access, the value of the land and the nature of its present and prospective use of occupancy, the character of each zone and the conservation of property values.

[Page 704]

Section 702A contained further directions as to matters which the Board should consider including, inter alia, the fulfilment of community goals.

Section 703 of the statute provided that Council should not adopt a zoning by-law until it had held a public meeting notice of which had been published in detail. At such a hearing, all persons who deemed their interests in property to be affected by the proposed by-law should be afforded an opportunity to be heard.

By section 704, the zoning by-law could only be adopted, amended or repealed after such a hearing and upon the affirmative vote of at least two-thirds of the members of Council.

By a most important provision contained in s. 706, property should not be deemed to have been taken or injuriously affected by reason of the adoption of a zoning by-law. In my view, that section would apply to the amendment of a zoning by-law.

The provisions of s. 709(1) have already been quoted.

A survey of these sections indicates that there was left to Council only the duty of enacting or amending zoning by-laws and Council in the performance of such duty was, by the provisions of the statute, hedged about by detailed provisions as to the form of its procedure and the matters which it was proper for it to consider in coming to its decision. The provisions requiring a hearing after notice to interested parties and requiring a two-thirds majority of Council to either enact or amend a zoning by-law are most indicative of the intention of the Legislature to have this duty carried out only by Council and then only after the compliance with carefully detailed procedures and only by two-thirds majority. As I have said, these provisions are followed by s. 709 of the Municipal Act. Despite its broad words, I am of the opinion that in that scheme s. 709 should only be confined to slight changes to meet cases of undue hardship arising, perhaps by accident, in the rigorous application of the by-law.

[Page 705]

In the present case, the lands were zoned M-3. The by-law only set out in particular the uses permitted for lands with an M.3 zone, and in para. 703 of the by-law provided:

703. Size, Shape, and Siting of Buildings and Structures in Industrial Zones

Buildings and structures in Industrial Zones

(1) shall not exceed a height of 40 feet in M-1, M-2, M-3 and M-4 Zones; except that when situated in an M-1 or M-4 Zone on a lot located on First Street between Forbes Avenue and St. Andrews Avenue, the building shall not exceed a height of 15 feet measured from the building grade, established on the street or lane adjoining the north side of the lot;

(2) in the M-1, M-2, and M-4 Zones, shall not be sited less than ten feet from a lane, and in the M-3 Zone shall not be sited less than twenty feet from a lot line.

Having in mind that the Council was, by the provisions of the statute to which I have already referred, directed to consider the prevention of the over-crowding of land and the preservation of the amenities peculiar to any zone, the securing of adequate light, air and access, the character of the zone and the character of buildings already erected and the fulfilment of community goals, it will be seen that the by-law envisaged for lands within this zone buildings to be used for light industrial purposes well separated from each other, from each lot line and from each street line. The buildings therein were restricted to only 15 feet in height measured from the building grade.

To give the Board of Variance the power urged by the respondent Prossegger and adopted by the Court of Appeal for British Columbia, in my opinion, would permit the Board of Variance, by the informal type of consideration under s. 709, to set aside all the considerations which moved Council and utterly change the whole type of utilization of the lands within the zone in so far as the buildings which might be erected thereon. The present application is a rather drastic example. The lot in question was only 50 feet in width. The by-law would then have permitted only a building

[Page 706]

20 feet from each lot line, i.e., one erected on the centre 10 feet and one 15 feet in height. What the respondent has been able to obtain is a building erected on the whole of his lot from one sideline to the other and that building immediately adjoins one already erected on the adjoining lot so that over the course of 100 feet of frontage there will be a building 100 feet in length covering both of those 50-foot lots. It has been said that the respondent Prossegger and his neighbour could have taken a procedure to have their two lots joined as one lot in which case, under the by-law, they could have erected a building 60 feet in length and still maintain a border of 20 feet of vacant land at each of the side lot lines. If the words of s. 709 of the Municipal Act are given the broad interpretation urged, they would permit a variance not only of the site so far as the side lines are concerned but also of the front lines of the building and of the height of the building. So Prossegger might have urged undue hardship in not being permitted to build to the street line on his small lot or of not being able to build a building twice the height of the building permitted by the by-law. On the same criterion adopted by the Court of Appeal for British Columbia those “variances” would be within the power of the Board of Variance to grant. The exercise of any such power would have set at naught the carefully considered scheme exemplified by the provisions of the zoning by-law.

It was emphasized in argument that the powers of the Board of Variance as granted in s. 709 of the statute did not include a power to alter the provisions of the by-law as to the use of the premises and that, therefore, it could not be said that the Board of Variance was empowered to amend the by-law. This argument does not persuade me. Given the interpretation urged by the respondent Prossegger, the Board of Variance would have the power to amend the by-law in many important particulars, despite its lack of power to amend the by-law as to the use of land. The appellant purchased lands and erected a building with setbacks of 20 feet from each lot line. The purpose of its use of the building required

[Page 707]

that the buildings erected on adjoining lands should be similarly set back. Its ability to use the building it erected properly in accordance with the by-law is destroyed just as much by the erection on the immediately adjoining lands of a building flush up to the lot line whatever the use to which that latter building is put.

In so far as the appellant is concerned, the zoning scheme upon which it had depended and upon which it had a right to depend is as much defeated by the erection of a building flush with a lot line on adjoining lands as it would have been by the improper use of any building erected on those lands.

I am of the view that a proper interpretation of the Board’s powers under s. 709 would be to permit such variance as would not have eliminated the concept of the M-3 zoning as that concept is reflected in the by-law, and the power given in s. 709(1)(c) to “exempt the person and subsequent owners of the building” should be so interpreted. It is perhaps interesting that at the very meetings in which the respondent Prossegger’s application for exemption was considered the Board of Variance considered another application falling exactly within such classification, that is, one for a six-inch relaxation of the side yard requirement, and such application was refused. So that the Board at one meeting refused a six-inch exemption and permitted a 40-foot exemption.

For these reasons, I would allow the appeal and restore the judgment of Anderson J. quashing the decision of the Board of Variance. The appellant is entitled to its costs throughout.

Appeal dismissed with costs, SPENCE J. dissenting.

Solicitors for the appellant: Kroll, Anfield, Vancouver.

Solicitors for the respondent, Board of Variance: Bull, Housser, Tupper, Vancouver.

Solicitor for the respondent, Prossegger Construction Ltd.: C.A. Pritchard, Vancouver.