Sanbay Developments Ltd. v. City of London, [1975] 1 SCR 485

Supreme Court of Canada

Sanbay Developments Ltd. v. City of London, [1975] 1 S.C.R. 485

Date: 1974-04-29

Sanbay Developments Ltd. (Plaintiff) Appellant;

and

The Corporation of the City of London

and

John C. Dodd (Defendants) Respondents.

1974: January 31; 1974: February 1; 1974: April 29.

Present: Laskin C.J. and Judson, Ritchie, Pigeon and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Planning—Zoning By-law—“Holding” regulation pending amendment of zoning By-Law—The Planning Act, R.S.O. 1970, c. 349, s. 35(1)—The Judicial Review Procedure Act, 1971 (Ont.), c. 48.

The appellant applied for leave to bring an application for an Order, in the nature of a mandamus, directing the City of London and its building inspector to issue a building permit for a building, on certain land within the city, according to plans and specifications filed with the City. The order was made but set aside on appeal. The Court of Appeal decided that the by-law was not invalid by reason of discrimination.

Held: The appeal should be dismissed.

It was open to the respondent City to freeze development. As the policy pursued by it was clear and within its powers the mere addition in a holding regulation of superfluous words dealing with the future amendment of the by-law should not be take to invalidate the effective words in the holding regulation.

Toronto v. Mandelbaum, [1932] O.R. 552; Verdun v. Sun Oil Co. Ltd., [1952] 1 S.C.R. 222 distinguished.

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from a judgment of the Divisional Court[2] allowing an appeal from an order of Galligan J. Appeal dismissed with costs.

[Page 486]

D.L. Laidlaw, Q.C., and R.G. Slaght, for the appellant.

B.J. MacKinnon, Q.C., and R.D. Peck, for the respondents.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—This case originated in an application by the appellant for leave, pursuant to s. 6(2) of The Judicial Review Procedure Act, 1971 (Ont.), c. 48, to bring an application for an order in the nature of mandamus, directing the respondent City and its building inspector to issue a building permit for a 13-storey, 136 unit apartment building to be built on certain land in the city of London according to certain plans and specifications filed with the respondent. The order was made by Galligan J. in the terms requested, but was set aside on appeal to the Divisional Court of the Supreme Court of Ontario. Leave was given by the Ontario Court of Appeal for an appeal to it on a single question of law, framed as follows:

Is section 4 of By-law 306(bc)-504 of the Corporation of the City of London invalid for the reason that it permits discrimination or spot-zoning?

The Ontario Court of Appeal answered this question in the negative and dismissed the appellant’s appeal. The issue before that Court is now before this Court, as of right, under s. 36 of the Supreme Court Act, R.S.C. 1970, c. S-19.

The application for the building permit was made on June 16, 1972. The use of the land in respect of which the permit was sought, was governed by the City’s general zoning by-law 306-480, passed on September 6, 1966, as amended by by-law 306(b)-529 passed on September 19, 1966, and as amended further by by-law 306(bc)-504, passed on November 3, 1970. All these by-laws were approved by the Ontario Municipal Board which was a condition of their effectiveness. The land was situated in an area zoned “multi-family residence”, and

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among the permitted uses of land in this zone under s. 6(d) (ii) of by-law 306-480 was that of “apartment building containing six or more dwelling units provided such apartment building comply with all the regulations governing all apartment buildings and provided also that such apartment building comply with the regulations contained in section 11(c). 1”. (S. 6(d)(i) permitted, without any included qualification, apartment buildings containing a maximum of five (5) dwelling units.) Under s. 1 (ab) of the by-law “apartment building” was defined to mean a building originally constructed to contain three or more dwelling units. Section 11(c). 1 fixed the distance of apartment buildings from property lines and from the centre line of any original road allowance. Section 11(c) of the by-law prescribed height, site and area limitations in respect of buildings in the multi-family residence zone.

By-law 306(b)-529, in amendment of by-law 306-480, recited that it was passed to provide for “Holding Regulations governing the erection of buildings containing six or more dwelling units”. It added s. 11(c).1(a) to by-law 306-480 under the heading “Holding Regulation”, the effect of which was to forbid erection of any building until by-law 306-480 was amended to include a zoning map regulating the permitted development of such building, the zoning map to include, inter alia, certain area details. This added provision was repealed however by by-law 306(bc)-504 which also repealed s. 11(c).l, and as well repealed the height limitation of 80 feet for apartment buildings which had been part of by-law 306-480. By-law 306(b)-529 is hence immaterial to the issue in the present case which involves only by-law 306-480 as amended by by-law 306(bc)-504. If it has any relevance at all, it is in not negating any of the permitted uses under by-law 306-480.

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By-law 306(bc)-504, in addition to repealing s. ll(c).l and s. 11(c).1(a) and removing the height limitation on apartment buildings (which it did by ss. 5 and 3 respectively), also amended by s. 1 the permitted use provisions of s. 6(d) of by-law 306-480, substituting for the two classes of apartment buildings theretofore permitted under s. 6(d)(1) and (ii) the single class “apartment building”. The definition, already referred to, in s. 1(ab) of by-law 306-480 remained untouched. Section 4 of amending by-law 306(bc)-504 was as follows:

4. Section 11 is amended by inserting immediately under the heading “Area and Height Regulations”, the following:

“11. Holding Regulation: Notwithstanding any other provisions of this by-law to the contrary, no building or structure may be converted or erected to contain three or more dwelling units until this by-law has been amended to contain appropriate schedules and appendices defining the area and illustrating the permitted building areas, parking areas, useable open space areas, and external design, together with regulations governing the size, floor area, character, and use of such building or structure.”

The preamble to this amending by-law recited that it was expedient “to amend the regulations and to extend the holding regulations governing the conversion and/or erection of buildings containing six or more dwelling units to the conversion and/or erection of buildings containing three or more dwelling units”.

The building permit for which the appellant applied as agent for the owner of the land on which the appellant proposed to put up a 13-storey 136 unit apartment building was refused because, to quote from an affidavit of the City of London Zoning Administrator, “there is no application on file with the office of the Planning Commissioner. for an amendment to by-law number C.P. 306-480 as amended by by-law C.P. 306(bc)-504 to permit the

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erection of a 136 unit development on the subject site…as required by s. 11 thereof”. In effect, the appellant was told that it could not get a permit unless it obtained an amendment to the existing zoning by-law to permit the development it sought in this particular case. This view of the situation was emphasized by counsel for the respondent City who pointed to s. 35(22) of The Planning Act, R.S.O. 1970, c. 349, which reads as follows:

(22) Where an application to the council for an amendment to a by-law passed under this section or a predecessor of this section, or any by-law deemed to be consistent with this section by subsection 3 of section 13 of The Municipal Amendment Act, 1941, is refused or the council refuses or neglects to make a decision thereon within one month after the receipt by the clerk of the application, the applicant may appeal to the Municipal Board and the Municipal Board shall hear the appeal and dismiss the same or direct that the by-law be amended in accordance with its order.

This submission of the respondent’s counsel puts in focus the contentions of the appellant which were that (1) by-law 306(bc)-504 did not repeal but reaffirmed the permitted use of land in a multi-family residence zone for apartment buildings; (2) it did not affect the pre-existing controls which remained in force, apart from the provisions repealed by ss. 3 and 5 of by-law 306(bc)-504; (3) however, it superimposed upon the permitted use and controls in the general zoning by-law a requirement of another by-law that would individualize the requirements for a particular development beyond those already generally provided, although the development was for a permitted use.

It was common ground between counsel that it was open to the municipality to freeze development and even to require individual by-laws in respect of developments on different

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parcels of land. They differed sharply, however, on whether these objects could be achieved through the method adopted by the respondent in the present case. Counsel for the respondent contended that by-law 306(bc)-504 amounted to a general freeze on development, but that could only be as to apartment buildings because s.4 of this by-law (enacting a new para. 11 to s. 11 of by-law 306-480) did not freeze developments where less than three dwelling units were involved. The Court of Appeal viewed the situation as one where the municipality had validly exercised the power conferred upon it by s. 35(1) of The Planning Act to prohibit the use of land except for the purpose of two family dwelling units. The appellant’s view of the matter is, however, that there was no explicit definition of or limitation to two family dwelling units but rather an affirmation of permitted use for apartment buildings (under s. 1 of by-law 306(bc)-504) and then an attempt by s. 4 to reserve municipal discretion as to the appropriateness of any individual development of land for such a permitted use.

If use for apartment buildings was prohibited while there was a permitted use of the land for two family residences, that would conclude the present case against the appellant. It appears, therefore, that the issue herein comes down to the way in which the respondent City effected its freeze on development of land for apartment buildings. Had it proceeded directly to permit only two-family residences, it could not be argued that the City was superimposing upon a permitted use of the land for apartment buildings (with its attendant regulations and controls) an additional requirement of an amending by-law to support a permit in an individual case; there would have been no such permitted use. Instead, the City proceeded somewhat indirectly. Its draftsman could well have stopped, in s. 4 of by-law 306(bc)-504, with the words “Notwithstanding any other provisions of this by-law

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to the contrary, no building or structure may be converted or erected to contain three or more dwelling units”, but did not do so. Because he did not do so and went on to speak of the requirement of an amending by-law with appropriate schedules and appendices respecting various types of controls, it is contended that there is a fatal defect, having regard to the affirmation of apartment buildings as a permitted use of land in the zone. It was also submitted in support of this contention that the by-law had already provided for two-family residences in another zone.

Reliance was placed by the appellant on two lines of cases, represented by Toronto v. Mandelbaum[3] and by Verdun v. Sun Oil Co. Ltd.[4] Toronto v. Mandelbaum stands for the proposition that a municipal council cannot by by-law establish a prohibitory regime in respect of specified trades and yet retain discretionary authority in individual cases to license the carrying on of any of the trades. This conclusion depended, however, on the authorizing provincial legislation and on the scope of the power which it granted to municipal councils. The Planning Act, in the present case, empowers municipalities to limit, even severely, permitted uses of land; and were it not for the statutory right given to owners to seek special relief under s. 35(22) they would have no recourse against the sterilization of their use of their land against any but the permitted uses. The attempted analogy between the present case and Toronto v. Mandelbaum is on the premise that here as there the municipality has purported to reserve an individual discretion, with its risk of differentiating treatment. This analogy breaks down, however, if the present case is one where use for apartment buildings is a prohibited use by virtue of s. 4 of by-law 306(bc)-504. Spot zoning in such circumstances is not prohibited, and there is the right to resort to the Municipal

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Board under s. 35(22) for relief if it is refused by the municipality.

Verdun v. Sun Oil Co. Ltd. was a case where a municipality, having enacted a regulatory by-law setting out the requirements to be met by an applicant wishing to use property for a gasoline station, reserved in the by-law a discretion in the Municipal Council to deny permission notwithstanding compliance with all prescribed requirements. This Court held that the municipality could not validly transform a delegated authority to regulate by by-law into an administrative and discretionary power which stood above the prescribed regulations. This decision might be applicable here if s. 4 of by-law 306(bc)-504 is to be read as reserving to the municipality an overriding authority to require any owner of land, desiring to put it to a permitted use in accordance with applicable standards and controls, to satisfy other ad hoc requirements which the municipality might fashion in the particular case. The key to this view of the matter resides in there being a permitted use of the land for apartment buildings.

I would not read s. 4 of by-law 306(bc)-504 in this way because I am not prepared to decide this appeal on the basis of elegance or inelegance of draftsmanship. The policy pursued by the respondent City is clear enough, and that it was open to it to adopt that policy is beyond question. The fact that it might have done what it did more crisply does not mean that the substance of its freeze policy is in any doubt under the amendments to its general zoning by‑law 306-480. I would give effect to that

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substance, and accordingly I would dismiss this appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: McCarthy & McCarthy, Toronto.

Solicitors for the respondents: MacKinnon, McTaggart, Toronto.