Oriole Lumber Ltd. v. Township of Markham et al.

TOWNSHIP OF MARKHAM and

RESPONDENTS. F.

ON APPEAL FROM THE APPEAL ONTARIO

J.:-This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on October 17, 1966, whereby that Court allowed an appeal by the respondents from the order of Moorhouse J. pronounced on May 7, 1966. By the latter order, the learned judge of first instance had granted a mandamus requiring the respondents to issue a building permit upon an application made by the appellant.

The Corporation of the Township of Markham had enacted an official land use by-law with attached to and forming part thereof an official land use plan. This land use plan covered the whole of the Township of Markham except certain incorporated municipalities and was intended to be an over-all plan from which more detailed plans would be involved for the various areas and communities. One of those areas was subsequently covered by the enactment on October 9, 1962, of By-law 1957. That by-law affected, inter alia, lands on Woodbine Avenue in the said Township of Markham, a short distance north of Steeles Avenue, being part of lot 2, concession 4 in the Township of Markham. These lands were subsequently purchased by the appellant and the appellant proposed to erect thereon the building the subject of the application for permit. The appellant had engaged in a wholesale and retail lumber business with premises on the north side of Sheppard Avenue at Leslie Street, and having lost those premises through expropriation planned to continue the business at the premises in question.

The respondent Fudge, as building inspector of the respondent Corporation of the Township of Markham, refused the application for a permit being of the opinion LUMBER LTD. that the erection of the building was prevented by the TowNSHIP provisions of By-law 1957. The relevant portions of the said By-law 1957 are as follows:

et al. DEFINITIONS

Spence J. (i) "Accessory" when used to describe a use shall mean a use naturally and normally incidental, subordinate and exclusively devoted to a main use and located on the same lot.

(xxvi) "Use" shall mean the purpose for which land or a building is arranged, designed or intended or for which either land or a building or structure is, or may be, occupied or maintained.

PERMITTED

LAND USE

(i) A dwelling for a caretaker of a manufacturing or industrial undertaking permitted under Sub-section (ii) provided that the requirements of By-law Number 1442 of the

Township of Markham are complied with or an apartment for a caretaker of a manufacturing or industrial undertaking permitted under Sub-section (ii), provided that the total ground floor area of the said manufacturing or industrial undertaking is not less than 30,000 square feet.

(a) Warehousing and storage within enclosed buildings, and the assembly of manufactured products, such as textiles, wood, paper, light metal sections, radio and television equipment and other similar products, and also the manufacture within enclosed buildings of radio and television equipment, drugs, cosmetics, jewellry, and watches, toys, publishing and bookbinding, office equipment, sanitation products and any other light manufacturing operations which are not obnoxious by reason of the erosion or emittance of any noise, smoke, odour, dust, gas fumes, refuse or water carried waste;

(b) Shops for the repair or manufacturing within enclosed buildings, of small goods and wares, laundries and dry-cleaning plants, bakeries, printers, dyers, storage warehouses, chemical products, paper and paper boxes, electrical products, canning and food plants, aluminum products, and any other manufacturing or industrial establishment within an enclosed building

S.C.R.

[19681

The learned judge of first instance granted the application for the mandamus without written reasons. Schroeder J.A., giving the judgment for the Court of Appeal, was of the opinion that the word "industrial" by ordinary definition intended a use which was primarily one involving the art of production or manufacture of some item, and that it involved activity or labour whereby a saleable commodity was created or produced. Of course, it is not intended that in this warehouse and wholesale and retail lumber outlet there should be activity or labour resulting in the creation of a product but merely the storing of such products and their sale at wholesale or retail. Schroeder J.A. continued to point out that the ordinary meaning of "industrial use" had been expanded by By-law 1957 in para. 8(ii) (a) to include matters well beyond the ordinary definitions of "industrial" or "industrial use" by including warehousing and storage "within enclosed buildings". He dealt with the proposition of the appellant that wholesaling and retailing of lumber was "an accessory use" of warehousing premises so as to bring it within para. 2(i) of the said by-law quoted above by pointing out that although the respondent had, without conceding, refrained from urging that a wholesale lumber business was not "an accessory" to a warehouse and storage business, nevertheless, a retail business could only be characterized as an accessory to a wholesale and that therefore to permit the building proposed was to engraft an accessory upon an accessory.

It was the basis of the official plan that there should be a series of categories of use of premises and to those categories the municipal council assigned various designations. It is these designations which are the vocabulary of the legislative scheme for use of lands within the township and which should govern the primary determination of whether a proposed building is in accordance with the various subsidiary land use by-laws such as By-law 1957. There was produced as ex. "E" to the affidavit of Hein Cats filed upon the application for permit, a copy of the official plan of the township. That plan shows a designation of all lands within the township under various designations, i.e., urban residential, rural residential, rural, major open space, institutional and transportation, highway frontage, industrial, and community commercial (the order of the naming is not significant). That such designations do not always accurately reflect ordinary definitions may be illustrated by noting that there are shown on the final plan several golf and country clubs which all bear the hatch marking indicating that they are for "institutional and transportation use". Therefore, without having to refer to the dictionary definitions of the word "industrial" it is sufficient to note that the legislators intended to distinguish between "industrial use" and "commercial use".

In my view, much of the argument before this Court as to whether a lumber warehouse and wholesale and retail business was industrial has become academic. That type of business would certainly have been commercial in the allocation of it to either a "commercial" or "industrial" classification. So it matters not whether it could ordinarily have been termed "industrial" as well as "commercial". The question therefore to be determined is whether this business comes within the extended definition of the words "industrial" or "industrial use" in s. 8, para. (ii) of the by-law. It is significant that neither wholesaling nor retailing is mentioned in that extended definition so that the only way in which a wholesale or retail lumber outlet could come within the permitted use in the said 8(ii) (a) would be that it was an accessory to "warehousing and storage within enclosed buildings".

Whether warehousing should be confined, as was argued by the respondent, to providing a building for the storage of goods of others consigned to one's care and custody for a fee, or whether it has a much wider connotation, need not, in my opinion, be decided, although the additional words "and storage within enclosed buildings" would seem to indicate the wider definition. What is decisive, is that the wholesale and/or retail selling is not accessory to the warehousing or storage but, in fact, the warehousing or storage is incidental to the wholesale and retail selling. There can be no other purpose for the building as illustrated graphi-