Wilson v. Jones

SPENCE J.:-This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on November 2, 1966. That Court, by a majority judgment, allowed an appeal from the judgment of Grant J. pronounced on January 11, 1966. In the latter judgment, Grant J. had refused the respondent, a ratepayer, an injunction which she had sought under the provisions of s. 486 of The Municipal Act, R.S.O. 1960, c. 249, which reads as follows: 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 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 Town of Niagara, in the Province of Ontario, had on December 12, 1950, enacted By-law 1275 purporting to be a by-law to restrict the use of lands and to regulate and restrict the construction and use of buildings and structures within a defined area. Section 2 of that by-law provided:

2. the use of land or the construction or use of buildings or structures within Zone "A", other than for such purposes as may be permitted by this by-law, is hereby prohibited.

1 [19671 1 O.R. 60 D.L.R. (2d) 97.

And in s. 4 provided, in part

The Town of Niagara amended that by-law by By-law 1294 enacted on June 5, 1951, and for the purpose of this decision the only portion of the amendment with which we are concerned is the addition of the words "or duplex dwellings" after the words "private residences" in s. 4, para. (a) of the said By-law 1275.

The appellant applied for the issuance of a building permit to allow him to build in Zone "A" a certain building which is outlined on floor plans produced and marked as an exhibit, and which is further delineated as being similar to the photograph of the building which he had built in another municipality also produced and marked as an exhibit.

The building inspector of the Town of Niagara on June 16, 1965, issued to the appellant a building permit to erect the said building in accordance with the plans filed and which had been approved by the said building inspector. At the trial of the issue, counsel agreed that if By-law 1275 as amended were valid and prevented the erection and use of the building in question then the building permit was of no legal significance and it had been issued illegally.

Before the appellant could commence to build, the respondent applied for an injunction under the provisions of the aforesaid s. 486 of The Municipal Act. The building as delineated on the said plans and as illustrated in the said photograph is one of two and a half-storeys, that is, there is a ground floor which is partially below ground level and partially protruding above the ground, and there are two storeys above that ground floor. The ground floor is to contain five apartments, some of one bedroom and wou some of two. Both upper floors are to contain six apartments each, that is, there will be a total of seventeen apartments. Each apartment, so far as the living-room, J. dining-room, kitchen and bedroom are concerned, is totally separated from the other apartments, but there is one entrance in about the centre of the front of the building and another entrance at the rear of the building. Both of these entrances open into corridors. Each apartment has its own private entrance into these corridors. There would seem to be no entrance whatsoever directly to any apartment whether on the first or other floors except from the corridors. In addition, at the rear of the ground floor, there is a large space which is to be occupied by lockers and another large space which is designated as a laundry, as well as space used for housing the heating plant.

It was the view of the learned trial judge upon a consideration of Rogers v. Hosegood that the various apartments were "private residences" and that therefore the erection of the building was not prohibited by By-law 1275 as amended. The learned trial judge, therefore, dismissed the plaintiff's action for an injunction.

The Court of Appeal for Ontario allowed the appeal and directed the issuing of the injunction which the respondent had claimed, interpreting By-law 1275 as amended as prohibiting the erection of the building outlined in the respondent's application for a permit. The 1ate Chief Justice of Ontario giving judgment for the majority also dealt with Rogers v. Hosegood pointing out that the part of that decision which governs this litigation was the finding in reference to the 1876 covenant between the parties and adopted the reasons of Collins L.J. at p. 409 as follows:

The appeal from the majority judgment of the Court of Appeal for Ontario should be dismissed. I am of the opinion that the standard used by Collins L.J. in Rogers v. Hosegood for the interpretation of a covenant in a conveyance is equally proper in the interpretation of a by-law restricting the use of lands and that standard is as stated by the learned Lord Justice to "construe in an ordinary or popular and not in a legal or technical sense". The words to be construed are "private residences" or "duplex dwellings". With respect, I differ from the late Chief Justice of Ontario when he finds himself unable to utilize the amendment wrought in 1951 by By-law 1294 to construe By-law 1275 as enacted in 1950. I am of the opinion that when the council in 1951 enacted the amending By-law 1294 they must have had in consideration the by-law which they were amending and which had been enacted only the previous year and have considered the words I have quoted as they appeared after the amendment. Therefore the council believed that they had enacted a by-law which would permit only something which could be better described as a single, one-family residence, determined to widen the permitted use so that there could be erected a building which could consist of two one-family residences placed one on top of the other. In enacting the by-law first and its amendment later they have used ordinary words, i.e., private residences, and duplex dwellings, which were easily understood by everyone in the business of building, buying, or selling housing accommodation.

I therefore regard it as an important aid to the construction of the words "private residences" that the council in their next year should have widened it only so far as to permit a building of two family residences one on top of the other, and in my view impliedly held fast to the determination that it would not permit a building of three, four, or, as in the present case, seventeen residences. It is to be noted that the apartment house in addition to containing the number of private residences far beyond the two which are contained in the duplex contained other accommodation which is for the communal use of the occupants of seventeen of the private residences, to wit, the corridors, the lockers and the laundry in the proposed building. I am, therefore, of the view that what was contemplated in the erection of the proposed building was not private residences but many private residences under one roof plus communal accommodation, i.e., in plain and ordinary terms, an apartment house, and that an apartment house JoES is not within the by-law any more than the apartment house was in Rogers v. Hosegood. I have come to this conclusion realizing that a by-law restricting the use of land must be strictly construed and that any doubt as to the application of the by-law to prevent the erection of a specific building should be resolved in favour of such proposed use. No authority need be cited for each of these propositions. These principles, however, need only be applied when upon the reading of the whole by-law there is an ambiguity or difficulty of construction. Reading the whole by-law, I have, for the reasons which I have outlined, come to the conclusion that there is no such ambiguity or difficulty in interpretation and therefore the two canons are not applicable. Both the learned triat judge and MacKay J.A. have pointed out that the municipal authorities issued a permit for the construction of the said building and MacKay J.A. remarks that this indicates the view of the municipal authorities that the building falls within those permitted by the by-law. As I have pointed out, the two by-laws were enacted by the council of the Town of Niagara in 1950 and 1951. The permit was issued by the building inspector in 1965. There is no indication that it was considered by council. The parties have agreed that if the erection of the building is prevented by the by-laws then the building permit was issued illegally. I can obtain little assistance in interpreting the by-laws enacted by council in the year 1950 and 1951 from the view of the building inspector in 1965.

I would dismiss the appeal with costs.

Appeal dismissed with costs.