Supreme Court of Canada
Subilomar Properties v. Cloverdale, [1973] S.C.R. 596
Date: 1973-02-28
Subilomar Properties (Dundas) Ltd. (Defendant) Appellant;
Kingsway Lumber Co. Ltd., G.K. Sutherland, and the Corporation of the Borough of Etobicoke (Defendants);
and
Cloverdale Shopping Centre Limited (Plaintiff) Respondent.
1973: January 25, 26; 1973: February 28.
Present: Judson, Ritchie, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Planning—Zoning by-law—Commercial uses permitted on industrially zoned lands fronting on named street—Appellant’s predecessor in title acquiring lands in different parcels—One parcel in zone fronting on street and other parcels partially within said zone and partially within adjacent zone—Lands now included in single parcel—Whether fronting on street.
Planning—Official plan—Designation of various zones—Validity of zoning by-law permitting commercial development on industrially zoned lands—Necessity to refer to by-law to determine uses permitted in designated zones—No contradiction with official plan.
The appellant acquired an option to purchase certain lands on the south side of Dundas Street in the Borough of Etobicoke, for the purpose of erecting thereon a shopping centre. A building permit for the foundation was granted on May 21, 1972. Subsequently, the respondent issued a writ for certain declarations and other relief which effectively would nullify the building permit and prevent the appellant from proceeding with the proposed centre. The Divisional Court disposed of the action by declaring that the building commissioner had validly exercised his discretion in issuing the building permit and dismissed the injunctive relief claimed. On appeal, the Court of Appeal set aside the judgment of the Divisional Court and replaced it with a declaration that the building permit was null and void, making no order in reference to the claim for injunction.
Under the official plan, a strip of land along the south side of Dundas Street was zoned I.C1, that is a
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Class 1 Industrial zone, and along the south side of this I.C1 zone was an I.C2 zone. Some of the lands under option to the appellant were wholly within the I.C1 zone but most were partially within the I.C1 zone and partially within the I.C2 zone. Two paragraphs of the relevant zoning by-law set out the permitted uses of Class 1 and 2 Industrial Zones respectively for business purposes and para. (2) in each case read: “all business uses permitted in a limited commercial zone on lands fronting on the following streets only: Dundas Street…”
It was agreed that the proposed shopping centre could be erected in a limited commercial zone and therefore the main question to be determined was whether the subject lands were “lands fronting on the following streets only: Dundas Street”.
Held: The appeal should be allowed and the order of the Divisional Court restored.
The lands under option to the appellant were acquired in several different parcels without any reference to the zone in which they lay. They were now held by the appellant’s predecessor in title, subject to the option to purchase given to the appellant, as one parcel of land, again without reference to the zone in which they lay. The lands were therefore included in a parcel which does front on Dundas Street and, therefore, whether covered by the I.C1 zone or the I.C2 zone, may be used for purposes permitted in a limited commercial zone and hence may be subject to a building permit for the erection of the shopping centre in question.
The respondent’s submission, based on the provisions of The Planning Act, R.S.O. 1970, c. 349, and particularly s. 19(1), that the zoning by-law was void in so far as it purported to permit commercial development on industrially zoned land was rejected. The purpose of an official plan is to be an outline of a scheme or proposal for controlling the use of lands within the municipality. In the present case it was necessary to turn to the zoning by-law to determine what are the uses permitted in the various zones which are indicated on the zoning maps by various initials, e.g. I.C1, I.C2, and, therefore, the provisions of the by-law specifying the permitted uses in Class 1 and Class 2 Industrial Zones respectively were not in contradiction with the indication on the zoning map of I.C1 and I.C2 zones.
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Also, s. 35(28) of The Planning Act, passed in 1967, and providing that “Any by-law approved by the Municipal Board under this section shall be conclusively deemed to be in conformity with the official plan then in effect in the municipality” is curative and speaks from the date of its enactment. Therefore, at the time of the application for this permit, the building commissioner was entitled to act upon the basis that the zoning by-law, which was approved by the Municipal Board on June 29, 1959, was in conformity with the official plan.
Section 6(3) of By-law 733 prohibiting the building commissioner granting a permit unless the application complies with all applicable governmental regulations was not breached as the provision in s. 35(2) of The Public Transportation and Highways Improvement Act, R.S.O. 1970, c. 201, prohibited the use of premises in a certain area as a shopping centre and not merely the granting of a permit for the erection thereof.
APPEAL from a judgment of the Court of Appeal for Ontario, allowing an appeal from a judgment of the Divisional Court. Appeal allowed.
D.K. Laidlaw, Q.C., and A.J. Lenczner, for the defendant, appellant.
L.H. Mandel, for the plaintiff, respondent.
D.R. Steele, Q.C., for the Corporation of the Borough of Etobicoke and G.K. Sutherland.
The judgment of the Court was delivered by
SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on October 4, 1972. By that judgment the said Court of Appeal for Ontario allowed an appeal from the Divisional Court which by judgment pronounced on September 19, 1972, made this order:
THIS COURT DOTH ORDER AND ADJUDGE that the exercise of the discretion by the Officer of the Borough of Etobicoke in issuing the permit was a valid exercise of a statutory discretion and the permit granted is valid.
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The Divisional Court proceeded in para. 2 of its judgment to dismiss the application for injunction. The Court of Appeal, however, in its judgment to which I referred, simply set aside the judgment of the Divisional Court and replaced it with a declaration that the building permit was null and void, making no order whatsoever in reference to the claim for injunction.
The appellant here, Subilomar Properties (Dundas) Ltd., took from the Kingsway Lumber Company and one other owner, an option to purchase certain lands on the south side of Dundas Street, a short distance east of Highway 27 in the Borough of Etobicoke, formerly the Township of Etobicoke, for the purpose of erecting thereon a modern, rather small, shopping centre. The appellant applied to G.K. Sutherland, the Building Commissioner for the Borough of Etobicoke, for the grant of a building permit for such erection. A building permit for the foundation was granted by Mr. Sutherland on May 21, 1972. On June 12, 1972, the respondent, Cloverdale Shopping Centre Limited, issued a writ naming as defendants the appellant, Subilomar Properties (Dundas) Ltd., the Kingsway Lumber Company Limited, Mr. Sutherland and The Corporation of the Borough of Etobicoke. The claim made by Cloverdale in such writ was for a declaration that the building permit was null and void and that the lands occupied by the appellant could not be used for the purpose of a department store shopping centre and for an order restraining all the defendants from any action toward the grant of a building permit or the use of the lands for such purposes. The appellant applied to the Supreme Court of Ontario for an order striking out the action as frivolous or vexatious or, in the alternative, for an order under the provisions of The Judicial Review Procedure Act, 1971 (Ont.), c. 48, directing that the action be tried and disposed of summarily, or, in the further alternative, for an order transferring the action to the Divisional Court for disposition in accordance with the provisions of the said statute. By an order of Lieff J. pronounced on September 7, 1972, the last-mentioned alterna-
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tive was adopted and the action was transferred to the Divisional Court. The judgment of the Divisional Court and the appeal to the Court of Appeal which I have already cited followed.
There has been for a considerable number of years, first in the Township of Etobicoke and now in its successor, the Borough of Etobicoke, an official plan and in the usual course that official plan has been followed by a series of zoning by-laws. The attack on the permit already granted in the present case is made under the provisions of By-law 11737 as amended, which was enacted on April 20, 1959, and was approved by the order of the Municipal Board made on June 29, 1959. The official plan had set up a series of building zones designated industrial, commercial and residential with sub-zoning of different types covering each of the main categories and had in a series of maps indicated the border of those zones in a very approximate fashion. The map appropriate to the present appeal was copied in the appeal case and indicates that there is a strip of land along the south side of Dundas Street running from Kipling Avenue on the east to Highway 27 on the west, which is zoned I.C1, that is a Class 1 Industrial zone. Along the south side of this I.C1 zone and forming a triangle, the north limit of which is the said I.C1 zone, the west limit of which is a street known as Vickers Street, which is really the exit road off Highway 27 (now Highway 427), and the south limit of which is the line of the Canadian Pacific Railway, is an I.C2 zone. The Kingsway Lumber Company had over the the course of the years from 1949 to and including the year 1965, assembled by means of six conveyances lands on the south side of Dundas Street, some of which were wholly within the I.C1 zone but most of which were partially within the I.C1 zone and partially within the I.C2 zone. Of particular interest in this assembly is that part of it which was carried out by means of conveyance registered as No. 89821 on December 16, 1949, which is a large parcel running from Dundas Street on the north right through what
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ten years later became two different zones to the C.P.R. right of way. By-law 11737 in the various paragraphs set out the permitted uses for the various zones. We are concerned particularly with the provisions of paras. 11.2.1.2 as to Class 1 Industrial Zone and 11.3.1.2 as to Class 2 Industrial Zones. Those two paragraphs set out the permitted uses of Class 1 and 2 Industrial Zones respectively for business purposes and para. 2 in each case reads:
(2) all business uses permitted in a limited commercial zone on lands fronting on the following streets only:
Dundas Street
……..
……..
……..
As to the Class 1 Industrial Zone the plural “lands” is used and as to the Class 2 Industrial Zone the singular “land” is used, but I see no issue as to what would appear to be a mere accidental variation in the text, particularly in view of the fact that none of the six conveyances to which I have referred are of property which is now within Class 2 Zone only.
Counsel are agreed that the shopping centre proposed by the appellants may be erected in a limited commercial zone and that therefore the main problem before the Courts below and this Court in the present case is to determine whether or not the lands upon which the appellant holds an option to purchase are “lands fronting on the following streets only: Dundas Street”. It was the view of Arnup J.A. giving judgment for the Court of Appeal for Ontario that the property under option to the appellant was not all on lands fronting on Dundas Street but that rather the appellant held under option a parcel of land in Class 1 Industrial Zone together with a continuous parcel lying within Class 2 Industrial Zones. With respect, I cannot subscribe to such opinion. I emphasize that what we are interpreting is not the word “zone” but the word “land” or “lands” and it matters not whether the singu-
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lar or plural is used. The appellant’s predecessor in title acquired only one parcel of land which was altogether within the zone indicated as I.C1 and that in fact was its last acquisition shown on instrument registered as No. 294882 on January 14, 1965. Each of the other parcels acquired by the appellant’s predecessor in title by conveyances which were registered on various dates from 1949 through 1953, 1961, 1962 and 1964, is of lands which are within both zones in so far as that fact may be determined from the very rough indication of the zone boundaries found on the appropriate map in the official plan. These lands under option to the appellant were acquired as I have said in several different parcels and were acquired without any reference to the zone in which they lay. They are now held by the appellant’s predecessor in title, subject to the option to purchase given to the appellant as one parcel of land, again without reference to the zone in which they lie. I am therefore of the opinion that they are “lands fronting on the following streets only: Dundas Street”, and that under the provision of the by-law which I have cited above, they may be devoted to uses which are permitted in a limited commercial zone. It is the appellant’s submission that this interpretation is aided by the fact that the zoning map shown on p. 245 of the appeal case shows no land fronting on Dundas Street from Kipling Avenue on the east to Highway 27 on the west which is zoned other than I.C1, and counsel for the appellants has stated without contradiction that a careful perusal of the other zoning maps in the official plan revealed no I.C2 zoned land fronting on the south side of Dundas Street in the whole of the borough. Therefore the words of the by-law in para. 11.3.1.2
(2) all business uses permitted in a limited commercial zone on land fronting on the following streets only:
[Page 603]
Dundas Street
……..
would be under the respondent’s interpretation, meaningless. It is the respondent’s submission that we do not know what lands fronting on Dundas Street might have been zoned I.C2 at some previous time and then the zoning changed by a subsequent amendment prior to the present application. That is true, but I am in accord with the appellant’s suggestion that we must interpret the by-law as of the date of the application for the building permit and not as it might have existed at some previous time and certainly as that by-law existed at such date the words, as interpreted as the respondent wishes them to be interpreted, are meaningless. It is of course trite law that no legislation whether it be by statute or by-law should be interpreted to leave parts thereof mere surplusage or meaningless, nor in my view should the by-law be interpreted with the view that in the future some subsequent amendment to the official plan might show I.C2 zoned lands as fronting on Dundas Street. Bay shore Shopping Centre Ltd. v. Township of Nepean et al.[1] at p. 766. Such interpretation would be out of accord with reality as with increasing urbanization of the area the probability would be that any future amendments of the zoning provisions would be to make land fronting on Dundas Street subject to more general commercial use and not limited to the heavier industrial uses appropriate to I.C2 zoning.
A rather interesting decision, although certainly not a modern one, is Re Dinnick and McCallum[2], where the Court of Appeal for Ontario considered a by-law which fixed a minimum setback of buildings “fronting or abutting on both sides of Avenue Road from St. Clair Avenue to Lonsdale Road” which by-law purported to have been enacted by virtue of a power granted by The Municipal Act that
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“councils of cities...are authorized…to pass and enforce…by-laws…to regulate and limit the distance from the line of the street in front thereof at which buildings on residential streets may be built”; and held that the by-law exceeded the power granted. Meredith J.A. (as he then was) said at p. 54:
In this Province, where nearly all lands, and intersecting streets, are laid out in rectangular fashion, and where, almost invariably lots are laid out fronting upon some concession, or other highway, no one would ever think of saying that any lot fronted upon any highway except that upon which it is numbered; lot 10 in the 10th concession, for instance, would never be said to front upon the side-road between lots 10 and 11; nor would it ever be said that any lot on St. Clair avenue fronted on any other street, although a corner lot abutting upon a side street; nor, if the land in question were sold, as such land nearly always is, at so much a foot “frontage,” would any one dream of measuring all the “four fronts” of the lot to make up the price, or of charging more than for the width of the lot on St. Clair avenue; nor would any one, unless very hard driven in argument, seek refuge in an assertion that any lot on St. Clair avenue really fronts on Avenue road, any more than a lot on Avenue road fronts on St. Clair avenue.
It is significant to note that the learned Justice of Appeal spoke of lots and land and never referred to zones. For these reasons I have come to the conclusion that the main objection upon which the respondent has based his claim as to the validity of the permit fails and that the lands under option to the appellant are all now, and have been for some time, included in a parcel of land which does front on Dundas Street and, therefore, whether the lands are covered by the I.C1 zone or the I.C2 zone, are lands which may be used for purposes permitted in a limited commercial zone and therefore may be subject to a building permit for the erection of the shopping centre in question.
The respondent has pressed in this Court other objections which the Court of Appeal in view of its decision that the lands were not so
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fronting on Dundas Street found unnecessary to consider. The first of these is an objection that under the provisions of The Public Transportation and Highway Improvement Act, R.S.O. 1970, c. 201, s. 35(2), the lands being within half a mile of the limit of a controlled-access highway, i.e. Highway 27 (now known as Highway 427) could not be used for a shopping centre without the permit of the Minister, that is the Minister of Transport for the Province of Ontario, and that no such permit had been applied for. The said s. 35(2) of the statute provides:
35(2) Notwithstanding any general or special Act, regulation, by-law or other authority, no person shall, except under a permit therefor from the Minister,
(f) use any land, any part of which lies within one-half mile of any limit of a controlled-access highway, for the purposes of a shopping centre, stadium, fair ground, race track, drive-in theatre or any other purpose that causes persons to congregate in large numbers;
The short answer to that objection is that what is prohibited is the use of the lands and when the appellant has proceeded to erect his shopping centre, he may well be faced with the task of obtaining such permit from the Minister. That is not an issue in the present appeal. The appellant points out moreover, that the Minister might find no difficultly in granting a permit as to lands in the position of these lands fronting on Dundas Street which crosses the limited‑access highway, now No. 427, by an overpass and moreover, which are right across the road from a very large shopping centre which has been operated for many years by the respondent and to which the traffic would far exceed that to the very small shopping centre proposed by the appellants.
The Building Commissioner therefore, when he granted the permit was not in breach of By‑law No. 733 of the Borough of Etobicoke which in s. 6(3) provides that the Building Commissioner should not grant a permit unless the application comply with “all applicable governmental regulations”.
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The respondents also submit that the By-law 11737 was void in so far as it purported to permit commercial development on industrially zoned land, citing the provisions of The Planning Act in R.S.O. 1970, c. 349, and particularly s. 19(1). That subsection provides:
(1) Notwithstanding any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections 2 and 3, no by-law shall be passed for any purpose that does not conform therewith.
The respondents argue that the official plan indicated that all the lands under option to the appellant were zoned industrial and argued therefore that the provisions of the By-law 11737 which purports to permit commercial development on industrially zoned lands, were not in conformity with the official plan and therefore could not have been passed under the said subsection of The Planning Act. The purpose of an official plan has been said on many occasions to be an outline of a scheme or proposal for controlling the use of lands within the municipality. In Campbell v. The City of Regina[3], at p.263, Johnson J. so characterized the official plan for that city where he accepted the position taken by the respondent as follows:
The city adopts the position that the scheme is merely a general statement of future intentions. It contends that the scheme does not and is not intended to impose a straight jacket on future development. The city argues that under the scheme certain general areas are set aside for parks, for industrial purposes, for residential purposes, and that the general pattern of streets and through streets is set out and within these general principles the city may authorize development and its zoning by-law should conform to these general proposals.
When one considers the official plan in the present appeal there is indicated in the text on the commencement of the various zones, for instance seven residential zones being R1 and following the three industrial zones, six com-
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mercial zones etc., with no further indication of the meaning of such designation. I am therefore of the opinion that one must turn to the zoning by-law to determine what are the uses permitted in the various zones which are indicated on the zoning maps by various initials, e.g. I.C1, I.C2 and that, therefore, the provisions of paras. 11.2.1.2 and 11.3.1.2 specifying the permitted uses in Class 1 and Class 2 Industrial Zones respectively are not in contradiction with the indication on the zoning map of I.C1 and I.C2 zones. I should also point out the provisions of s. 35(28) of The Planning Act which provides
Any by-law approved by the Municipal Board under this section shall be conclusively deemed to be in conformity with the official plan then in effect in the municipality.
By-law 11737 was, as I have said, approved by the Municipal Board on June 29, 1959. Despite the fact that the said subs. (28) appeared for the first time in the 1967 Statutes of Ontario, I take the section as being curative and that it speaks from the date of its enactment so that at the time of the application for this permit, Mr. Sutherland, the Building Commissioner, was entitled to act upon the basis that the By-law No. 11737 was in conformity with the official plan. I have not been assisted by the submission that it could not have been intended that lands zoned as I.C1 or I.C2 were not intended for use as shopping centres because the degree of control exercisable in the By-law 11737 as to lands zoned for industrial purposes was not sufficiently detailed and effective to permit a proper control of shopping centres. The by-law in the sections quoted plainly does make provision for lands zoned I.C1 or I.C2 when they front on certain named streets and, therefore, the municipality must have contemplated the use of lands so fronting for limited commercial zone uses, regardless of any possibility of control and all parties are in agreement that the shopping centre with which the present appeal is concerned could be erected on limited commercial zone lands. Moreover, when one considers that the parcel of land with
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which this appeal is concerned is directly across the road from Dundas Street on which the respondent operates a very large shopping centre and that the lands under option to the appellant back up on other industrial zoned lands and a railway right of way while the lots occupied by the respondent back up on a residential area, any arguments as to the possibility of control would seem to lack convincing effect. For these reasons I would allow the appeal and I would restore the order of the Divisional Court. The appellant and also the Corporation of the Borough of Etobicoke and G.K. Sutherland, who were represented in this Court, are entitled to their costs as allowed in the said order of the Divisional Court as well as their costs in the Court of Appeal and this Court.
Appeal allowed with costs.
Solicitors for the defendant, appellant: McCarthy & McCarthy, Toronto.
Solicitors for the plaintiff, respondent: Thomson, Rogers, Toronto.
Solicitors for the Corporation of the Borough of Etobicoke and G.K. Sutherland: McMaster, Montgomery, Toronto.