2010 ONSC 6067 (Div Ct), Released 12 November 2010
Appeal–Jurisdiction of Ontario Municipal
This is an appeal by the City of Toronto (the "City")
from the Ontario Municipal Board's (the "Board")
order directing the City to issue demolition permits to the
Respondents, who owned thirteen buildings located on Bloor Street
West. The Respondents wanted to demolish those buildings, and
applied for permits to do so in March 2006. No decision had been
made by November 2007, and the Respondents filed an appeal with
the Board. The issue on appeal at the Divisional Court
was whether the Board erred in law in determining that it had
jurisdiction to hear the appeal brought by the Respondents.
Under section 3 of the City of Toronto Act, 1985 (the
"Act") , where council has neglected to make a
decision within one month after receipt of the demolition
application, the applicant "shall" file the appeal within
20 days after the one-month period following receipt of the
application has expired. In other words, to appeal from a
failure on the City's part to make a decision, an applicant
must file its appeal within 50 days of its application. The City
took the position that the Board lacked jurisdiction as the
Respondent had not filed their appeal within the statutory
deadline, and asserted that the Board lacked jurisdiction to
extend the time for bringing a spent appeal.
The Court had to decide whether the word "shall" in
section 3 was mandatory or directory. If the word
"shall" was mandatory, the breach of the section would
result in a "total nullity" of the appeal. If
"shall" was determined to be directory, the breach of the
provision would have been a mere "irregularity" that
could be cured. In determining whether the word "shall"
in a statutory provision was mandatory or directory, the Divisional
Court applied three factors:
The Legislature's intention in enacting the time limit in
question, and specifically, whether the Legislature intended that
non-compliance with the time limit was to result in loss of
jurisdiction or nullification of the action. The Court is to
consider the entire scope of the statute when applying this
If the provision intends for a public duty to be performed
within a certain time, the provision is more likely to be directory
The Court must compare the possible prejudice to the parties
that may arise if the provision is interpreted as
"mandatory" with the potential prejudice to the parties
if the provision is read as "directory".
In this case, the Divisional Court held that the second factor
did not apply, as the provision did not relate to the performance
of a public duty. The other two factors supported reading the
provision in question as directory rather than mandatory. First,
the legislative purpose of the time limit in question is "to
facilitate the more efficient administration of the statutory
scheme governing demolition permit applications". The Court
noted that, in most cases, it was effectively impossible for the
City to process demolition applications within 50 days. It then
held that the Legislature could not have intended to force
applicants to file appeals to the Board before the City could
reasonably be expected to have had time to consider their
application. Furthermore, the City would not suffer any prejudice
if the time limit provision was interpreted as a directory one. On
the other hand, the Respondent could lose their appeal right if the
appeal time limit was interpreted as mandatory.
Accordingly, the Divisional Court found that the use of the word
"shall" in section 3 of the Act is directory,
not mandatory. It held that the Respondents' appeal was
brought in time, and dismissed the City's appeal. This decision
suggests that in some circumstances, a statutory provision
stipulating an appeal deadline that appears mandatory on its
face may be a mere guideline for filing such appeals. Courts and
tribunals will examine the entire statutory scheme and the
legislative intent in determining whether there is jurisdiction to
extend the time for bringing an appeal that is not filed within
such time line.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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