Canada: Agricultural Law NetLetter - Tuesday, June 7, 2016

HIGHLIGHTS

* The Ontario Superior Court of Justice, Divisional Court, has overturned a lower court ruling which applied an unduly restrictive interpretation of what constitutes an "agricultural use" for the purpose of determining whether a riding arena was a "permitted use" under a Zoning Bylaw. The Divisional Court concluded that an awkwardly worded bylaw was ambiguous, and that it ought to be interpreted in context, consistent with a municipal plan, which included objectives of encouraging, promoting and preserving the agricultural and rural nature of the municipality, and the evidence of a municipality's Director of Planning that equine uses were an integral part of the agricultural and rural character of the municipality. (Ashburner v. Adjala-Tosorontio (Township), CALN/2016-014, [2016] O.J. No. 2926, Ontario Superior Court of Justice)

NEW CASE LAW

Ashburner v. Adjala-Tosorontio (Township);

CALN/2016-014,

Full text: [2016] O.J. No. 2926;

2016 ONSC 2665,

Ontario Superior Court of Justice,

M.R. Dambrot, E.M. Stewart and J.A. Thorburn JJ.,

June 6, 2016.

Zoning -- Agricultural Uses -- Interpretation of Bylaws consistent with a Municipality's Objective of Promoting Agriculture.

The Corporation of the Township of Adjala-Tosorontio (the "Township"), Karl Orpela in his capacity as Chief Building Officer for the Corporation of the Township (the "CBO") and Tuire Pickering ("Pickering") appealed to the Ontario Superior Court of Justice Divisional Court from a decision of a Justice of the Superior Court of Justice (the "Appeal Justice") who rescinded a building permit to construct a riding arena on property owned by the Pickering.

The Respondents, Peter, Phyllis and Thomas Ashburner (the "Ashburners") had objected to the building permit to construct a riding arena. The CBO authorized the construction of the permit notwithstanding this objection. The CBO's decision was set aside by the Appeal Justice when it rescinded the permit.

The Township is located on the south west corner of Simco County. It is sparsely populated. Horses, including a number of thoroughbred and show horses, are bred, raised and maintained in the Township. A number of properties have tracks, stables and riding arenas associated with them for this purpose. Pickering purchased a 22 acre parcel located in the Township in 2004 with the intention of raising and training horses on it. They built a barn on the property in 2005 under the authority of a building permit in order to accommodate 6 of their own horses.

The Ashburners reside across the road from the Pickerings on a 100 acre parcel of land used to raise beef cattle.

In November of 2010, the Pickerings decided they wanted to build a riding arena in the front yard of their existing house. They applied to the CBO for a building permit to allow the construction of the arena. The Township's planner provided the CBO with a zoning review which concluded that the riding arena complied with the Township's zoning bylaw 03-56 (the "Zoning Bylaw") and that the riding arena would be a "principle agricultural structure" which was permitted by the Zoning Bylaw.

The Building Permit was issued on August 25, 2011.

The Ashburners appealed the CBO's decision to issue the permit. The appeal was not heard until April 2, 2015. The Ashburners did not apply for a stay of the CBO's decision.

The Pickerings constructed a 7,000 square foot riding arena in accordance with the building permit. Mr. Pickering died before the appeal was heard.

The Zoning Bylaw prohibits the use of any alteration or use of any building or structure within the "Oak Ridges Moraine Linkage Zone" except for a number of uses which include "agricultural uses as defined in s. 2.4 of [the Zoning Bylaw].

Section 2.4 of the Zoning Bylaw defines agricultural use as follows:

AGRICULTURAL USE: means,

  1. Growing crops, including nursery and horticultural crops,
  2. Raising livestock and other animals, including poultry and fish, for food and fur,
  3. Aquaculture, and
  4. Agro-forestry and maple syrup production.

"Livestock" is defined in s. 2.71 of the Zoning Bylaw as follows:

LIVESTOCK: means chickens, turkeys, cattle, hogs, horses, mink, rabbits, sheep, goats, fur bearing animals, ratites or any other domestic or game animal raised for the purpose of human consumption for food, fur and/or leather.

On June 8, 2015, the Appeal Justice upheld the Asburners' appeal, declared the decision of the CBO to grant the permit was made in error because it did not comply with requisite "applicable laws" because, on a plain reading of the Zoning Bylaw neither livestock, nor other animals, including horses, can be raised other than "for the purpose of human consumption for food, fur and/or leather" [see para. 48].

Decision: Dambrot, Stewart and Thorburn, JJ of the Divisional Court allowed the appeal of the Township, the CBO and Pickering, with costs and set aside the Appeal Court's decision rescinding the building permit, declaring the permit to be invalid and revoking the permit [at para. 119].

The Divisional Court considered a number of issues, including the following:

  1. What is the standard of review for the appeal?
  2. Is a riding arena a permitted use under the bylaw - can horses be raised other than for food, fur and/or leather?

With respect to the standard of review issue, the Divisional Court concluded [at para. 46] that the Appeal Justice erred in concluding that the standard of review was correctness, and held that the decision of the CBO ought to have been reviewed on the deferential reasonableness standard because it was a question of mixed law and fact.

With respect to the Appeal Justice's interpretation of the bylaw, the Divisional Court concluded that the Appeal Justice erred by applying a standard of correctness instead of reasonableness, and, in any event, by failing to properly interpret the bylaw [at para. 46].

The Divisional Court [at para. 50 to 52] concluded that the Township's Zoning Bylaw was equivalent to a "home statute" and that the decision of the CBO should have been considered before embarking on a fresh interpretation of the bylaw, using the correctness standard. The Divisional Court concluded that bylaws should no longer be interpreted based on their "ordinary and plain meaning alone" [at para. 43] but that the broad approach set out by the Supreme Court of Canada in Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, in which it was observed, among other things, and that:

"9 ...[t]oday there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament...

10 Words that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context...

...

12 ...In interpreting legislation, the guiding principle is the need to determine the lawmakers' intention. To do this, it is not enough to look at the words of the legislation. Its context must also be considered."

The Divisional Court concluded that the Appeal Justice had erred in not applying this modern approach, that the Appeal Justice ought to have read the Zoning Bylaw in its entire context, and in considering the interpretation placed on the words by the CBO and the Township's Director of Planning who had concluded that the words "raised for the purpose of human consumption for food, fur and/or leather" must be read disjunctively and only applied to other domestic or game animals, not livestock, or else it would unduly restrict the meaning of livestock [at para. 60].

The Divisional Court considered the interpretation of the Zoning Bylaw in depth at para. 66 to 88, stating at para. 70, 73, 74, 75 and 79 as follows:

"[70] The fundamental point of this exercise is to determine if the raising of the named animals, and particularly horses, is an agricultural use of itself, or only if done "for the purpose of human consumption for food, fur and/or leather" and/or "for food and fur". I begin with the grammatical and ordinary sense of the words. It seems to me that reading the words as the appeal judge did creates obvious and unintended grammatical anomalies that are not harmonious with the scheme of Bylaw 03-56. In this regard, the points made by the Director of Planning are compelling.

...

[73] While grammar and logic are compelling in this case, it remains necessary to, as already noted, examine the words in the definition in their entire context, including the overall scheme of the By-law, the object of the Act, and the intention of the Township, taking into consideration the interpretation placed on the words by the CBO, and in particular his understanding of the context.

[74] I begin with an examination of the evidence of the CBO and the Director of Planning. To summarize briefly the findings described above, the Director of Planning said that the Township is primarily agricultural and rural in nature, and as a result the planning documents of the Township are designed to encourage, promote and preserve the agricultural and rural nature of the municipality. The Consolidated OP reflects these policies.

[75] The Director of Planning also said that an integral part of the agricultural and rural character of the Township relates to equine uses, particularly in the southern part of the present Township, including the small corner of the Oak Ridges Moraine that is situated in the Township. There are a number of properties in the southern part of the Township that are used for breeding, raising and maintaining thoroughbred, standardbred and show horses with associated facilities such as tracks, stables and indoor arenas.

...

[79] These considerations support the view that I have already taken that the definition of agricultural use includes the raising of horses, whether or not they are "raised for the purpose of human consumption for food, fur and/or leather" or "for food and fur". As a result, a riding arena may be erected for this purpose."

Previously published by LexisNexis

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