Canadian Institute of Public Real Estate Companies v. Toronto

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Municipal law—Planning legislation—Development control by-law establishing conditions for development or redevelopment in downtown area—Delegation—By-law repeating verbatim the wording of the enabling statute—Whether by-law ultra vires.

Administrative law—Delegated legislation—Development control by-law—Municipality simply repeating formula of statute leaving everything in its discretion—Duty of subordinate body to specify standards.

Respondent municipality passed a by-law which set out conditions for development and redevelopment of land in downtown Toronto. The by-law set out verbatim provisions from the enabling statute, The Planning Act, R.S.O. 1970, c. 349, as amended, in particular s. 35a as enacted by 1973 (Ont.), c. 168, s. 10. Appellants had opposed approval of the by-law on the basis that its enactment was contrary to the rule in Brant Dairy Co. v. Milk Comm. of Ontario, [1973] S.C.R. 131, and subsequently obtained leave to appeal the order of the Ontario Municipal Board approving the by-law. The Divisional Court dismissed the application for judicial review to quash the by-law holding that it was neither uncertain nor invalid simply because the council had adopted verbatim the words of the statute. The Court of Appeal agreed.

Held: The appeal should be allowed.

In both Brant Dairy and the present case the enabling legislation permitted the enactment of delegated legisla-

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tion and the subordinate legislating body purported to exercise the delegated power in the very terms in which it was given. In Brant Dairy the Milk Commission did not fix and allot quotas, as it was empowered to do, but simply repeated the formula of the statute specifying no standards and leaving everything in its (own) discretion. In the present case there was present the same mere repetition of the power and not the exercise of that power. The by-law is therefore ultra vires.

The argument that the existence of a right of appeal to the Municipal Board adequately prevents any misuse of the provisions of the by-law, even if it were sound, could not be effective to validate an invalid by-law. Likewise the argument that the complexity of a great modern city and the diversity of properties therein render it impossible to draft a by-law adequate to cover the situation can have no legal effect. If indeed the enactment of the necessary regulatory scheme amounts to an impossibility then it becomes a matter for the provincial legislature to decide as a matter of policy.

Brant Dairy Co. v. Milk Commission of Ontario, [1973] S.C.R. 131, followed; Attorney General of Canada v. Brent, [1956] S.C.R. 318, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from a judgment of the Divisional Court[2] dismissing an appeal from a decision of the Ontario Municipal Board approving a by-law together with an application to quash a municipal by-law. Appeal allowed, by-law declared ultra vires.

J.J. Carthy, Q.C., and G.J. Smith, Q.C., for the appellants.

J.J. Robinette, Q.C., for the respondent.

D.W. Brown, for the intervener.

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 May 3, 1976. The respondent, the City of Toronto, had applied to the Ontario Municipal Board for approval of by-law 419-74. That by-law had been passed by the City of Toronto on December 16, 1974. The Ontario Municipal Board only one week before, on December 9, 1974, had

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refused to approve what has been referred to as the “Height By-law”.

By-law 419-74 was said to be enacted by virtue of s. 35a of The Planning Act as enacted in December 1973 and is an amendment of by-law 20623 by adding to s. 16 thereof a new subsection 3(i) in the following terms:

(3)(i) As a condition of development or redevelopment of any land or buildings within any area hereinafter referred to, the Council requires the provision and maintenance of the following facilities and matters, namely:

1. Widening of highways that abut on the land that is being developed or redeveloped.

2. Subject to The Public Transportation and Highway Improvement Act, facilities to provide access to and from the land such as access ramps and curbings including the number, location and size of such facilities and the direction of traffic thereon.

3. Off-street vehicular parking and loading areas and access driveways including the surfacing of such areas and driveways.

4. Walkways and all other means of pedestrian access.

5. Removal of snow from access ramps, driveways, parking areas and walkways.

6. Grading or change in elevation or contour of the land and the disposal of storm, surface and waste water from the land and from any building or structures thereon.

7. Conveyance to the municipality, without cost, of easements required for the construction, maintenance or improvement of any existing or newly required watercourses, ditches, land drainage works and sanitary sewerage facilities on the land.

8. Floodlighting of the land or of any buildings or structures thereon.

9. Walls, fences, hedges, trees, shrubs, or other suitable groundcover to provide adequate landscaping of the land or protection of adjoining lands.

10. Vaults, central storage and collection areas and other facilities and enclosures as may be required for the storage of garbage and other waste material.

11. Plans showing the location of all buildings and structures to be erected on the land and the location of the other facilities required by the by-law.

12. Perspective drawings and plans showing building elevations and cross sections of industrial and com-

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mercial buildings and residential buildings containing twenty-five or more dwelling units.

Then follows the description of the lands affected which, for present purposes, may be said to be the central core of the City of Toronto. The by-law goes on:—

(ii) The Council is authorized to regulate the maintenance and use of the facilities and matters referred to in paragraph (i).

(iii) The facilities and matters required by paragraph (i) shall be provided and maintained by the owner of the land at his sole risk and expense and to the satisfaction of the Corporation and in default thereof the provisions of Section 469 of the Municipal Act shall apply.

(iv) The owner of any land within any area referred to in paragraph (i) is required as a condition of development or redevelopment of any land or buildings to enter into one or more agreements with the Corporation dealing with the facilities and matters referred to in this By-law.

(v) No building permit shall be issued until the plans required by clauses 11 and 12 of paragraph (i) have been approved by the Corporation and until the agreements required by paragraph (iv) have been entered into.

(vi) For the purpose of this subsection, “redevelopment” means the removal of buildings or structures from land and the construction or erection of other buildings or structures thereon.

2. This By-law shall not come into force without the approval of the Ontario Municipal Board.

The appellants opposed the approval of the said by-law submitting that its enactment was contrary to the principles enunciated in the decision of this Court in Brant Dairy Company Ltd. et al. v. The Milk Commission of Ontario et al.[3]

The Municipal Board approved the by-law by its decision pronounced on November 24, 1975. The appellants obtained leave to appeal the order of the Ontario Municipal Board to the Divisional Court. By its order of February 13, 1976, the Divisional Court also gave leave to add a second style of cause and to bring an application under The Judicial Review Procedures Act, 1971 (Ont.), c. 48, for similar relief to that claimed in the application for

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leave to appeal. The Divisional Court by its judgment pronounced on April 1, 1976, dismissed the application for judicial review and, therefore, dismissed the appeal.

The appellants then applied for leave to appeal to the Court of Appeal from the judgment of the Divisional Court. Such leave was granted and the Court of Appeal by its judgment pronounced on October 28, 1976, dismissed the appeal. From that judgment, the appellants appealed to this Court by leave granted on February 8, 1977.

Section 35a) of The Planning Act as added by s. 10, c. 168, 1973 (Ont.), provides:

35a. (1) In this section and in section 35b, “redevelopment” means the removal of buildings or structures from land and the construction or erection of other buildings or structures thereon.

(2) Where there is an official plan in effect in a municipality, the council of the municipality in a by-law passed under section 35 may, as a condition of development or redevelopment of land or buildings in the municipality or in any defined areas thereof, prohibit or require the provision, maintenance and use of the following facilities and matters or any of them and may regulate the maintenance and use of such facilities and matters:

1. Widening of highways that abut on the land that is being developed or redeveloped.

2. Subject to The Public Transportation and Highway Improvement Act, facilities to provide access to and from the land such as access ramps and curbings including the number, location and size of such facilities and the direction of traffic thereon.

3. Off-street vehicular parking and loading areas and access driveways including the surfacing of such areas and driveways.

4. Walkways and all other means of pedestrian access.

5. Removal of snow from access ramps, driveways, parking areas and walkways.

6. Grading or change in elevation or contour of the land and the disposal of storm, surface and waste water from the land and from any buildings or structures thereon.

7. Conveyance to the municipality, without cost, of easements required for the construction, maintenance

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or improvement of any existing or newly required watercourses, ditches, land drainage works and sanitary sewerage facilities on the land.

8. Floodlighting of the land or of any buildings or structures thereon.

9. Walls, fences, hedges, trees, shrubs or other suitable groundcover to provide adequate landscaping of the land or protection to adjoining lands.

10. Vaults, central storage and collection areas and other facilities and enclosures as may be required for the storage of garbage and other waste material.

11. Plans showing the location of all buildings and structures to be erected on the land and the location of the other facilities required by the by-law.

12. Perspective drawings and plans showing building elevators and cross sections of industrial and commercial buildings and residential buildings containing twenty-five or more dwelling units.

(3) Nothing in paragraph 12 of subsection 2 shall be deemed to confer on the council of the municipality power to limit the height or density of buildings to be erected on the land.

(4) A by-law that includes provisions authorized by subsection 2 may,

(a) provide that facilities and matters required by the by-law shall be provided and maintained by the owner of the land at his sole risk and expense and to the satisfaction of the municipality, and that in default thereof the provisions of section 469 of The Municipal Act shall apply;

(b) require that the owner of the land enter into one or more agreements with the municipality dealing with the facilities and matters referred to in subsection 2; and

(c) prohibit the issuance of building permits until the plans referred to in paragraphs 11 and 12 of subsections 2 have been approved by the municipality and until the agreements referred to in clause b have been entered into.

(5) Any agreement entered into, as referred to in clause b of subsection 4, may be registered against the land to which it applies and the municipality is entitled to enforce the provisions thereof against the owner and, subject to the provisions of The Registry Act and The Land Titles Act, any and all subsequent owners of the land.

(6) Where the municipality fails to approve the plans referred to in paragraphs 11 and 12 of subsection 2 within thirty days after they are submitted to the munic-

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ipality for approval or where the owner of the land is not satisfied as to the terms of the proposed agreement referred to in clause b of subsection 4 or where the municipality has refused to enter into such an agreement with the owner, the owner of the land may require the plans or agreement, as the case may be, to be referred to the Ontario Municipal Board by written notice to the secretary of the Board and to the clerk of the municipality, and the board shall then hear and determine the question as to the suitability of the plans or of the provisions of the agreement and the Board shall settle and determine the details of the plans and approve the same and settle and determine the provisions of the agreement and may require the municipality to enter into it, and the decision of the Board shall be final.

As I have said, one week after the Ontario Municipal Board had refused to approve the “Height By-law” the City of Toronto enacted By-law 419-74. Section 1 of the said by-law added to section 16 of By-law 20623 subsection (3)(i) which I have already quoted. As will be seen, the said subsection so added by the by-law is a verbatim copy of s. 35a(2) of The Planning Act as amended.

Before the Divisional Court, the Court of Appeal for Ontario and again before this Court, the chief attack made upon by-law 419-74 was that it infringed the principles enunciated by this Court in Brant Dairy Company Ltd. et al. v. Milk Commission of Ontario et al., supra. That contention was dealt with in both the Divisional Court and the Court of Appeal for Ontario and both courts came to the conclusion that the appeal was not in breach of those principles, the Court of Appeal relying specifically upon the reasons given by Osler J. in the Divisional Court. With respect, I have read and reread those reasons and cannot find how there can be a valid distinction between the position in reference to by-law 419-74 in the present case and s. 4 of Regulation 52/68 and s. 3(4) of Regulation 68/68 in the Brant case. Both the sections of the Regulations found ultra vires by the majority of this Court in Brant Dairy and the present by‑law adopt an exactly similar course. In each case, the enabling legislation permitted the commission, in the Brant case and the municipal council in this case, to enact regulations (here by-law) “to prohibit or require the provision, maintenance and use of the following facilities”. I

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quote from s. 35a as enacted by s. 10 of c. 168 of the Statutes of Ontario, 1973.

In the Brant Dairy case, the regulations of the Commission permitting the action of the Board in enacting its regulations there in question provided for, inter alia, the fixing and alloting to persons of quotas for the marketing of a regulated product on such basis as the Board deems proper. In each case, the subordinate legislating body purported to exercise the power by, to quote Laskin J., as he then was, in the Brant Dairy case at p. 146:

What the Board had done has been to exercise the power in the very terms in which it was given. It has not established a quota system and allotted quotas, but has simply repeated the formula of the statute, specifying no standards and leaving everything in its discretion.

I am of the opinion that those words may be exactly adopted to the action of the municipal council in the enactment of by-law 419-74. There has been the mere simple repetition of the power and not the exercise of the power by the enactment of a by-law defining the desired regulations. Laskin J., as he then was, continued on the same page:

A statutory body which is empowered to do something by regulation does not act within its authority by simply repeating the power in a regulation in the words in which it was conferred. That evades exercise of the power and, indeed, turns a legislative power into an administrative one. It amounts to a redelegation by the Board to itself in a form different from that originally authorized; and that this is illegal is evident from the judgment of this Court in Attorney General of Canada v. Brent, [1956] S.C.R. 318.

I am, therefore, of the opinion that the appeal should be allowed and that by-law 419-74 should be held to be ultra vires.

There have been two arguments adduced by counsel for the respondent municipality and which are repeated in the reasons for judgment both of the Ontario Municipal Board and of the Divisional Court in an attempt to avoid the result.

Firstly, it has been said that the provisions of subs. (6) of s. 35a of The Planning Act effectively

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prevent any misuse of the provisions of the by-law in question by the municipality in that an appeal is provided to the Municipal Board for any owner who is not satisfied with the terms of the agreement proposed or where the municipality has refused to enter into such agreement and that upon such appeal the Municipal Board shall hear and determine the question as to the suitability of the plans or the provisions of the agreement and settle and determine the details of the plan and of the agreement. This argument, even if it were sound, I do not think could be effective to validate an invalid by-law. If the provisions of the by-law are an invalid exercise of the legislative power granted by s. 35a of The Planning Act, then it will not give any validity to them to show that the inequitable exercise of that invalid power can be prevented from causing harm by an appeal to the Municipal Board. Even if that argument were a valid one, then such possible correction by a decision of the Municipal Board would in no way provide the certainty which an owner or a prospective owner of real property is entitled to have as to the use to which he may put that real property. The developers considered as a class, and they are well represented by the Canadian Institute of Real Estate Companies, the appellant here, are entitled to know not only the method by which the owners may develop the lands presently owned by them but are entitled to know what use a prospective purchaser may make of certain lands if he completes the purchase of them, and inability to have that information, in my opinion, puts the real estate developers business in a position of unnecessary hazard.

Secondly, and an argument which, in my opinion, is similarly non-legal, it is said that circumstances vary so much as to each individual property or collection of properties in a great modern city such as the City of Toronto that it would be impossible to draft a by-law which would, by regulation deal with all the matters set out in paras. (1) to (10) of subs. (3)(i) of by-law 419-74. It may well be that there is this enormous variation in the circumstances of each individual piece of property but modern administrative law has to deal constantly with innumerable variations of circumstances and the difficulty of drafting and

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enacting a scheme of redevelopment control does not alter the necessity for doing so if the provisions of s. 35a of The Planning Act are to be utilized. If, on the other hand, the respondent is able to convince the provincial legislature that the difficulty of enacting any regulatory scheme amounts to an impossibility, then the respondent municipality may be able to persuade the provincial legislature to grant it a power to control redevelopment without any standards or principles. That will be a matter upon which the legislature will have to come to a decision as a matter of policy.

For these reasons, I would allow the appeal and declare the said by-law 419-74 ultra vires. The appellants are entitled to their costs throughout.

Appeal allowed with costs.

[1] (1977), 15 O.R. (2d) 248.

[2] (1976), 12 O.R. (2d) 697.

[3] [1973] S.C.R. 131.