Jul 10, 2020

Interpreting a bylaw: the latest ONCA case

2222868 Ontario Inc. v. Grimsby (Town), 2020 ONCA 376 (CanLII)

The town of Grimsby Ontario passed a bylaw in 2014 dividing the town into three sectors. Various activities were permitted in each zone. 2222868 Ontario Inc. maintained a private airport in the Utility Zone. Such a zone had four permitted uses: airport, utility corridor, water and sewage treatment, pumping and storage and works yard.

The airport owner (222) proposed to set up a work yard on its property, no problem. However, the airport planned to lease out the works yard to another private company for use of its equipment. The City objected saying: No! The Utility Zone is only for ‘public or private utilities’ (17).

Grimsby then fell back upon the good old ‘specialty crop area’ designation. There couldn’t be a works yard at the airport because the airport happened to be in a ‘specialty crop’ zone. (25)

Grimsby’s ultimate argument was that the ‘works yard’ phrase in the bylaw, was a strictly limited exception to a no-build policy in the ‘specialty crop’ zone. Because there was an airport, well, maybe the airport might need a works yard. But there was not supposed to be any works yard tolerated which was not necessary to the airport or another public utility.

Pepall J.A. agreed with the applications judge: the bylaw wording was not exclusionary, as Grimsby now wanted to infer. (26) An ordinary works yard is not inconsistent with the land use objectives.

Although the town now insists that the zone was only for public or quasi-public uses, that restriction is not stated in the bylaw or policy statements. In fact the plain language permits the works yard precisely as per the proposal. (3)

In the context of deciding against the town Pepall J.A. gave the latest analysis of how to interpret a bylaw:

  • Bylaws are held to a correctness standard.
  • A zoning bylaw is the end product of the planning process under the Planning Act.
  • Bylaw interpretation is in accordance with the standard rules of 'modern' statutory interpretation: consideration of the text, intent of the municipal council, and overall purpose of the bylaw as a whole.
  • The ‘Official Plan’ (that nebulous thing loved by activists and leftist councilors as an all-purpose obstacle to private use of land) is not a statute. ‘It establishes the broad principles that are to govern the municipality’s land use planning generally’. (32).

My legal comment:

Strictly speaking the ‘Official Plan’ is not supposed to be a tool of interpretation. The Planning Act conclusively deems the bylaw to be the legal expression of the ‘Official Plan’.(35) Therefore it was a mistake for the applications judge to go rummaging around in the ‘official plan’ for confirmatory evidence of her interpretation of the bylaw. Opening the bylaw to potential contradiction with the ‘official plan’ is precisely what rummaging around in the ‘official plan’ does. It matters not that the applications judge deemed her rummaging to be in conformity.

Pepall J.A. genuflects to all the appropriate modern nonsense that allows for evaluation of a statute outside the four corners of the statute. That is to say: what the applications judge did: looking to the ‘official plan’ to make sure that her interpretation was not inconsistent with such background policy document. Judges give too little criticism to the fact that aspirational homilies get integrated into the ‘official plan’ and that municipalities regularly ignore their 'official plan' when convenient. They do this by passing a bylaw inconsistent with the official plan. They do this for the needs of the moment which rational councils recognize to be inconsistent with the 'official plan'. It is logical that they do this. The legislature knows they do this and encourages this by making the bylaw the deemed statement of the official plan.

Can you see now why it is wrong to go rummaging around in the official plan? Is the judge competent to interpret all of the back-room dealing and political chronology that went into an explicit breaking with the official plan through a bylaw?

What if the applications judge had found an inconsistency as between the nonsense written in the ‘official plan’ and the strict and forensic words written in the bylaw? Would she have overturned her clear unambiguous reading of the bylaw in favour of the ‘official plan’ even though the bylaw is statutorily deemed to state what the ‘official plan’ means?

Reading within the four corners of a statute (bylaw) is so boring isn’t it? Much more exciting to think about the larger objects of municipal policy when judicial policy-making. It’s very hard to make policy when you are cooped up within the confines of the four corners of the statute.

The result of the 'modern' law of statutory interpretation in this case, has the applications judge doing something that the statute prohibits, namely, seeing if the official plan was consistent with the judge’s reading of the bylaw.

The best thing about this case is that Pepall J.A. (and the applications judge for that matter) ultimately interpreted the bylaw within the four corners of the statute:

  1. The use was specifically permitted in the words of the bylaw;
  2. Nothing in the words or structure of the bylaw prohibited the use;
  3. If a private works yard was prohibited in the utility zone, it was a fortiori, prohibited everywhere else because there is only one mention of 'works yard' anywhere in the bylaw;

This is classic four-corners interpretation. Given this Pepall interpretation, which is fatal to the Town’s claim, there was no need to go behind the statute.

Even better: what if Pepall had gone behind the statute and found inconsistency there? She is necessarily fixed with her logical four-corners interpretation above? What would become of the four-corners interpretation if there was a bunch of incoherent nonsense in the ‘official plan’ that seemed to contradict?

This is the problem of judges reading Hansard, or reading preambles, or campaign speeches of any of the other ‘modern’ tools of SCC interpretation. From someone who has written those documents for twenty years, the naïve interpretation placed upon those utterances by judges, for their purpose of being able to break free of the statutory words, is the real un-diagnosed error of the ‘modern’ approach to statutory interpretation.