Who Says You Can’t Fight City Hall?

Written by litigator and mediator Irvin Schein and originally published at irvinschein.com.   

The recent decision of the Superior Court of Ontario in Russell v. The Corporation of the Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.

In this case, Mr. Russell owned a cottage property on the shore of Georgian Bay.  This property consisted of about 1.4 acres of land with 170 feet of water frontage.  He had a cottage located about 4.57 metres back of the high water mark fronting on to Georgian Bay.

He decided to build a 720 square foot workshop at the side of his cottage, with the front of it being the same distance to the water’s edge as the existing cottage.  He applied to the town for a permit.  After obtaining advice from external counsel, the town’s Chief Building Official denied his application on the basis that it contravened the relevant By-Law.

The By-Law in force required that any new construction on a front yard maintain a distance of 20 metres to the water.  The existing cottage was much closer to the water’s edge, but as it had been built before the current By-Law came into force, it was grandfathered.  The Town took the position that the workshop Mr. Russell wished to build, while located in the side yard of the property and not in the front yard, would nevertheless be situated closer to the water than the current By-Law permitted.  In effect, according to the judge, while the Town conceded that the workshop would be located in the side yard, it would lie within the area where Mr. Russell’s front yard would be if his cottage were newly built, instead of having been built before the Zoning By-Law came into force.

The judge pointed out that the dispute had been clouded by the fact that the parties had litigated against each other already, leaving a certain amount of ill will.  There had been a dispute concerning the issuance of a permit to build a boathouse that led to appeals to the Ontario Municipal Board and the Divisional Court, resulting in enormous legal fees on both sides.  While the judge found that this had absolutely nothing to do with the issue before him, he pointed out that the Affidavit filed on behalf of the Town included a recitation of the boathouse history in great detail.  As the judge put it, this suggested something of a departure “from the ideal of detached professionalism” that would ordinarily be expected of the town and it’s Chief Building Officer.  As the judge put it, “ruffled feathers and simmering resentment have no place in a neutral and objective application of the law by public officials”.

While the boathouse issue was not relevant, the obvious hostility of the Town towards Mr. Russell was relevant.  The matter was put before the court under a provision of theBuilding Code Act that permits judges to substitute their opinions for that of public officials.  There is case law to support the proposition that when considering such issues, a judge should apply a degree of deference to the expertise and experience of the public official.  The judge concluded that in this case, the history of the boathouse conflict provided him with “some added reason to approach the question of deference with caution.”  It seems that the history of ill will was taken into account by the judge in assessing the correctness of the Chief Building Officer’s decision.

The judge considered the matter as a straight forward problem of interpretation and provided the following analysis:

Mr. Russell had a waterfront lot with a cottage on it and with a front yard, side yards on each side of the cottage, and a rear yard.  These were mutually exclusive divisions of the lot, meaning that one yard ended where the other yard began and there was no part of the lot that was both a front yard and a side yard.

In Mr. Russell’s case, his front yard was 4.57 metres deep across the entire front of his lot, at which point his side yards began.  The By-Law stated that the minimum yard requirement for a front yard was 20 metres.  The cottage was grandfathered because it was built before the current by-law was put in place.  Consequently, his front yard was to be measured in relation to where his cottage was and not where it would be if it was newly built.  The By-Law in this case expressed itself by reference to front yards, not set-backs, and made clear that property owners can build accessory buildings in their side yards.  The judge ruled that if the Chief Building Officer was correct in his interpretation, and the “yard” requirement was defined as a separate set-back requirement applicable to all structures in every yard on the lot, it would strip Mr. Russell of the right to build an accessory building in his side yard when the By-Law permitted him to do so.

Accordingly, the decision of the Chief Building Officer was set aside.

Cottage owners often find it necessary or appropriate to improve their properties in ways that require the issuance of permits.  Municipal officials are often seen by cottage owners as petty local bureaucrats who have it in for big city-dwelling cottage owners.  I am not suggesting that the Chief Building Officer in this case was actually motivated by anything improper, but the fact is that, as this case points out, the courts are always available to straighten things out if required.

Yes, you can fight City Hall.