Administrative law – Decisions of administrative tribunals – Ministerial orders – Natural resources – Water – Municipalities – By-laws – Power to enact by-laws – Planning and zoning – Building permits – Judicial review – Compliance with legislation – Jurisdiction
Glaspell v. Ontario (Minister of Municipal Affairs and Housing),  O.J. No. 3246, 2015 ONSC 3965, Ontario Superior Court of Justice, June 18, 2015, P.M. Perell J.
The plaintiff homeowner (Mr. Glaspell) commenced an action and then brought a partial summary judgment motion against the following defendants: (a) the Corporation of the Township of North Kawartha (the “Township”), (b) its Chief Building Official, Tim Powell, (c) Her Majesty the Queen in Right of Ontario (“the Crown”), as represented by the Minister of Natural Resources (the “MNR”) and the Minister of Municipal Affairs and Housing (the “MAH”), (d) the Area Supervisor for MNR, Bruce Mighton, and (e) other homeowners, Richard and Margaret Hart (the “Harts”).
Mr. Glaspell and his wife bought a home on Big Cedar Lake (the “Lake”) in 2007. They allege that they were assured there would be no boathouses allowed on the Lake. In 2011, their neighbours (the Harts) built a large 1,000 square foot dock close to the property line. The dock is anchored to the shore with a thick steel cable above the high water mark. The Harts then built a boathouse on the dock. The boathouse was constructed without a building permit from the Township and without an occupancy or work permit from MNR.
Mr. Glaspell repeatedly contacted the Township and also the MNR. The MNR staff concluded that the dock and boathouse did not occupy more than 15 metres of shoreland because they were not touching the bed of the Lake. They concluded that a work permit was not required. The MNR also relied on its Free Use Policy and concluded that an occupancy permit was not required.
Mr. Glaspell commenced an action against several parties, including the defendants involved in the summary judgment motion. Mr. Glaspell brought a partial summary judgment motion seeking only declaratory relief in response to the following 5 questions:
- Does the Ontario Building Code Act, 1992 apply to construction of structures to be built on, over, in, or under Ontario lakes?
- Does the Township have jurisdiction to enact and apply by-laws to these structures?
- Do each of the dock and the house require building permits, and compliance with the Township’s zoning by-laws?
- Does the boathouse require an occupancy permit to occupy public lands?
- Does the boathouse require a work permit regarding the construction of a structure on shore lands?
The Court discussed the ownership of lakes and rivers in Ontario, and reviewed the various pieces of relevant legislation. The Court then decided the motion on the merits and granted declarations answering “yes” to all of the questions noted above.
The Court held that the Building Code Act, 1992 is applicable to the construction of structures on the Lake and a building permit is required.
The Court held that the Township can lawfully zone the lands under the Lake because the Lake is located in the Township. The Township can regulate the type of construction and size/character/use of buildings or structures to be located within the Township. Its by-law would not apply to the Crown or its agents but it would apply to the dock and boathouse constructed by the Harts.
Further, the Court held that the Harts are required to obtain a work permit and an occupancy permit to construct docks or boathouses even though they are not touching the bed of the Lake.
The Court held that declarations should be issued in conformity with the reasons for judgment, and costs should be awarded in the cause.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com.
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