Date: 19980325
Docket: T-1410-96
BETWEEN:
LAWRENCE BICE
Applicant
- and -
THE COUNCIL OF THE MISSISSAUGAS
OF THE NEW CREDIT
Respondent
REASONS FOR ORDER
JEROME J.
[1] This application for judicial review of a decision by the respondent denying the applicant permission to establish a gas station on an Indian reserve came on for hearing before me at Toronto, Ontario, on December 2, 1997. The applicant seeks a declaration that his gas station does not violate By-Law No. 1996-01 passed by the Council of the Mississaugas of New Credit. At the close of oral argument, I took the matter under reserve.
[2] The applicant is a member of the Mississaugas of the New Credit band and resides on the New Credit Indian Reserve No. 40A in Ontario. The respondent is the government of the Mississaugas Indian Reserve and is elected by the membership of the Mississaugas of the New Credit in accordance with section 74 of the Indian Act, R.S.C. 1985. c. I-5.
[3] On November 2, 1994, the applicant purchased a parcel of land on the reserve in order to construct a gasoline station to sell gasoline products to the public. In spring 1995, the applicant commenced construction of the gas station and, by July 1995, he had excavated and levelled the land and put approximately $10,000 of gravel onto it. In June of 1995, the applicant informed the respondent that he was constructing a gasoline station on the land. He also requested its approval to approach the Motor Fuels and Tobacco Tax Branch of the Ministry of Finance of Ontario to obtain tax-exempt vouchers in order to sell tax-exempt gas to Indians at the location.
[4] On July 11, 1995, the Chief Councillor of the respondent advised the applicant that the respondent had denied him permission to build the gasoline station. At that time, there was no by-law in effect to prevent the applicant from constructing and operating a gasoline station on the reserve.
[5] In summer and early fall of 1995, the applicant installed gasoline tanks and poured the concrete kiosk. By November 7, 1995, the applicant had obtained approval from the Ontario government's Fuels Safety Branch to sell gasoline subject to final inspection. On November 2, 1995, the respondent submitted a letter to the Motor Fuels and Tobacco Tax Branch demanding that the branch not issue a permit to the applicant to sell gasoline. In December 1995, the applicant had electricity connected to his station, filled the tanks with gasoline and was ready to commence operations subject to final inspection by the Fuels Safety Branch. From December 1995 to February 1996, the applicant made frequent requests of the Fuels Safety Branch to make a final inspection but this was refused due to the respondent's letter.
[6] On February 9, 1996, the respondent approved a zoning by-law passed pursuant to section 81(1)(g), (h), (q) and (r) of the Indian Act that prohibited the operation of a gasoline station on this land. The by-law was approved by the Deputy Minister of Indian Affairs on February 27, 1996 and became effective as of that date.
[7] On April 1, 1996, the applicant's solicitor advised the respondent that the applicant had established a non-conforming use to the zoning by-law and asked the respondent to cease withholding its approval. On June 6, 1996, the applicant was told that the respondent would not sanction the applicant's gasoline station since it violated the bylaw passed on February 9, 1996.
[8] At the hearing, the respondent conceded that the gas bar began construction before the by-law was passed. The gas bar is currently in contravention of the terms of the by-law. It is unclear whether the applicant was selling gasoline prior to the passing of the by-law.
[9] The respondent's first argument is that the applicant is not the proper party to bring this application because his wife, Irene Laforme, is the actual land owner. The respondent transferred the land to her in November 1995. Thus, the respondent submits that the applicant is not directly affected by the matter and therefore has no standing to apply for judicial review pursuant to subsection 18.1(1):
| 18.1(1) Application for judicial review - An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. |
[10] Although the applicant does not own the land, his actions are directly in issue. The respondent is concerned with the use of the land, specifically, the construction and operation of a gas station in an area which is no longer zoned for that use. The only communications concerning this issue are between the applicant, the respondent, their solicitors and various government officials. The decision for which judicial review is sought was directed at the applicant. The applicant's wife has remained, at best, a silent partner in this whole affair. The "matter" in issue is the applicant's use of the land and thus the applicant is directly affected by it and should be entitled to seek relief. In my opinion, the applicant has standing to seek judicial review.
[11] Another issue of minor dispute between the parties was whether the applicant had established use of the property as a gas station prior to the date the by-law came into effect. Although there is some question whether the applicant had sold gas at that date, a finding that the station was not operational is not fatal. In Town of Richmond Hill v. Miller Paving Ltd. (1978), 22 O.R. (2d) 779 (H.C.J.) [hereinafter Town of Richmond Hill], the court cited the decisions in Re Hartley and City of Toronto (1924), 56 O.L.R. 433 (C.A.) [hereinafter Hartley], and Central Jewish Institute v. City of Toronto, [1948] S.C.R. 101 where the owners in both cases had engaged in hastily-arranged limited use due to an anticipated restrictive by-law. In both cases the position of the owner was upheld. In Hartley, Hodgins, J.A., said at page 435:
| Where possession is taken so far as it can be done and in good faith for the purpose for which the building was acquired, the law ought to be, and I think is, that that user is such as the enactment contemplates as saving the property from the restriction under the statute, and is not affected by mere temporary use of a part, necessitated by or consequent upon the effect of a change of ownership. The test of the bona fides of the user must be whether the acts done disclose a real intention to use the building for its intended purpose and an actual user so far as that purpose could be carried out at the time. |
The court in Town of Richmond Hill agreed with that statement and added that "any doubt as to prior use should be resolved in favour of the owner..." (at page 782). These principles have been accepted in recent cases including British Columbia Custom Car Assn. v. Mission (District) (1990), 3 M.P.L.R. (2d) 278 (B.C.S.C.) and Cowichan Valley (Regional District) v. Yole (1988), 41 M.P.L.R. 78 (B.C.C.A.).
[12] The applicant had installed and filled the gasoline tanks, constructed the concrete kiosk and connected electricity to the station, acts which disclose a real intention to use the premises as a gasoline station. Although I have no doubt as to its use, if I had any it would have been resolved in favour of the applicant.
[13] The main issue here is whether the applicant had established a legal non-conforming use before the by-law came into effect. The respondent claims that the applicant has not proven compliance with the Gasoline Handling Act, R.S.O. 1990., c. G.4, and therefore the applicant has not established a legal non-conforming use. The applicant contends that provincial law does not apply to reserve land and so his use was legal and occurred prior to the passing of the by-law.
[14] A review of the jurisprudence reveals that provincial laws apply to aboriginals and aboriginal lands unless they fall under certain exceptions carved out in the case law. In Native Law (looseleaf) (Toronto: Carswell, 1989), Woodward sets out these exceptions as follows:
| 1) provincial laws cannot derogate from constitutionally protected Indian rights; |
| 2) provincial laws may not affect "Indianness" - the status or capacities of Indians; |
| 3) provincial laws may not single out Indians for special treatment; |
| 4) provincial laws may not affect the Indian interest in land; |
| 5) provincial laws are subject to paramount federal legislation. |
[15] Although one might argue that the fourth exclusion should exclude the operation of the Gasoline Handling Act, I do not think that this statute should be characterized as one that regulates the Indian interest in land. In Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, Martland J., speaking for the majority, discussed the application of provincial statutes to Indians and Indian Reserves at page 703:
| A Provincial Legislature could not enact legislation in relation to Indians, or in relation to Indian Reserves, but this is far from saying that the effect of s. 91(24) of the British North America Act, 1867, was to create enclaves within a Province within the boundaries of which Provincial legislation could have no application. In my opinion, the test as to the application of Provincial legislation within a Reserve is the same as with respect to its application within the Province and that is that it must be within the authority of s. 92 and must not be in relation to a subject-matter assigned exclusively to the Canadian Parliament under s. 91. Two of those subjects are Indians and Indian Reserves, but if Provincial legislation within the limits of s. 92 is not construed as being legislation in relation to those classes of subjects (or any other subject under s. 91) it is applicable anywhere in the Province, including Indian Reserves, even though Indians or Indian Reserves might be affected by it. My point is that s. 91(24) enumerates classes of subjects over which the Federal Parliament has the exclusive power to legislate, but it does not purport to define areas within a Province within which the power of a Province to enact legislation, otherwise within its powers, is to be excluded. |
[16] Following this approach (most recently adopted on a similar issue in Rempel Brothers Concrete Ltd. v. Chilliwack (District) (1994), 88 B.C.L.R. (2d) 209 (C.A.)), one must examine the pith and substance of the statute. In this case, it appears that the pith and substance concerns the safe handling of gasoline. It is true that some sections of the Gasoline Handling Code (which is adopted as part of the regulations to the Gasoline Handling Act pursuant to O. Reg. 521/93) provide, for example, the depth that an underground storage tank must be buried and would therefore have an effect on the land. However, these effects are incidental to the prime focus of the legislation which is safety.
[17] The case at bar is also similar to R. v. Fiddler (1993), 108 Sask. R. 5 (Q.B.) where the court held that section 15(a) of the Prairie and Forest Fires Act, 1982 S.S. 1982-83, c. P-22.1 applied to an Indian who had set an outdoor fire without taking sufficient precautions. The court cited with approval the submission of the Attorney General that the impugned section was "manifestly the type of regulation that controls the conduct and activities of people and not the use of land. Any requirement to actually do something to the land in order to comply with the section is so incidental that it cannot change the characterization of the law into a land use law" (at page 15). Moreover, the court noted that a fire can spread beyond the borders of the reserve and damage life and property which falls within provincial jurisdiction. A similar finding can be made in this case because a gas leak can easily spread outside the reserve borders, particularly since the applicant's gas station was located just inside the reserve. Similarly, the Gasoline Handling Act is a law of general application concerned with safety in the handling of gasoline and should apply on an Indian reserve.
[18] The remaining question is whether the applicant has satisfied the court that he was engaged in a legal non-conforming use prior to the date the by-law came into effect (see City of Toronto v. San Joaquin Investments Ltd. et al. (1978), 18 O.R. (2d) 730 (H.C.J.)). Although the applicant could not receive a final inspection because an official from the Fuels Safety Branch was not allowed on the reserve, there is no evidence that the applicant had received certification for any of the other requirements under the Gasoline Handling Act. The storage tanks, whether underground or aboveground, must be certified pursuant to the Gasoline Handling Code, but there is no evidence of this certification. The record is devoid of evidence of any inspections. This applicant has not met the evidenciary burden required to persuade me of the existence of a non-conforming use which would exempt him from the application of this by-law.
[19] For the reasons outlined above, this application for judicial review is dismissed.
"James A. Jerome" JUDGE
OTTAWA, ONTARIO
March 25, 1998