Date: 20161219

Docket: A-8-16

Citation: 2016 FCA 317

CORAM:

NADON J.A. RENNIE J.A. DE MONTIGNY J.A.

 

BETWEEN:

HERB C. PINDER JR., JOHN WEDGE AND TOM MOLLOY, TRUSTEES FOR THE PINDER FAMILY TRUST

Appellants

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, REPRESENTED BY THE MINISTER OF ENVIRONMENT, AND PARKS CANADA AGENCY

Respondents

Heard at Saskatoon, Saskatchewan, on November 14, 2016.

Judgment delivered at Ottawa, Ontario, on December 19, 2016.

REASONS FOR JUDGMENT BY:	DE MONTIGNY J.A.
CONCURRED IN BY:	NADON J.A. RENNIE J.A.

 

Date: 20161219

Docket: A-8-16

Citation: 2016 FCA 317

CORAM:

NADON J.A. RENNIE J.A. DE MONTIGNY J.A.

 

BETWEEN:

HERB C. PINDER JR., JOHN WEDGE AND TOM MOLLOY, TRUSTEES FOR THE PINDER FAMILY TRUST

Appellants

and

HER MAJESTY THE QUEEN IN RIGHT OF CANADA, REPRESENTED BY THE MINISTER OF ENVIRONMENT, AND PARKS CANADA AGENCY

Respondents

REASONS FOR JUDGMENT

DE MONTIGNY J.A.

[1]  This appeal raises an issue that would appear quite straightforward, at first sight, but which has nevertheless given rise to protracted disputes between the parties. Simply put, the question is whether a deck abutting a cottage and extending to the side lot line is compliant with the requirements of the National Parks of Canada Cottages Regulations, S.O.R./79-398 (the Regulations) according to which the side yard width not abutting a street must be a minimum of 2 metres.

[2]  In a decision dated December 9, 2015 (Reasons for Judgment found at 2015 FC 1376), Justice Heneghan of the Federal Court (the Judge) dismissed the appellants’ motion for summary judgment and granted the respondents’ corresponding motion for summary judgment on the basis that there was no genuine issue for trial in respect of the appellants’ claim. She found that the deck was non-compliant with the Regulations, either as being a part of the cottage, or a projection of it.

[3]  Having carefully read the record and considered the submissions of the parties, I am of the view that the appeal should be dismissed. The Judge correctly found that the deck is part of the cottage. It was not unfair to arrive at this conclusion, despite the fact that this was not the main argument advanced by the parties.

I.  Background

[4]  The appellants are trustees of the Pinder Family Trust. They lease from Parks Canada, a federal agency which acts as agent for and on behalf of the Government of Canada, a cottage lot in the Waskesiu Lake town site in Prince Albert National Park. The lease was originally entered into for a term of 42 years in 1948, and was subsequently renewed for an additional 42 years in 1988; it subjects the use of the land to all regulations under the control and management of Parks Canada, under the authority of the Canada National Parks Act, S.C. 2000, c. 32 (the Act). The appellants acquired the lease on January 1, 1995, through an assignment from the original lessee.

[5]   There was much dispute before the Judge as to how exactly the cottage and the deck came to be built in 1995, and in particular, whether the deck structure extending to the fence at the south property line was ever formally approved by Parks Canada. The appellants submitted that the entire development (including the deck) was inspected and expressly approved, first by way of a letter dated August 14, 1995, and then as a result of Parks Canada not raising any concerns with the deck location after surveying the Pinder property, along with all the town side lots in Waskesiu, in 1997. The respondents argued that the plans were only “conceptually approved”. They conceded, however, that a 1.2 metre setback on the construction blueprint formed part of this conceptual approval, despite the fact that the Regulations require a 2 metre setback for those properties not abutting a street.

[6]  The genesis of these proceedings does not lie in that dispute, however. Rather, it originates from the approval requested in 2005 by a trustee of the Pinder Family Trust, the appellant Mr. Pinder, for repairs to be conducted under the deck due to a number of its pilings having shifted. He requested approval from Coralee Vaillancourt, the Waskesiu Lake Realty Officer, to replace and enlarge his deck, and submitted the requisite fee. The Officer responded by expressing the view that the deck was not built in compliance with the approved site plan of 1994, and that the deck and shed extended well into the setbacks. She advised that Parks Canada would not review the appellants’ application until the deck was brought into compliance with all required setbacks.

[7]  Notwithstanding Ms. Vaillancourt’s response, Mr. Pinder proceeded with the repairs and extension of the cottage’s deck, without a building permit. He extended the deck to the east and west sides of the property line, replaced the surface boards and repaired the damaged pilings. He did not remove the 1.2 metre widths from the south side of the deck, since it was Mr. Pinder’s understanding that the site plans of 1994 entitled him to build a deck up to the property line. Ms. Vaillancourt learned of these repairs from Mr. Leir, Mr. Pinder’s neighbour, which prompted a review of his file and eventually led to a site inspection of the lot with Mr. Terrence Schneider, the Waskesiu Lake town site manager for the Prince Albert National Park. In inspecting the property, it was concluded that the reconstruction went well beyond normal repair and maintenance, constituting a complete redevelopment of the deck which resulted in an increased footprint of the previous deck structure.

[8]  A series of meetings occurred between the parties, and on November 6, 2012, Parks Canada ultimately advised Mr. Pinder that the lease would be terminated if the deck was not brought into compliance with the Regulations by June 1, 2013. Proceedings were commenced by the appellants in July 2013, seeking (1) a declaration that their lease is in good standing; (2) a declaration that their cottage does not contravene the Regulations; (3) injunctive relief which would prevent the respondents from terminating the lease and taking any other action in relation to the deck or the cottage; and (4) general and punitive damages for defamation, breach of privacy and intentional misconduct. The defamation claimed stemmed from Parks Canada officials having allegedly illegally and wrongfully advised the appellants’ neighbour that Mr. Pinder had constructed an illegal and unapproved deck and had left the impression with this same neighbour that Mr. Pinder had deliberately submitted false plans of the deck location. In the fall of 2014, the respondents brought a motion for summary judgment, to which the appellants responded with their own motion for summary judgment (seeking, in the alternative, a determination of the issues raised in their Amended Statement of Claim by way of summary trial).

II.  Decision under appeal

[9]  After identifying the test on a motion for summary judgment (i.e., as requiring that there be no genuine issue for trial), the Judge first addressed the respondents’ motion and found that the interpretation and scope of the Regulations raised a genuine issue for trial. Since the appellants advanced the same issue and dealt with it in their response to the respondents’ arguments, she decided that the issue could nevertheless be determined by way of summary trial pursuant to Rule 215(3) of the Federal Courts Rules, S.O.R./98-106.

[10]  The Judge first noted that the Act and the Regulations do not define the word “deck”. Relying on the definitions of “accessory building” and “cottage” in the Regulations, she then found that the deck is part of the cottage, for all practical purposes. The Judge came to that conclusion essentially on the basis that the deck is abutting the cottage and is ancillary to its uses.

[11]  The Judge then went on to note that “[a]lthough physically the deck is a projection of the Cottage, insofar as it juts out”, it is not a projection for the purposes of the Regulations. As a result, it would not be subject to the exemption afforded to projections pursuant to the definition of “side yard width”, which she interpreted as excluding projections from the setback requirements for cottages and accessory buildings.

[12]  In the event that a deck is considered to be a projection, the Judge determined that the result would be the same and that the appellants’ deck would still be non-compliant. Her reasoning on that score, however, is not entirely free from contradiction. Applying the principle that one must look for the common meaning between the English and French versions of an Act when there is an ambiguity in one of them, she found that the phrase “clear of projections” must be read as excluding projections. Yet, at paragraph 97 of her Reasons for Judgment, she wrote: “As such, the calculation of the side yard width is from the nearest point of the cottage, main accessory building or projection to the nearest point of the side lot line”. Including the projection to calculate the nearest point of the side lot line would appear to be inconsistent with her previous finding that projections ought to be excluded from the calculation of the side yard width. However, nothing turns on this conflict, for reasons that will become apparent shortly.

[13]  The Judge additionally noted that the repair work conducted by Mr. Pinder between 2005 and 2006 required a permit in accordance with subsection 7(1) and section 9 of the Regulations, as the structural integrity of the cottage and deck were affected by his work. This finding has not been appealed.

[14]  The Judge also found that the doctrine of estoppel did not apply to prevent the respondents from terminating the lease. She held that the Supreme Court of Canada decision of Immeubles Jacques Robitaille Inc. v. Québec (City), 2014 SCC 34, [2014] 1 S.C.R. 784 was dispositive of the issue, in that it stands for the principle that estoppel cannot be raised as a defence to non-conforming use. The Judge further held that estoppel cannot lie against a public official whose promise was unlawful or contrary to clear statutory provisions. Again, the appellants are not challenging this ruling.

[15]  Finally, the Judge held that the appellants’ claim for defamation, breach of privacy and intentional misconduct raised no genuine issue for trial. On the defamation issue, she found the statements made by Parks Canada officials to be substantially true, serving as a valid defence to that portion of the appellants’ claim. As for the breach of privacy claim, the Judge held that no such common law tort exists, and thus found that this part of the claim was non-justiciable. As regards the intentional misconduct allegations, she held that the evidence submitted did not establish this cause of action, especially in light of the fact that, in the absence of evidence to the contrary, actions of a public officer are presumed to be performed in good faith. None of these findings are the subject of this appeal.

[16]  The Judge therefore dismissed the appellants’ motion, and granted the respondents’ motion.

III.  Issues

[17]  There is no dispute that the deck is adjacent to the cottage, and that it extends to the southern side lot line; there is physically no space unoccupied between the cottage and the southern side lot line, as can readily be seen from the photographs taken during the 2009 site inspection appended as Exhibit “M” to the affidavit of Terrence Schneider (Appeal Book, Vol. 1 at pp. 116-127). Accordingly, the only issues raised in this appeal are the following:

1. What is the proper interpretation of the Regulations, and in particular, of the “side yard width” requirements?

2. Did the Judge breach the appellants’ right to procedural fairness by granting the respondents summary judgment on a basis not asserted by the respondents in their Statement of Defence or their Notice of Motion seeking summary judgment?

IV.  Analysis

[18]  It is well established that the appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, apply with equal force to the review of determinations made on a motion for summary trial (see Sadhu Singh Hamdard Trust v. Navsun Holdings Ltd. et al., 2016 FCA 69 at para. 8; Collins v. Canada, 2015 FCA 281 at para. 38, 480 N.R. 274). Since the first issue does not turn on any findings of fact, but rather, on the proper interpretation to be given to the Regulations, it attracts a standard of correctness. The same is true of the second issue, whether the matter was decided on a point not before the Judge, to the extent that it deals with a general question of natural justice. Accordingly, this Court is free to replace the opinion of the Judge with its own, if it is of the view that she erred and did not come to the correct interpretation of the Regulations.

A.  What is the proper interpretation of the Regulations, and in particular of the “side yard width” requirements?

[19]  As noted by the Judge, the word “deck” is not defined in the Regulations. Since it is clearly not a cottage per se, nor an accessory building, such a structure has to be considered either a part of the cottage or a projection. The Judge opted for the first alternative, and her reasons for doing so are sound. Not only is the deck abutting the cottage, but there is no apparent gap between the cottage and the deck. As such, its only practical purpose can be to further the enjoyment of the cottage. A cottage is defined as “a building with facilities for sleeping, cooking, eating and sanitation”; to the extent that a deck is a structure that extends the cottage and is primarily used for cooking and eating, I agree with the Judge it is “ancillary to the uses of the Cottage” and is “useful only in relation to a primary structure, that is the Cottage” (Reasons for Judgment at para. 82).

[20]  The Judge considered the possibility of assimilating a deck to a “projection”, but she rejected it. Counsel for the appellants submitted that her reasoning in that respect is “logically incoherent” because she found that, though physically a projection of the cottage, the deck is not subject to the exemption afforded to projections in calculating the side yard width. Since there is no definition of “projection” in the Regulations, there can be no other applicable definition of this term than that found in the dictionary definition referred to by the Judge, according to which a projection is a projecting part of something.

[21]  Consideration must be given to both the English and French versions, however, when interpreting legislation. The word “saillie” (the French equivalent to “projection” in the Regulations) has a much narrower and technical meaning in the realm of architecture. In the online Dictionnaire de français Larousse, for example, “saillie” is defined as “chacune des parties en avancée sur le nu d’une façade (balcon, corniche, etc.)”. Similarly, Le Petit Robert defines it as follows:

Partie qui avance, dépasse le plan, l’alignement; angle saillant. à aspérité, avancée, bosse, éminence, éperon, protubérance, relief, ressaut. (…) Auvent, balcon, escalier formant saillie.

[22]  The common denominator of those definitions is that the protruding parts referred to as a “saillie” are above the ground, such as cornices, entablements, bow windows, balconies and so on. This narrower definition is more consistent with the wording of the Regulations as a whole and with the object of the Act and of the Regulations.

[23]  Pursuant to subsection 8(2) of the Act, the primary role of the Minister of Environment is to maintain and restore the ecological integrity of the National Parks of Canada (see Sunshine Village Corporation v. Parks Canada et al., 2003 F.C.T. 546 at paras. 29, 41 and 42, 3 Admin L.R. (4th) 138). In that spirit, paragraph 16(1)(m) provides the Governor in Council’s authority to make regulations respecting “the control of the location, standards, design, materials, construction, maintenance, removal and demolition of buildings, structures, facilities, signs and other improvements and the establishment of zones governing uses of land and buildings”. The Regulations have been enacted in conformity with that goal, and set out various restrictions on construction with a view to maintaining the integrity of National Parks and to limiting the footprint of construction.

[24]  For instance, paragraphs 5(1)(g) and (h) of the Regulations provide that the appearance of the cottage “shall be compatible with the natural characteristics of the park in which it is located” and that the development (which includes the alteration, reconstruction, structural repair and enlarging of a cottage) “shall not adversely affect the characteristics of the surrounding area”. Similarly, other provisions of the Regulations limit the floor area of a cottage and in the aggregate of all accessory buildings (paragraphs 5(1)(a) and 6(a)); indicate where the accessory buildings may be located on a lot (paragraphs 6(b) and (c)); subject all developments to the requirement of a permit (subsection 7(1)); set out maintenance standards (section 12); determine what may be stored in the rear or side yard of the cottage lot (section 18); require that fences and hedges be compatible with the natural characteristics of the park (section 20); and prohibits the use of cabin trailers, motor homes, camper-trucks or tents on a cottage lot (section 21). All of these provisions are clearly meant to limit the footprint of construction in National Parks and to assist in furthering the objectives of the Act. The relevant legislative provisions are included in the Schedule to these reasons.

[25]  I find further support for the Judge’s finding that the deck is part of the cottage in the definition of the word “yard” in the Regulations. According to that definition, “yard” refers to the “land contained within the property lines of a cottage lot that is not covered by a building or other structure” (my emphasis). That definition informs the interpretation to be given to “side yard” and “side yard width”, which must therefore relate to that portion of a lot that is not covered by a structure. Such an understanding also has the added benefit of being consistent with my reading of the word “projection”.

[26]  If leaseholders were permitted to construct decks and any other structure not defined in the Regulations, it would make a mockery of the Governor in Council’s clear intention to impose certain limitations on the footprint of construction and would defeat the purpose of the Regulations to allow for a minimum space between developments on contiguous lots. Pushed to the limit, the appellants’ interpretation would lead to the absurd result that all leaseholders would be allowed to build structures up to each and every property line, thus creating a gapless footprint of wooden construction that would extend across all properties. Such an extreme result cannot have been contemplated by the Governor in Council. When properly interpreted, therefore, the deck must be considered as forming part of the cottage when measuring the minimum side yard width prescribed by paragraph 5(1)(c) of the Regulations. In light of that conclusion, there is no need to address the Judge’s alternative finding that the deck, even if considered to be a projection of the cottage, would nevertheless be non-compliant.

B.  Did the Judge breach the appellants’ right to procedural fairness by granting the respondents summary judgment on a basis not asserted by the respondents in their Statement of Defence or their Notice of Motion seeking summary judgment?

[27]  The appellants argue that the Judge’s main finding was not the basis upon which Parks Canada sought to terminate the lease, and was not the position that Parks Canada asserted in its pleadings or in its submissions on its motion for summary judgment. This argument is unconvincing for at least two reasons.

[28]  It is true that Parks Canada took the position throughout these proceedings that the deck is in contravention of the Regulations because it is a projection that must be included in the calculation of the minimum side yard width. In a response letter to the appellants’ request for clarification dated January 30, 2013, Parks Canada took the position that “a deck is indeed a ‘projection’ as identified in the mandatory 2.0 metre ‘side yard width’ requirements and definitions in the National Park Cottage Regulations [sic]” (Appeal Book, Vol. 1 at p. 312). The respondents reiterated that position at paragraph 29 of their Statement of Defence (Appeal Book, Vol. 1 at p. 72). In their own Notice of Motion for summary judgment, they once again asserted that the Regulations require that “decks and other synonymous projections or structures” must respect the prescribed setback from the lot lines adjoining cottage lots (Appeal Book, Vol. 1 at p. 44).

[29]  While the respondents have been consistent in their view that a deck is a projection for the purposes of the Regulations, the same cannot be said of the appellants. It is clear from their Amended Statement of Claim dated August 5, 2014, that they were seeking, inter alia, a declaration that their cottage does not contravene the Regulations (Appeal Book, Vol. 1 at p. 54, para. 1b). They further asserted, at paragraph 32, that “[t]he Plaintiffs’ deck is not ‘part of the cottage’ nor ‘part of the main accessory building’ as defined in the Regulations nor is it a ‘projection’ thereof as that term is used in the Regulations”. They added, at paragraph 33, that Parks Canada had confirmed by letter dated October 1, 2010 that their deck was not considered to be part of the cottage, an affirmation that was denied by Parks Canada in their Statement of Defence. Finally, they submitted at paragraph 29 of their Memorandum of Fact and Law that the deck “is not part of the cottage, a main accessory building, or a projection therefrom, and accordingly is not included in the calculation of side yard width” (Appeal Book, Vol. 1 at p. 375). This memorandum was filed to deal with the motions for summary judgment of both parties.

[30]  It cannot credibly be said, as a result, that the Judge breached the appellants’ right to procedural fairness and departed from the pleadings or the submissions of the parties when she found for the respondents on the basis that the deck is part of the cottage. While this interpretation of the Regulations may not have been the primary basis upon which the case was argued, it was nevertheless at play and was explicitly rejected by the appellants as a possible rationale to ground a contravention of the minimum side yard width requirements.

[31]  Be that as it may, and this is the second reason why the appellants’ procedural fairness submissions ought to be dismissed, a court is not limited to the scope of the pleadings and the parties’ arguments when called upon to interpret legislation. Relying on a decision of the Ontario Court of Appeal (Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, 113 A.C.W.S. (3d) 68 [Rodaro]) and several decisions of this Court and of the Federal Court which relied on that decision (see, for instance, Tervita Corporation v. Commissioner of Competition, 2013 FCA 28, 360 D.L.R. (4th) 717, rev’d on other grounds in 2015 SCC 3, [2015] 1 S.C.R. 161; Canada v. Nunn, 2006 FCA 403, 367 N.R. 108; Mercury XII (Ship) v. MLT-3 (Belle Copper No. 3), 2013 FCA 96, 359 D.L.R. (4th) 561; 876947 Ontario Limited (RPR Environmental) v. Canada (Attorney General), 2013 FCA 156; Lahnalampi v. Canada (Attorney General), 2014 FC 1136), counsel for the appellants argued that stepping outside the pleadings and the arguments of the parties denies the parties the right to know the case they have to meet and the right to a fair opportunity to meet that case.

[32]  These cases, however, are all distinguishable from the one at bar. None of these decisions involves an issue of statutory interpretation; they turn, rather, on legal findings that are heavily dependent on the evidence put forward by the parties. In Rodaro, for example, the trial judge had to determine whether the disclosure of confidential information had resulted in detriment or damage to the confider or wrongful gain to the confidant. The trial judge found that the confider (Mr. Rodaro) had suffered detriment in the form of lost opportunity. While this analysis was theoretically sound, the Court of Appeal came to the conclusion that it could not be applied in that case, first because it was never pleaded or argued, and second because there was no evidence that the disclosure of the confidential information caused Mr. Rodaro to lose the opportunity described by the trial judge. The Court of Appeal allowed the appeal, on the basis that the trial judge had denied the defendants the right to know the case they had to meet and the right to a fair opportunity to meet the case. Moreover, the introduction of a new theory of liability also raised concerns about the reliability of that theory, since it was not tested through the adversarial process.

[33]  This line of authority has no application to the present case. Statutory construction is a pure question of law, and courts not only have the authority, but also the duty to interpret the legislation underlying a dispute. In doing so, judges are not bound by the arguments offered by the parties, and indeed appellate courts may replace the lower court’s opinion with that of their own. It is well established that courts are the final interpreters of the law.

[34]  Furthermore, the appellants have not shown how they were prejudiced by the Judge’s finding. The affidavits, upon which there was exhaustive cross-examination, included pictures and plans of construction about the location and construction of the structure, and the appellants have not indicated what supplementary evidence they could have filed that could have had an impact on the interpretation of the Regulations or on the Judge’s determination that the deck was part of the cottage. In those circumstances, I am unable to find that the process was procedurally unfair.

V.  Conclusion

[35]  For all of the above reasons, I would dismiss the appeal with costs in favour of the respondents.

“Yves de Montigny”

“I agree

M. Nadon J.A.”

“I agree

Donald J. Rennie J.A.”

SCHEDULE A

Relevant legislative provisions

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:	A-8-16
STYLE OF CAUSE:	HERB C. PINDER JR., JOHN WEDGE AND TOM MOLLOY, TRUSTEES FOR THE PINDER FAMILY TRUST v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA, REPRESENTED BY THE MINISTER OF ENVIRONMENT, AND PARKS CANADA AGENCY
PLACE OF HEARING:		Saskatoon, Saskatchewan
DATE OF HEARING:		November 14, 2016
REASONS FOR JUDGMENT BY:		DE MONTIGNY J.A.
CONCURRED IN BY:		NADON J.A. RENNIE J.A.
DATED:		december 19, 2016

APPEARANCES:

Douglas C. Hodson	For The Appellants
Marlon Miller	For The Respondents

SOLICITORS OF RECORD:

MacPherson Leslie & Tyerman LLP Barristers and Solicitors Saskatoon, Saskatchewan	For The Appellants
William F. Pentney Deputy Attorney General of Canada	For The Respondents