COURT OF APPEAL FOR ONTARIO

CITATION: Belwood Lake Cottagers Association Inc. v. Ontario
    (Environment and Climate Change), 2019 ONCA 70

DATE: 20190131

DOCKET: C65238

Strathy C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Belwood Lake Cottagers Association Inc. and
    Conestogo
    Lake Cottagers Association Inc.

Applicants
(Appellants)

and

Ministry of the Environment and Climate Change
and Grand
    River Conservation Authority

Respondents
(
Respondent
)

Robert G. Doumani and Vedran Simkic, for the appellants

Meagan J. Swan, for the Grand River Conservation
    Authority

Tamara D. Barclay and Heather McIvor, for the respondent
    Ministry of the Environment and Climate Change

Heard: December 19, 2018

On appeal from the order of Justice James F. Diamond of
    the Superior Court of Justice, dated March 16, 2018, with reasons reported at
    2018 ONSC 1688, 73 M.P.L.R. (5th) 170.

Strathy C.J.O.:

Introduction

[1]

This
    appeal concerns a dispute between the Ministry of the Environment (MOE) and
    two associations representing cottagers in the Grand River Conservation Area
    over the regulatory regime applicable to the construction and operation of the
    cottagers sewage systems.
[1]

[2]

The
    issue is whether the sewage systems are subject to the
Ontario Water
    Resources Act
, R.S.O. 1990, c. O. 40 (
OWRA
) or whether the
Building
    Code Act, 1992
, S.O. 1992, c. 23 (
BCA
) applies. If the
OWRA
applies, the MOE has jurisdiction and an Environmental Compliance Approval
    (ECA) must be obtained for each cottage sewage system. If the
BCA
applies, the local municipalities have jurisdiction.

[3]

The
    applicable scheme is determined by the total design capacity
[2]
of the sewage system(s) located on a particular lot or parcel of land, an
    expression found in s. 53(6.1) of the
OWRA
. Systems with a design capacity
    in excess of 10,000 litres per day (lpd) are generally subject to the
OWRA
.

[4]

The
    land on which the cottages are situated is not covered by a formal plan of
    subdivision. The cottages on Belwood Lake (approximately 335 cottages) and
    Conestogo Lake (approximately 398 cottages) are located on five parcels of land
    registered under the Ontario Land Registry System. The five parcels are owned
    by the Grand River Conservation Authority (GRCA).

[5]

Each
    cottage has its own sewage system. There is no dispute that the individual
    cottagers sewage systems do not have a design capacity in excess of 10,000 lpd.
    A typical system is in the range of 3,000 lpd. The issue is whether the
    relevant lot or parcel of land for the purposes of determining total design
    capacity is one of the five parcels registered on title, or the individual
    cottage lots described in each cottagers lease with the GRCA.

[6]

Since
    the systems located on each of the five registered parcels have a collective
    sewage design flow capacity much greater than 10,000 lpd, the MOEs position is
    that they fall under the
OWRA
and require an ECA.

[7]

The
    cottagers position is that each individual cottage is situated on a separate, legally
    recognized lot leased to them by the GRCA and because their individual sewage
    systems do not exceed the 10,000 lpd statutory threshold, they are regulated by
    the
BCA
. The distinction makes a difference, because if the
OWRA
applies, cottagers will have to apply for an ECA, pay a fee of approximately
    $800, and have their sewage systems inspected. The inspection might reveal
    defects in their sewage systems that would require repair or replacement.

[8]

The
    resolution of this issue depends on the interpretation of the words lot or parcel
    of land in the legislation and their application to the facts of this case.

Relevant Statutory Provisions

[9]

The
OWRA
and the
BCA
are two complementary parts of a regime for the regulation
    of sewage systems in Ontario. Subject to certain provisions of the
Environmental
    Protection Act
, R.S.O. 1990 c. E.19 (
EPA
), the
OWRA
provides that no person shall use, operate, establish, alter, extend, or
    replace new or existing sewage works
[3]
except under and in accordance with an ECA. An ECA contains conditions to
    ensure that sewage works are constructed and operated in a manner that protects
    the environment.

[10]

Section 53(6.1) of the
OWRA
requires that an ECA must be obtained if:

(a) the sewage works have a design capacity in excess
    of 10,000 litres per day;

(b) more than one sewage works is located on a
lot
    or parcel of land
and they have, in total, a design capacity in excess of
    10,000 litres per day; or

(c) the sewage works are not located wholly within
    the boundaries of the
lot or parcel of land
on which is located the
    residence or other building or facility served by the works. [Emphasis added.]

[11]

The
BCA
and
    the
Building Code
, O. Reg. 332/12, generally apply to smaller sewage
    systems that do not meet these thresholds.

Background

Regulation of sewage systems in Ontario

[12]

The legislative
    framework for the approval of cottage sewage systems prior to 1974 is not
    explained by the record. The respondents affiant, Amy Shaw, Guelph District
    Manager of the MOE, deposed that from 1974 to 1988, approvals were conducted by
    the MOE under the
EPA
, with the program being administered through
    municipalities, health units, and conservation authorities.

[13]

In 1997, the Province
    of Ontario transferred the regulation of smaller sewage systems (i.e., systems with
    a design capacity under 10,000 lpd) from the
EPA
to municipalities
    under the
BCA
. Since 1998, larger sewage systems (over 10,000 lpd)
    have been regulated under the
OWRA
and require MOE approval to
    establish, alter, extend, or replace them. However, under a grandfathering
    arrangement, in place from 1998 to 2011, large sewage systems built prior to
    1998 were not required to be approved by the MOE, provided they had not been altered
    or expanded. That grandfathering was removed in 2011 due to an amendment to s.
    53(1) of the
OWRA
, which provided that:

No person shall use,
operate
, establish,
    alter, extend or replace new or existing sewage works except in accordance with
    an Environmental Compliance Approval. [Emphasis added.]

[14]

The result was that,
    effective 2011, operators of large sewage systems were required to obtain an
    ECA, regardless of when the sewage system had been constructed, and whether or
    not it had previously been subject to the grandfathering regime.

The cottages

[15]

For 65 years, the Belwood
    Lake Conservation Area and the Conestogo Lake Conservation Area, two large
    tracts of land located in southwestern Ontario, have been designated as
    conservation land for flood control and water supply reservoir purposes. The
    two areas consist of five separate parcels of land, each designated by a
    Property Identification Number (PIN) registered in Ontarios electronic Land Registry
    System. All five parcels are owned by the GRCA.

[16]

Beginning in the 1940s
    and 1950s, the GRCA leased to the public cottage sites on the shorelines of the
    two lakes under a Cottage Lot Program. There are approximately 733 cottage
    sites within the two conservation areas. The sites generally have 100 feet of
    lake frontage. Each cottage has its own separate lease with the GRCA. The
    leases are for five year renewable terms. Under the lease, each cottager is
    responsible for their own sewage and water systems. Most of the cottages have
    individual septic systems (holding tanks or septic tanks and leaching beds) and
    their own drinking wells.

[17]

While each cottage
    lease refers to a lot number and the boundaries of the lot are shown on a schedule
    attached to the lease, the Cottage Lot Program was developed without either a
    registered plan of subdivision or a registered survey of the five parcels.

[18]

The cottages are
    permanent structures but are not permanent residences. In a decision dated
    April 1, 2005, the Ontario Rental Housing Tribunal determined that the cottages
    located on the subject lands are land lease homes, part of a land lease community
    as defined under the
Tenant Protection Act, 1997
, S.O. 1997 c. 24: see
Putnam v. Grand River Conservation Authority
, [2005] O.R.H.T.D. No.
    12, affirmed by the Divisional Court in (2006), 210 O.A.C. 191 (Div. Ct.).

[19]

There is very little
    evidence about the nature and condition of the sewage systems on the cottage
    lots. There is no evidence of when the sewage systems were constructed, under
    what approvals process, their current condition, or whether they are subject to
    any routine independent inspection. While it may be logical to assume, as the
    appellants urge, that the cottages were built under building permits issued by
    the local municipality, which generally approves the building and the design of
    sewage systems, there is no evidence in the record of the date any such building
    permits were issued and what the associated regulatory approvals for the sewage
    systems entailed. The evidence of the appellants professional engineer was
    that small sewage systems are not inspected after construction, that the owner
    of the system is required to maintain it under the BCA, and that while the
    building authority may inspect the system following installation, it is not
    required to do so. There is no evidence that any building authority has ever
    inspected any of the cottages or lots after the installation of its sewage
    system.

The condition of the lakes

[20]

The respondents
    affiant, Ms. Shaw, deposed that Belwood Lake and Conestogo Lake have previously
    experienced phosphorus pollution. She opined that the proper operation and
    maintenance of septic systems is an important way of reducing phosphorus
    concentrations in the lakes:

Belwood Lake and Conestogo Lake are dam controlled reservoirs
    known to be eutrophic. Both lakes have experienced green and/or blue green
    algae blooms in the past which are likely influenced by high phosphorous
    concentrations. The proper operation and maintenance of septic systems around
    the reservoirs is an important aspect of reducing phosphorus entering into the environment
    and improving water quality within this particular watershed.
[4]

[21]

There was no evidence
    to refute these observations concerning the condition of the two lakes.

The MOEs outreach program

[22]

Beginning
    in 2014, the MOE, in consultation with the GRCA and the two local townships
    where the lakes are located, began an outreach program to explain the
    requirements of the
OWRA
and the need for cottagers to obtain an ECA.

[23]

Ms. Shaw deposed that
    when she first became involved with the issue in 2014, only about 20% of the
    cottagers around Belwood Lake were known to have a valid ECA or a
    municipally-issued building permit, prior to 1998, for their sewage system.
    The majority of cottages on the two lakes were serviced by individual septic
    systems, varying in age, condition, and effectiveness. She deposed that an
    informal survey conducted by MOE staff in 2014 around the two lakes revealed
    that:

·

many of the cottage owners interviewed did not perform routine
    maintenance or have documentation about their system;

·

many did not know what type of system they had or where it was
    located;

·

many cottagers believed that their system may be original (40+
    years old) and, in some cases, had built decks, parking spots or additions over
    their system; and

·

most cottages had their own private drinking water well located
    on the property, some in close proximity to their septic systems.

[24]

While the appellants
    have a healthy scepticism about the results of this survey, they adduced no
    evidence to refute its findings.

The cottagers concerns

[25]

While some 105
    cottagers followed the new regulatory process and obtained ECAs, many others
    resisted. They were no doubt surprised by the change in policy and concerned by
    the need for an inspection of their system, the cost of obtaining an ECA, and the
    potential cost of rectifying deficiencies.

[26]

As a result of these
    concerns, the appellants brought an application for a declaration that each
    cottage was located on a separate lot or parcel of land under the
OWRA
,
    and that the cottagers sewage systems did not fall under the
OWRA
. The
    application turned on the interpretation of a lot or parcel of land for the
    purposes of the
OWRA
. The term lot or parcel of land is not defined
    in the
OWRA
, or its regulations, or in the
BCA
.

Reasons of the Application Judge

[27]

The application judge
    dismissed the application, finding that the cottages were subject to the
OWRA
.
    He noted the evidence about algae problems in the lakes and found that the
    sewage systems on the cottagers lots undoubtedly varied in age, type,
    condition, and performance.

[28]

He found that the
    boundaries of the lots described in the cottagers leases were approximations
    at best and that the lots assigned to them were for identification purposes
    only. He said, [a]t their highest, the actions of the GRCA have created
    leasehold interests in non-surveyed and unofficially delineated lots: at
    para. 24.

[29]

The application judge stated,
    at para. 25, that lot or parcel of land referred to land for which title could
    be legally conveyed from one party to another:

In my view, the appropriate interpretation to be given to the
    phrase lot or parcel of land is a lot or parcel of land, title to which can
    be legally conveyed from one party to another. This interpretation is
    consistent with the purpose of the OWRA, and in particular ensures the
    efficient and sustainable conservation, protection, use and management of
    Ontario's waters in order to promote long term environmental, social and
    economic well-being in the province. To achieve those purposes, implementation
    of the provisions of the OWRA must be based upon foundations of consistency and
    certainty.

[30]

He added, at para. 27,
    that lot or parcel referred to a lot or parcel legally recognized for
    municipal and planning law purposes:

Accordingly, to achieve the stated legislative purposes of the OWRA,
    a "lot or parcel of land" under section 53(6.1) must mean a lot or
    parcel of land that is legally recognized for municipal and planning law
    purposes. I therefore find that each cottage is not located on a lot, thus the
    cottages are collectively located within five parcels of land (ie. the PINs).

[31]

The application judge
    found that the appellants could not rely on the informal descriptions of their
    lots contained in their leases, because this would promote arbitrariness,
    rather than certainty. It would enable any private landowner to avoid
    compliance with the
OWRA
by informally subdividing their land into
    random lots. This, he found, would undermine the legislative purpose of the
OWRA
.

[32]

The application judge rejected
    the appellants argument that because the cottages had been found to be land
    lease homes in land lease communities under the
Tenant Protection Act,
    1997
, the cottages are land lease community homes as defined by s. 46 of
    the
Planning Act
, R.S.O. 1990, c. P.13, and the combined effect of ss.
    46(2.1) and 71 of the
Planning Act
is that each cottage must be
    located on a separate lot or parcel of land under the
OWRA
. In his
    view, s. 46(2.1) deals with land use controls (i.e. what can be constructed
    upon an existing registered lot), not the subdivision of land and, therefore,
    does not impact the definition of a parcel of land under the
Planning Act
.

[33]

Given his
    interpretation of s. 53(6.1) of the
OWRA
and his interpretation of s.
    46(2.1) of the
Planning Act
, the application judge found that each
    cottage was not located on a separate lot, and the cottages were collectively
    located on five parcels of land. Accordingly, he found that the 733 cottages
    fall within the jurisdiction of the
OWRA
, and dismissed the
    application.

The Submissions of the Parties

[34]

The parties
    submissions focus on the meaning of the words lot or parcel of land in both
    the
OWRA
and the
Planning Act
. The appellants advance what
    they say is the plain meaning or the ordinary grammatical meaning, assisted
    by the dictionary definition of a lot or parcel. They say that their lots
    are clearly defined in their leases, their leases are capable of being legally assigned,
    and the use of their properties is recognized by the
Planning Act
.

[35]

The respondent submits
    that the application judges interpretation properly accounts for the principle
    that a lot or parcel of land is one that is legally recognized, assessed, and
    regulated under various provincial statutory schemes. Such a definition gives
    effect to the purpose of the
OWRA
and ensures consistency across the
    province. The nature of the interests created by the private leases between the
    appellants and the GRCA is not dispositive.

Analysis

Standard of review

[36]

Relying on
Canadian
    National Railway Co. v. Canada (Attorney General)
, 2014 SCC 40, [2014] 2
    S.C.R. 135, at para. 33, the appellants submit that the interpretation of the
    statutes is a question of law and reviewable on a correctness standard. The
    respondent says that while the interpretation of a statute is subject to review
    for correctness, the appellants are challenging findings that result from the application
    judges application of the law to his findings of fact. Those are matters of
    mixed fact and law: see
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235, at paras. 36-37.

[37]

The issue of whether
    the application judge correctly interpreted lot or parcel of land in s. 53 of
    the
OWRA
to mean a lot or parcel of land that is legally recognized
    for municipal and planning law purposes, and for which title can be conveyed
    from one party to another, is an extricable question of law of relatively broad
    application that is to be reviewed on the correctness standard. The application
    judges determination of whether the individual cottages fall within the
    definition of a lot or parcel of land, properly interpreted, is a question of
    mixed fact and law entitled to deference. There is no basis to interfere with
    this determination absent a palpable and overriding error or extricable error
    in principle:
Sarnia (City) v. River City Vineyard Christian Fellowship of
    Sarnia
, 2015 ONCA 494, 336 O.A.C. 373, at para. 22.

[38]

I turn to the
    principles of statutory interpretation and their application to this case.

The modern approach

[39]

The
modern approach to statutory interpretation requires a court
    to consider the words of a statute in their entire context and in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament:
Montréal (City) v.
    2952-1366 Québec Inc.
, 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 9-12,
    citing
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para.
    21.

The grammatical and
    ordinary sense of the words

[40]

Both
    parties rely on the leading text by Ruth Sullivan,
Sullivan on the
    Construction of Statutes
, 6th ed. (Markham: LexisNexis Canada, 2014), who
    summarizes the ordinary meaning rule at §3.6:

It is presumed that the ordinary meaning of a legislative text
    is the meaning intended by the legislature. In the absence of a reason to
    reject it, the ordinary meaning prevails.

Even if the ordinary meaning is plain, courts must take into
    account the full range of relevant contextual considerations, including
    purpose, related provisions in the same or other Acts, legislative drafting
    conventions, presumptions of legislative intent, absurdities to be avoided and
    the like.

In light of these considerations, the court may adopt an
    interpretation that modifies or departs from the ordinary meaning, provided the
    interpretation is plausible and the reasons for adopting it are sufficient to
    justify the departure from ordinary meaning.

[41]

Sullivan notes that
    ordinary meaning is not the end of the process of statutory interpretation, it
    is simply the beginning. She refers to the observations of Iacobucci J. in
Chieu
    v. Canada (Minister of Citizenship and Immigration)
, 2002 SCC 3, [2002] 1
    S.C.R. 84, at para. 34, in connection with the interpretation of the
Immigration
    Act
:

The grammatical and ordinary sense of the words employed in s.
    70(1)(b) is not determinative, however, as this Court has long rejected a
    literal approach to statutory interpretation. Instead, s. 70(1)(b) must be read
    in its entire context. This inquiry involves examining the history of the
    provision at issue, its place in the overall scheme of the Act, the object of
    the Act itself, and Parliament's intent both in enacting the Act as a whole,
    and in enacting the particular provision at issue.

[42]

Thus, the plain
    meaning of the words of the statute is only one aspect of the modern approach.
    I will return to the parties submissions on the plain meaning of lot or
    parcel, but I turn next to the purpose of the legislation.

The purpose of the legislation

[43]

The purpose of the
OWRA
,
    as the application judge recognized, is to provide for the conservation,
    protection and management of Ontarios waters and for their efficient and
    sustainable use, in order to promote Ontarios long-term environmental, social
    and economic well-being:
OWRA
, s. 0.1. It does this by prohibiting
    the discharge of pollutants that can impair water quality and by the regulation
    of sewage disposal and sewage works, among other operations.

[44]

This court has noted
    that the
OWRA
creates a wide ambit of protection for Ontario waters:
    see
R. v. Inco Ltd.
(2001), 54 O.R. (3d) 495 (C.A.), at para. 53. As
    the court observed in
Inco
, this broad protection is necessary because
    the damage caused by pollution of waters may not be immediately apparent and
    impairment may be caused by the accumulation of pollutant materials over time:
    at para. 54.

[45]

As I noted earlier,
    the
OWRA
and the
BCA
create a complementary system to
    regulate the construction and operation of sewage works  works that are
    obviously potential sources of pollution. The intent of both statutes is that
    locations generating a lower volume of sewage (less than 10,000 lpd) are
    regulated by municipal building authorities under the
BCA
and the
Building
    Code
, and locations generating a volume of sewage greater than the 10,000
    lpd threshold are regulated by the MOE under the
OWRA
. The words lot
    or parcel of land are used in both the
OWRA
and the
Building Code
to describe the land to which the standard is to be applied.

[46]

The
BCA
and
    the
Building Code
, as their names suggest, establish uniform standards
    of construction, which are enforced by municipalities. In
Ingles v.
    Tutkaluk Construction Ltd.
, 2000 SCC 12, [2000] 1 S.C.R. 298, the Supreme
    Court discussed the purpose of the
BCA
. The court stated, at para. 23:
    The purpose of the building inspection scheme is clear from these provisions:
    to protect the health and safety of the public by enforcing safety standards
    for all construction projects. Those standards apply to smaller sewage
    systems, typically those employed by a single family dwelling. Through this
    jurisdiction, and the jurisdiction of municipalities in relation to zoning,
    planning, and subdivision control, a municipality is able to ensure that
    residents have adequate and safe sewage disposal systems.

[47]

The municipal regime
    is complemented by s. 53 of the
OWRA
, which regulates tracts of land
    that produce a larger volume of sewage in a regulatory framework that focuses
    on the broader environmental impact of sewage on water and watercourses, rather
    than on construction-level requirements only. This is in keeping with the
    expertise of the MOE, as recognized by the case law, and the recognized need to
    consider the collective impact of multiple sources of pollution on the
    environment.

Application of the principles of statutory interpretation

[48]

The scheme and
    purpose of the
OWRA
is to regulate the construction and operation of
    sewage works in order to protect the environment and the public. It entrusts the
    regulation of smaller systems to municipalities under the
BCA
and larger
    systems to the MOE. As outlined above, the dividing line is based on the design
    volume of daily sewage flow on a lot or parcel of land.

[49]

Returning to the
    plain meaning of the statute, the appellants rely on the definitions of
    parcel contained in
Websters Third International Dictionary
, and applied
    in
Ost v. Turnbull
(1977), 81 D.L.R. (3d) 161 (Alta. S.C. (App. Div.)),
    at p. 166:

In Webster's Third International Dictionary there are two
    definitions of parcel, either one of which might apply. The first is "a
    continuous tract or plot of land in one possession no part of which is
    separated from the rest by intervening land in the possession of another";
    the second is "a tract or plot of land whose boundaries are readily
    ascertainable by natural or artificial monuments or markers".

[50]

The appellants say
    that each cottage owner is in possession of a continuous plot of land, the
    boundaries of which are readily ascertainable from the schedule attached to
    their lease.

[51]

Ost v. Turnbull
was concerned with the interpretation of the word homestead in the
Dower
    Act
, 1948 (Alta.), c. 7, a statute that is far removed from the issue
    before us. I find greater assistance in the approach taken by the Ontario
    Building Code Commission (the Commission) in
Fletcher v. Township of
    Southgate
(1 March 2014), Ruling No. 03-52-950, Building Code Commission.
    That decision is instructive because it considered the very issue that is
    before us  namely, the meaning of lot or parcel of land in connection with
    an application for a building permit for a sewage system under the
BCA
.

[52]

In
Fletcher
,
    the applicant for a building permit owned a 123-acre piece of land that was
    operated as a resort and golf course. The land consisted of three contiguous
    part lots. If each part lot were regarded as a separate lot, the
BCA
would apply. On the other hand, if the three part lots were regarded as a
    single lot, the total design sewage flow would exceed 10,000 lpd and the
OWRA
would apply.

[53]

The Commission found
    that the entire parcel of three part lots was the applicable lot. The three part
    lots were a single amalgamated lot and were not capable of being independently
    conveyed without a severance. Since the combined design flow of the sewage
    systems on the three part lots exceeded 10,000 lpd, it was subject to the
    jurisdiction of the MOE.

[54]

In the course of its
    reasons, the Commission gave a helpful overview of the division of regulatory
    authority over sewage systems in Ontario and the rationale for it:

The regulation of on-site sewage system construction in Ontario
    is divided between the Ontario Building Code (OBC) for projects with a total
    daily design sanitary sewage flow of 10,000 litres per day or less and the Ontario
    Water Resources Act (OWRA) for flows over 10,000 litres per day. Review and
    enforcement of proposals under the OBC is done through local municipalities,
    health units, and conservation authorities. In the case of the OWRA, review and
    enforcement is done through the Ministry of Environment (MOE). For all sewage
    applications, the assessment of the total daily design sanitary sewage flow is
    made in accordance with Article 8.2.1.3. of the OBC, which requires
    consideration of Tables 8.2.1.3.A and B, or the highest metered flow of three
    similar establishments.

Although the design, construction and operation of an on-site
    sewage system should be carried out with due consideration to the local
    environment (particularly the groundwater),
the purpose of the division in
    responsibilities for approval is to afford the MOE an opportunity to scrutinize
    proposed larger (over 10,000 litres per day) sewage works relative to the local
    environmental conditions and potential impacts of effluent disposal. In
    particular, the proponent of the larger sewage works must consider the impact
    of dissolved nitrogen species on the local groundwater and down gradient uses
    of the water
(Reasonable Use Policy). [Emphasis added.]

[55]

The Commission
    concluded that the entire 123-acre property was a single lot or parcel. Consent
    of the Land Division Committee would be required to sever the property into
    individual parcels before selling or transferring them.

[56]

Also instructive is
    the decision of the Divisional Court in
Re Kelley and Redmond
(1979), 26
    O.R. (2d) 417 (H.C. (Div. Ct.)). The applicants, Redmond and Feenstra, had
    purchased a piece of land as joint tenants. When their application to sever the
    land was refused, they jointly leased one part to Feenstra for 20 years and the
    other to Redmond for 20 years. The parts were identified on a reference plan,
    but the lots were not severed and the parcel remained in their joint ownership.
    Feenstra applied for and was issued a building permit to build a house on the
    portion of the land described in the reference plan as Part 2. When Redmond
    applied for a building permit with respect to Part 3, it was refused, on the
    ground that the by-law prohibited a second dwelling on a lot. The by-law
    defined lot as a parcel or plot of land, whether or not shown on a
    registered plan of subdivision.

[57]

Redmond argued that
    the land described in his lease was a lot within the meaning of the by-law.
    The Divisional Court rejected this submission, noting that under this
    interpretation, a building permit would have to be issued for any piece of land
    having the necessary dimensions, regardless of whether the land was described
    in any registered or unregistered instrument. The court found, at p. 419, that
    a lot had to have a separate legal identity:

However, it is my opinion that such pieces of land would not be
    "lots" within the meaning of the by-law. In my view, the definition
    of "lot" in s. 3.36 requires a parcel of land which is severed and
    thus has a separate legal identity. This separate legal identity may arise by
    virtue of the parcel or plot of land being shown as a lot on a registered plan
    of subdivision; it may also arise in other ways, such as by being a farm lot
    shown on the original survey of the township; or a separate parcel of land
    established at a time antedating the modern regulatory schemes. This is not
    intended to be an exhaustive list.

[58]

The application judge
    applied a similar approach to the case at bar. I agree with the respondent that
    the application judge correctly interpreted lot or parcel of land in s. 53 of
    the
OWRA
to mean a lot or parcel of land that is legally recognized
    for municipal and planning law purposes, and for which title can be conveyed
    from one party to another. He correctly observed that permitting the appellants
    to rely on the descriptions in their leases, a purely private contractual
    division of the larger registered parcels, would promote arbitrariness rather
    than certainty, thereby undermining the purpose of the
OWRA
: at para.
    26.

[59]

The application
    judges interpretation of the legislation advances the purpose of the
OWRA
by ensuring that high volume sewage systems are subject to the regulatory oversight
    of the MOE under the
OWRA
. By virtue of its mandate and experience,
    the MOE is well-equipped to determine the cumulative effect of the operation of
    several hundred sewage systems on the local environment and to ensure the
    protection of both the cottagers and the environment. The ECA process enables
    the MOE to impose conditions on the construction and operation of sewage works,
    to ensure that the works are built in accordance with prescribed construction
    standards, and that the works are operated in the manner in which they were
    described and for which approval was granted, in order to ensure the ongoing
    protection of the environment in the public interest.

[60]

I do not accept the
    appellants submission that because their cottages are land lease community homes
    as defined in s. 46(1) of the
Planning Act
[5]
,
    they should each be regarded as being situated on a separate lot or parcel of
    land. Section 46(2.1) falls under Part V of the
Planning Act
and
    deals with land use controls. It does not impact the issue of whether the
    individual cottages are situated on a lot or parcel of land. I agree with and
    adopt the reasons of the application judge with respect to that issue.

Order

[61]

For these reasons, I
    would dismiss the appeal, with costs to the respondent in the agreed amount of
    $10,000, inclusive of disbursements and all applicable taxes.

Released: GS  JAN 31 2019

G.R. Strathy C.J.O.

I agree. P. Lauwers J.A.

I agree. B. Zarnett J.A.

[1]

The Grand River Conservation Authority in
tervened in the
    appeal but took no position.

[2]
The term
design capacity is used in both the

OWRA

and the
Building Code
, O. Reg.
    332/12, as the means of categorizing sewage systems. It is not defined
    in the
OWRA
. It is defined in the
Building Code
as the
    total daily design sanitary sewage flow determined in accordance with Article
    8.2.1.3. of Division B: s. 1.4.1.2.

[3]

Sewage works means any works for the collection,
    transmission, treatment and disposal of sewage or any part of such works, but
    does not include plumbing to which the
Building Code Act, 1992
applies:
OWRA
, s. (1)(1).

[4]

The term eutrophic was not defined by the affiant. A
    dictionary definition indicates that it refers to a body of water that is rich
    in nutrients, supporting a dense plant population but depriving the water of
    oxygen.

[5]
Land lease community home is
defined in s. 46(1) of the
Planning Act
as any
    dwelling that is a permanent structure where the owner of the dwelling leases
    the land used or intended for use as the site for the dwelling but does not
    include a mobile home.


COURT OF APPEAL FOR ONTARIO

CITATION: Brauti Thorning Zibarras LLP v. Nguyen, 2019 ONCA
    45

DATE: 20190124

DOCKET: C65582

Strathy C.J.O., Pepall and Fairburn JJ.A.

BETWEEN

Brauti
    Thorning Zibarras LLP

Plaintiff
(Respondent)

and

Trung Nguyen
and
    Ferreira Bettencourt LLP

Defendant
(
Appellant
)

Trung Nguyen, acting in person

Matthew Gottlieb and James Renihan, for the respondent

Heard: January 23, 2019

On appeal from the order of Justice Heather McArthur of
    the Superior Court of Justice, dated May 25, 2018.

APPEAL BOOK ENDORSEMENT

[1]

This proceeding, commenced almost two and a half years ago, has been
    stalled as a result of a dispute over pleadings.

[2]

The appellant appeals against an order of the Superior Court allowing an
    appeal from the Master and striking out certain allegations in his statement of
    defence and counterclaim, pursuant to r. 25(11)(b) as irrelevant and,
    therefore, scandalous and vexatious.

[3]

We do not find it necessary to address the appellants submission that
    the motion judge erred in determining the relevance of the impugned paragraphs
    based on the amended statement of claim.

[4]

While it is not clear that the appellant sought leave to amend in the
    court below, the respondent does not object to leave being granted.

[5]

In these circumstances, leave should be granted without prejudice to the
    ability of the appellant to plead the allegations of misconduct that were
    struck.

[6]

The pleading sought, which should not be a pleading of evidence, is
    relevant to at least three issues. First, an issue not previously argued, as a
    defence to the respondents claim for aggravated, exemplary and punitive
    damages; second, as a potential defence to other equitable claims; and third,
    if the agreement was ever amended as the plaintiff alleges, that the amendment
    was made in May 2014 or thereafter, and was the result of duress, undue
    influence or unconscionability. We would therefore grant leave to amend.

[7]

We note, in passing, that in support of his position, the appellant
    relies on the sworn evidence of Mr. Zibarras, one of the partners in the
    respondent, including emails sent by Mr. Zibarras.

[8]

As the Master observed, this case cries out for proportionality. It is
    not complicated and we suggest that case management be considered in order to
    ensure the just, most expeditious and least expensive determination of this
    proceeding on its merits.

[9]

In the circumstances of this particular case, the costs award below
    should be set aside, and there shall be no costs throughout.


COURT OF APPEAL FOR ONTARIO

CITATION: Cherrier v. Canada (Attorney General), 2019 ONCA 20

DATE: 20190115

DOCKET: C64755

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

Yohan Paul Cherrier

Applicant (Appellant)

and

Attorney General of Canada
, Canadian Industrial
    Relations Board, Kevin Burkett

Respondents (
Respondent
)

Yohan P. Cherrier, acting in person

Stewart Phillips, for the respondent, Attorney General
    of Canada

Heard: December 12, 2018

On appeal from the
    order of Justice Douglas K. Gray of the Superior Court of Justice, dated December
    7, 2017, with reasons reported at 2017 ONSC 7336, 401 C.R.R. (2d) 202.

REASONS FOR DECISION

[1]

The appellant appeals from the dismissal of his
    application for recognition of seniority by date of hire as a protected right
    under the
Canadian Charter of Rights and Freedoms
.

[2]

As submitted by the appellant, a summary of the
    history of proceedings leading up to this appeal is useful to understand the
    context of the appellants arguments on appeal.

[3]

The appellant was formerly employed as a flight
    attendant by Canadian Airlines International Ltd. (CAIL), which merged with
    Air Canada in January 2000.  At the time of the merger, the appellant and other
    members of the two airlines cabin crews were represented by the same trade
    union, Canadian Union of Public Employees. In August 2000, the Canada
    Industrial Relations Board (the Board) declared the airlines to be a single
    employer under the
Canada Labour Code
, R.S.C. 1985, c. L-2
(the
Code
). The Board requested under s.
    18.1(2)(a) of the
Code
that the parties seek
    agreement with respect to the determination of the merged bargaining unit and
    other issues arising from the declaration, which included the issue of
    seniority integration.

[4]

The parties agreed to settle the seniority
    integration issue in relation to the merged bargaining unit through a mutually
    agreed upon arbitration process. After the completion of the process over
    several months, the arbitrator issued a number of awards, which the Board confirmed
    in 2003. The arbitrator determined that seniority integration of the merged
    bargaining unit would be on the basis of the members relative position on the
    seniority lists rather than on date of hire.

[5]

The appellant and many members of the merged
    bargaining unit strenuously objected to the seniority integration decision.
    Over many years, the appellant and others have sought to challenge it through
    numerous unsuccessful proceedings, including several grievances, applications
    to the Board seeking reconsideration, complaints to the Canadian Human Rights
    Commission, an action in the Federal Court of Canada, judicial review
    applications, and appeals before the British Columbia Supreme Court and the
    Federal Court of Appeal.

[6]

The appellant brought the present application
    for a declaration that the integration of seniority rights on the basis of
    relative position on a seniority list rather than by date of hire contravened
    his rights under ss. 7 and 15 of the
Charter
.
    If the court found that seniority by date of hire is protected by the
Charter
, the appellant sought an order declaring s. 18.1 of the
Code
unconstitutional.

[7]

The application judge thoroughly reviewed the
    history of the seniority rights integration process and outcome. His reasons
    demonstrate that he was alive to the importance of seniority rights and of the
    integration issue for the appellant.  Having carefully reviewed the relevant
    evidence in the record, and having addressed the parties submissions, the
    application judge concluded that the integration of the seniority rights of the
    merged lists did not infringe the appellants ss. 7 and 15
Charter
rights.

[8]

We see no basis to interfere with the
    application judges decision.

[9]

While the application judge recognized that the
    results of the arbitration and Board proceedings undoubtedly caused the
    appellant stress, he concluded that the alleged psychological, emotional and
    physical stress did not amount to the kind of harm that constitutes an
    infringement of the appellants s. 7
Charter
rights. Further, the application judge found that the alleged devaluation of the
    appellants seniority concerned harm to economic rights, which are not
    protected under the
Charter
. Rather, the
    integration of the collective seniority rights in issue was properly addressed
    by the bargaining parties in a collective bargaining process. We see no error
    in these conclusions. Nor did the application judge err in finding that the
    integration of seniority rights did not result from any discrimination because
    of age, or other enumerated or analogous ground protected under s. 15 of the
Charter
.

[10]

The appellant raises the issue of procedural
    fairness and submits that he was prevented from making several arguments before
    the application judge. The appellant was represented by counsel on the
    application. Although he acknowledges that his counsel ably presented his
Charter
arguments, the appellant submits his counsel did not raise the
    arguments that he wanted to raise before the application judge, and he now seeks
    to raise them on appeal. These arguments include, but are not limited to, the
    illegal acquisition and merger of the two airlines; discrimination against
    female members of the merged bargaining unit; improper activities by the union
    and certain of its representatives; and malfeasance, dereliction of duty, and
    obstruction of justice, specifically by the Canadian Human Rights Commission
    and the Board.

[11]

We are not persuaded by this submission.

[12]

It is important to recall that counsel and the
    court are circumscribed by the issues raised by the parties in their pleadings.
    The appellants application sought a
Charter
remedy
    for the alleged infringement of his ss. 7 and 15 rights as a result of the
    integration of seniority rights and a declaration of constitutional invalidity
    of s. 18.1 of the
Code
. The appellant pursued
    all available avenues of relief in his various proceedings in which he already
    litigated many of the issues he seeks to raise on appeal. The appellant cannot
    pursue these issues within the framework of this application.

[13]

Turning to the motion for fresh evidence, the
    appellant seeks to admit numerous documents on appeal, including several motion
    records and other court filings related to the proceedings instigated by the
    appellant in other forums. While the transcripts from the hearing of the
    application can properly be added to the record, we dismiss the motion seeking
    to file fresh evidence. We agree with the respondent that the proposed fresh
    evidence would not have affected the outcome of the application because it
    concerns matters already litigated and outside its scope.

[14]

Accordingly, the appeal is dismissed.

[15]

The respondent does not seek costs. As a result,
    we make no order as to costs.

Paul
    Rouleau J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Drew v. Huskinson, 2019 ONCA 38

DATE: 20190122

DOCKET: C63407

Brown, Paciocco and Zarnett JJ.A.

BETWEEN

Randy Drew and Paul
    Shaughnessy

Plaintiffs (Respondents)

and

Linda Huskinson

Defendant (Appellant)

M.
    John Ewart, for the appellant

William
    F. Kelly, for the respondents

Heard: January 16, 2019

On appeal from the
    judgment of Justice Stephen T. Bale of the Superior Court of Justice, dated
    February 28, 2017, with reasons reported at 2017 ONSC 592.

REASONS FOR DECISION

[1]

The appellant, Ms. Linda Huskinson, owns farm property. On April 12,
    2012 she signed a lease permitting the respondents, Randy Drew and Paul Shaughnessy,
    to operate their farm business on about 120 acres of her property for the 2012,
    2013, and 2014 crop years at a stipulated rent (the Lease).

[2]

The respondents did so during the 2012 crop season. However, by letter
    dated December 12, 2012, the appellant informed the respondents that she was
    scrapping the Lease and called upon them to sign a new agreement that meets
    the needs of both the above tenant farmers and landlord equally. She stated
    that before concluding a new agreement, it will be necessary to agree in
    writing that the existing written agreement signed April 12, 2012 is null and
    void. In her letter, the appellant did not specify any conduct of the
    respondents upon which she was relying to end the Lease.

[3]

The respondents offered to engage in discussions with the appellant, but
    by letter dated February 15, 2013 she advised that she was not prepared to
    continue renting her farmland to them.

[4]

This action for breach of the Lease ensued.

[5]

The appellant asserted two defences. First, she took the position that
    the Lease was not enforceable because she entered into it under duress. The
    trial judge did not accept her plea of duress. The appellant does not appeal
    that finding. Second, she argued that she was entitled to terminate the Lease
    because the respondents had failed to provide information about chemical
    fertilizer application rates in the form she contended was required by the
    Lease.

[6]

The trial judge found the appellant was not entitled to terminate the
    Lease. He awarded the respondents damages of $64,051.02, representing their
    lost profit from the property for the 2013 and 2014 crop seasons.

[7]

The appellant appeals. At the hearing we dismissed the appeal, with
    reasons to follow. These are those reasons.

[8]

The appellant advances a single ground of appeal: the trial judge erred
    by finding that any failure by the respondents to provide her with the chemical
    fertilizer application rates in the form she contended was required did not
    entitle her to terminate the Lease.

[9]

The Lease contains a provision that states: Supply copy of application
    rates for fertilizer and chemical by 3
rd
party once available. At
    trial, the appellant testified that she understood that a third party would
    provide her with the information.  Instead, in September 2012, Mr. Drew
    provided her with a handwritten document that identified the type and quantity
    of fertilizer used and the details of chemical spraying that occurred on May
    23, 2012.

[10]

The
    appellant did not take the position that the information provided by the
    respondents was incorrect or disclosed that they had applied chemicals and
    fertilizer in a way which damaged her property. Instead, the appellant argued
    that because the respondents did not provide her with application rate
    information in the manner she contended the Lease required  i.e. a document
    from a third party  she was entitled to terminate the Lease.

[11]

The
    trial judge did not accept the appellants position. He wrote, at paras. 9 and
    10:

The defendant acknowledges that her letter had the effect of
    repudiating the lease, but argues that she was entitled to terminate the lease,
    because the plaintiffs failed to comply with a term of the contract which
    required them to Supply Application Rates of Fertilizer & chemicals by 3
rd
party.
    Her position is that she was entitled to some sort of formal document from the
    third parties who applied the fertilizer and chemicals, but that all she got
    was a handwritten note from Randy Drew advising her of the fertilizer and
    chemicals applied. The plaintiffs evidence is that the third parties were
    unable to provide the sort of document that the defendant was requesting,
    because they applied the fertilizer and chemicals to multiple farms that were
    farmed by the plaintiffs, and provided a single invoice only, for all of those
    farms.

Whether the information provided to the defendant relating to
    fertilizer and chemicals satisfied the relevant term of the contract or not,
    she was not entitled to terminate the lease. Failure to provide the information
    relating to fertilizer and chemicals in the form requested by the defendant
    would in no way amount to substantial non-performance. The benefit for which
    the defendant contracted was the payment of rent. If there was a breach, her
    remedy would lie in damages.

[12]

At
    its core, the appellants criticism of the trial judges finding is that he did
    not properly consider whether a failure by the respondents to provide chemical application
    rates from a third party amounted to a substantial failure of performance by
    them:
Place Concorde East Limited Partnership v. Shelter Corp. of Canada Ltd.
,
    270 D.L.R. (4th) 181(Ont. C.A.), at para. 52.

[13]

We
    are not persuaded by this submission. The trial judges interpretation of the
    Lease as not giving the appellant a right of early termination in the event the
    respondents failed to provide information relating to fertilizer and chemicals in
    the third-party form she requested was a reasonable one in light of several
    factors:

(i)      the
    Lease did not contain a provision that defined the events of default that would
    permit the appellant to terminate the Lease prior to the expiry of its
    three-year term;

(ii)      the
    trial judge considered the proportional effect of any breach on the total value
    of performance and concluded that the benefit for which the appellant
    contracted under the Lease was the payment of rent, which the respondents duly
    paid; and

(iii)     the
    appellant did not identify any inadequacy with the content of the respondents
    handwritten disclosure of the chemical application rates in her December 12,
    2012 termination letter.

[14]

Consequently,
    we see no palpable and overriding error in the trial judges interpretation of
    the Lease or in his finding that there was no breach of the type which relieved
    the appellant of the obligation of further performance. He did not err in
    concluding that the appellant was not entitled to terminate the Lease at the
    end of its first year.

[15]

The
    appeal is dismissed.

[16]

The
    appellant shall pay the respondents their costs of the appeal fixed at $8,000,
    inclusive of disbursements and all applicable taxes.

David
    Brown J.A.
David M. Paciocco J.A.
B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ferro v. Weiner, 2019 ONCA 55

DATE: 20190128

DOCKET: C65028

Hourigan, Miller and Trotter JJ.A.

BETWEEN

Jennifer Ferro, Andrea Ferro and Carmella Ferro

Plaintiffs

and

Paul Weiner, the personal
    representative of Enid Weiner, deceased
,
Scott
    Weiner
,
Sandy Weiner
and
Regan Weiner

Defendants (Appellant/Respondents)

Brian J. Smith, for the appellant Paul Weiner, the
    personal representative of Enid Weiner, deceased

William G. Woodward, for the respondents Scott Weiner,
    Sandy Weiner and Regan Weiner

Heard: October 4, 2018

On appeal from the judgment of Justice Pamela L. Hebner
    of the Superior Court of Justice, dated April 12, 2018, with reasons reported
    at 2018 ONSC 633.

B.W. Miller J.A.:

Overview

[1]

A homeowners policy of insurance provides coverage to the homeowners relatives
    while living in the same household as the homeowner. The issue on this appeal
    is whether the respondents were living in the same household as the insured homeowner
    at the time of a fatal accident.

Background

[2]

The late Enid Weiner owned a house on Lake Eugenia. The house was constructed
    in 1969 as a vacation property for her, her husband, and their children. From the
    late 1980s or early 1990s, it was Enids sole residence, before she moved to a
    nursing home in 2008 or 2009. Although she never resumed full-time residence at
    the house, her three adult children and their families all continued to use it
    as a cottage. She would occasionally stay there with them. At all relevant
    times she was the sole owner. Enid was also the sole named insured under a
    Homeowners  Broad Form policy with Intact Insurance Company (the Intact
    Policy).

[3]

The Intact Policy provides coverage not only for the named insured, but also
    for all the insureds relatives while living in the same household as the named
    insured. It covers liability from unintentional bodily injury or property
    damage arising from an insureds personal actions anywhere in the world. It
    covers not only the insureds primary residence, but also the insureds
    seasonal and other residences, provided that these premises are listed on the
    Coverage Summary page.

[4]

The respondents, Enids adult son Scott, his wife Sandy, and their daughter
    Regan, are defendants in an action brought by the parents and sister of a young
    man who drowned at the house during a high school graduation party in May 2010.
    Scott and Regan were both present at the house during the party. The appellant,
    Enids estate, is also a defendant. The plaintiffs claim was settled by
    Scotts insurer, TD Insurance Company. TD Insurance brought a summary judgment
    motion seeking a declaration that Intact Insurance is bound to defend and
    indemnify all defendants against the claims advanced by the plaintiffs. The
    motion was granted, and the motion judge ordered a declaration that Scott,
    Sandy, and Regan were insured under the Intact Policy. The motion judge also ordered
    that Intact Insurance indemnify TD Insurance $62,500, 50% of the value of the
    settlement with the plaintiffs.

[5]

Intact Insurance appeals. The sole issue is whether Scott, Sandy, and
    Regan are insureds under the Intact Policy and entitled to coverage.

The decision below and the argument on appeal

[6]

Central to the motion judges analysis is the finding that Scott and his
    family were not visitors to the house. She noted that he attended at the house
    when he wished and cared for it as an owner would and (later) took an ownership
    interest in it. The motion judge adopted reasoning from
Canadian
    Universities Reciprocal Insurance v. Halwell Mutual Insurance Co.

(2002),
    61 O.R. (3d) 113 (C.A.), that household can have a flexible meaning, and that
    the meaning must be gleaned from interpreting its use in the policy of
    insurance using the rules of interpretation of contracts and of insurance
    policies, including that any ambiguity is to be resolved in favour of the
    insured. She reasoned that in the context of this policy and this property
    Scott and his family are included in Enids household.

[7]

The appellant argues that the motion judge erred in four respects.

[8]

First, the appellant argues that the motion judge embarked on the wrong
    analysis, posing the salient question as whether Scott was either a visitor to
    the house or whether it was his household. She concluded he was not a visitor,
    as he later took an ownership interest in the house, came and went as he
    pleased, and cared for it as an owner would. The appellant argues that the
    focus of analysis, however, should not be on Scotts attitude towards, and use
    of, the house, but rather his relationship with Enid. That is, whether Scott
    was a member of the same household as Enid, the policy holder. The appellant
    argues that the motion judge also failed to pose this question in relation to
    Sandy and Regan.

[9]

Second, the appellant argues that the motion judge erred in her
    discussion of the meaning of dwelling in the Intact Policy. She concluded
    that the house is identified in the Intact Policy as a single-family dwelling,
    and that the single-family is Enids family, which includes Scott, Sandy, and
    Regan. Again, the appellant argues that this misdirects the analysis from the
    relationship between Enid and Scott, Sandy, and Regan, to whether the cottage
    was a recreational or primary use residence  an irrelevant consideration.

[10]

Third,
    the appellant argues that the motion judge misconstrued
Canadian
    Universities
 as authorizing a new and enlarged conception of household,
    beyond what had been previously recognized in Canadian jurisprudence. Again,
    the appellant argues that the motion judge erred by focussing on the respondents
    use of the house, rather than on whether the lives of Enid and Scott, Sandy,
    and Regan had the requisite degree of integration to form a single household.

[11]

Fourth,
    the appellant argues that the conclusion reached by the motion judge was
    commercially unreasonable, in that it interpreted the Intact Policy in a way
    that all family members of Enids extended family, by virtue of their use of
    the cottage, would obtain personal liability insurance for their actions
    anywhere in the world.

Analysis

(1)

Standard of Review

[12]

The
    standard of review for the motion judges interpretation of the phrase living
    in the same household is correctness. I accept that the application of the
    contractual provision to the facts of the case attracts deference. However, the
    motion judges interpretation of the contractual phrase living in the same household
    raises an extricable question of law that attracts correctness review. Additionally,
    the household clause forms part of a standard form homeowners insurance policy,
    and its interpretation thus has precedential value for other insurance
    policies. Furthermore, the respondents have not pointed to any meaningful
    factual matrix specific to the parties. Accordingly, the correctness standard
    of review applies: see
Ledcor Construction Ltd. v. Northbridge Indemnity
    Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at para. 24;
MacDonald
    v. Chicago Title Insurance Company of Canada
, 2015 ONCA 842, 127 O.R. (3d)
    663, at paras. 40-41, leave to appeal refused, [2016] S.C.C.A. No. 39.

(2)

The meaning of household

[13]

I
    agree with the appellant that the motion judge erred in law by answering the
    wrong question about the meaning of the term household. The inquiry into
    Scotts relationship to the house was not the ultimate question. That inquiry
    was only relevant to the extent that it shed light on the further question of
    Scotts relationship with Enid. Was he (and were Sandy and Regan) relatives
    living in the same household as Enid?

[14]

The
    words living in from the Intact Policy refer to the question of residence:
Canadian
    Universities
, at para. 23. Scotts use of the house was relevant to the
    question of whether the house was Scotts residence. If the only question was
    whether the house was a seasonal residence for Scott, there might be no basis
    to interfere with the motion judges finding that Scott was more than a visitor.

[15]

However,
    the court must also give meaning to the contractual language of the same
    household. As the court held in
Wade v. Canadian Northern Shield Insurance
    Co
.
(1986), 18 C.C.L.I. 173 (B.C.S.C.), one can be a resident in a
    housewithout being a resident in or of a household: p. 181. In that case, the
    court found that an adult son who had his own apartment but was living in his
    parents apartment while they were vacationing was not a member of his parents
    household because he had not rejoined the family unit: pp. 181-183. Likewise,
    in
Aviva Canada Inc. v. Yaehne
, 2005 SKQB 553, 34 C.C.L.I. (4th) 172,
    the court found that a son who rented the basement of his mothers house was
    residing at his mothers house but was not a member of his mothers household:
    paras. 18, 30. Accordingly, it does not follow from the motion judges finding
    that Scott was more than a visitor in relation to the house that he was therefore
    a member of Enids household.

[16]

Although
    household, in ordinary speech, can refer either to a residence or a type of
    community, in the context of insurance law it is the latter. The definition of
    a household has a long history and stable meaning. The leading Canadian
    exposition was given by Rand J. in
The Wawanesa Mutual Insurance Company v.
    Bell
, [1957] S.C.R. 581, at p. 584:

The household, in the broad
    sense of a family, is a collective group living in a home, acknowledging the
    authority of a head, the members of which, with few exceptions, are bound by
    marriage, blood, affinity or other bond, between whom there is an intimacy and
    by whom there is felt a concern with and an interest in the life of all that
    gives it a unity. It may, for example, include such persons as domestic
    servants, and distant relatives permanently residing within it. To some degree
    they are all admitted and submit to the collective body, its unity and its
    conditions, particularly that of the general discipline of the family head.
    They do not share fully in the more restricted family intimacy or interest or
    concern, but they participate to a substantial degree in the general life of
    the household and form part of it.

[17]

A
    household is thus a type of community, most readily understood by analogy to a
    family unit. Although a household is not synonymous with a family, the
    existence of a household is evidenced by the extent to which its members share
    the intimacy, stability, and common purpose characteristic of a functioning family
    unit. For example, its members typically share a residence and resources, and integrate
    their actions and choices on an on-going and open-ended basis, motivated by an
    interest in the life of all that gives it a unity:
Bell
, at p. 584;
McWhirter
    et al. v. State Farm Mutual Automobile Insurance Co.
(1959), 21 D.L.R.
    (2d) 743 (Ont. S.C.), at pp. 748-749. More recently, this court offered a
    similar formulation in
Tannahill v. Lanark Mutual Insurance Co.
, 2011
    ONCA 123 (
Tannahill
ONCA), affg 2010 ONSC 3623, 86 C.C.L.I. (4th)
    69 (
Tannahill
ONSC): the term household connotes a family like
    group of people living together with an element of intimacy or community in the
    relationship:
Tannahill

ONCA, at

para. 6. It should be
    noted that although Rand J. understood a household under the governance of a
    singular person to be the paradigmatic form of the household, we need not. What
    is essential is not how the household is structured, but the degree to which
    the choices and actions of all members of the household are motivated by an interest
    in the life of all that gives it a unity.

[18]

A
    household is constituted not only by its members patterns of living with each
    other, but also by their settled intentions. Accordingly, courts have found
    that a person can maintain membership in a household despite lengthy absences
    from a common residence, provided there is continued self-identification as a
    member of the household, with a settled intention to return to the common
    residence. For example, university students do not necessarily cease to be
    members of their parents household when they move away for the academic year,
    provided they continue to view the parental home as home base and have an
    intention to return:
Canadian Universities
. Similarly, a parent who
    is absent from the family home for extended periods because of the requirements
    of work does not therefore cease to be a member of the household during those
    absences as long as the parent intends to return: see
Campbell v. Royal
    Insurance Co. of Canada
(1991), 115 N.B.R. (2d) 140 (C.A.), at para. 8. Courts
    have even held that where an estranged spouse has the intention to return and
    reconcile, the household can survive the separation:
Boasley v. British
    America Insurance Co.
(1976), 15 O.R. (2d) 120 (Co. Ct.), affd (1977), 15
    O.R. (2d) 120n (C.A.).

[19]

But
    the demands of intimacy, unity, and permanence are not slight. The mere fact of
    co-residence is not enough to constitute membership in a household. In
Bell
,
    the insured had been living with his brother indefinitely and was clearly more
    than a mere visitor, but the Supreme Court still held that he had a separate
    identity of life and thus was not part of his brothers household: p. 585. In
McWhirter
,
    two men rooming together, but leading separate lives were found not to
    constitute a household. In
Tannahill
, a daughter visiting her parents
    for two-and-a-half weeks was held not to be a member of the household. As the
    application judge stated, (l)iving in a household is not the same as staying
    with people in their home during a visit, even if those people are your parents:
Tannahill
ONSC, at para. 49.

[20]

Because
    of the demands of intimacy, unity, and permanence required to constitute a
    household, it would be difficult (though conceptually possible) for a person to
    be a member of more than one household at a time. The principal exception
    recognized by the law to date relates to minor children, particularly children
    of divorced or separated parents who live part time with each parent, and who
    are understood to be members of both parental households: see

Arsenault
    v. Fitzgerald
(1985), 66 N.B.R. (2d) 232 (Q.B.);
Harris
    (Litigation Guardian of) v. Pilot Insurance Co.
(1997), 34 O.R. (3d) 633
    (C.A.), at pp. 636-638;
Canadian Universities

, at para. 22.

(3)

The Respondents Argument

[21]

The
    respondents submit that the term household should be interpreted broadly because
    it is contained in a coverage clause of the Intact Policy. The respondents rely
    on the principle that coverage clauses in insurance contracts should be
    interpreted broadly in favour of the insured, while exclusion clauses should be
    interpreted narrowly:
Canadian Universities
, at paras. 21, 30.
    According to the respondents, the court interpreted the meaning of household
    narrowly in
Tannahill
and
Bell
because those cases involved
    exclusion clauses, while the court interpreted household broadly in
Canadian
    Universities

because that case involved a coverage clause.

[22]

I
    do not agree. Whether a case involves a coverage clause or exclusion clause may
    influence the result in borderline cases, but this is not a borderline case. Where
    the facts are inconsistent with a person being a member of a household in
    accordance with settled jurisprudence, the fact that the case involves a
    coverage clause provides no assistance. See, for example,

Campbell
;
Wade
;
Eichmanis v. Wawanesa Mutual Insurance Company
, 2007
    ONCA 92, 84 O.R. (3d) 668, at para. 20, leave to appeal refused, [2007]
    S.C.C.A. No. 178.

[23]

The
    respondents also argue that
Wood v. Krebs
, 2004 CarswellOnt 3590
    (C.A.) (
Wood
ONCA), affg [2004] O.T.C. 169 (S.C.) (
Wood
ONSC), establishes the proposition that an adult can belong to more than one
    household at a time. The facts of that case, in brief, are that an adult child was
    found to belong to his own household ordinarily, but alternately belonged to
    his parents household when he stayed at their cottage, with or without them
    being present. When he caused a fire that destroyed a neighbouring cottage, his
    actions were covered by his parents home insurance.

[24]

The
    respondents argue that on the authority of
Wood v. Krebs
, Scott, Sandy,
    and Regan should be understood as belonging to their own household in the city,
    but coming within a second household  Enids  while at Enids house. That
    household, according to the argument, is defined exclusively by the relations
    of the parties to each other while they are at the house. If their lives have
    the necessary integration while at the house, and their use of the house separately
    or together forms a regular pattern, then they constitute a household anchored
    in their joint use of the house. They argue that the criteria for determining the
    existence of a household should be altered for vacation properties, that the
    integration requirement should be relaxed to the degree of integration needed
    for families to share a vacation property, and that permanence should be
    understood as an on-going pattern of occasional use for recreational purposes.
    The analysis, they say, must thus be contextual, and the context is the nature
    of the use of a multi-family vacation property.

[25]

I
    do not agree. This is a novel reading of living in the same household, not in
    keeping with the established juridical meaning of household, and could not
    have been in the reasonable contemplation of the parties. A persons membership
    in a household is not established by a restricted inquiry limited to interactions
    surrounding the use and management of one particular residence. As the above
    review of the case law demonstrates, membership in a household is assessed
    holistically, based on the totality of the parties relations and intentions
    towards each other.

[26]

Wood

does not stand for the general proposition that an adult child can
    ordinarily be a member of both his own household and the household of a parent
    in the context of the use of a family cottage. This would be a significant
    departure from existing jurisprudence. The respondents have not been able to marshal
    any other authority for this proposition, from any common law jurisdiction. It
    is important to note that
Wood

was given as an endorsement,
    which is not the vehicle this court uses to depart from established doctrine. It
    was also decided on a deferential standard of review that is not applicable
    here (see paragraph 12 above). Nor did this court make any legal pronouncement in
Wood
on the degree of intimacy, unity, and permanence required to
    constitute a household.
Wood
does not establish an exception to the
    definition of household established from
Bell
through to
Tannahill
.

(4)

Conclusion

[27]

Applying
    the established common law understanding of household, the facts found by the
    motion judge were incapable of supporting a finding that Enid and Scott, Sandy,
    and Regan had a common life with the intimacy, unity, and permanence required
    to constitute a household. At the time of the accident, Enid was living in a
    nursing home. Scott lived with his family in the city and had organized his
    life around his urban household. Prior to entering the nursing home, Enid lived
    with Scotts brother, and not with Scott and his family. In the words of Rand
    J. in
Bell
, at p. 585, he maintained a separate identity of life
    from his mother Enid. Unlike in
Canadian Universities
, Scott clearly
    did not see Enids house as home base: para. 25. There was no compelling
    evidence that either Scott or Enid organized their lives in conjunction with
    each other to the degree described in
Bell

and subsequent
    cases.

[28]

It
    may be possible, conceptually, for a person to belong to more than one
    household. But the categories recognized to date are few, relating only to
    minor children. In any event, there is insufficient evidence on this record of a
    shared life together.

DISPOSITION

[29]

The
    appeal is allowed, the order for summary judgment in favour of the respondent
    is vacated, and summary judgment is ordered in favour of the appellants. Costs
    of the appeal are awarded to the appellant in the amount of $5,000 inclusive of
    disbursements and HST.

Released:

CWH                                               B.W.
    Miller J.A.

JAN 28 2019                                    I agree
    C.W. Hourigan J.A.

I
    agree G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Figueroa v. Patel, 2019 ONCA 42

DATE: 20190124

DOCKET: C65449

Sharpe, Juriansz and Roberts JJ.A.

BETWEEN

Eddie Figueroa

Plaintiff/Appellant

and

Narendrabhai Patel and
Wawanesa
    Insurance Company

Defendants/Respondent

and

Fenchurch
    General Insurance Company, added by an Order

pursuant
    to Section 258(14) of the Insurance Act, R.S.O. 1990, c. 18

Third Party/Respondent

William G. Scott, for the appellant

A. Charles Gluek, for Wawanesa Insurance Company

John K. Downing and Hermina Nuric, for Fenchurch General
    Insurance

Heard and released orally: January 18, 2019

On appeal from the
    order of Justice Kofi N. Barnes of the Superior Court of Justice, dated May 2,
    2018.

REASONS FOR DECISION

[1]

In our view, this appeal from the dismissal of the action for delay must
    be dismissed.  This personal injury action arises from an accident that
    occurred in 2002.  The claim was issued in 2004 and served late.  It is now 14
    years since the action was commenced and almost 17 years since the accident.
    As the appellant concedes, the delay is inordinate.

[2]

The case law establishes that it is the primary responsibility of the
    plaintiff to move the action forward.  The motion judge found that the
    plaintiff was responsible for the overall delay in this case.  We do not accept
    the submission that the motion judge ignored evidence of the defendants
    conduct and responsibility for some of the delay.  The record supports the conclusion
    that the delay was inexcusable.

[3]

Prejudice is presumed from the delay of this length.  Moreover, there is
    clear evidence of actual prejudice in this case.

[4]

Accordingly, the appeal is dismissed.  Costs to Fenchurch General
    Insurance Company fixed at $10,000 inclusive of costs and disbursements, and
    costs to Wawanesa Insurance Company fixed at $4,000 inclusive of taxes and
    disbursements.

Robert Sharpe J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.