COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Paterson v. Burgess, |
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2017 BCCA 298 |
Date: 20170816
Dockets: CA43261; CA43280
Docket: CA43261
Between:
Charles Lynch Paterson and Barbara Anne Paterson
Respondents
(Petitioners)
And
Dianne Marie Burgess and Walter Bertram Burgess
Appellants
(Respondents)
– and –
Docket: CA43280
Between:
Charles Lynch Paterson and Barbara Anne Paterson
Respondents
(Petitioners)
And
Jack Charles Herod and Alison Jean Herod
Appellants
(Respondents)
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Before: |
The Honourable Mr. Justice Frankel The Honourable Mr. Justice Groberman The Honourable Madam Justice Fenlon |
On appeal from: An order of the Supreme Court of British Columbia, dated November 6, 2015 (Paterson v. The Owners Strata Plan 1186, 2015 BCSC 2039, Victoria Docket 142915)
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Counsel for the Burgess Appellants: |
L.J. Alexander |
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Counsel for the Herod Appellants: |
R.S. Margetts, Q.C. |
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Counsel for the Respondents: |
P.G. Guy |
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Place and Date of Hearing: |
Victoria, British Columbia October 28, 2016 |
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Place and Date of Judgment: |
Vancouver, British Columbia August 16, 2017 |
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Written Reasons by: |
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The Honourable Mr. Justice Groberman |
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Concurred in by: |
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The Honourable Mr. Justice Frankel The Honourable Madam Justice Fenlon |
Summary:
The respondents owned a strata lot that was subject to a building scheme. They applied for a declaration that the building scheme did not apply to their lot, and, in the alternative, for an order cancelling the scheme. The chambers judge found that only the provisions dealing with setbacks from the property boundaries were applicable to the respondents’ strata lot, and that those requirements should be cancelled in respect of it on the grounds that they were obsolete, that failing to order the cancellation would impede the reasonable use of the land, and that the cancellation would not injure other strata owners. The appellants, who owned the adjacent strata lots, appealed. Held: appeal allowed. The judge’s interpretation of the building scheme focussed exclusively on a single provision, and failed to give effect to the clear meaning of the scheme as a whole. Properly interpreted, the scheme applied to the respondents’ strata lot. The judge also erred in finding the setback provisions to be obsolete. They continued to have vitality, and should not have been cancelled. The alternative grounds upon which the judge cancelled the setback provisions are also unsustainable.
Reasons for Judgment of the Honourable Mr. Justice Groberman:
[1] The parties to this appeal are owners of three adjacent waterfront strata lots in Sidney, British Columbia. A statutory building scheme, registered at the outset of the strata development, places stringent restrictions on land use within the strata development. Among other things, it establishes setback requirements for buildings on each lot, and places restrictions on the size and siting of buildings.
[2] The Patersons are the owners of lot 6, the largest lot in the development, and the only one that had a house on it prior to the creation of the statutory building scheme. In 2014, they made plans to replace the existing house with a larger modern one. The planned house would, to a minor extent, have been out of conformity with the statutory building scheme. In particular, its setback from one of the lot lines was less than required by the building scheme.
[3] After unsuccessfully asking the strata council to relax a setback requirement, the Patersons commenced proceedings in British Columbia Supreme Court, seeking a declaration that the statutory building scheme did not apply to lot 6. In the alternative, they sought an order cancelling the scheme, either generally or against lot 6, or an order that the scheme be modified under s. 35 of the Property Law Act, R.S.B.C. 1996, c. 377.
[4] The chambers judge granted the Patersons a declaration that the building scheme (other than the setback requirements) did not apply to lot 6. He declared the setback requirements to be “obsolete” and cancelled them under s. 35 of the Property Law Act. Finally, though it was not sought in the petition, he granted a declaration that the Patersons could proceed “with their proposed build” on lot 6.
[5] The owners of the two lots adjacent to lot 6, the Herods (owners of lot 5) and the Burgesses (owners of lot 7), both appeal the judge’s orders.
Background
[6] In 1982, Samuel and Anne Hudson created a seven-lot strata development on land adjacent to Sidney Channel in the Town of Sidney. At the time, only one of the strata lots – lot 6 – had a dwelling on it. The couple’s plans, however, were for the development to be transformed into a small neighbourhood of single-family homes.
[7] The character of that neighbourhood was to be closely controlled by a series of restrictive covenants included in a statutory building scheme that the couple registered before selling any of the strata lots. I reproduce, here, the recitals to the statutory building scheme, as well as the schedule of restrictive covenants that makes up the substance of the scheme:
DECLARATION OF BUILDING SCHEME
1. We are the registered owner[s] in fee simple [of] the following land (herein after called “the lots”)
Strata Lots 1 to 7, Section 13,
Range 4 East,
North Saanich District, Strata Plan 1186
2. [We] hereby create a building scheme relating to the lots.
3. A sale of any of the lots is subject to the restrictions enumerated in the schedule attached or annexed hereto.
4. The restrictions shall be for the benefit of all the lots.
SCHEDULE OF RESTRICTIONS
1. There shall be no commencement of site preparation or construction, including clearing, filling and excavation, or construction of any improvement or alteration thereof until a complete set of plans, signed by the lot Owners, has been deposited with the Developer or Strata Council, once formed, or its agent or nominee and approval therefor has been obtained as hereinafter [provided]. It being the intent of these restrictive covenants that all improvements, including dwellings, fences and landscaping, are to be controlled as to design, siting height, setbacks, type of materials used and exterior colour schemes. For the greater clarity and certainty a “Plan of Setbacks and Buildings” is attached hereto, as Schedule “A”, which establishes the limits of height, bulk and location for all buildings; it is the intent of these restrictive covenants to ensure a variety in setbacks and dwelling types to be built upon the lots and to ensure that all dwellings and improvements are suited to the particular lot on which they are located. Prior to preparation of final plans, preliminary designs should be submitted for approval.
2. All pitched roofs shall be cedar shakes. All flat roofs shall be covered completely with natural cedar deck materials over waterproof membranes. Railings shall be cedar and as open as permitted by building code. All siding materials shall be natural cedar with dark stain. Windows and doors shall be wood or dark painted or anodized aluminum. Exposed masonry chimneys shall be brick or natural stone. Metal flues, plumbing vents, flashings and other miscellaneous metal parts shall be painted dark colour. Dormer windows shall not exceed four feet in width and shall be spaced at least six feet apart.
3. Without restricting the generality of Clause 1, no trees or vegetation shall be removed or substantially altered without approval, by the Developer or Strata Council, once formed. Conversely, no lot, after the initial sale thereof, shall be planted with trees or other vegetation or left in such a state as to unreasonably impede the view from any other lot or lots and to this end, the Developer or the Strata Council, once formed, may require that any trees or vegetation be removed, topped or otherwise modified from time to time.
4. No lot shall be left so that construction of any improvement shall not have been commenced within six months of the granting of approval thereof (failing which the approval shall be void), or all improvements including landscaping shall not have been completed within one year of the date of issue of any building permit or commencement of site preparation, whichever shall first occur.
5. No improvement or lot shall be allowed to become in disrepair or unsightly or untidy, it being the intent of these covenants that all lots, improvements thereon and the common property shall be maintained at all times in a neat and attractive state and condition.
6. No lot shall be sub-divided or altered with respect to its boundaries.
7. No dwelling shall be erected which shall have a main floor area of less than eight hundred square feet inclusive of outer walls, but exclusive of any garage, carport, covered extension, patio, porch or other appendage. All dwellings shall include a minimum of one closed garage.
8. Except as hereafter noted, no building shall be used for any purpose other than that of a single family residence. In particular, without restricting the generality of the foregoing, no building shall be used at any time for the purpose of any profession, trade, vocation, commercial enterprise of any description, nor as a hospital, charitable religious or educational institution, apartment, boarding or lodging house.
9. No animals, birds or livestock other than domestic household pets shall be kept on any lot at any time for any purpose and such pets as are permitted must be controlled so as not to be a nuisance to the neighbours and shall not be allowed to roam untended on any of the common property.
10. No sign, or advertising matter of any kind, except a sign previously approved and in a designed frame offering a lot or residence for sale, shall be placed on any lot or on any chattel permanently or temporarily located on any lot.
11. Except for private passenger automobiles, no chattels, including but without restricting the generality thereof, trailers, campers, motor homes, trucks and boats, shall be parked, placed or situated on any lot except in a garage. No mobile homes, campers, motor homes, travel trailers or similar equipment shall be used on any strata lot and no existing dwelling house or accessory building shall be moved onto a strata lot or any dwelling house erected thereon which in prefabricated and constructed off-site.
12. No private docks, boat moorings, stairs or other construction shall be built on the waterfront without the consent of the Developer or the Strata Council, once formed.
13. No owner shall erect any exterior pole light or street lighting of any kind.
14. There shall not be stored or accumulated in the open on any lot any waste materials of any kind whatsoever.
15. No pole, mast, antenna or similar device of any kind, whether for purposes of receiving or transmitting radio or television signals or otherwise, shall be erected or installed on any lot or on the exterior of any building.
16. No owner shall engage in any activity likely to create objectionable smell or noise.
17. In the event of any breach by an owner of these restrictive covenants for a period of thirty (30) days after notice in writing delivered to the lot owner by the Developer or Strata council requesting the owner to remedy such breach, the Developer or Strata Council may cause such work as may be necessary to cure the breach to be performed and the cost thereof shall be a debt owing by the owner, payable on delivery to the lot owner of an invoice for such work.
18. Any covenants or approvals necessary pursuant to the foregoing restrictions shall be in writing and obtained from the Developer or Strata Council or its agent, or nominee, who may also relax, waive or modify any of these restrictive covenants as it in its sole discretion may see fit.
19. Any approval being granted as aforesaid shall be final and binding and shall not be open to question by any owner or owners of other lots and failure of the Developer or Strata Council to enforce these restrictive covenants or to exercise its power in a judicial manner shall not render such body liable in damages or to any claims or demands whatsoever.
[8] The evidence established that the strata council has enacted bylaws setting out the procedures to be followed when an owner wishes to seek a relaxation, waiver, or modification of a restrictive covenant. It also established that the strata council has, on occasion, granted relaxations from setback requirements, including a relaxation in respect of the Burgesses’ lot. Finally, there was anecdotal evidence to the effect that some of the covenants (particularly the ones dealing with roofing materials and building colours) have not always been enforced by the strata council.
[9] In 2014, the Patersons, who wished to replace the home on their strata lot, sought the strata council’s approval for their construction plans. They were unable to convince a majority of the owners to support their request. Some owners, including the Burgesses and the Herods, objected to the size and proposed siting of the new home. The proposed house would not have conformed to the setback requirements set out in the plan annexed as Schedule “A” to the Schedule of Restrictions.
[10] The Patersons then filed their petition for relief in Supreme Court, seeking a declaration that the building scheme did not apply to their lot, or, in the alternative, seeking to have the scheme modified or cancelled.
The Judgment Below
[11] After discussing the factual background of the dispute between the parties, the judge set about interpreting the building scheme. In doing so, he emphasized the need to examine not only the words of the scheme, but also the factual matrix surrounding its creation. He quoted from Gubbels v. Anderson (1995), 8 B.C.L.R. (3d) 193 (C.A.) as follows:
[15] Counsel for the appellants said that someone ought to be able to go into the Land Titles Office, look immediately at the land registry records and know right away exactly what effect the documents pertaining to title had. But that is not the nature of the land registry system. The nature of the system is to provide notice of any matters that affect title. The restrictive covenant is referred to and the restrictive covenant must be given the interpretation it requires as a contractual document and not an interpretation that would be given to it by a layman coming into the Land Titles Office. Sometimes some skill is required in the process of interpretation, but the most rudimentary tool of interpretation is that a document should be interpreted in the context of its own factual matrix. It must be looked at as the conditions existed at the time it was created. While purpose is not the only guidance of what it meant, its purpose at that time may be one of the guides.
[16] This document was created before the subdivision of the old Lot 1 into the new Lot 1 and Parcel A of Lot 1, and it must be interpreted as of the time it was created. It is not merely a question of looking at the precise words used in the document without any sense of the background and purpose of the document. In this case, the factual matrix and the time when the document was created are tools that must be used in giving it its interpretation. When the document is viewed in that way, in my opinion, its meaning prevents the construction of more than one private dwellinghouse on the lots to which it related at the time when it was created and it prevents the construction, thereafter of course, of more than one dwellinghouse in any smaller subdivision, with the result that there may arise, as has arisen in this case, entire lots on which a house cannot be constructed if those entire lots form only a part of a lot that existed in 1946.
[17] In my opinion, there is a plain meaning contrary to the meaning advocated by counsel for the appellants. That disposes of the entire argument on the first three issues and it does so, essentially, on the basis set out in the reasons of the trial judge, without any particular emphasis on the purpose of the restrictive covenant at the time it was made.
[Emphasis of the chambers judge.]
[12] The judge also quoted the following paragraph from Hofer v. Guitonni, 2011 BCCA 393:
[14] … [I]interpreting a restrictive covenant, whether found in a building scheme or not, involves no special approach. It is a contractual document, and the general principles of contract interpretation apply. The precise words used must be looked at in the context of the factual matrix at the time the document was created, taking into account the background and purpose of the document as guides to interpretation.
[Emphasis of the chambers judge.]
[13] Turning to the language and context of the building scheme, the judge said:
[61] … The fact that the Building Scheme applies to structures “to be built” is of assistance in determining the intent of the scheme as well as its scope. When the Strata was established, there only was the house on what became Strata Lot 6. The remaining lots were vacant. Unquestionably the building materials and colour schemes of that house on Strata Lot 6 did not comply with the Building Scheme’s requirements. In my opinion, all of this points to the fact that, but for the setback requirements contained in the Building Scheme, it was not planned or intended that the balance of the restrictions in the scheme would apply to and restrict the future development of Strata Lot 6. It also is telling that the only details relating to the “design” referenced in paragraph 1 are found in Schedule “A”. Those details relate to the “height” and “bulk” applicable to future construction on Strata Lots 1 to 5 and 7. There is no mention of Strata Lot 6 in this regard. That must have been intentional and because there was already a structure on Strata Lot 6 at the time the Building Scheme was created. In my view, this further supports the conclusion that only the setback requirements of the scheme apply to Strata Lot 6.
[14] On the basis of this reasoning, the judge made a declaration, at para. 92 of his reasons, in the following terms:
… [B]ut for the setback requirements found in Schedule “A” to the Building Scheme, the Building Scheme and its restrictive covenants do not apply to Strata Lot 6
[15] Having found that the entire building scheme, apart from the setback requirements, was inapplicable to lot 6, the judge turned his attention to s. 35 of the Property Law Act:
35 (1) A person interested in land may apply to the Supreme Court for an order to modify or cancel any of the following charges or interests against the land, whether registered before or after this section comes into force:
…
(d) a statutory building … scheme;
…
(2) The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that
(a) because of changes in the character of the land, the neighbourhood or other circumstances the court considers material, the registered charge or interest is obsolete,
(b) the reasonable use of the land will be impeded, without practical benefit to others, if the registered charge or interest is not modified or cancelled, [or]
…
(d) modification or cancellation will not injure the person entitled to the benefit of the registered charge or interest …
…
[16] The judge commenced his discussion of s. 35 with an analysis of whether the setback restrictions were obsolete. He began at para. 72, with the following quotation from Portrait Homes Ltd. v. Strata Plan LMS 1191, 2002 BCCA 257:
[23] In determining whether an easement is “obsolete” within the meaning of s. 35(2)(a), this Court has stated that the word “obsolete” should be given its ordinary meaning. For example, in Collinson v. LaPlante (1992), 73 B.C.L.R. (2d) 257 (C.A.), Madam Justice Southin, speaking for the Court, stated at para. 19:
No technical meaning is to be given to the word “obsolete” in this provision [s. 31(2)(a), which is now s. 35(2)(a)]. It is an ordinary English word which is defined in the Shorter Oxford Dictionary, 3d ed., thus:
1. That is no longer practised or used; discarded; out of date. 2. Worn out; effaced through wearing down, atrophy, or degeneration.
[17] The judge noted that the building scheme had been successful in creating a neighbourhood of single-family dwellings of a particular character. He found that the proposed construction by the Patersons would not interfere with the character of the development:
[74] All of the properties within the Strata Plan have been developed. The neighbourhood is now well established and its nature and environment is set. There is now a municipal bylaw that regulates residential construction in the community. In my opinion, many aspects of the Building Scheme no longer serve a valid purpose. The proposed use of Strata Lot 6 is the same as it was when the Strata was first created. That is, for a single-family home. The structure that is currently on the Patersons’ property is 290.9 square meters in size and covers approximately 10.2% of the lot. The proposed new home is approximately 341.6 square meters and covers approximately 12% of the lot. In my opinion, the nature and character of the proposed use of Strata Lot 6 will not change as it will still be used for a single-family dwelling. Furthermore, I do not agree that the new home the Patersons propose will detrimentally alter the nature, tone or ambiance of the neighbourhood.
[18] He also noted that there had, in the past, been approvals for minor departures from the building scheme, and that the provisions dealing with building materials and colours had not been rigorously enforced:
[75] … The Strata has a history of not enforcing or not complying with the terms of the Building Scheme. The house that is located on Strata Lot 1 has building materials and colours that are non-compliant. The house on Strata Lot 2 is not located where it should be in accordance with Schedule “A”. Nor do its design, materials and colours comply with the Building Scheme requirements. Similar situations exist for Strata Lots 3, 4, 5 and 7.
[19] In light of these departures from the strict provisions of the scheme, the judge found that the scheme had become obsolete:
[78] In my opinion, the Building Scheme and it[s] associated restrictive covenants [are] not being enforced or practiced to the degree that would allow anyone to legitimately say they need them to remain in place. Where the restrictions are no longer honoured or practiced, the restrictions have become obsolete. That is the situation in the present case.
[20] In the result, he concluded that the setback requirements in respect of lot 6 ought to be cancelled.
[21] While it was unnecessary to do so, the judge also considered whether the setback requirements should be struck under ss. 35(2)(b) or (d) of the Property Law Act, and concluded that they should be:
[81] The factors described in s. 35(2)(b) are the “flip side” of those in s. 35(2)(d). That is, if a restrictive covenant continues to provide practical benefit to any of the Strata Owners, then it cannot be said that a modification or cancellation of the covenant will not be injurious to those owners: Olenczuk v. Mooney, 2014 BCSC 825. Consequently, the two criteria can be considered at the same time: Mortimer v. Dickey, [1994] B.C.J. No. 1979 (S.C.), at para. 13.
[82] In my opinion there would be a tangible impediment to the Patersons’ reasonable use of their property if the setback restrictions of the Building Scheme were not cancelled as against Strata Lot 6. The Patersons need to build a new home as the one they currently have is practically decrepit. The Town of Sidney has approved the Patersons’ proposed build and has confirmed that it complies with all of their building bylaws and regulations. The Building Scheme was not created with the intent of protecting the views [that] the various Strata Owners have from their own properties. The fact that the restrictive provisions of the Building Scheme are being used by some of the respondents to prevent the proposed build is ample evidence of an impediment.
[83] Furthermore, in light of the municipal zoning bylaws that now apply, I am not persuaded that the setbacks created by the Building Scheme remain of any practical benefit to the other Strata Owners. I am of the same view with respect to any potential injury to the respondents if the Building Scheme restrictions were cancelled as against Strata Lot 6. The respondents maintain that their waterfront views would be compromised and they would suffer a diminishment in their sense of privacy if the restrictive covenants of the Building Scheme were not enforceable as against Strata Lot 6. I am not at all convinced that the impact of the proposed build on Strata Lot 6 will be as dramatic as the respondents suggest.
Analysis
[22] In my view, the judge erred in principle in his interpretation of the building scheme by failing to consider the scheme as a whole. His finding that the scheme (other than the setback requirements for buildings) was inapplicable to lot 6 was based on an over-reading of a single provision in the scheme, and an exclusive focus on that provision. His interpretation failed to take note of a multitude of provisions in the scheme that manifestly were intended to, and did, apply to lot 6.
[23] I have no difficulty with the judge’s conclusion that the building scheme had to be construed according to ordinary rules of contractual interpretation. In my view, however, the judge failed to apply those rules. The correct approach is described in the judgment of the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53:
[57] While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services [v. Weyerhaeuser Co., 2008 BCCA 31], at para. 14; and Hall [Geoff R. Hall, Canadian Contractual Interpretation Law, 2nd ed. (Markham, Ont.: LexisNexis, 2012)], at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62).
[24] The building scheme consisted of the opening recitals and numerous covenants. The recitals to the scheme make it clear that lot 6 is one of the lots to which the restrictions apply. The plain wording of the building scheme leaves no room for doubt that most of the covenants applied to lot 6. Clearly, for example, the restrictions on parking, building use, erection of lighting poles, and display of signs were intended to apply to lot 6, as were almost all of the restrictions set out in the schedule. The restrictions had to apply to all of the lots in the strata development if they were to achieve their goal of establishing a neighbourhood with a particular character.
[25] The judge concluded that the building scheme (other than the setback requirements) did not apply to lot 6 because there was, when the scheme was entered into, a dwelling on lot 6. He reasoned that that dwelling was not a “dwelling to be built”, and therefore found that certain provisions of the building scheme did not apply to it. That reasoning might suffice to exempt the existing dwelling from some of the requirements of the building scheme. It would not, however, provide any solid reason to exempt future development on the lot from the scheme. More to the point, it provided no rationale for a declaration that none of the provisions of the building scheme (other than the setback requirements) applied to lot 6.
[26] The judge’s declaration that the building scheme, other than setback provisions, did not apply to lot 6 cannot be sustained.
[27] The judge also misapprehended the concept of an “obsolete” covenant. A covenant becomes obsolete when it has ceased to have currency because of a change in circumstances, or due to disuse. In this case, the evidence established only minor relaxations of the setback requirements over the years, falling far short of disuse. Further, nothing in the circumstances of the neighbourhood robbed the setback requirements of their vitality.
[28] The judge acknowledged the role the building scheme played in establishing the character of the neighbourhood, but seems to have taken the view that once a neighbourhood’s character is established, covenants become obsolete. Such a view ignores the fact that a neighbourhood’s character can change, and that cancelling restrictive covenants is apt, over time, to promote such change. A building scheme’s importance is not exhausted just because the character of a neighbourhood is established. The scheme will also, typically, be important to ensure that the established character is preserved.
[29] Finally, the judge erred by focussing his attention on the particular building planned by the Patersons rather than on the broader effects of the restrictive covenants. Particularly where a judge is considering cancelling a covenant rather than modifying it, consideration must be given to all of the consequences of cancelling the covenant, not just those that arise in one particular situation.
[30] The importance of focussing on the general effects of covenants is highlighted in the case before us. After the judge cancelled the covenants in respect of lot 6, the respondents changed their building plans. As counsel for the Burgesses points out, with the covenants cancelled, it would be possible for the Patersons to construct a dwelling that is completely out of keeping with the character of the neighbourhood. At most, a finding that the proposed development was innocuous might have led the judge to modify the covenant (after making the requisite finding under s. 35(2)(b) or (d) of the Property Law Act) rather than cancelling it.
[31] Before finding that the setback requirements provided no tangible benefit to the other strata lot owners, or that cancelling the requirements would cause no injury to them, the judge ought to have considered the objectives that the restrictions were meant to achieve. It seems obvious, on the face of the covenant, that the setback requirements were intended to ensure that the water views from individual strata lots were not unduly obstructed by the construction of dwellings on other lots. The setback requirements might also have been important to ensure that the development maintained a spacious and uncrowded quality. Without analysing the effect of cancelling the building scheme on the values that the scheme was designed to protect, it was impossible for the judge to determine that individual covenants served no valuable purpose.
Conclusion
[32] It follows that the judge’s declarations and orders cancelling the building scheme must be set aside.
[33] In view of the fact that the litigation was initially aimed at allowing a particular project to go ahead, we explored the question of whether the Court should, on this appeal, consider an alternative remedy to that ordered by the chambers judge: the issuance of an order modifying the building scheme. It quickly became clear that the respondents would no longer be content with a modification aimed at permitting construction of a home according to their 2014 plans. The evidence at first instance, having been directed at the 2014 plans, does not provide an adequate foundation for assessing other scenarios. Accordingly, nothing is to be gained by addressing potential modifications to the building scheme on this appeal. The matter must be remitted to the trial court.
[34] I would allow the appeal, set aside the judge’s declarations and orders, and remit the application to the trial court for any further proceedings.
“The Honourable Mr. Justice Groberman”
I AGREE:
“The Honourable Mr. Justice Frankel”
I AGREE:
“The Honourable Madam Justice Fenlon”