When Is A Structure Not A 'Structure'? The Modern Approach To Statutory Interpretation

When Courts interpret statutes, they consider the "ordinary meaning" of the words used in the legislation. "Ordinary meaning" refers to the reader's initial impression of the language, the meaning that surfaces immediately.

That being said, the modern approach to statutory interpretation invites considerations well beyond the plain and ordinary meaning of words. Under the "contextual and purposive" method, Canadian Courts consider the context in which the legislation operates, Parliament's intention in enacting the statute, the object of the Act, and its history.

A recent decision of the Ontario Court of Appeal, Oakville (Town) v. Clublink Corp., ULC, 2019 ONCA 826, affirms the role that the "plain and ordinary meaning" of statutory language plays in its interpretation.

Clublink establishes that textual literalism, i.e. an analysis of the ordinary meaning of an Act's words, is only one aspect of the broader exercise of contextual interpretation.

Is a Golf Course a Structure?

Clublink largely involved the meaning of the word "structure" as used in the Ontario Heritage Act, R.S.O. 1990, c.O-18 (the "OHA").

The respondents were the owners (the "Owners") of a large golf course in Oakville. In 2015, they proposed to develop the course into a residential and mixed-used community. The Township rejected the Owners' development application and ultimately passed a by-law designating the course as a cultural heritage property under section 29 of the OHA.

The Owners then brought an application under section 34 of the OHA which provides that no owner shall "demolish or remove a building or structure on the property" unless the owner applies to the municipal council and receives consent for the demolition or removal.

Under section 34, if the municipal council declines to grant its consent to the demolition, the property owner can then apply to the Local Planning Appeal Tribunal ("LPAT"), which has the final say on the application.

The Township argued that the Owners mistakenly brought their application under section 34 of the OHA. It claimed that section 33 of the OHA applied instead.

Section 33 provides that no owner "shall alter the property or permit the alteration of the property if the alteration is likely to affect the property's heritage attributes". Critically, unlike section 34 which provides for a further application to the LPAT, Section 33 provides the owner with an appeal of the municipal council's decision to the Conservation Review Board...