Toronto (City) v. Nationwide Home Comfort Inc., 2017 ONCJ 854

CITATION: Toronto (City) v. Nationwide Home Comfort Inc., 2017 ONCJ 854 DATE: December 14, 2017 ONTARIO COURT OF JUSTICE Toronto Region In the matter of the Provincial Offences Act , R.S.O. 1990, c. P. 33 B E T W E E N: The City of Toronto -and- Nationwide Home Comfort Inc. REASONS FOR JUDGMENT Appearances: Mr. E. Bylsma, Municipal Prosecutor Mr. I. Klaiman, Lipman, Zener & Waxman, Counsel for the Defendant Before: Mary A. Ross Hendriks, J.P. Hearing Date: August 17, 2017 Judgment: December 14, 2017 INTRODUCTION: [ 1 ] These are my Reasons for Judgment concerning the alleged offence, constituted under

section 23 of the Provincial Offences Act , R.S.O. 1990, c. P. 33, (the " POA ") as set out in the sworn Information, dated July 25, 2016, that on or about February 10, 2016 to February 20, 2016, at 9 Alladin Avenue, Toronto, the defendant, Nationwide Home Comfort Inc. (the "defendant"), carried on the business, trade or occupation of a plumbing contractor without having the necessary licence to do so, contrary to

Chapter 545 of the City of Toronto Municipal Code ,

section 545-2A (28), as amended. EVIDENCE: [ 2 ] The parties provided me with an Agreed Statement of Facts (Exhibit 1), which included copies of relevant contracts and invoices. In it, they explain that the defendant carries on business as a retailer and lessor of certain home heating, cooling and water treatment devices. The defendant does not conduct any of its own plumbing related installations or removals.

Instead, it contracts plumbers to carry out those tasks. [ 3 ] The defendant admits that at no material time did it hold a plumbing contractor licence with the City of Toronto. [ 4 ] Pursuant to a rental agreement dated February 10, 2016, the defendant agreed to rent a carbon water filter to a customer, in exchange for monthly rental payments. [ 5 ] The defendant hired a plumbing company to install the carbon water filter at the customer's home, located at 9 Alladin Avenue, Toronto.

Subsequently, the customer complained to the defendant that he was not satisfied with the carbon water filter and asked that it be removed. [ 6 ] On February 20, 2016, the plumbing company attended at the customer's address and removed the carbon water filter. The defendant paid the plumbing company for both the installation and removal of the carbon water filter from the customer's home. [ 7 ] Thus, there are no relevant facts in dispute. ISSUES: [ 8 ] The following are the relevant issues in this matter: (

a) Did the defendant carry on the business, trade or occupation of a "plumbing contractor" within the meaning of the regulatory scheme? (

b) Would a broad and liberal

interpretation of "plumbing contractor" lead to an absurdity?

ANALYSIS: General Principles of Statutory

Interpretation: [9] The modern approach to statutory

interpretation was described by the Ontario Court of Appeal in Hincks v. Gallardo, 2016ONCA 494 at para. 27, as follows: ...The modern approach to statutory

interpretation articulated by the Supreme Court of Canada requires a court to consider the words of astatute "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of theAct, and the intention of Parliament": Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62 , [2005] 3 S.C.R. 141, at paras.9-12, citing Rizzo & Rizzo Shoes Ltd. (Re), (QC CA), (SCC), [1998] 1 S.C.R. 27 at para. 21. [10] The Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, provides under

Part VI:

Interpretation, the following guidance: Rule of liberal

interpretation 64.

(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal

interpretation as best ensures theattainment of its objects. 2006, c. 21, Sched. F, s. 64(1). (2) Subsection (1) also applies to a regulation, in the context of the Act under which it was made and to the extent that the regulation isconsistent with that Act. 2006, c. 21, Sched. F, s.64(2). Relevant Municipal Powers: [11] The City of Toronto Act, 2006, S.O. 2006, c.11, Sched. A, also contains broad powers, as follows:

Part II: GENERAL POWERS OF THE CITY POWERS Scope of powers 6(1) The powers of the City under this or any other Act shall be interpreted broadly as to confer broad authority on the City to enable theCity to govern its affairs as it considers appropriate and to enhance the City's ability to respond to municipal issues. 2006, c. 11, Sched.A, s. 6(1); 2006, c.32, Sched. B, s. 2. Ambiguity

(2) In the event of ambiguity in whether or not the City has the authority under this or any other Act to pass a by-law or to take any otheraction, the ambiguity shall be resolved so as to include, rather than exclude, powers the City had on the day before this

section came intoforce. 2006, c. 11, Sched. A, s. 6(2). Powers of a natural person 7 The City has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or anyother Act. 2006, c.11, Sched. A, s. 7. Broad authority 8

(1) The City may provide any service or thing that the City considers necessary or desirable for the public. 2006, c. 11. Sched. A, s.8(1). City by-laws

(2) The City may pass by-laws respecting the following matters: ...11. Business licensing. 2006, c. 11, Sched. A, s. 8(2); 2006, c. 32, Sched. B, s. 3(1,2); 2017, c. 10, Sched. 2, s. 1. [12] In particular, the City of Toronto Act, 2006, permits the City to have licensing powers over businesses carrying on within theCity.

Section 85 defines a business, as follows: "business" means any business wholly or partly carried on within the City even if the business is being carried on from a location outsidethe City and includes, (

a) trades and occupations... [13] Similarly,

section 86 authorizes the City to provide for a system of licences with respect to a business and, (

a) to prohibit the carrying on or engaging in the business without a licence; THE RELEVANT REGULATORY REGIMES: [14] What makes this particular case quite unique is that there are several relevant regulatory schemes to consider. The Municipal Regulatory Scheme:

[ 15 ] First and foremost, there is the municipal regulatory scheme. The Toronto Municipal Code , Ch. 545, Licensing, defines plumbing and plumbing contractor, as follows: PLUMBING - Includes any procedure, method or manner or thing referred to or described in the Building Code Act, 1992 , as amended; and "plumbing work" has a corresponding meaning.

PLUMBING CONTRACTOR - A person engaged in the business of contracting for the making and repairing of plumbing installations, and includes any person who solicits for plumbing work, or who in any way advertises or holds himself or herself out to the public as doing plumbing work or as being a plumbing contractor. [ 16 ] In addition, Ch. 545-2(28) states that every plumbing contractor, plumber and master plumber are required to take out a licence from the Municipal Licensing and Standards Division authorizing them to carry out their trades. [ 17 ] In order to be licensed with the City of Toronto as a plumbing contractor, the entity also requires a licensed master plumber, see: Ch. 545-424.

According to the City of Toronto's website, "Application Requirements for Business, Trades and Professions, How to Apply for a Master Plumber licence," it states: A Master Plumber is a person who is skilled in the planning, superintending and installing of plumbing, is familiar with the laws, rules and regulations governing plumbing, has a regular place of business in Toronto and who performs or employs people who perform plumbing work. [ 18 ] Similarly, Ch. 545-415 (

A) states: Every applicant for a master plumber's licence shall submit to the Executive Director, Municipal Licensing and Standards Division, a certificate of qualification issued by the Province of Ontario. [ 19 ] In order to be issued a plumbing contractor's licence, the City requires the work to be supervised by a master plumber, see: Ch. 545-424.

No master plumber is permitted to act for more than one plumbing contractor at a time, see: Ch. 545-425(A). [ 20 ] While the City has the clear power to require a plumbing contractor to have a licence and to employ its own master plumber, the underlying qualifications for the trade of plumbing are beyond the purview of the City.

The Regulatory Scheme for Plumbers as a Compulsory Trade: [ 21 ] Second, there is the qualification scheme, which includes the scope of practice for plumbers as established by regulation. [ 22 ] In order to become qualified as a plumber, an individual must comply with the requirements established by the Ontario College of Trades and Apprenticeship Act, 2009 , S.O. 2009, C. 22. This provincial statute divides trades between voluntary trades and compulsory trades, and plumbing falls into the latter category.

Thus, plumbing apprentices and plumbers are required to be members of the Ontario College of Trades. [ 23 ] There are a number of regulations made pursuant to the Ontario College of Trades and Apprenticeship Act, 2009 . The relevant one for plumbers is Ontario Regulation 275/11 , Scope of Practice - Trades in the Construction Sector. [ 24 ]

Section 29 of Ontario Regulation 275/11 sets out the scope of practice for plumbers, as follows: Plumber 29.

(1) The scope of practice for the trade of plumber includes the following: 1. Laying out, assembling, installing, maintaining or repairing any structure, building or site, fixtures and appurtenances for the supply of water for any domestic or industrial purpose or for the disposal of water that has been used for any domestic or industrial purpose. 2. Connecting any appliance that uses water supplied to it or disposes of waste to piping. [emphasis added] 3. Installing piping for any process, including the conveyance of gas, or any tubing for a pneumatic or air-handling system. 4. Making joints in piping. 5.

Reading and interpreting design drawings, manufacturers' literature and installation diagrams for piping and appliances connected to piping. O. Reg. 275/11, s. 29(1) .

(2) The scope of practice for the trade of plumber does not include the following: 1. Manufacturing equipment or assembling a unit prior to delivery to a building, structure or site. 2. Laying of metallic or non-metallic pipe into trenches to form sanitary or storm sewers, drains or water mains. 3. Repairing and maintaining installations in an operating industrial plant. 4. REVOKED: O. Reg. 94/13, s.2. The Consumer Protection Scheme:

[25] Third, there is also consumer protection legislation, which is the third regulatory scheme involved, although not argued by theparties.

I have included it for the sake of completeness, since the executed rental agreement between the defendant and the consumerreferred to it in bold print, including the 10-day consumer cooling-off period, in paragraph 18 of that contract, "Your Rights under theConsumer Protection Act, 2002." [26] The Consumer Protection Act, 2002, S.O. 2002, C. 30, is a public welfare statute, intended to protect consumers in Ontario. [27] Consumers routinely lease chattels, such as the carbon water filter at issue in this matter, water heating or cooling devices, andair conditioners.

Section 86 of the Consumer Protection Act, 2002, defines "lease" as follows: "lease" means a consumer agreement for the lease of goods, other than a consumer agreement for the lease of goods in connection with aresidential tenancy agreement, and "lessor" and "lessee" have a corresponding meaning . [28] The Consumer Protection Act, 2002, permits the Ministry to receive complaints and make inquiries, as per

section 105, andconduct inspections, as per

section 105.2. The statute also provides for civil remedies, such as rescission of the contract. [29] In addition to consumers regularly leasing chattels such as water heaters, air conditioners or carbon water filters, these chattelsare also for sale at most hardware stores, both large and small. [30] In the case before me, the defendant hired the plumbing company and paid it directly, as demonstrated by the receipts attached tothe Agreed Statement of Facts. RELEVANT JURISPRUDENCE: [31] There is no jurisprudence completely on point that either party was able to provide to me.

Instead, the parties provided me withsome jurisprudence that they suggested was helpful to this analysis. [32] The prosecutor relied upon United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 ,[2004] 1 S.C.R. 485, which stands for the proposition that the proper approach to the

interpretation of statutes empoweringmunicipalities should be broad and purposeful, in accordance with Driedger's Construction of Statutes and recent jurisprudence,including Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42 , [2002] 2 S.C.R. 559, see: paras. 6-8. [33] The prosecutor also relied upon Croplife Canada v. Toronto (City), (ON CA), [2005] O.J. No. 1896, inwhich the Ontario Court of Appeal adopted a broad

interpretation to a municipality's "specific power" under (then)

section 130 of theMunicipal Act, 2001, to regulate matters not specifically provided for under that act or any other act for the purposes related to the health,safety and well-being of the inhabitants of the city, and upheld the city's authority to enact a bylaw that limited the application ofpesticides. [34] In particular, the prosecutor noted that as set out in paragraph 17 of Croplife, the Supreme Court of Canada began moving awayfrom the narrower approach to municipal power in Dillon's Rule, and instead favoured a "benevolent construction" or "broad andpurposive" approach that allowed for a more generous

interpretation of municipal powers. [35] The defendant relies on All Canada Plumbing & Heating Co. v. Gottlieb, 1981 Carswell Ont 507, 18 R.P.R. 109, 7 A.C.W.S.(2d) 210. It was an appeal from a Master's decision to the Ontario Divisional Court. The issue was whether or not the plaintiff's failure tohave a licence as a plumbing contractor under the (then) municipal bylaw made its claim under a mechanic's lien action illegal. Inparagraph 6, the Ontario Divisional Court made a distinction between the plumbing work, and the sale of the plumbing material, asfollows: In By-law 88-69, it is no doubt a tenable

interpretation that the prohibition against engaging in the trade, calling, business, or occupationof plumbing contractor is wide enough to include, not only the doing of labour as a plumbing contractor, but as well, the plumbingmaterial supplied in connection with that work or labour. A narrower meaning is equally open, i.e., that the prohibition in the by-lawextends only to the doing of work as a plumbing contractor, and not to the supply of materials. I prefer the narrower one. It is moreconsonant with the objective and purpose of the by-law, so clearly enunciated in Kocotis v.

D'Angelo, and reiterated in Calax Const. Inc.v. Lepofsky (1974), (ON SC), 5 O.R. (2d) 259, 50 D.L.R. (3d) 69, that the licensing requirements are designed toprotect customers from work done by unqualified or incompetent tradespersons. It can hardly be said that the by-law was intended toprevent persons not licenced or qualified as plumbing contractors from selling plumbing material.

Although the work done in this casewas clearly prohibited by the by-law, and the claim for the value of such work could not succeed, these considerations do not apply tothe material supplied, nor prevent recovery of its value, found by the Master to be $19,184.45. [36] The defendant also relies on the Ontario Divisional Court's decision in Gillbert's LLP v. David Dixon Inc., 2017 ONSC 1345, inwhich the court analyzed the

interpretation of the Solicitors Act, R.S.O. 1990, C.S. 15. This judgment stands for the proposition thatmodern statutory

interpretation should not be conducted in a manner so broad as to lead to "the functional equivalent of an absurdity", asper paragraph 25. Paragraphs 26 to 28 from this judgment are notable, and set out below in full: 26 However, that governing principle does not require a court to interpret a statute in a manner that defeats the purpose of the statute orleads to an absurdity. This point is made in R. v. Paul, (SCC), [1982] 1 S.C.R. 621 (S.C.C.) where Lamer J. quoted,with approval, the following principle from Maxwell on

Interpretation of Statutes: Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparentpurpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon itwhich modifies the meaning of the words and even the structure of the sentence.

This may be done by departing from the rules ofgrammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could nothave possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and reallygive the true meaning.

27 In considering whether an absurdity does result, context is important in the

interpretation exercise. Context includes the practicalrealities that exist, and to which the purpose of the statute is directed. As was observed in Bell Express Vu Ltd. Partnership v. Rex, 2002SCC 42 , [2002] 2 S.C.R. 559 (S.C.C.), by Iacobucci J. at para. 27: The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of astatute: as Professor John Willis incisively noted in his seminal

article "Statute

Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. 1,at p. 6, "words, like people, take their colour from their surroundings". 28 I have already set out above the fact that the assessment system cannot handle the demands that are currently made of it, and theproblems that would be created if every written fee agreement, for contentious work, had to be reviewed, through that system, before alawyer could receive his/her fees. That reality, and the consequential effects that would be visited on the profession, and on the public,from such an

interpretation must be considered in the overall interpretative process. They are part of the context.

Did the Defendant Carry on the Business, Trade or Occupation of a "Plumbing Contractor" within the meaning of theRegulatory Regime? [37] The prosecutor maintains that the actus reus of this offence has been made out, since the defendant hired a third party plumbingcompany to install and remove a carbon water filter, and the defendant admits that it did not hold a plumbing contractor licence with themunicipality. [38] On its face, the prosecutor is correct that the defendant did engage in the coordination of plumbing installations, but it did so byhiring a third party plumber to conduct the plumbing work. [39] For the reasons outlined above, while the City has the power to require a plumbing contractor to have a licence and to employ itsown master plumber, the underlying qualifications for the trade of plumbing are beyond the purview of the municipality, and are subjectto their own compulsory regulatory regime. [40] The scope of practice for the trade of plumber includes "connecting any appliance that uses water supplied to it or disposes ofwater to piping." See: Section 29(1) of Ontario Regulation 275/11, Scope of Practice -Trades in the Construction Sector, which is aregulation made pursuant to the Ontario College of Trades and Apprenticeships Act, 2009. [41] Thus, the defendant relied on the expertise of an independent plumbing company to conduct the installation and removal of thecarbon water filter, which it rented to a consumer, pursuant to an agreement, which agreement referred to the Consumer Protection Act,2002. [42] Thus, I find that the independent plumbing company was therefore carrying out "plumbing work" as falls within the definition of"plumbing".

Would a Broad and Liberal

Interpretation of "Plumbing Contractor" Lead to an Absurdity? "Context" Includes Hypotheticals: [43] Public welfare statutes, including consumer protection laws, are given a broad and liberal

interpretation in order to protect thepublic. There is no evidence before me in this case that the consumer in this matter was in any way jeopardized by the defendant'sdecision to hire a third party plumbing company to install and remove the leased consumer chattel, which was "plumbing work," and thusfalls within the definition of "plumbing" under the Toronto Municipal Code. I find that this is the "context" that I must consider whenconsidering the

interpretation of this statute, see: Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para.27. [44] The Supreme Court of Canada has confirmed that the consideration of hypotheticals is useful when interpreting the meaning oflegislation, see: Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031 at 1044-1045. If I were to adopt themunicipality's

interpretation, then I readily foresee that in addition to this defendant, property management companies, superintendents ofapartment buildings, and hardware stores, both large and small, would all be required to have a master plumber on staff, whoseemployment would be required to be exclusive, in order to comply with this bylaw, since each of these parties would suddenly bedeemed to offer plumbing contractor services. [45] I find that such an overly broad

interpretation of the meaning of "plumbing contractor" is absurd, since plumbing is already ahighly regulated, compulsory trade. One of the principles of statutory

interpretation is that broad language may be given a restrictiveinterpretation in order to avoid absurdity. See: Ontario v. Canadian Pacific, supra; Boma Manufacturing Ltd. v. Canadian ImperialBank of Commerce, (SCC), [1996] 3 S.C.R. 727. [46] Very much like municipal law, the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, is a public welfare statute, which isnormally given a broad and liberal

interpretation. However, in Blue Mountain Resorts Ltd. v. Ontario (Ministry of Labour), 2013 ONCA75 , 114 O.R. (3d) 321, the Ontario Court of Appeal considered the meaning of the definition of "workplace" where a resortguest at Blue Mountain died of natural causes while unattended in an indoor swimming pool. The Court of Appeal determined at para.61that, "There was no evidence that the Blue Mountain guest's death in the swimming pool was caused by any hazard that could affect thesafety of a worker, whether present or passing through." Thus, the Court of Appeal declined to apply an

interpretation that it found wasoverly broad, because to do so would result in an absurdity. [47] In 1747114 Ontario Inc. v. Mississauga (City), [2013] O.J. No. 5344, at para. 116, Justice Kastner considered the judgment ofthe Ontario Court of Appeal in R. v. Budget Car Rentals (Toronto) Ltd. (1981), (ON CA), 31 O.R. (2d) 161 (C.A.)with respect to an appeal by an accused from conviction for parking without a permit in a disabled space, contrary to a municipal bylaw. In that judgment, (then) Chief Justice Howland held that where a statute is open to two equally reasonable

interpretations, the accusedshould have the benefit of the

interpretation which will not subject him to the penalty.

[47] In upholding the conviction entered by a Justice of the Peace, Justice Kastner considered the bylaw's full context, including itspreamble, and noted that it was meant to recognize the spirit and intent of the Accessibility for Ontarians with Disabilities Act, 2005, seepara. 128. [48] Justice Kastner concluded, at para. 129: If one were to interpret this by-law as the Appellant submits, the result would be to dishonour that spirit and intent, and unfairly set thestrides disabled people have made in achieving accessibility back decades, resulting in an absurd result. [emphasis added] [49] The Ontario Court of Appeal also considered this legal principle, as set out in Budget Car Rentals, in Ajax and Picking GeneralHospital v.

Canadian Union of Public Employees, (1982) (ON CA), 35 O.R. (2d) 293, in a dispute under the (then)Labour Relations Act, R.S.O. 1980, c. 228, s. 94. Similarly, the Supreme Court of Canada has directed the courts to resolve anyreasonable ambiguity in the

interpretation of a penal statute in favour of the person subject to a conviction or penalty, see: R. v. C.D.,2005, SCC 78 at para. 50. [50] Thus, I find that I can rely on the principle established in Budget Car Rentals in analyzing the case before me. "Context" Includes Two Equally Reasonable

Interpretations: [51] In the Toronto Municipal Code, both "plumbing" and "plumbing contractor" are defined terms, and while they are related, theterm "plumbing" is significantly broader in its scope and context: PLUMBING - Includes any procedure, method or manner or thing referred to or described in the Building Code, 1992, as amended; and"plumbing work" has a corresponding meaning. [52] The compulsory licensing regime for plumbers is not set out in the Building Code Act, 1992, S.O. 1992, c.23, but in theregulatory regime that I have described under the Ontario College of Trades and Apprenticeship Act, 2009, and its regulations.

TheBuilding Code simply requires that licensed plumbers perform the work. [53] I find that the Toronto Municipal Code's

definitions of "plumbing" and "plumbing contractor" are open to two equally reasonableinterpretations in the context of the facts before me, and as such, the defendant should have the benefit of the

interpretation that does notresult in a penalty. [54] In the alternative, I find that an overly broad

interpretation of the term "plumbing contractor" would result in an absurdity, notonly for the defendant before me, but for others who offer building maintenance services, who rely on plumbing companies to performthe actual "plumbing work." [55] In terms of the context of this statute, there is no need to require the defendant to keep a master plumber on staff, for its exclusiveuse, when there is no public welfare issue at stake. [56] The ramifications of an overly broad

interpretation of "plumbing contractor" go far beyond what I find was intended and what isreasonably necessary to give effect to the purpose and objective of the Toronto Municipal Code. [57] For the reasons outlined, I hereby dismiss this matter. Dated at Toronto, this 14th day of December, 2017. Mary A. Ross Hendriks, J. P.