Terry McEwan

The respondent operated a public parking garage as a legal non-conforming use under a new comprehensive zoning by-law.

The new by-law contained performance standards identical to those in the former by-law.

The respondent introduced valet parking, which contravened these performance standards, and was convicted of breaching the by-law.

The conviction was quashed on appeal, but the Court of Appeal allowed the municipality's appeal and restored the conviction.

The Court held that subjecting a legal non-conforming use to performance standards identical to those in place when the use was acquired does not prevent the use of the property within the meaning of the Planning Act.

The appellant appealed a summary judgment on a dishonoured cheque issued for delivered satellite equipment, arguing that factual disputes, legal set-off, equitable set-off, and alleged misrepresentation required a trial.

The Court of Appeal held there was no genuine issue of material fact on the respondent's claim, and that the appellant's counterclaim for commissions, rebates and warranty credits was not pleaded as a liquidated or ascertainable debt capable of legal set-off.

The court further held that equitable set-off does not apply to bills of exchange, including cheques, and rejected the alleged misrepresentation argument as not properly pleaded as a defence to the validity of the cheque.

The appeal was dismissed, but enforcement of the summary judgment was stayed on terms pending determination of the counterclaim.