Leo F. Longo

The Court of Appeal for Ontario dismissed the appeal by Temagami Barge Limited and Dashiel Lowery Delarosbel from an order restraining their use of property for 13 uses found to contravene municipal zoning by-laws.

The court upheld the application judge’s findings on legal non-conforming use, the treatment of expert evidence, and the appropriateness of proceeding by application.

The court also found no error in the award of costs to the municipality, noting that leave to appeal costs was not sought as required.

Costs of the appeal were fixed at $25,000 to the municipality.

The appellants, Temagami Barge Limited and its principal, Dashiel Lowery Delarosbel, moved for a stay of a permanent injunction issued by the Superior Court of Justice.

The injunction prohibited certain commercial activities on their property due to violations of municipal zoning by-laws.

Applying the three-part RJR-MacDonald test for a stay pending appeal, the Court of Appeal found a serious issue for appeal but determined that the appellants failed to demonstrate irreparable harm, as their evidence was vague and harm to third parties was generally irrelevant.

Furthermore, the balance of convenience favoured denying the stay, as the public interest in enforcing municipal by-laws outweighed the appellants' unproven claims of harm.

The motion for a stay was dismissed, and the appeal was directed to be expedited.

The Corporation of the Municipality of Temagami sought a permanent injunction and other orders to enforce its zoning bylaws against Temagami Barge Limited (TBL) and Dashiel Lowery Delarosbel, alleging unlawful commercial uses on Crown land zoned for "Special Management Area (SMA) Zone (Crown Land)".

TBL argued its uses were lawful non-conforming or permissible expansions under the Planning Act.

The court found most of TBL's commercial uses (marina, retail fuel, commercial docking, barge rental, retail aggregate sales, sewage waste disposal) unlawful, not qualifying as lawful non-conforming uses or reasonable expansions of prior industrial uses.

The court granted a permanent injunction against these unlawful uses but denied the request for partial closure of the property and removal of sea-can containers and an office trailer, finding insufficient evidence of public nuisance or contravention for the latter.

The Corporation of the Municipality of Temagami brought a motion seeking leave to file an additional affidavit (Picard Affidavit) after cross-examinations were completed, pursuant to Rule 39.02(2) of the Rules of Civil Procedure.

The affidavit contained evidence regarding the historical land use of the property, discovered during an additional search requested by the respondents.

The respondents opposed the motion, arguing it was fresh evidence and would cause non-compensable prejudice.

The court granted leave, finding that the proposed evidence was relevant, responded to matters raised during cross-examinations, would not result in non-compensable prejudice, and the applicant provided a reasonable explanation for its late discovery.

The Barge Respondents (Temagami Barge Limited and Dashiel Lowery Delarosbel) brought a motion to transfer an application from Toronto to North Bay.

The applicant, Corporation of the Municipality of Temagami, opposed this transfer, advocating for Haileybury due to significantly shorter hearing delays.

The court, applying Rule 13.1.02(2)(b) of the Rules of Civil Procedure, dismissed the motion to transfer to North Bay.

Instead, the court ordered the application to be transferred to Haileybury, finding it more geographically appropriate for the community and witnesses, and crucial for securing the just, most expeditious, and least expensive determination of the proceeding by avoiding further delay.

Costs were awarded to the Municipality of Temagami.

The applicants (Builder) brought a motion under s. 25(7) of the Building Code Act to stay an Order to Comply (OTC) issued by the Chief Building Official (CBO) of the Town of Midland, pending the outcome of a related Licence Appeal Tribunal (LAT) appeal initiated by the respondent homeowners.

The OTC required the removal and replacement of stucco on a newly built house.

The CBO supported the stay, while the homeowners opposed it.

The court found that the RJR-MacDonald test for a stay did not apply because the court was merely deciding not to exercise its jurisdiction until a later time.

Applying the test for a temporary stay pending another proceeding, the court found substantial overlap of issues, shared factual background, and that a stay would prevent duplication of resources.

The motion for a stay was granted, and the OTC appeal was adjourned pending the LAT appeal outcome.

A municipality sought an order requiring demolition of a waterfront structure constructed on Lake Rosseau, asserting that the respondent had built a boathouse with living accommodations in violation of zoning and planning by-laws.

The respondent argued the structure was a water aerodrome registered with Transport Canada and therefore immune from municipal regulation under the doctrine of interjurisdictional immunity.

The court examined the chronology of events, the respondent’s intentions, and the actual use and design of the structure.

It concluded the aerodrome registration was an attempt to circumvent municipal zoning restrictions and that the structure functioned as a boathouse rather than an aeronautical facility.

The court held that municipal planning and zoning laws applied and ordered demolition of the structure.