Michael Saul Polowin

The respondent municipality was successful in defending an application and sought costs of $7,689.00 on a partial indemnity basis.

The applicants argued costs should be denied because the respondent introduced facts in its factum regarding the existence of private parks that were not included in the Agreed Statement of Facts.

The court rejected this argument, noting the applicants had addressed the issue and could have easily verified the public record prior to the hearing.

The court awarded the respondent its claimed costs of $7,689.00.

Property owners sought declarations that a proposed paintball facility on land zoned “rural” was a permitted use under a municipal zoning by-law.

The municipality maintained the proposed use constituted a commercial recreational activity requiring rezoning.

Applying modern principles of statutory interpretation to municipal by-laws and considering the zoning by-law within the broader framework of the municipality’s Official Plan, the court held that a “Private Park” under the by-law referred to passive recreational open space intended for limited private use rather than commercial recreation offered to the public.

The court concluded the proposed paintball facility more closely resembled a “Place of Recreation” where recreation is provided for a fee and therefore constituted a new commercial use.

As new commercial uses in the rural designation required a zoning amendment, the applicants’ request for declaratory relief was refused.

The moving parties sought leave to appeal an interlocutory decision of the Ontario Municipal Board (OMB) regarding the validity of certain provisions of a City of Ottawa zoning by-law.

The OMB had found some provisions valid, some invalid, and sent others back to the City for reconsideration.

The Divisional Court dismissed the motion for leave to appeal, finding that while the issue was important and the standard of review was reasonableness, the appeal was premature because the final language of the by-law had not yet been settled by the City's reconsideration.

The City of Ottawa sought leave to appeal an Ontario Municipal Board decision that repealed Section 3 of its Comprehensive Zoning By-Law.

The Board had found that the by-law improperly restricted property owners' rights to continue legal non-conforming uses after voluntary repairs or renovations, contrary to section 34(9)(a) of the Planning Act.

The Divisional Court determined the applicable standard of review was reasonableness and found no error in the Board's conclusion that the by-law frustrated the normal evolution of legal non-conforming uses.

Leave to appeal was dismissed, though the parties consented to restore certain unrelated subsections of the by-law.

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.