COURT OF APPEAL FOR ONTARIO
CARTHY, LASKIN AND ROSENBERG JJ.A.
B E T W E E N : )
) Kenneth T. Rosenberg
MANUEL FAGUNDES AND
VALENTINA FAGUNDES ) for the appellant
)
Defendants )
(Appellants) )
)
and ) Thomas A. Cline, Q.C.
) for the respondent
REGIONAL MUNICIPALITY OF
HALDIMAND-NORFOLK )
)
Plaintiff )
(Respondent) )
) Heard: April 19, 2000
On appeal from the judgment of Pringle J. dated August 14, 1998
made at Simcoe.
Background
1The appellants own land fronting on Lake Erie and appeal
from a judgment restraining them from using the property for
cottage purposes. Their position is that they have a legal non-
conforming use as a cottage property extending before a 1985
zoning by-law which designated the property as “hazard lands” and
prohibited cottage use.
2The property is located on the north shore of Lake Erie near
Long Point. The area has been plagued with bad storms, which have
caused such destruction that the number of cottages has been
reduced from 80 in the 1970s to 23 in the 1990s. Two such storms
occurred in 1985, leaving the cottage on the subject property
severely damaged and canted on its foundation. In April of 1985
the area was rezoned from cottage use to hazard lands. This
change essentially eliminated habitable buildings as a permitted
use on a swath of lands deemed vulnerable to storm damage.
3The evidence of the 1985 owners was introduced by the
affidavit of Eva and Orval Quantz. It reads in part:
- We continued to occupy the cottage
until in or about the month of April,
1985, when the cottage was severely
damaged by a storm and essentially was
uninhabitable.
- We faced a decision as to whether
to attempt reconstruction of the cottage
or look for an alternate location in the
Long Point area.
- In September, 1985, rather than
repair or reconstruct the cottage, we
entered into negotiations for the
purchase of a vacant lot on Old Cut
Blvd. on Long Point. It was our intent
to move the cottage situate on Lots 62
and 63, Plan 251 to that location and
rebuild same. That plan did not come
into fruition, as the cottage was
damaged beyond being salvageable during
a storm in December, 1985.
- We advertised the property for sale
as a “Handyman’s Special”. The property
was finally sold in September, 1988.
During the period of December, 1985, to
the date of sale of the property, the
cottage was further ransacked, all the
interior and exterior fixtures such as
lights, panelling, flooring, etc. down
to the chimney were stripped by looters
and what remained was essentially a
shell, which was in a severely damaged
state.
- From and during the period 1985 to
1988, the cottage was not occupied and
not habitable.
- The cottage was off its original
foundation and all the exterior
components of the plumbing for the
cottages were destroyed.
4The property was purchased in 1988 by the Anthonys who
clearly intended to rebuild the cottage. They prepared plans and
opposed a temporary by-law standing in their way, only to have
their efforts frustrated by illness, which forced them to put the
property up for sale. The appellants purchased the property in
1995 for $10,000. Subject to the effects of weather and
vandalism, the building was apparently in much the same state as
when sold by the Quantzes.
5The appellants unwisely did not seek legal advice concerning
the purchase and compounded their problems by proceeding to
rebuild the cottage without a building permit and in defiance of
a stop work order issued by the building department. Their
reasoning was that they were simply making the building secure
and safe. In the result there is now a liveable cottage on the
original foundation with the same dimensions as the original
cottage except for an added deck and an extra 118 square feet of
living area.
6As an aside, the Director of the Regional Health Department
revoked the appellants’ certificate of approval for a holding
tank sewage system, leading to a hearing before the Environmental
Appeal Board. The appellants were successful and the revocation
was set aside.
7This action was instituted by the municipality seeking an
injunction against use of the property as a cottage dwelling. At
the conclusion of the trial, Pringle J. granted an
“interlocutory” injunction, clearly intended to be a permanent
one.
Incidental Issues
8The appellants raised several issues on the appeal and I
will deal first with the ones I consider incidental to the
fundamental question of the existence of a legal non-conforming
use.
9The appellants point to paragraphs 6.3.1 and 6.3.2 of the
1985 zoning by-law and argue that they permit replacement of
buildings that are partially or completely destroyed. Those
provisions read:
6.3.1 Repair of Non-conforming Building and
Structures
Subject to the provisions of subsection
6.3.2, nothing contained herein shall
prevent the repair or strengthening to a
safe condition of any existing non-conforming
building or structure or part thereof,
provided that such repair or strengthening
will not increase the usable floor area or
volume of such building or structure.
6.3.2 Replacement of Buildings and Structures
Non-conforming in Use
Nothing contained herein shall prevent
the repair or replacement of any existing
building or structure, the use of which is
not permitted in the zone in which the
building or structure is located, if such
building or structure is partially or
completely destroyed by fire, an Act of God,
or by any means beyond the control of the
owner, provided that such repair or
replacement does not constitute an increase
in the original usable floor area or volume
of the said building or structure.
10My answer to this submission is that these are standard
forms of permission to repair or reconstruct by reason of events
beyond the control of the owner where a legal non-conforming use
exists. The headings refer to non-conforming uses and the body of
each paragraph refers to construction. The authority for a use
contrary to a zoning by-law is derived from s.34(9) of the
Planning Act, R.S.O. 1990, c.P.13. Thus, the paragraphs must be
read as dependent for their application upon the existence of a
legal non-conforming use.
11The appellants contend that the trial judge improperly
refused to hear the evidence of Dr. B.A. Brown, who intended to
give expert evidence concerning compliance by the appellants with
s. 6.3.2 of the by-law. As indicated above, s.6.3.2 is irrelevant
unless there is a legal non-conforming use and Dr. Brown could
not contribute to that issue. Further, there was a surveyor’s
evidence that at the rear of the cottage an indentation in the
original building measuring 8 feet by 14.5 feet had been filled
in creating 118 square feet more living space and a deck added.
There is no indication that Dr. Brown could have countered that
evidence. I would reject this ground of appeal.
12The appellants submit that the trial judge should not have
drawn an adverse inference from their failure to call a municipal
employee to confirm their allegations that representations were
made by way of reassurance that they could proceed. A review of
the evidence reveals very little in the way of alleged municipal
representations to the plaintiffs, and none that affect the
zoning. This issue is therefore of no consequence on appeal.
13The next issue raised was that an issue estoppel flowed from
the decision of the Environmental Appeal Board and its conclusion
that the resurrected building was a similar size to the original.
The trial judge rejected that argument and so would I. It is a
stretch to make the Director of the Health Department, who
instituted the proceedings under the Environmental Protection
Act, R.S.O. 1990, c.E.19, a privy of the Regional Municipality
itself in pursuing zoning and building by-law offences. But, in
any event, it is clear from the reasons of the Board that its
decision was not based upon zoning compliance and that its
opinion on the facts was offered gratuitously. The member stated:
“… it is unnecessary for me to determine whether the renovation
of the cottage does constitute a legal non-forming use. In case I
am incorrect on such issue, I thought it appropriate to resolve a
factual issue relevant to the planning question”.
14Further, the opinion as to the size of the building does not
resolve the underlying issue of non-conforming use, which I now
turn to consider.
15Section 34(9) of the Planning Act provides that a by-law
does not affect the current use of land “so long as it continues
to be used for that purpose.”
16The trial judge found as a fact that the Quantzes had ceased
to use the lands for cottage purposes in April 1985. This finding
was based on the affidavit quoted earlier in these reasons and is
challenged by the appellants who argue that the Quantzes showed a
clear intention to continue the use by paying taxes annually as
an improved property and advertising it for sale as a
“Handyman’s Special”. The actual use obviously ended with the
storm of April 1985 and could have been legally resurrected if
the owners had taken steps to rebuild. Is it sufficient that they
retained the potential to do so unsupported by an ongoing
intention?
17The law on this subject is conveniently summarized in an
Ontario Municipal Board decision written by W.E. King, 572989
Ontario Inc. v. North York, [1997] O.M.B.D. No. 976, concerning a
parking lot which had not been used as such, except casually, for
a period of three years. He wrote at paragraph [10]:
I also agree with him [counsel for the applicant]
that in cases where the property has been vacant for
some time the Courts and the Board have always found
the intention of the owner to be relevant. I do not,
however, accept his further suggestion that
intention alone is sufficient to determine the
matter. I note that in all the cases of vacancy where
the Court or Board found that the use had continued
despite the vacancy, there was some reasonable
explanation for the vacancy or some circumstance at
least partially outside the owner’s control that
temporarily prevented the use: in San Joaquin [City
of Toronto v. San Joaquin Investments Ltd. et al.
(1979), 1979 2044 (ON SC), 26 O.R. (2d) 775], the City laid charges
against the owner for what it insisted was an illegal
use; in O’Sullivan Funeral Homes [O’Sullivan Funeral
Homes Ltd. v. Corporation of City of Sault Ste. Marie
and Evans (1961), 1961 218 (ON SC), O.R. 413], renovations were
required to better accommodate a funeral home; in
Front of Escort [Township of Front of Escort v.
Committee of Adjustment of Front of Escort,
unreported O.M.B. decision, 13 February 1987], the
apartment was not safe for occupancy until expensive
repairs were done; in another case [City of
Peterborough v. Montgomery Brothers Ltd. (1972), 1
O.M.B.R. 360], a legal non-conforming use was
permitted to be rebuilt after it was destroyed by
fire. Although in North Hill Owners’ Association
[North Hill Owners’ Association v. Sobot, [1986]
O.M.B.R. 242], the Board used the phrase
“continuously used (or intended to be used)”, there
was nothing in the decision to indicate that the use
had not been actually continuous. In each case, the
finding of continuity of use on the vacant property
was supported by something beyond mere lack of change
to another use. Or if intention was determinative,
the intention was at least an active intention
consistent with the spirit of the provision. An early
Court decision [Re Hartley and the City of Toronto
(1925), 56 O.L.R. 433 (C.A.)], referred to in Imrie
[Imrie v. City of Toronto Committee of Adjustment
(1990), 25 O.M.B.R. 435] established that there were
two necessary elements to establish bona fide use:
the intention to continue the use, and the
continuation of the actual use so far as it is
possible in the circumstances. In my review of the
other submitted cases it appeared to me that they all
followed this principle.
18In that case the Board held that the use was preserved by
the combination of intention to market the property as a parking
lot, its occasional use for such purpose and delay in effecting a
sale caused by market conditions.
19I cannot find a similar level of use, intention to use or
excuse for non-use in the present case. On the evidence of the
Quantzes, they had determined in September 1985 to purchase
another lot and move the cottage to it. Then, in December 1985,
another storm caused such damage that they considered the cottage
beyond being salvageable. They, as owners at that time, made a
clear decision to abandon using this property for cottage
purposes. I would defer to the trial judge’s finding and treat
the payment of taxes and the “handyman’s special” advertising as
efforts to do the best they could on a sale. Perhaps they thought
someone else could resurrect the cottage use and were unaware of
the need for continuity. However, their conduct and expressed
intentions clearly established a discontinuance of the use by
them. They were the owners. They effectively said “we’re not
cottaging here any longer and we’re not even going to remove the
remains of what was a cottage.” That broke the chain of
continuance required by the statute both as to the fact of use
and as to intention deferred by some external cause. To them this
was no longer a property usable for cottage purposes. And the two
storms of 1985 plus the history of damage in the area gave them
good reason for so concluding.
Disposition
20The judgment under appeal should be amended to strike the
word “interlocutory”, but otherwise the appeal is dismissed with
costs.
Released: June 15, 2000 “JJC” “J.J. Carthy J.A.”
“I agree J. Laskin J.A.”
“I agree M. Rosenberg J.A.”
