COURT OF APPEAL FOR ONTARIO
GILLESE, BLAIR and JURIANSZ
B E T W E E N :
NEWCASTLE RECYCLING LTD., WILLIAM HALE and JAMES HALE
Cameron Murkar for NewCastle Recycling Ltd.
Applicants/
Respondents in the Counter-Application
(Respondents in Appeal)
- and -
THE MUNICIPALITY OF CLARINGTON
Ian Godfrey & Melissa Panjer for The Corporation of the Municipality of Clarington
Respondent/
Applicant in the Counter-Application (Appellant)
- and -
WALTER JOHN HALE, WALTER JOHN HALE in his capacity as trustee, JAMES HALE in his capacity as trustee and JCLJB HOLDINGS LTD.
Respondents in the Counter-Application
(Respondents in Appeal)
Heard: October 25, 2005
On appeal from the judgment of Justice R. Boyko of the Superior Court of Justice dated August 9, 2004.
JURIANSZ J.A.:
I. INTRODUCTION
1The Corporation of the Municipality of Clarington (“Clarington”) appeals from the judgment of Boyko J. of the Superior Court of Justice dated August 9, 2004, allowing in part an application brought by Newcastle Recycling Ltd. (“Newcastle)”, William Hale and James Hale for a declaration that they have the right to continue operating an auto wrecking, scrapyard, landfill and garbage collection business on property located in Clarington. The application judge granted the declaration in respect of A3, but dismissed the application with respect to the remainder of the lands that comprise Lot 12.
2Clarington also appeals the dismissal of its counter-application in which it sought a declaration that the respondents’ business, with the exception of the auto wrecking and tire storage business carried on parcels B1 and B2, was not a legal nonconforming use and an injunction preventing the respondents from continuing to operate such business.
3The respondents cross-appeal from the application judge’s finding that they do not have the right to carry on their business on the portions of Lot 12 other than parcel A-3.
4In my view, the application judge erred in failing to order a trial to determine the issues relating to the A3, B1, and B2 parcels of Lot 12. Therefore, I would allow Clarington’s appeal in relation to these parcels. I would dismiss the respondents’ cross-appeal in so far as it relates to parcels E1, E2, and E3.
The parties
5The appellant, Clarington, was previously known as the Town of Newcastle. The Town of Newcastle was the product of amalgamation of the Township of Clarke and other municipalities.
6The individual respondents are members of the Hale family that has owned Lot 12, Concession 3 in Clarington or parts of it at various times since 1927. The corporate respondents are companies controlled by the members of the Hale family.
7The Township of Clarke enacted its first zoning bylaw on May 23, 1968, designating Lot 12 as an agricultural zone. Clarington passed a zoning bylaw in September 1984, which replaced the earlier bylaw but continued the agricultural zoning for Lot 12 with one relevant exception – parcels B1 and B2 were zoned to allow their use as an auto wrecking yard.
Parcel A3
8I will review only those facts necessary to explain my conclusion that the application judge erred by failing to direct a trial of an issue regarding whether there was a discontinuation of the claimed use of parcel A3.
9It is sufficient to say that persons other than the Hales or those related to them owned the parcels A1, A2, and A3 (the “A parcels”) for approximately fourteen years commencing in 1972. From 1981 until 1986, Dianne Warren and her husband Wayne owned the A Parcels. Ms. Warren provided an affidavit that during the time that she and her husband owned the A parcels, they were not used as an auto wrecking yard, scrapyard, landfill site or garbage dump; that the Hales did not operate a business on the A parcels; and that neither she nor her husband had an agreement permitting the Hales to do so.
10The application judge disbelieved Ms. Warren and preferred the testimony of Billy Hale that he had an agreement with Mr. Warren permitting him to use parcel A3 for the business.
11It is beyond the proper role of an application judge to determine the credibility of a deponent to resolve material facts which are disputed and which may affect the result: Moyle v Palmerston Police Services Board (1995), 25 O.R. (3d) 127 (Div. Ct.) at p. 136, Yoo v. Kang, [2002] O.J. 4041 (S.C.J.) at para. 24.
12The credibility issue that arose between Ms. Warren and Mr. Hale was pivotal to the result of the application. If Ms. Warren were to be believed, a discontinuance of the claimed legal nonconforming use would be established. In my view, the application judge should have directed the trial of an issue rather than resolving the credibility issue herself.
13During the hearing of the appeal, a question arose as to the legal effect of a statutory declaration given on behalf of the Warrens that their lands would be used only for agricultural purposes as permitted by the zoning bylaw. The statutory declaration was required by the Durham Land Division Committee as a condition to the granting of a severance of parcel A3 from the other A parcels. It was given and registered while the Warrens were owners of the A parcels. The Warrens subsequently conveyed parcel A3 to Newcastle. The Hales claim only an oral license from the Warrens to use parcel A3 for their business.
14While the resolution of this legal question may well be determinative of the respondents’ application in respect of parcel A3, it is best decided at the trial of the issue on a full evidentiary record. It would be unfair to decide the appeal on an issue not raised by the parties and which the respondents had not been prepared to argue.
Parcels B1 and B2
15As noted, Clarington recognizes that the respondents have the right to operate an auto wrecking and tire storage business on parcels B1 and B2. The issue is whether the operation of a scrapyard, landfill, and garbage collection and/or garbage transfer business on these parcels is a nonconforming use.
16The application judge’s conclusion regarding the B parcels is unclear. At para. 127 of her reasons she states that she is “satisfied the applicants have established legal nonconforming use on parcel B2 for bringing and storing ‘white goods’, such as fridges and stoves on parcel B1 and B2 before being recycled”. This conclusion is apparently contradicted at para. 135, where she states: “the application is denied in respect of parcel B1 and B2. The legal nonconforming use of depositing white goods and scrap metal that arose prior to the passage of the 1968 zoning bylaw has since been discontinued by admission of the applicant”.
17Paragraph 3 of the formal judgment, which dismisses Newcastle’s application except in regard to parcel A3, is consistent with the conclusion at para. 135. However, the dismissal of Clarington’s counter-application might be argued to be consistent with para. 127.
18Fortunately, it is unnecessary to decide whether the apparently contradictory reasons of the application judge contain a typographical error, as I am satisfied the record discloses a material credibility issue regarding the B parcels that requires the trial of an issue.
19The application judge noted, at para. 121, that Officer Creamer observed, during an inspection of parcels B1 and B2 during 1998 that there were “... among other things, large piles of fridges and other white goods, some drums, assorted tires, large piles of scrap car parts and pieces, radiators, fenders, body parts, miscellaneous sighting, paneling, small propane tanks, tricycles, microwave ovens, pipes, garden chairs, bicycles, highway exit signs, fencing and computers”.
20However, the application judge stated, at para. 122, that she preferred Billy Hale’s evidence “that no scrap was deposited in parcel B after 1974 and find that any scrap found on the property was deposited there before the use was discontinued in 1974, as there is no credible evidence to refute this”.
21She then went on to conclude in para. 127 that the first charge of the bylaw violation in respect to parcels B1 and B2 was not made out as “the evidence doesn’t establish a resumption of depositing scrap metal after 1972”.
22However, as the appellant points out, Billy Hale on cross-examination admitted to “constantly removing and depositing scrap on parcels B1 and B2 …” after 1974. In addition, there was the evidence of Wendy George, which the application judge summarized at paragraph 67 as follows:
Wendy George, employed by the Hales since 1989 to work in their office, deposed that between 1993 and 1998, Newcastle Recycling Ltd.’s operation occurred most intensely on parcels B1, B2 and A3, but various operators were also instructed to dump their loads of scrap or other times [sic] for disposal on the southern end of Lot 12, namely parcels E1, E2, and E3.”
23As the application judge notes, Ms. George was not cross-examined.
24In my view, the application judge, faced with this competing evidence, should have directed the trial of an issue. When the scrap presently on the B parcels was dumped is material to the determination of the application and counter-application.
Parcels E1, E2, and E3
25The application judge did not have to resolve any issues of credibility in finding that parcel E3 was always used for farming and had never been used for any of the disputed uses.
26Nor did the application judge have to resolve any issues of credibility in reaching the conclusion that any legal nonconforming use of parcels E1 and E2 ceased when Laidlaw Waste Systems Ltd. (“Laidlaw”) was the owner of the E parcels. She found that Laidlaw capped the landfill mounds and there was a period of at least a year without any landfill or any other activity.
27The position of the respondents in their cross-appeal, as I understand it, is that it was always their intention to expand their operations southward from parcel A3.
28If one accepts all of the respondents’ claims, their position is untenable in law. As noted, the respondents sold the A parcels without reservation in 1972. They also sold the E parcels in May of 1987, and did not reacquire them until May of 1998. Any intention the respondents had of expanding their operations on or onto the E parcels expired in May 1987, when they transferred ownership of those parcels to others without reservation. Any intention the respondents had of expanding on to the E parcels after they reacquired the property in 1998 was subject to the zoning provisions of the bylaw.
29The respondents attempt to rely on an alleged intention of Laidlaw to expand its landfilling operation. Assuming they can rely on the intention of a previous owner, they face insurmountable problems. First, any intention of expanding that Laidlaw might have had expired when Laidlaw discontinued its legal nonconforming use. Second, there was no admissible evidence of such an intention by Laidlaw.
30In my view, the cross-appeal must be dismissed.
Clarington’s counter application for an injunction
31The application judge declined to grant Clarington’s counter-application for an injunction because, in her view, there was no “compelling evidence that an injunction is warranted in the circumstances”.
32The issue before the application judge was whether Clarington was entitled to a permanent injunction to enforce a bylaw. It was not necessary for Clarington to lead compelling evidence that the injunction was warranted. Where a municipal authority seeks an injunction to enforce a bylaw which it establishes is being breached, the courts will refuse the application only in exceptional circumstances.
33In my view, given that the evidence established that materials were being dumped or deposited on the lot in contravention of the bylaw, Clarington is entitled to the injunction sought in its counter-application in respect of the Lot 12, except in respect of parcels A3, B1 and B2. Its entitlement to a permanent injunction in respect of the A and B parcels is to be decided at the trial of the issues indicated.
The Costs Appeal
34The application judge took the view that the respondents were successful before her in that her decision allowed their business operation to continue, albeit on a portion of Lot 12. Therefore she fixed costs in the respondents’ favour in the amount of $52,000 inclusive of disbursements and GST.
35In view of the results of the appeal and cross-appeal, the costs order cannot stand. That costs order is set aside and the disposition of costs is remitted to be decided by the judge who hears the trial of the issues ordered.
CONCLUSION
36For these reasons, I would grant the appeal, and order the trial of issues before a different judge to determine whether there is a legal nonconforming use on parcels A3, B1 and B2. I would dismiss the cross-appeal, and vary the judgment below to grant a permanent injunction in respect of Lot 12 with the exception indicated.
37I would fix costs of the appeal and cross appeal in favour of Clarington on a partial indemnity scale in the amount of $20,000 inclusive of disbursements and G.S.T.
“R.G. Juriansz J.A.
“I agree E.E. Gillese J.A.”
“I agree R.A. Blair J.A.”
