COURT OF APPEAL FOR ONTARIO
Feldman, Juriansz and MacFarland JJ.A.
BETWEEN:
William Gallos
Appellant
and
The City of Toronto
Respondent
William Gallos, in person
Kirsten Franz, for the respondent
Heard: May 28, 2009
On appeal from the judgment of Justice Gary Trotter of the Superior Court of Justice dated November 14, 2008.
Feldman J.A.:
1The appellant appeals from the decision of Trotter J., dismissing his application to the court for an order compelling the Chief Building Official of the City of Toronto to issue a building permit. The permit was to be for a restaurant that is more than double the size permitted by the applicable by-law. The appellant contended that he enjoys a legal non-conforming use, based on the size of his restaurant before it was destroyed by fire in 2005. He also challenged the validity of several by-laws on the basis of alleged non-compliance with notice requirements for their passage, and the applicability of those by-laws to his property. Trotter J. rejected each of these assertions, finding:
(1) the appellant did not enjoy a legal non-conforming use as his restaurant was not the size he claimed at the time it burned down;
(2) the relevant by laws were properly passed and in force; and
(3) the by-laws applied to the appellant’s property.
Facts
2For the history of this matter, Trotter J. adopted the recitation of the facts from the reasons of Simmons J.A., rendered in the related proceeding of Toronto (City) v. Gallos, 2008 ONCA 617, which was a denial of leave to appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33, for convictions in relation to the restaurant under s. 8(13) of the Building Code Act, S.O. 1992, c. 23 and s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13.
3He quoted from paragraphs 13 to 26 of the reasons of Simmons J.A.:
[13] The applicant purchased his property, which is located on the north side of Queen Street East, east of Woodbine Avenue, in 1976. According to the applicant, in 1976 the building on the property was set back about 35 feet from the property line and there was a hill in front of the building sloping upwards at an angle of about 60 degrees.
[14] After purchasing his property, the applicant continued to operate an existing laundromat in the basement for a year or two but then started work on developing the basement for use as a family restaurant. By the end of 1985, the applicant had exposed the basement by removing the earth in front of the building and had also excavated a portion of the basement to make it deeper. In addition, he had lengthened the building by constructing a new front wall about seven or eight feet out from the original building and had built a first-floor veranda and steps up to the first floor.
[15] The applicant obtained a permit to build a restaurant on his property on May 31, 1989. At that time, By-law 438-86, as amended by By-law 69-87, established a size restriction for restaurants in the Beaches of 165 square metres of gross floor area.
[16] There was no dispute on this application that the general definition of “gross floor area” in By-law 438-86, as it applied to the applicant’s restaurant on May 31, 1989, did not include below grade space: see Appendix “A” for the text of the relevant by-laws. However, on June 1, 1989, the day after the applicant obtained his original building permit, the City passed amending By-law 361-89.
[17] Among other things, amending By-law 361-89 changed the applicable size restriction for the applicant’s restaurant from 165 square metres of “gross floor area” to 165 square metres of “non-residential gross floor area”. Subject to certain exclusions, the general definition of “non-residential gross floor area” in By-law 438-86, as it applied to the applicant’s restaurant, included below grade space: see Appendix “A”.
[18] In 1994, the applicant decided to renovate the first-floor veranda to make the front of his building more aesthetically pleasing. He demolished the front of the building, including the front stairway; moved the stairs to the other side of the building; extended the first-floor veranda; and extended the front wall of the bottom floor restaurant to match the first-floor extension, thereby increasing the size of the restaurant. According to the applicant, all of this work was completed under building permit #366550.
[19] On May 28, 1996, the applicant obtained building permit #383446, allowing him to expand his restaurant upstairs. In order to grant this permit, Mr. Mathewson, a plans examiner for the City, had to determine that the additional space would not cause the applicant’s restaurant to exceed the 165 square metres size limit. Although building permit #383446 was later revoked, Mr. Mathewson testified that he was able to grant the extra space to the applicant by classifying the kitchen as a below grade accessory use to the restaurant. Prior to July 2, 1996, below grade accessory uses were not included in the calculation of non-residential gross floor area. As accessory use was not defined in the by-law, plans examiners had discretion to determine whether a particular use was properly considered to be accessory. [2]
[20] Mr. Mathewson indicated that he excluded the kitchen from the 165 square metre size limit by classifying the kitchen as “basically mechanical space” and therefore as an accessory use. He confirmed that the plans filed for building permit #383446 showed a step down to the kitchen and therefore that the kitchen was below grade at the time. He also confirmed that the front doors of the restaurant were in their pre-building permit #400567 location, and that with the kitchen excluded, the restaurant area was less than 165 square metres.
[21] Mr. Mathewson acknowledged that his interpretation was “stretching things” but explained that the applicant seemed “fairly desperate”, that he [Mr. Mathewson] “felt maybe [he] should help [the applicant]”, and that it was not a large space on the second floor. In re-examination, Mr. Mathewson confirmed that rather than being an accessory use, a kitchen is generally considered an essential part of a restaurant. He also confirmed that his interpretation was subsequently overruled.
[22] On July 2, 1996, the City passed amending By-law 1996-0332. Among other things, this by-law added a new definition of “non-residential gross floor area” to the section of By-law 438-86 that creates the size restriction for restaurants in the Beaches. This definition omitted the exclusion for accessory uses, electing instead to specify the particular uses that were to be excluded from the calculation of non-residential gross floor area. In addition, this definition deleted an exclusion for below grade space used for a permitted non-residential purpose as of January 31, 1976. This deletion closed a perceived loophole created by By-law 361-89 that may have allowed building owners to create large restaurants by expanding into below grade space formerly used for commercial purposes: see Appendix “A”.
[23] On December 12, 1996, city officials convened a meeting with the applicant to discuss issues concerning the size of his restaurant. By letter dated January 23, 1997, Ms. Coburn, the chief building official at the time, revoked building permit #383446 under s. 8(10)(d) of the Building Code Act, stating that the permit “was issued in error.”
[24] On April 6, 1997, the Alcohol and Gaming Commission decided that the applicant could expand the licensed capacity of his restaurant provided that he satisfied certain conditions, one of which was to obtain a compliance letter from the City of Toronto Building Department. The Building Department declined to issue a compliance letter because they claimed that, under By-law 438-86, as amended, the applicant’s restaurant exceeded the permissible non-residential gross floor area.
[25] On July 11, 1997, the City issued building permit #400567 to permit the applicant to move the front doors of the restaurant and perform certain other work to achieve the necessary size reduction. The building permit application was dated July 7, 1997 and bore the signature “William Gallos”, as well as the signature of a Building Department witness. The application was accompanied by a plan prepared by Delta Engineering dated June 30, 1997 (the “Delta Engineering Plan”) containing some printed calculations concerning the dimensions of the restaurant.
[26] The applicant obtained his new liquor licence on August 17, 1997, after the City issued a compliance letter. In late September or early October 1997, the applicant returned the front doors to their original location. The City laid charges against the applicant on October 3, 1997.
4The appellant was convicted of these charges, obtained a new trial on appeal, but was convicted again in 2003. His appeal of that conviction was dismissed and leave to appeal from the dismissal was denied by Simmons J.A. on September 11, 2008.
5The restaurant burned down on May 8, 2005 and on March 20, 2006, the appellant applied for a building permit to re-construct his previous building. This was permitted by clause 12(1)(3)(b) of by-law 438-86 as long as what was previously there had been lawful. The permit application was for a building that included a restaurant of 334.63 square metres of non-residential gross floor area. Sean Fitzpatrick, a zoning/building plans examiner for the City of Toronto issued an examiner’s notice to the appellant advising that the proposed restaurant exceeded the permitted 165 square metres of non-residential gross floor area. His affidavit evidence, which the application judge accepted, was that he had reviewed every permit that the appellant had applied for since 1989, and the appellant had only ever received approval for a restaurant of less than 165 square metres at his property location. Mr. Fitzpatrick’s evidence was that the City was prepared to issue a permit for a restaurant of 165 square metres or less on the property.
6On March 30, 2006 the Committee of Adjustments refused the appellant a variance to build a restaurant larger than 165 square metres. The Ontario Municipal Board dismissed an appeal from that refusal. It stated that it was not satisfied, based on the evidence presented by the appellant, that he ever had a restaurant in excess of 165 square metres or that a building permit had been given to permit that space.
7The appellant’s position and evidence on the application was that before the fire in 2005, he operated a restaurant that exceeded 165 square metres and that he therefore enjoyed a legal non-conforming use. The City’s position was that, although at one point the appellant’s restaurant had exceeded 165 square metres, he reduced the size to comply with the by-law, in order to obtain approval for the liquor license. When Mr. Gallos reduced the size of his restaurant, he gave up any legal non-conforming use that he may have had. Accordingly, when he then increased the size of his restaurant after obtaining the liquor license, he was found to be in contravention of the Building Code Act and the Planning Act. Trotter J. first addressed the standard of review to be applied on review of a decision of the City to deny a building permit. He concluded that his function was similar to that of a judge on an appeal under s. 25 of the Building Code Act regarding the issuance of a building permit, and adopted the standard of review set out by Ducharme J. in 1218897 Ontario Ltd. (c.o.b.) Castle Auto Collision and Mechanical Service) v. Toronto (City) Chief Building Official (2005), 2005 CanLII 39872 (ON SC), 14 M.P.L.R. (4th) 217 (Ont. S.C.J.) at para. 5: a standard close to correctness on issues of law, and a standard of reasonableness on findings of fact.
8He concluded that the City’s decision was largely one of fact and on that basis was entitled to great deference. He accepted the evidence of Mr. Fitzpatrick, based on his review of the appellant’s previous building permit applications, that the appellant was never given permission to build a restaurant larger than 165 square metres and that the property did not exceed that size before it burned down. The application judge rejected the appellant’s evidence to the contrary. He found that:
On all of the evidence, I am unable to conclude that Mr. Fitzpatrick was unreasonable or wrong in concluding that the permit that was requested should not be issued.
9Further, the application judge found that the appellant had not established on a balance of probabilities based on the evidence on the application, that he enjoyed a legal non-conforming use. Rotstein v. Oro-Medonte (Township) (2002), 34 M.P.L.R. (3d) 266 (Ont. S.C.J.) In that regard he adopted the reasoning of Simmons J.A. at para. 70 of her reasons as follows:
[70] The Planning Act grants protection to legal non-conforming uses, but only if the land, building or structure in question continues to be used for that purpose: Planning Act, s. 34(9)(a). Even assuming that the applicant was entitled to a legal non-conforming use entitling him to a restaurant larger than 165 square metres of non-residential gross floor area at some point, he discontinued that use when he moved the doors of his restaurant inward so the City would issue a compliance letter. In these circumstances, I fail to see any available argument that the provincial offences appeal court judge erred in holding that the applicant lost any legal non-conforming use to which he may otherwise have been entitled when he moved the doors of his restaurant to bring it into compliance with the then current by-law.
10He summarized his finding as follows:
On the record before me, I have concluded that Mr. Gallos has not established an actual legal right to a restaurant in excess of 165 square metres prior to when it burned down. Moreover, I am satisfied that any claim to a legal non-conforming use was extinguished in August of 1997 when Mr. Gallos reduced the size of his restaurant. In reaching this last conclusion, I completely adopt the persuasive reasoning of Simmons J.A.
11The appellant also challenged the validity of three by-laws: 69-87, 361-89 and 1996-0332 as having been passed in contravention of s. 34(12) of the Planning Act because he did not receive notice of the proposal of these by-laws. Although Trotter J. expressed the view that it was not really necessary to examine the validity of the by-laws. he went on to address this issue. He relied on the notations in the Reports of the Land Use Committee relating to all three challenged by-laws, each of which was adopted by Toronto City Council. The Reports indicated that notice of public meeting was given as required by the Planning Act, and that a public meeting had been held. They also provided a list of the persons who had addressed the Committee. Although the notices themselves had not been found, Trotter J. concluded on a balance of probabilities that the City had demonstrated that the notice and public meeting requirements of the Act had been complied with. He also noted that the appellant did not appeal any of the impugned by-laws to the Ontario Municipal Board.
12Trotter J. also addressed a further issue raised by the appellant respecting by-law 361-89. The appellant asserted that an amendment following the public meeting was made without notice. However, in accordance with s. 34(17) of the Planning Act, the Council adopted the recommendation of the City solicitor that no further notice be given. Trotter J. concluded that he was satisfied on the record, referring to Scozzafava v. St. Catharines (City) (2007), 34 M.P.L.R. (4th) 189 at 191-192 (Ont. C.A.), that the City had carried out its obligations under the statute.
13Finally, Trotter J. held that there was no basis either procedurally or substantively for an award of damages, claimed in the amount of $35,000,000, and dismissed that claim.
Issues on Appeal
14In his Notice of Appeal, the appellant asks this court to overturn the findings of fact and conclusions of law of Trotter J.
15The appellant’s main point relates to the question whether his restaurant still exceeded 165 square metres after he reduced its size to obtain the liquor license, and whether he had a legal non-conforming use. He was also concerned that the definition of “gross floor area” in the 1996 by-law was ambiguous.
16The difficulty with the appellant’s arguments on appeal is that they take issue with findings of fact made by Trotter J.; however, the appellant did not point to a palpable and overriding error made by Trotter J. in his apprehension of the evidence or in his conclusions based on that evidence. Therefore, there is no basis to interfere with any of his findings.
17Trotter J. made three findings of fact that were determinative of the issues of legal non-conforming use and whether the appellant was entitled to a building permit for the non-complying premises. First, he found that the restaurant did not exceed 165 square metres at the time just prior to when it burned down in 2005 and accordingly that the appellant does not have a legal non-conforming use on this basis. Second, Trotter J. found that even if the appellant had a legal non-conforming use at some point, he lost it in October 1997, when he reduced the size of his restaurant to comply with the new 1996 by-law in order to obtain a new liquor license. Finally, he found that the appellant was never granted a permit that allowed the restaurant to exceed 165 square metres and, as a result, the appellant had not established an “actual legal right” to a restaurant in excess of 165 square metres.
18On appeal, the appellant argued that these findings were in error and that the inspector’s evidence was that the restaurant was still in excess of 165 square metres after the appellant reduced its size to obtain the liquor license. The court called on counsel for the respondent to respond on that issue. Counsel explained that building inspectors had measured the restaurant after the appellant reduced its size. They determined that it was less than 165 square metres, and as a result, the appellant was able to obtain the liquor license. This evidence came from the cross-examination of a building inspector who had participated in this inspection.
19This evidence answers the appellant’s suggestion that the restaurant was still in excess of 165 square metres at the time he received the liquor license.
20Moreover, having obtained the liquor license by virtue of the finding that the restaurant had been reduced to compliance, the appellant cannot now argue that an alleged ambiguity in the definition of the “non-residential gross floor area” in the 1996 by-law undermines that finding. The appellant also raises as an error of law, that Trotter J. relied on the evidence of notice of the three impugned by laws when the actual notices were not found. This was not an error. The application judge, as the trier of fact, is entitled to accept evidence that he is satisfied is reliable. In this case, the recitation in an official document that notice was given can be accepted as such evidence. Furthermore, the fact that notice was given was further substantiated by the fact that members of the public appeared at the meeting and asked questions. The application judge made no error on this issue.
21The appellant sought to introduce two kinds of fresh evidence on this appeal. First, an affidavit of Richard Stockford, who states that he is another restaurant operator in the Beach area of Toronto. In his affidavit, Mr. Stockford states that he, like the appellant, never received notice of the passing of by-law 1996-0332. Second, the appellant sought to introduce by-law 35-76, which amended by-law 20623 in 1976. The appellant wanted to use by-law 35-76 to challenge the validity of by-law 69-87.
22Evidence should generally not be admitted if, by due diligence, it could have been adduced at trial: R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Both the affidavit of Mr. Stockford and the text of by-law 34-76 could have been put before the application judge in this case.
23In the result, I would dismiss the appeal with costs fixed at $2,500 inclusive of disbursements and G.S.T.
“K. Feldman J.A.”
“I agree R. G. Juriansz J.A.”
“I agree J. MacFarland J.A.”
