Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231031 DOCKET: C70052

MacPherson, Lauwers and Copeland JJ.A.

IN THE MATTER OF the Planning Act, R.S.O. 1990, c. P.13, and amendments thereto,

BETWEEN

Paul Cummins and Patrick Cummins, as the Estate Trustees of the Estate of Eugene Cummins, A Deceased Applicants (Appellants)

and

The Corporation of the Town of Milton Respondent (Respondent)

Counsel: Bernie Romano and Jordan Nussbaum, for the appellants Konstantine Stavrakos, for the respondent

Heard: October 23, 2023

On appeal from the judgment of Justice Clayton Conlan of the Superior Court of Justice, dated October 28, 2021.

REASONS FOR DECISION

The Factual and Procedural Context

[1] In 1984, Eugene Cummins purchased a 38-acre farm property. The Property was zoned “agricultural” in 1984 under Oakville zoning by-law 1965-136. There were two issues before the application judge. The first was whether to declare that the appellants could use an irregularly shaped 1.1-hectare portion of the property, also known as the “LNCU area” (short for “Legal Non-Conforming Use”), for several purposes including the outdoor storage of vehicles, machinery, and equipment, and the storage of heavy trucks and shipping containers.

[2] The application judge dismissed with costs the appellants’ application for a declaration that they have the right to use the property for the claimed purposes. The appellants seek an order on appeal reversing the dismissal of the declaration application and certain alternative relief.

[3] The second issue before the application judge was the Town’s motion for an order finding the appellants in contempt of the 1994 order restraining Mr. Cummins from dumping materials on the property. The application judge dismissed the motion, but he declined to order costs in favour of the appellants. Although the Town did not appeal the dismissal of the contempt motion, the appellants seek leave to appeal the application judge’s decision not to award them the costs of the contempt motion on which they were successful.

Issues

[4] There are two issues on this appeal:

1. Did the application judge err in dismissing the appellants’ declaration application?
2. Did the application judge err in refusing to award the appellants the costs of the Town’s contempt motion on which they were successful?

[5] For the reasons that follow, we find that the application judge made no error in dismissing the declaration application, and we grant leave to appeal the issue of costs for the contempt motion but dismiss the appeal.

(1) Did the application judge err in dismissing the appellants’ declaration application?

[6] The application judge dismissed the appellants’ application for a declaration that they have the right to use the 1.1-hectare LNCU portion of the property for the following purposes:

i. outdoor storage of vehicles, machinery, and equipment; ii. business operation; iii. storage of heavy trucks and shipping containers; iv. ancillary deposit of clean fill, topsoil, gravel, or asphalt to maintain parking areas and driveways in a specific area; and v. such further and other uses as may be ancillary to those described above in clauses (i) through (iii).

[7] On the appeal, the appellants seek an order reversing the dismissal of the declaration application and certain alternative relief. They make two arguments. The appellants’ first argument is that the listed uses are legal non-conforming uses permitted by s. 34(9) of the Planning Act, R.S.O. 1990, c. P.13, which states that no zoning by-law restricting the use of land applies to any land that was lawfully being used in the restricted way on the day the by-law was passed. In short, the appellants argue that Mr. Cummins and his company were using the Property for these purposes as legal uses, which have continued to present time.

[8] The appellants’ second argument is that the limiting provisions in the zoning by-law – the provisos – did not apply and, in any event, were unenforceable because they were vague, uncertain, and ambiguous, as well as unconstitutional.

Analysis

[9] It is common ground that the relevant zoning by-law is 1965-136, which applied only from May 15, 1984 to July 2, 1985.

[10] The evidence before the application judge included reports by two Registered Professional Planners: Allan Ramsay, who represented the appellants, and Nick McDonald, who represented the Town, both of whom were cross-examined. It is clear that the application judge preferred the evidence of Mr. McDonald and only referred to Mr. Ramsay’s evidence, at paras. 36 and 40, to supplement his acceptance of Mr. McDonald’s position, at para. 38.

(a) Is the Appellants’ Use of the LNCU Area a Legal Non-Conforming Use?

[11] The application judge noted that the appellants relied on subsection 34(9) of the Planning Act, R.S.O. 1990, c. P.13, as amended, which, at paragraph (a) therein, provides that no by-law passed under section 34 (which deals with zoning) applies to prevent the use of any land for any purpose prohibited by the by-law if such land was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose.

[12] In his Report, Mr. McDonald noted:

Mr. Patrick Cummins in his Affidavit dated February 28, 2020 asserts the uses are legal non-conforming on the basis that there was no zoning in place at all when they were commenced:

“Before the enactment of the Planning Act in Ontario in 1983, there were no prohibitions to the Subject Property being used for commercial purposes. It took most municipalities a number of years to enact by-laws under their new-found authority. So, the Subject Property, being used as a contractor’s yard, salvage yard, commercial operation, or outside storage yard was perfectly legal in May, 1985 when it started.”

This is not true and is not the basis of the opinion provided by the Applicant’s Land Use Planner Mr. Ramsay. As Mr. Ramsay correctly identifies in his report, a Town of Oakville zoning by-law has applied to the Subject Lands from 1965 to 1985 (By-law 1965-136) and after 1985, Town of Milton zoning by-laws applied. […]

For instance, Mr. Patrick Cummins in his affidavit dated February 28, 2020 identifies different uses than in the Application and indicates that the following uses were initiated soon after the Subject Lands were purchased in 1984: ‘contractor’s yard’, ‘salvage yard’, ‘commercial operation’, and ‘outside storage yard’. This inconsistent use of terms makes it difficult to assess the information provided.

Mr. Ramsay however provides no opinion on whether a contractor’s yard, salvage yard and a commercial operation were permitted in 1984.

[13] Mr. McDonald’s opinion is set out in the affidavit to which his lengthy report was attached. These conclusions provide important contextual details about the proper interpretation and application of the zoning by-law:

a) The Subject Lands (5193 8th Line) have been continuously zoned (A) Agricultural since 1965.

c) None of the applicable zoning by-laws have permitted a contractor’s yard or a salvage yard as a main or principal use on the Subject Lands – this means that a contractor’s yard or a salvage yard would not have legal non-conforming status.

d) None of the applicable zoning by-laws have permitted the leasing of portions of the Subject Lands to outside third parties for the storage of goods, equipment or materials, or for business office use – this means that the leasing of portions of the Subject Lands to outside third parties for the storage of goods, equipment or materials or for business office use would not have legal non-conforming status.

e) Accessory uses to legally permitted main or principal uses have always been permitted – this is not an issue of legal non-conforming use. While the definitions in the various zoning by-laws have varied to a certain degree, they all require that an accessory use be normally/customarily incidental to, subordinate to and exclusively devoted to the legally permitted main or principal use of the property. For instance, storage of agricultural equipment used in the agricultural operation of the property would be permitted, but renting storage space to outside third parties would not be.

g) The amount of land on the Subject Lands used for the outdoor storage of equipment, vehicles and materials by outside third party contractors and as a base of their operations (1.1 hectares in 2013) would need to be permitted as a principal use rather than accessory use given its scale and independent nature (it is its own land use and does not support another land use on the property).

Regardless of the exact date when this land use started, its has not been permitted by any of the zoning by-laws that have applied on the Subject Lands since their purchase in 1984 by the Cummins family.

[14] Reading the application judge’s reasons in context, it is plain that he accepted Mr. McDonald’s opinion that the use could not be a legal non-conforming use under s 34(9) of the Planning Act. The application judge found that the commercial activity that took place on the Property in 1984 was not legal under the by-law. He stated, at para. 21, that the application “must be dismissed for this reason: assuming that the evidence establishes on balance that what [the appellants] now want to use the Property for (see the declaratory relief that they are seeking in their Application) was in fact going on at the Property in or around 1984, as alleged, it matters not because that activity was not lawful under zoning by-law 1965-136, subsection 56(1)(i)” (emphasis by application judge).

[15] Essentially, the application judge accepted the Town’s position that “the proper characterization of the use of the LNCU area is a contractors’ yard,” and that such use was unlawful. He did not err in doing so. We dismiss this ground of appeal.

(b) Were the Uses Permitted Under the Zoning By-Law?

[16] After finding the uses unlawful, the application judge addressed the arguments that counsel repeated on appeal, which focused on the provisos in s. 56(1)(i) of zoning by-law 1965-136. As noted, the appellants’ second argument was that the limiting provisions in the zoning by-law – the provisos – did not apply and, in any event, were unenforceable because they were vague, uncertain, and ambiguous, as well as unconstitutional. They assert that, properly construed, the zoning by-law actually permitted the claimed uses.

[17] The zoning by-law permitted the following uses subject to the provisos:

The conduct of a trade or business, provided not more than 25 per cent of the floor area is used for the purpose, no sign is displayed, no person outside members of the family residing on the premises is employed, no goods are stored on the premises and no shipping is done from them and there is no public office or visiting of premises by customers, clients, or salesmen on business.

[18] In responding to this argument, the application judge found that, even if some of the provisos could be found to be unenforceable, the first proviso, which stated that not more than 25% of the floor area could be used for business, was neither vague nor unconstitutional.

[19] In interpreting this proviso, the application judge held that it clearly referred to the floor of a dwelling or building because an open area of land does not have a floor. The proviso was thus interpreted to mean that not more than 25% of the floor of a building was to be used for business. The application judge found that the outdoor storage of vehicles, machinery, and equipment was therefore not compatible with this proviso, which expressly referred to a floor space – a defined term in the by-law.

[20] The application judge stated: “I agree entirely with Mr. McDonald when he states, at paragraph 52 of his report dated April 8, 2021, that ‘the trade or business must be contained within a relatively small portion [25% or less of the floor area] of the dwelling’, or, arguably (though he did not go this far), the other building or structure on the property.” He added: “Whatever was going on at the Property in or around 1984 was definitely not contained within a relatively small portion of any dwelling or other building or structure.” The application judge did not err in finding, at para. 45, that the claimed uses are not lawful under s 56(1)(i) of the zoning by-law. This ground of appeal is also dismissed.

(2) The Contempt Motion and Costs

[21] Mr. Cummins was paid tipping fees for the dumping of concrete, bricks, asphalt, and excavation materials on the Property. In 1994, the Town of Milton sought an injunction prohibiting future dumping and requiring Mr. Cummins to rehabilitate the lands. The application judge in 1994, Carnwath J., found that Mr. Cummins had “since 1987 … openly, intentionally, and flagrantly contravened the Town by-law”. His order provided that Mr. Cummins and his corporation, “their agents and their successors and assigns of land as described in Schedule “A” hereto are hereby restrained absolutely from placing or causing or permitting to be placed [anywhere on the Property] any material of any nature or kind whatsoever originating from the exterior of the boundaries of the lands, on or under the surface of the lands, without the express written consent of the Town of Milton”. The application judge described Carnwath J.’s order as “sweeping and severe,” and “extremely restrictive”.

[22] The application judge instructed himself correctly on the law of civil contempt, citing Carey v Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79. He found that Carnwath J.’s order was “about as clear as one could get”; that the appellants, they admit, were “fully aware of the Order and its terms”; and that they “did intentionally, they admit, allow fill to be brought onto the Property on November 12, 2020, and that intentional act was in clear violation of the Order.”

[23] Despite these findings, the application judge exercised his discretion not to make the finding of contempt, on three bases. First, he found that the appellants “genuinely believed that the fill was being offered by the Town to residents, including them, as part of a municipal roads resurfacing project.” He added: “Given that finding of fact, I am not comfortable employing the “hammer” of a contempt citation.” Second, he considered that “there is a reasonable alternative available in the circumstances,” that is to encourage the parties to “take steps to amend the Order in question.” (With respect, this reason is irrelevant and should not have played a role in the application judge’s thinking; it amounts to second-guessing the terms of the Carnwath J. order, which was not open to him.) The third reason the application judge gave for declining to find the appellants in contempt is that he could adequately penalize them in costs. Accordingly, he said: “It may be that [the appellants], presumptively entitled to costs on the contempt motion, should be awarded either no costs or reduced costs because of the lengthy history of the Property being in violation of the law and the extent to which the Order was violated on November 12th” (emphasis by application judge).

[24] The application judge’s decision dismissing the contempt motion was not appealed and this court is bound by it. He later heard submissions on costs.

[25] While the application judge recognized that he could award costs against the appellants on the contempt motion despite their success in its outcome, he declined to do so, citing the reasons he gave for exercising his discretion against finding contempt. This court is deferential on discretionary costs awards in the absence of an error in principle, in law, or a palpable and overriding error of fact. There is none here. Leave to appeal costs is granted but the appeal is dismissed.

Disposition

[26] The appeal is dismissed with costs payable to the respondent in the amount of $18,000 – all inclusive.

“J.C. MacPherson J.A.”

“P. Lauwers J.A.”

“J. Copeland J.A.”