Clarington (Regional Municipality) v. 2845749 Ontario Inc., 2026 ONCJ 287
ONTARIO COURT OF JUSTICE (PROVINCIAL OFFENCES COURT)
THE REGIONAL MUNICIPALITY OF CLARINGTON
Prosecutor
- and -
2845749 ONTARIO INC.
Defendant
REASONS FOR JUDGMENT Trial held March 30, 2026, and April 10, 2026, in Whitby, ON Decision released May 22, 2026
Mr. M. Pelham: Prosecutor for the Regional Municipality of Clarington Mr. M. Kemerer: Counsel for the Defendant, 2845749 Ontario Inc.
Justice of the Peace Her Worship J Moffatt:
The defendant company is the owner of land at 5720 Old Scugog Road in Hampton, located in the Municipality of Clarington, Regional Municipality of Durham. The owner of the company and operator of the business located on this lot is Abdul Hakim Abdul Moqim.
The defendant is charged that on both March 14, 2022 and November 13, 2024 it committed the offence of use land in a Service Station Commercial Exception Zone (C6-8) for a use other than a permitted use, contrary to Section 21.4.8 of the Municipality of Clarington Zoning By-Law 84-63 as amended. This is an offence pursuant to s.67 of the Planning Act, RSO 1990, c.P.13.
The property is being used for a Motor Vehicle Body Shop which is a permitted use in this zone. This case rests entirely on whether any or to what extent outdoor storage of vehicles is a permitted accessory use on this property and whether the defendant has established the defence of due diligence.
THE ISSUES TO BE DECIDED
- The issues I must decide are these:
a. Is outdoor storage of vehicles a permitted accessory use on this property and if so, to what extent?
b. Have the charge(s) been made out beyond a reasonable doubt?
c. If the charge(s) have been made out, has the defendant established a due diligence defence of either reasonable care or reasonable mistake of fact?
d. Should the charges be dismissed because they were based on the municipality’s mistaken interpretation of the zoning by-law?
e. Should the charge with an offence date of November 13, 2024 be dismissed or stayed because it was unfair and punitive to lay a second charge?
DECISION
- Having answered these questions, and for the reasons that follow, I find the defendant guilty of both counts as charged.
FACTS NOT IN DISPUTE
- The following facts are not in dispute:
a. The defendant purchased this property on July 30, 2021 with the intention of operating a Motor Vehicle Body Shop, which is a permitted use in this zone. The property was already being used for that purpose and Mr. Moqim observed, before he purchased the property, that the use included outdoor storage of vehicles. It was important to the defendant that both a repair garage and outdoor storage of vehicles would be permitted.
b. He asked his real estate lawyer specifically whether there had been any change in zoning. Neither his real estate agent, nor his real estate lawyer told him that outdoor storage was not permitted or that there was any limit to the extent of outdoor storage on the property. He understood that the combined use of the property as a Motor Vehicle Repair Garage and associated outdoor storage of vehicles was a permitted and lawful use. He came to that conclusion because of his own observations of the use of the property and he was not told otherwise by his real estate agent or real estate lawyer. He admits that he never specifically asked his realtor or his real estate lawyer about outside storage.
c. He has been operating a Motor Vehicle Body Shop since he purchased the property. The repair garage has the capacity to work on 5 to 6 vehicles inside the shop at a time. He employs 4-6 people and he himself attends the lot about 2 days each week. Mr. Moqim also operates a Motor Vehicle Dealership in Pickering.
d. Mr. Moqim’s business model is this: he purchases used vehicles via online auctions. He does not inspect the vehicles before purchase but rather relies on the photographs and descriptions posted online. The vehicles are then towed to this property in Scugog and inspected to determine what repairs need to be done. Any necessary parts are ordered; the vehicle is brought into the garage for repair and is then shipped to his dealership in Pickering for resale.
e. On the March 14, 2022 there were 50 motor vehicles stored outside on the property. On November 13, 2024 there were 95 motor vehicles stored outside on the property. All vehicles were in various states of repair or disrepair. Vehicles come and go to the property on a regular basis, and some have remained stored outside for many years.
f. In 1992 a site plan agreement (exhibit 12) was registered on title to this property, being an agreement between the Township of Newcastle (as it was then known) and the previous owner of this property. The parties agree that this site plan agreement continues in effect and among other things establishes a limited permitted accessory use on this property of no more than 20 motor vehicles stored outside. Further, the agreement sets out that the compound will be cleared of all motor vehicles and parts at least once per year. The registration of the site plan agreement can be seen on the parcel register, also marked as an exhibit to this proceeding.
g. The existence of this registered site plan agreement was not known to Mr. Moqim before he purchased the property. It did not come to his attention until the municipality belatedly discovered it and it was disclosed to defence counsel in November, 2025.
h. While enforcement action and charges were being laid, the municipal by-law and planning departments were not aware of the site plan agreement. Throughout, they took the position that no outdoor storage of vehicles was permitted. As will be explained later in these reasons, the prosecutor modified its position at trial and conceded that some outdoor storage of motor vehicles was permitted as an accessory use to a Motor Vehicle Body Shop.
Is outdoor storage of vehicles a permitted accessory use on this property and if so, to what extent?
- In deciding this issue, reference is made to provisions of the Municipality of Clarington Zoning Bylaw 84-63 as amended. This property is in a Service Station Commercial Exception Zone (C6-8):
21.4.8 Service Station Commercial Exception (C6-8) Zone
“Notwithstanding Sections 21.1 and 21.3, the lands zoned C6-8 on the attached Schedules to this By-law, may only be used for a Motor Vehicle Service Station, Motor Vehicle Body Shop and Motor Vehicle Sales Establishment and shall only be used in accordance with the following regulations:
a. Lot Area (minimum)2.5 hectare
b. Lot Frontage (minimum)197 metres
c. Yard Requirements (minimum)
i) Front Yard 9 metres
ii) Interior Side Yard 20 metres
iii) Rear Yard 150 metres”
Accessory Use
“Shall mean a use established during or after the establishment of the main use, which is customarily incidental and subordinate to, and exclusively devoted to, the main use of the lot, and located on the same lot as such main use.”
There is nothing in the language of the by-law that prohibits this lot from being used for accessory uses relating to the body shop for the temporary storage of motor vehicles, provided the use is customarily incidental and subordinate to the main use of the lot. There are provisions in the zoning by-law in various places relating to other Zones which expressly prohibit outdoor storage. No such prohibition exists for this Zone.
It was reluctantly conceded by the prosecution witnesses, when pressed, that accessory use of the lot for outdoor storage of motor vehicles was a permitted use to a motor vehicle body shop provided it was customarily incidental and subordinate to the main use of the lot.
The prosecutor at trial conceded this point. Further, the parties agreed that the 1992 site plan agreement continues to bind the use of the property and quantifies the extent of permitted outdoor storage on the property as an accessory use.
As mentioned, the site plan agreement states no more than 20 motor vehicles may be stored outside. Further, it provides that the compound will be cleared of all motor vehicles and parts at least once per year.
In my view, while the bylaw does not specify exactly how many motor vehicles may be stored outside on this property as an accessory use, the storage of no more than 20 motor vehicles on the lot (pursuant to the site plan agreement) is a reasonable number that ensures the main use of the property as a body shop is not overtaken by excessive outside storage of motor vehicles. In addition, the site plan agreement provides that any motor vehicles stored outside are to be removed from the property at least once per year. This provision is further evidence that it is intended that the accessory use of the property for the storage of motor vehicles remains subordinate and incidental to the main use of the property as a body shop.
It is not in dispute that the property was being used for the outdoor storage of vehicles on both offence dates in numbers that far exceed the number set out in the site plan agreement - namely 50 motor vehicles were stored outside on the first offence date, and 95 motor vehicles were stored outside on the second offence date. Further, the evidence shows that not all motor vehicles stored outside were removed once per year pursuant to the site plan agreement.
For these reasons, I conclude outdoor storage of motor vehicles on this lot is a permitted accessory use, provided that use is subordinate and incidental to the main use and in any event shall not exceed more than 20 motor vehicles stored outside.
Have the charge(s) been made out beyond a reasonable doubt?
The defendant has been charged that on both March 14, 2022 and November 13, 2024 he did commit the offence of (paraphrased) using the land in question for a use other than a permitted use, contrary to Section 21.4.8 of Clarington Zoning By-law 84-63 as amended and therefore committing an offence contrary to the Planning Act, section 67.
The nature of the objectionable use is not particularized on either Information. The prosecutor appeared to suggest that certain other uses revealed by the evidence, including the outdoor storage of parts and/or conducting repairs to motor vehicles outside of the body shop building were also not permitted uses.
Defence counsel had concerns because, he submits, the objectional use has always centered on the issue of outdoor storage of motor vehicles. He contends the defendant’s approach to answering these charges would have been different had he known his client had to defend against other “non-permitted” uses as well. The prosecutor conceded the issue was predominantly about outdoor storage of vehicles and agreed, correctly in my view, to restrict his approach and submissions to that issue alone. Given this concession, I am satisfied that the defendant has had the fulsome opportunity to make full answer and defence and has not been prejudiced as a result.
The facts in this case are not in dispute in any substantive way. The defendant does not deny that in addition to using the property as a body shop, it was also being used for the outdoor storage of motor vehicles to the extent testified to by the prosecution witnesses. There is no contrary evidence tendered by the defence which I must weigh on this issue and his evidence does not raise a reasonable doubt.
Even if the site plan agreement did not exist, the extent of outdoor storage of motor vehicles on the two offence dates grossly exceeds that which would be reasonable to be considered customarily incidental and subordinate to, and exclusively devoted to, the main use of the lot. Rather, the level of intensity of outside storage of motor vehicles on both offence dates represent a distinct and separate use that is not an accessory use and therefore is not a permitted use in a C6-8 zone. Therefore, the prosecution has proven both charges beyond any reasonable doubt.
If the charge(s) have been made out, has the defendant established a due diligence defence of either reasonable care or reasonable mistake of fact?
The law on due diligence – reasonable care and mistake of fact branch:
When a charge has been proven beyond reasonable doubt, it is open to the defendant to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299.
“The decision in Sault Ste. Marie, supra, established that a person accused of a strict liability offence may avoid conviction by proving, on the balance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent [mistake of fact branch], or that he exercised all reasonable care to avoid committing the offence. That is to say, he did what a reasonable person would have done in the circumstances to avoid the occurrence of the prohibited act. [All reasonable care branch]”: R. v. Pontes (1995), 1995 61 (SCC), 100 C.C.C. (3d) 353 (S.C.C.), para. 32.
The concept of diligence is based on a citizen’s civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid defence. Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420 at paragraph 30.
Due diligence imports a “standard of objective reasonableness; an honest subjective belief is not enough”. R. v. Stelco Inc., 2006 28110 (ON SC), [2006] O.J. No. 3332 (S.C.J)
“Reasonable care and diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action”. R. v. Courtaultds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Ct.)
“The due diligence defence relates to the doing of the prohibited act with which the defendant is charged and not to the defendant's conduct in a larger sense. The defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense: see John Swaigen, Regulatory Offences in Canada: Liability & Defences (Toronto: Carswell, 1992, at pp. 98-100). The point is well made in Kurtzman, at para. 37 (1991 7059 (ON CA), [1991] O.J. No. 1285, C.A.): "The due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably" (emphasis in original). Just as a due diligence defence is not made out by acting generally in a reasonable way, it is not necessarily lost by virtue of actions surrounding the prohibited act, legal or illegal, unless those actions establish that the defendant, in committing the prohibited act, failed to take all reasonable care.”: R. v. Raham, 2010 ONCA 206, para 48
“Mistake of fact requires more than a subjective belief in a fact or set of facts. The defendant’s belief must be objectively reasonable.” R. v. Murray Group Ltd., [2012] O.J. No. 6375 (C.J.); R. v. Stelco Inc., 2006 28110 (ON SC), [2006] O.J. No. 3332 (S.C.J.).
Section 81 of the Provincial Offences Act provides: “Ignorance of the law by a person who commits an offence is not an excuse for committing the offence.”
“However, this defence will not be available if the defendant relies solely on a mistake of law to explain the commission of the offence. Under Canadian law, a mistake of law can ground a valid defence only if the mistake was an officially induced error and if the conditions laid down in R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55 (S.C.C.).”: Québec (Autorité des marchés financiers) c. Souveraine, cie d'assurance générale, 2013 SCC 63, para. 57.
“A mistake of law is a legal concept with rigorous requirements. In my view, it occurs only where a person has an honest but mistaken belief in the legality of his or her actions. Although it is not a defence to a criminal charge (s. 19 of the Criminal Code; R. v. Forster, [1992] S.C.J. 339, at p. 346), mistake of law can nevertheless be used as a mitigating factor in sentencing (citations omitted).” R. v. Suter, 2018 SCC 34.
Applying the law of due diligence to the facts in this case:
This is a strict liability offence, which means the prosecution is not required to prove mens rea. I accept that Mr. Moqim did not know that outdoor storage of motor vehicles was not permitted or was restricted in any way when he purchased the property. There is no evidence that he asked his realtor or his real estate lawyer specifically about whether outdoor storage of motor vehicles was a permitted use.
A reasonable person is obliged to ensure the property can be lawfully used for its intended purpose and that the use complies with all statutes, regulations, zoning bylaws or land use agreements. The defendant contends that he took reasonable care to avoid committing these offences (due diligence) by asking his real estate lawyer to ensure that the zoning on the property had not changed. Indeed, on the evidence it is clear the zoning has not changed.
His question to his real estate lawyer was no more than a perfunctory, non-specific inquiry before he purchased the property. I am not satisfied that a single non-specific inquiry amounts to reasonable care. In any event, a defence of reasonable care refers to steps taken to avoid committing the offence, not reasonable care in a general sense.
Mr. Moqim received written notice of the violation in September 2021. A reasonable person who receives notice from the municipality that outdoor storage of motor vehicles was a problem would, at a minimum, take steps to at least reduce the extent of the outdoor storage rather than increase and expand upon that accessory use.
There is no evidence regarding what steps Mr. Moqim took to reasonably avoid committing these offences. He described attempting to engage the municipality in discussion about their interpretation of the permitted use of the property. Those efforts do not amount to due diligence to avoid committing this offence on either of the two offence dates. Rather, they appear to be efforts to resolve a disagreement or differing opinion as to the lawful accessory use of outdoor storage on the property.
In the meantime, he continued and significantly increased the extent of outdoor storage of motor vehicles since he first became aware of the issue. He made no operational changes whatsoever. These are not the actions constituting reasonable care to ensure his company did not commit these offences on the offence dates of March 2022 and November 2024.
After the site plan agreement came to light in November 2025, Mr. Moqim has attempted to find another property from which to operate his business. He has been unable to find a suitable property, and it seems the use of this property in Scugog continues in contravention of the Zoning Bylaw.
Defence counsel submits that since the site plan agreement was disclosed, his client has been diligent in attempting to avoid committing this offence. The evidence does not support this submission – in the last six months he has looked for another suitable property to operate this business from. There is no evidence he has since made any operational changes to this property before or after the offence dates.
The defendant also argues that he had a reasonable, albeit mistaken belief that the property could be used for unlimited outdoor storage of motor vehicles in addition to the body shop. The fact that he interpreted the Zoning bylaw in such a manner is not a mistake of fact. Rather it is a mistaken interpretation of the law which cannot ground a defence pursuant to s.81 of the Provincial Offences Act.
Further, although he was unaware of the site plan agreement registered against the property, it was on title and was there to be found. It is a lawful instrument which governs the use of the property. This is not a mistake of fact issue, rather his mistaken belief is a mistake of or ignorance of the law.
To the extent that his mistaken belief in the lawful use of the property may be a mistake of mixed fact and law, his belief is not objectively reasonable on the facts of this case.
For all of these reasons, the defendant has failed to prove on a balance of probabilities that he took reasonable care to avoid committing these offences or that he had a reasonable mistake of fact which, if true, would render his actions innocent.
Should the charges be dismissed because they were based on the municipality’s mistaken interpretation of the zoning by-law?
I have found that Mr. Moqim and the municipality had a disagreement on the proper interpretation of the zoning by-law as it relates to outdoor storage of motor vehicles on the property. Mr. Moqim believed that he could use the property for outdoor storage of motor vehicles and the municipality said he could not. The prosecutor conceded at trial that a limited number of motor vehicles could be stored outside as a lawful accessory use. As I explained, I agree with the prosecutor on this point.
Defence counsel asks me to dismiss these charges because they were laid on a wrong interpretation of the zoning bylaw by the planner and enforcement officer.
Counsel relies on Town of Lake Cowichan and Shane Arsens, 2005 BCSC 1722 - a zoning by-law case wherein the Information was not particularized regarding the specific nature of the contravention of the by-law – which is a similar situation to this case. In Town of Lake Cowichan the charge was dismissed at trial and was subsequently appealed by the Town. On appeal, the Town attempted to argue that the evidence showed other ways in which the property was not in compliance with the zoning by-law. These arguments were not made at trial but were raised for the first time on appeal and were dismissed at that level because it was an allegation being advanced only following conviction.
In the case before me, no objection was taken to the Information before the defendant pleaded nor was there an application brought for particulars pursuant to s.36 of the Provincial Offences Act. In any event, I am satisfied that the facts contained in the Information taken together with disclosure have alerted the defendant as to the nature of the non-compliance alleged in this case.
The Town of Lake Cowichan is not binding upon me in Ontario, may be distinguished and I do not find it persuasive. The focus at trial has been restricted to the issue of outdoor storage of vehicles, therefore the defendant has been able to make full answer and defence ensuring a fair trial.
Should the charge with an offence date of November 13, 2024 be dismissed or stayed because it was unfair and punitive to lay a second charge?
Defence counsel argues that the charge with an offence date of November 13, 2024, should be dismissed or stayed. The municipality knew an appeal from conviction of the charge with a March 2022 offence date was still pending at the time (ultimately that conviction was struck and a new trial ordered). Counsel contends not only was commencing a second prosecution premature, but it was punitive and unfair to lay a second charge.
The defence has not brought an abuse of process motion. Even if it had, it is trite to say that a stay of proceeding is a remedy of last resort and must be limited to the clearest of cases. (See R v Brunelle, 2024 SCC 3, paras 27-29.)
It is not uncommon or unfair for a municipality to lay multiple charges for the same offence with different offence dates. Offences often continue beyond one single date or event, particularly in relation to land use cases where the alleged offence is ongoing and continuing. There is nothing unfair or untoward for the second charge to be laid, notwithstanding a pending appeal, particularly given the amount of time between the first date of offence (March 2022) and the second date of offence (November 2024). There is no allegation the defendant’s ability to make full answer and defence has been prejudiced by the laying of a second charge.
The municipality’s actions and positions taken throughout are not unfair or vexatious such that fundamental notions of justice have been contravened, nor do they undermine the integrity of the justice system. For these reasons, I am not persuaded that the second charge should be dismissed or stayed on this basis.
CONCLUSION
- The defendant is found guilty on both counts and convictions shall be registered. The matter is next returnable on June 9, 2026 at which time I invite submissions on sentence.
Released this 22nd day of May 2026 in Whitby, ON.
Her Worship Justice of the Peace Jane Moffatt