Court of Appeal for Ontario

Date: 2017-05-23 Docket: C62996

Judges: LaForme, van Rensburg and Huscroft JJ.A.

Between

Allied Properties Reit, 460 King Street West Inc. and 1301585 Ontario Inc. Applicants (Respondents)

and

1064249 Ontario Inc. Respondents (Appellants)

Counsel

Patrick DiMonte for the appellants

David S. Reiter and Meghan A. Cowan for the respondents

Heard: May 19, 2017

On appeal from: the judgment of Justice Kristjanson of the Superior Court of Justice, dated January 3, 2017.

Reasons for Decision

[1] The appellant conceded that its commercial parking lot was not in compliance with the Zoning By-Law. In order to defeat the respondent's request for an injunction restraining operation of its parking lot, the appellant had to establish that its property was a legal non-conforming use. To do this, it had to demonstrate that a commercial parking lot had operated continuously and without interruption on the property since passage of the Zoning By-Law in 1993. It failed to do so, and the application judge granted the declaratory relief and an injunction requested by the respondent.

[2] The burden on this appeal is for the appellant to establish that the application judge made a palpable and overriding error. We see no error, much less a palpable and overriding error.

[3] In short, the appellant failed because there was no evidence to support its position that the use of the property had not changed since the passage of the By-Law. The application judge found that the lot was used as an accessory lot rather than as a stand-alone commercial parking lot from 1993 through 1996. She accepted the evidence of Mr. Stagl, a Registered Professional Planner, that the lot fell out of compliance when its use changed. Mr. Stagl's evidence concerning the difference between use as an accessory lot and use as a commercial parking lot under the By-Law was accepted by the application judge and was not challenged on cross-examination by the appellant. Indeed, there was no other evidence on this critical issue before the application judge.

[4] On appeal, the appellant essentially asks this court to make different findings than the application judge. That is not our role. The application judge made findings that were open to her based on the record, and there is no basis for this court to interfere with them.

[5] The appeal is dismissed. The respondent is entitled to costs of $15,000, inclusive of taxes and disbursements.

"H.S. LaForme J.A."

"K. van Rensburg J.A."

"Grant Huscroft J.A."