Court File and Parties

Ontario Court of Justice

Date: 2018-09-28

Court File No.: Newmarket 06-0073S & 12-0293S

In the Matter of: An appeal under clause 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Regional Municipality of York Respondent

— And —

1085638 Ontario Limited & Meadow Valley Garden Centre Ltd. Appellants

Before: Justice David S. Rose

Heard: September 24, 2018

Reasons for Judgment Released: September 28, 2018

Counsel:

• Mr. C. Bendick, for the Respondent
• Mr. M. Marchioni, for the Appellants 1085638 Ontario Limited & Meadow Valley Garden Centre Ltd.

On Appeal From: Conviction by Justice of the Peace H. Radtke on June 6, 2017 and from the sentence imposed on June 26, 2017

Reasons for Judgment

ROSE J.:

Convictions

[1] On June 6, 2017 His Worship H. Radtke convicted 1085638 Ontario Ltd ("638") of an offence under the Building Code Act, namely:

(i) On or about 11th October 2005 at 12201 Keele Street, Vaughan, did fail to comply with an Order issued by a building inspector, namely Order 05-68OB dated March 10, 2005 contrary to the Building Code Act Section 26(1). Information 06 0073S

[2] His Worship also convicted 1085638 Ontario Ltd ("638") and Meadow Valley Garden Centre Ltd ("Meadow Valley") of the following:

(ii) Between 16th April 2012, and 19th April 2012 at 12201 Keele Street, Vaughan did use lands in an Oak Ridges Moraine Zone for a use not permitted under section 7.8 of the City of Vaughan Zoning By-Law 1-88, as amended, to wit open storage of goods, material, equipment or machinery and therefore contrary to Section 67(1) of the Planning Act R.S.O. 1990 Ch. P13 as amended; and

(iii) Further 638 and Meadow Valley are charged on or about the 19th day of April 2012 at 12201 Keele Street Vaughan did commit the offence of did use lands zoned Oak Ridges Moraine Zone to have a Commercial Business, namely a Garden Centre, Contrary to City of Vaughan By-Law 1-88, as amended Section 7.8 and therefore contrary to the Planning Act R.S.O. 1990 Ch. P13, Section 67(1).

[3] After convicting both appellants, His Worship sentenced 638 to a $30,000.00 fine on (i). On (ii) he imposed $5,000 fines on each appellant, and on (iii) each appellant received a $10,000 fine. His Worship imposed prohibition orders to start 90 days from the imposition of sentence.

Background and Trial History

[4] While the trial required only two days to hear evidence from the prosecution and defence it has a historical narrative which makes the word tortured seem like an understatement. The information against 638 alone was laid in February 2006 and took, it seems, 11 years before a trial verdict. It appears that an 11(b) application heard in September 2011 was dismissed in January of 2012. After that day several trial days were scheduled until the matter finally was tried in the spring of 2017.

[5] The information against both appellants was relatively new by comparison – it was laid in 2012 – only taking five years to complete.

Trial Evidence

[6] This case was about the operation of a retail garden center on Keele Street in Vaughan, and whether the operation had the required municipal permits to operate as it did. There was no dispute that the garden center was operated by the Appellants at 12201 Keele Street.

[7] At trial the prosecution called two witnesses – both building code inspectors for the City of Vaughan. One of them had retired before the trial was heard. The prosecution also filed a series of exhibits which included Zoning By-Law 1-88, a Zoning Map for 12201 Keele Street, a Parcel Land Register, Assessment Rolls, Corporation Profile Reports, Land Registry, a certified statement from Pat Dawson indicating that neither appellant had a building permit to erect signs at 12201 Keele Street, and a letter dated September 11, 2012.

[8] From my review of the trial judgment the evidence was fairly straightforward. Mr. Lubiato, then a building inspector for the City of Vaughan, went to 12201 Keele Street in 2005 and issued an order to comply on March 10, 2005. The order was directed at construction on a building which had been started prior to obtaining a building permit. That building was a garden centre. There was no ambiguity in the language of the order, which required 638 to provide an engineer's report for the building and meet the Ontario Building Code requirements for the structure. That order was served on 638 at an address in Woodbridge, which was the legal address for the company. In sum, the building at 12201 Keele Street had been built without a building permit, and the March 2005 order required 638 to comply.

[9] The March 10, 2005 order was not complied with by May 26, 2005. Mr. Lubiato had received a letter from an engineering firm advising that some attempts were being made to comply with the order. That letter advised that a building permit would be submitted by July 2005. But nothing happened.

[10] On October 11, 2005 Mr. Lubiato went to 12201 Keele Street again. The garden centre was still in operation, but no permit had been applied for. Mr. Lubiato retired without a permit being applied for. In his evidence on behalf of both companies, Mr. Spano acknowledged that 638 had never complied with the order.

[11] Ms. Christina Booth also testified for the prosecution. She is a by-law enforcement officer for the City of Vaughan. She went to 12201 Keele Street in April of 2012 and found trailers, construction vehicles, equipment, gardening materials and supplies on the property. She also saw greenhouses and a brick building. Pictures taken by Ms. Booth were entered into evidence at trial. Ms. Booth testified that the property had shrubs and trees for sale. A sales person was there for purposes of completing the transactions.

[12] 12201 Keele Street was zoned as a part of the Oak Ridges Moraine. That zoning does not permit having a retail nursery and open storage at 12201 Keele Street.

[13] Gino Spano testified for the defence. He described occupying 12201 Keele Street by way of verbal lease to store his snow removal equipment and then selling garden supplies from 1987. He purchased the land there in 1989. There was some suggestion that the garden centre had been closed in August of 1989, and later from the garden centre web site, until 1993.

[14] A brick L-shaped building was erected at the garden store after 1992. The structure was not built all at once.

[15] He was challenged in his memory of the operation and could not remember many details. These included, if the garden centre was in operation on September 19, 1988, or the sequence of when the buildings were erected.

[16] The corporate predecessor to Meadow Valley submitted an application in June of 1992 to amend the official plan and zoning to permit a garden centre operation. That application was allowed by the City of Vaughan, subject to conditions which included getting a justification analysis under the Ontario Foodland guidelines from the Ontario Ministry of Agriculture and Food. By March of 1996 Vaughan notified the principals of Meadow Valley that no such justification analysis had been received and so the official plan had not been altered.

[17] Mr. Spano testified that after he became aware that the application to amend the official plan was approved "…I start my operation bigger – start the building." That was in 1994. Again all that happened by 1994 was that the appellants could vary the official plan and zoning to bring the operation into lawful status if it complied with a set of conditions – which it never did.

[18] What Mr. Spano did was get a letter. As he put it, "…they bring me to court two, three times, 500 dollars at a time. Of course."

[19] Two years later, in November 1998 Mr. Spano retained Mr. Di Giuseppe to write to Vaughan advising the City that Mr. Spano wanted his applications dealt with and requesting a summary of all outstanding information for his review. By this time it had been six years since the initial application to amend the official plan and zoning.

[20] The City of Vaughan wrote back to Mr. Di Giuseppe in December of 1998 advising of a number of outstanding items for the application. That letter confirmed that the official plan amendment sought in June of 1992 had not been enacted.

[21] The defence also called Mr. Zipay, who is a consultant with a background in planning and building in Vaughan. At the end of his evidence the defence asked the trial court to strike his evidence.

Issues

[22] The appellants raise several grounds of Appeal. They allege that the trial justice:

I) Erred in law in refusing to consider or give weight to City of Vaughan By-Law 25-23;

II) Erred in law in rejecting the defence of legal non-conforming use;

III) Erred in law in finding that a legal non-conforming use does not afford a right to expand an existing building or to erect new ones;

IV) Erred in law in refusing to grant the appellants' adjournment request prior to receiving submissions on sentence;

V) Erred in law and fact in finding that the appellants did nothing to comply with the restriction; and

VI) The application justice who heard the appellants' 11(b) application prior to trial, who was not the trial justice, erred in law and fact in finding that s. 11(b) does not apply to corporations and that the corporate applicant had not suffered prejudice in respect of the delay occasioned.

[23] I would take each of the arguments in turn.

I) Error in Law in Refusing to Consider or Give Weight to City of Vaughan By-Law 25-23

[24] The defence wanted to rely on Municipal By-Law 25-23. In his reasons J.P. Radtke rejected this, finding that the by-law was not certified or entered into evidence at trial. What was entered into evidence was another By-Law 1-88. That was done by way of a certified document. In R. v. Bryce (2009), 87 M.V.R. (5th) 259, Hill J. dealt with this issue. In Bryce the appellant attempted to rely on a municipal parking by-law without formally entering it into evidence. Hill J. found that municipal by-laws are subject to formal rules of proof.

Neither the trial court nor this court are entitled to take judicial notice of municipal by-laws: Legislation Act, 2006, S.O. 2006, c. 21, Sched. F., ss. 17 "regulation", 29; Municipal Act, 2001, s. 447.5; Canada Evidence Act, R.S.C. 1985, c. C-5, s. 24; Criminal Code, s. 781; R. v. Schaeffer (2005), 2005 SKCA 33, 194 C.C.C. (3d) 517 (Sask. C.A.), at 524-5; R. v. Bleta (1965), [1966] 2 O.R. 108 (Ont. C.A.), at 109-110.

[25] The appellant argues that the trial court should have inferred the by-law, as suggested by Justice Hill in Bryce at para. 41. In support of that argument I was directed to the evidence of the prosecution witness C. Booth. The exchange was:

Q. What was there before this bylaw?

A. There was a bylaw – I'm pretty sure it's 25-23.

Q. And, do we have – do you have any knowledge of whether that governed anything in respect of the activities that were being carried on at 12201 Keele Street?

A. Not to my knowledge.

[26] This is a completely insufficient basis from which the trial court could infer the nature and effect of By-Law 25-23. The substance and text of the by-law was completely absent in evidence and His Worship committed no error in refusing to take judicial notice or infer the effect of By-Law 25-23. Accordingly, this ground of appeal fails.

II) Erred in Law in Rejecting the Defence of Legal Non-Conforming Use; and

III) Erred in Law in Finding That a Legal Non-Conforming Use Does Not Afford a Right to Expand an Existing Building or to Erect New Ones

[27] Grounds of appeal (ii) and (iii) are both directed at the failure of the trial court to accept the defence of legal non-conforming use, and so it is convenient to consider them together.

[28] The burden of proving a defence in this case was on the defendant, see s. 47(3) Provincial Offences Act R.S.O 1990, c. P.33 as amended. The defence of non-conforming use comes from s. 34(9) of the Planning Act R.S.O. 1900, c. P.13, which reads:

Excepted lands and buildings

(9) No by-law passed under this section applies,

(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure 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; or

(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8 (1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8 (10) of that Act. R.S.O. 1990, c. P.13, s. 34 (9) ; 2009, c. 33 , Sched. 21, s. 10 (1).

[29] In Feather v. Bradford West Gwillimbury, 2010 ONCA 440, the Court of Appeal summarized the availability of the defence. To prove a legal non-conforming use the party must prove:

1. the use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restriction; and
2. the previously lawful use has continued thereafter.

[30] His Worship rejected the defence because there was insufficient evidence to establish that the garden centre was operating on September 19, 1988 – when By-Law 1-88 was enacted. In doing so, the trial justice focused on Mr. Spano's testimony in cross-examination that he could not recall if the garden centre was operating on that day. The appellants argue that there was more to his evidence. In chief, he testified that the garden centre had been operating continuously from 1987 or 1986. That said, he was pressed in evidence about various dates when the garden centre was operating and had difficulty remembering dates. This included his web-site which apparently said that the garden centre had been operating since 1993. The issue of when the garden centre was operating was therefore fully canvassed at trial. While I might have found this credibility issue differently, that is not the test on appeal. The trial justice's findings of fact and findings of credibility are entitled to deference. Appellate interference is only permitted if there is a palpable and overriding error, see Housen v. Nikolaisen 2002 SCC 33. After reviewing the trial evidence the trial justice made no such error.

[31] The defence of non-conforming use fails for another related reason. Mr. Spano was confident that the building erected at 12201 Keele Street – of which there was an abundance of evidence – was put up in 1992. By that time the structure was not a lawful structure. It failed to comply with By-Law 1-88, which had been in effect for a matter of years. Therefore, the appellants could not establish that the building which was in dispute was lawfully erected when it was. As Rouleau J. said at para. 54 of Feather, mere use of land does not automatically lead to a right to erect buildings. His Worship referred to this in his reasons, albeit briefly, when he cited Feather v. Bradford West Gwillimbury (supra). While his reasons were brief, it was clear that His Worship turned his mind to the issue and applied the correct law.

[32] The second and third grounds of appeal therefore fail.

IV) Failure to Adjourn Sentencing Submissions

[33] The fourth ground of appeal is that the trial justice erred when he failed to grant an adjournment for sentencing when, on June 6, 2017, he registered convictions. After the convictions were made defence counsel requested an adjournment to permit hearing defence evidence at sentence. Both counsel, His Worship, and the trial coordinator then conferred in court to see if a sentencing date could be fixed in a reasonable amount of time. That time wasn't available. After that was confirmed, His Worship said:

All right. So we don't have the availability. I've heard the comments and request of defence, but we're going to proceed today with submissions. The Court availability in June is not there. I am not in – in the area in July at all and I'm not prepared to put it off any further. So we'll be commencing with submissions in regards to the matter. Go ahead, please.

[34] To be fair to the court record, all parties had by then turned their mind to what would happen on June 6. Mr. Marchione acknowledged on April 5, 2017, at the beginning of the second day of trial, that June 6 would be "…for either sentencing or a consideration of submissions." At the end of that day the evidence had been completed. His Worship, referring to June 6, 2017, said, "My decision will be given that day, first thing in the morning, and after that, depending on what takes place, we will either be using the balance of that morning so parties can come prepared." The defence was therefore fully apprised that if the result of the trial was a conviction, then sentencing proceedings were expected to go that day too.

[35] The decision to adjourn a proceeding is one in the discretion of the trial judge. In Mississauga (City) v. Malik, 2010 CarswellOnt 2357 (Ont. S.C.J.), Ricchetti J. articulated the various factors to be applied when scrutinizing an adjournment ruling of a justice of the peace sitting in Provincial Offences Court. The judicial officer must listen to the request and consider various factors, including the length of time of the proposed adjournment. As Ricchetti J. said, "the length of time between the date of the offence(s) and the court date the adjournment is being sought. The longer the period of time, the greater the likelihood the adjournment should not be granted as the likelihood of prejudice to the defence increases."

[36] What is clear on the trial record is that His Worship tried to accommodate an adjournment for sentencing submissions if it was only going to be for a short time. After poring over the court calendar with the assistance of the trial coordinator it is clear that it couldn't. By that time the charges were 12 years old, in the case of (i) above, and 5 years, in the case of charges (ii) and (iii) above. His Worship was clearly uncomfortable with yet another delay in the case at the penultimate stage, and ruled that submissions should be heard. Given that counsel were advised two months previously that they should be ready to do just that on June 6, the decision was not unfair.

[37] This argument suffers from another frailty. There is no evidence on the appeal about what evidence would have been heard had the adjournment been granted. No fresh evidence was sought to be tendered on the hearing of the appeal. Indeed, at the opening of oral argument on this appeal counsel for the appellants abandoned the sentence appeal. It was only during oral argument that the sentence appeal was revived. Mr. Marchione limited his argument on the sentence appeal to the error in not granting the adjournment. No error in principle was identified in the reasons for sentence. Absent an error in principle sentencing decisions are entitled to deference, see R. v. Shropshire, [1995] 4 S.C.R. 227 (SCC), or more recently R. v. Lacasse, 2015 SCC 64. In Lacasse the majority put it this way:

39 This Court has reiterated on many occasions that appellate courts may not intervene lightly, as trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law: s. 718.3(1) of the Criminal Code ; see also R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.), at para. 46 ; R. c. M. (L.) , 2008 SCC 31 , [2008] 2 S.C.R. 163 (S.C.C.), at para. 14 ; R. v. W. (L.F.), 2000 SCC 6, [2000] 1 S.C.R. 132 (S.C.C.), at para. 25 ; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.), at paras. 43-46 .

[38] Again, no error is alleged in the manner in which the trial court determined sentence. Despite denying the adjournment His Worship received submissions on sentence from both the prosecution and defence. The appellants received very substantial fines – $60,000 in total. That said, this was a legal sentence, and the appellants had a history of previous convictions relating to the very issue of non-compliance with municipal orders. Mr. Spano admitted to this in his evidence. At the sentencing phase the previous convictions were proven. In the result Ground IV of the Appeal is rejected.

V) Error in Law and Fact in Finding That the Appellants Did Nothing to Comply with the Restriction

[39] This argument was abandoned by Mr. Marchione in oral argument.

VI) The 11(b) Argument

[40] It should be observed that in January of 2012 when His Worship J.P. Zito ruled on the 11(b) application he was only ruling on the Building Code charge against 638. The zoning charges against 638 and Meadow Valley had yet to be laid. There was, I am told, no challenge to the delay from 2012 to the trial date in 2017 when all charges were heard.

[41] In rejecting the 11(b) application His Worship found that 638 cannot rely on inferred prejudice, but had to show actual or real prejudice. 638 had not been "irremediably prejudiced nor that the prejudice cannot be removed or cured pending a fair trial." In doing so, His Worship relied on R. v. C.I.P. (1992), 71 C.C.C. (3d) 129 (SCC). To state the obvious, the 11(b) ruling was argued and decided under the rules as they then existed, namely R. v. Morin (1990), 76 C.R. (3d) 37 (SCC). In submissions on the appeal I was not provided with the transcripts which were reviewed by J.P. Zito. Mr. Marchione advised that the only issue on this appeal is His Worship's finding of no prejudice.

[42] In finding that the appellant 638 was required to prove real prejudice in order to succeed on an 11(b) application His Worship was correct in law. In R. v. National Steel Car Ltd., 169 O.A.C. 321 (C.A.), Weiler J.A. summarized the test this way, at para. 11:

Hence, to succeed on a s. 11(b) application, a corporate entity must persuade the court that its ability to make full answer and defence has been impaired.

[43] His Worship therefore applied the correct test. There was no error in law.

[44] In its appeal materials 638 filed an unsworn affidavit from Irma Spano which, I was told in submissions, was filed in support of the 11(b) motion in 2011. In it Ms. Spano refers to worry about the outcome of the case, its ability to continue, stress, and the having to "…try and recall events that occurred almost 6 years ago." Having reviewed the affidavit, I cannot say that J.P. Zito erred in his finding of no actual prejudice in the case. Much of the affidavit refers to the outcome of the case, which is not impairment of full answer and defence. Irma Spano did not testify at the trial proper. Having reviewed the evidence of prejudice I can discern no error in His Worship's finding of no real prejudice on the part of 638. This ground of appeal fails.

Analysis and Conclusion

[45] The trial evidence proved that 638 had received an order to comply in 2005 which it did not appeal to the Superior Court, see R. v. Martingrove Properties, [2015] O.J. No. 6952 (Misener J.) , leave to appeal refused [ 2016] O.J. No. 1582 (C.A.) . To wait years to argue that the orders could not be complied with amounts to a collateral attack on the orders. Instead, Mr. Spano chose to appear in court and receive, at least initially, nominal fines. Well before that the principals of the appellants had taken steps to bring the property into zoning compliance – going so far as to apply for a zoning variance. It did not complete those applications for reasons which were not adequately explained at trial. That said, there was no mistake or surprise on the part of the appellants going back to 1992 that it was operating outside of zoning law. The appellants chose not to bring the garden centre into compliance. Once the Oak Ridges Moraine Conservation Act S.O. 2001 c. 31 was established in 2001 compliance was no longer possible other than a drastic change to the operation. The window that had been open for many years to the garden centre had closed.

[46] The appellants submitted in argument that they were not sophisticated and therefore did not know to complete the process. The trial evidence showed otherwise. The appellants had the wherewithal to retain various experts, but apparently never made a complete commitment to the zoning variance process. The appellants also had the sophistication to invest, on Mr. Spano's evidence, several million dollars into the operation. The trial evidence established that this was a thriving operation. There may well be cases where the municipal authorities bring the full weight of the law down on a small barebones operation like a lemonade stand. But this is not one of them. The trial record leaves the impression that the appellants simply took the position that non-compliance was the cost of doing business.

[47] I would not leave this ruling without commenting on the length of these proceedings. In submissions on the appeal, and the filed appeal record, no such explanation could be found so it is beyond my jurisdiction to call out any party. That said, a 12-year delay from laying the charge to trial judgment in the case of (i) and 5 years in the case of charges (ii) and (iii) is completely unacceptable. It re-defines what Moldaver J. in R. v. Jordan, 2016 SCC 27, called a "culture of complacency." This case should have been completed in a fraction of the time that it took up.

[48] For reasons above the appeal is dismissed. The stay order of Stone J. dated August 18, 2017 is hereby vacated.

Released: September 28, 2018

Signed: Justice David S. Rose