Chahal v. The Corporation of the Town of Caledon, 2022 ONSC 1666

Chahal v. The Corporation of the Town of Caledon, 2022 ONSC 1666

Court File and Parties

Court File No.: CV-18-00004397-000 Date: 2022 03 16

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

PRITPAL CHAHAL and GURPREET CHAHAL Applicants

- and -

THE CORPORATION OF THE TOWN OF CALEDON Respondent

Counsel

Bernie Romano and Jordan Nussbaum, for the Applicants Sylvain Rouleau and Patricia Chehadé, for the Respondent

Heard

September 21, 2021

Reasons for Judgment

Fowler Byrne J.

1The Applicants, Pritpal Chahal and Gurpreet Chahal (“the Applicants”), are the owners of 12850 Centreville Creek Road (“the Property”), in the Town of Caledon. The Applicants seek a declaration that the current use of their land is a legal non-conforming use, pursuant to s. 34(9) of the Planning Act, R.S.O. 1990, c.P.13. In particular, they seek a declaration that they have the right to use the Property for the following purposes:

(1) outside storage of vehicles, machinery, and equipment; (2) commercial/business operation; (3) storage of trucks and trailers; (4) storage of shipping containers and truck containers; and (5) other uses as may be ancillary to the commercial/business use of the Subject Property as set out in (1) to (4) herein (“the Desired Uses”).

2If the Applicants are successful, the various Orders to Comply that were issued by the Respondent, the Corporation of the Town of Caledon (“the Town”) against the Applicants should be set aside.

3The Respondent asks that the application be dismissed. In the alternative, if a legal non-confirming use is established, the Respondent seeks a declaration that this legal non-conforming use of the Property is limited to the parking of 4 trucks and 7 trailers at any one time.

I. Issues

4The parties agree that the Applicant’s current use of the Property is not permitted under the current by-laws. Accordingly, the issues to be decided are as follows:

a) Are the Desired Uses legal non-conforming uses under s.34(9) of the Planning Act? In particular,

1. What were the original uses of the Property?
2. Were these uses legal at the time of the passing of zoning By-law 87-250 in 1988?
3. If so, have these uses remained continuous and uninterrupted from the time of the zoning change to the present day?
4. Did these uses change or intensify to the point of no longer being a legal non-conforming use, thereby losing the protection of the Planning Act?

b) In the event this Honourable Court finds that the Applicants have satisfied their burden to establish the elements of legal non-conforming use of all or any of the Desired Uses, what are the parameters of the permitted use of the Property?

II. Analysis

5Section 34(9) of the Planning Act creates an exception to the requirement that property owners must comply with municipal zoning by-laws: Feather v Bradford (Town), 2010 ONCA 440, 71 MPLR (4th) 1, at para. 26.

6Section 34(9) of the Planning Act states:

(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; …

7The onus rests with the municipality to prove that the current use to which the Property is being put contravenes the current by-law: Municipality of West Nipissing v. Lafond, 2017 ONSC 3097, at paras. 16-17. Once that has been established, the onus shifts to the party who claims that they fall within the exception stated in s. 34(9): Forbes v. Caledon (Town) (2009), 57 M.P.L.R. (4th) 19 (Ont. S.C.), at para. 44, affirmed at 2009 ONCA 605.

8To fall within the exception of s. 34(9) and prove a legal nonconforming use, a party must prove that:

(1) the use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restrictions; and (2) that previous lawful use has continued thereafter:

See: Feather at para 27; Lee v 1435375 Ontario Ltd., 2013 ONCA 516, 363 DLR (4th) 222, at para. 46.

9The property owner must show both an intention to use, and the continuation of actual use so far as possible in the circumstances: Feather, at paras. 27, 32; Forbes, at para. 44.

10If the legal non-conforming use is stopped at some point following the passage of the zoning by-law, then the protection is lost and the provisions of the zoning by-law will apply: Allied Properties v. 1064249 Ontario Inc., 2016 ONSC 6665, at para. 12, affirmed on appeal 2017 ONCA 419.

11Whether or not the legal non-conforming use has been interrupted or abandoned is a question of fact in each particular case: Forbes v Caledon (Town of), 2021 ONSC 1442, at para.7.

12The Property is currently zoned A3 Small Agricultural Holdings (“A3”). All parties agree that the Desired Uses are not permitted under A3. Accordingly, the Town has satisfied its onus of showing that the current use of Property by the Applicants is in violation of the current by-laws. The onus now switches to the Applicant to show their use was originally permitted, and then was continuously used in the same manner thereafter.

A. What Were the Original Uses?

13On July 2, 1985, Mary Filomena Merola purchased the Property. She lived there with her husband Frank Merola (collectively “Merolas”).

14It is agreed that the Merolas started their trucking business at the Property shortly after they purchased it under the name of Keena Truck Leasing and Transport Limited (“Keena”). There is no evidence as to what the Property was used for before.

15In order to establish the original use of the Property, I have reviewed the evidence of Mr. Chahal, earlier correspondence of the Town with the Merolas, aerial photos, and even the firsthand account of the Merola’s nephew Raffaele Tammaro.

16The first aerial photo of the Property is purportedly from 1985 or 1986, which shows 8-9 trailers and at least two tractors (“Colour Photo”). It shows little outside storage, other than the trailers themselves, no shipping containers, and no other machinery or equipment. Mr. Chahal indicated that Mr. Merola told him that this photo was from 1985 or 1986, but Mr. Merola gave no first-hand evidence. The Merolas’ nephew, Mr. Tammaro, did swear an affidavit indicating that he believes this photo is from 1985 or 1986.

17Unfortunately, I do not accept that this photo is from 1985 or 1986, but rather represents the use of the Property sometime after 1991, and more particularly between 1995 and 2010. That is because the Colour Photo shows a pool in the backyard, and two distinct driveways – one for the house, and the other to access the back truck parking. These two features are not seen on the other aerial photos until 1993.

18The aerial photo taken in 1988, shows approximately 2 or 3 tractor trailer combinations. There appears to be no other outside storage. There are no shipping containers, or other machinery or equipment.

19From the 1991 aerial photo, approximately 2-3 tractor trailer combinations can be seen. No outside storage, machinery, or equipment of any significance can be seen. In 1993, the back parking area and driveway to it, appears to have been established, but again, only 2, maybe 3 trailer trailers are visible, and no outside storage, machinery, or equipment of any significance can be seen.

20The use of the Property in 1995 can also be ascertained through communications between the Town and the Merolas.

21On February 6, 1995, the Town of Caledon contacted the Merolas as a result of the parking of trucks, trackers, and trailers at the Property. In that letter, Town Counsel Nadia Koltun acknowledged that the Property was governed by By-Law 87-250 and stated:

…It would appear that these premises may have the status of a legal non-conforming use pursuant to the Planning Act in respect of the storage of two transport tractors and four transport trailers. However, inspections in the period from April 25, 1994 to June 8, 1994 have indicated that repeatedly and consistently at least four tractors and seven to eight trailers have been stored at these premises. The storage of these many tractors and trailers constitutes an unauthorized contravention of the legal non-conforming use of these premises and a contravention of By-law 87-250.

22In response, the Merolas wrote to the Town, which letter was received on April 11, 1995. In that letter, Mr. Merola stated:

…The equipment located on this property consists of 5 Tractors and 6 Trailers. There are no other out buildings on the property except a small barn to the south extremity of the property. The equipment listed above is quite satisfactory for the work which we do, and therefore have no intention of expanding our family operated business.

23The Town appeared take the position that anything more than two transport trucks and four trailers were outside of the legal non-conforming use and recommended that the Merolas make an Application to the Committee of Adjustments. They suggested that the Merolas indicate exactly how many tractors and trailers they wanted to keep on the Property. The Merolas then indicated that they had approximately 15 tractors and between 20 and 30 trailers that could be on the Property at any one time.

24In their application for a minor variance, dated April 11, 1995, the Merolas indicated that they had a “legal non-conforming transport business” and that they required a minor variance to “legalize the business”, to vary the side and rear allowances and to build a new building. In an internal memo within the Town of Caledon, dated May 4, 1995, the zoning administrator stated:

The request as contained in the Minor Variance application…from Merola…seeking relief from section 27.1 and 27.2 of the A3 zone to recognize an existing non-conforming use and to permit the expansion of the use, has been reviewed (emphasis mine).

25The zoning administration recommended approval of the variance with a few conditions, one of which was that they limit the number of tractors and trailers on the Property to a maximum of 8 but no more than what the Merolas had at the time of the application.

26The Merolas application for a minor variance was granted on September 27, 1995, but with a number of conditions. Of importance are the third and fourth condition:

3. That the use remain a legal non-conforming use that limits the number of trucks on the subject site to 4 trucks/tractors and 7 trailers. (emphasis mine)
4. That the applicant enter into a site plan agreement with the Town of Caledon.

27The Merolas appealed this decision. Pending that appeal, the Merolas and the Town tried to resolve the issue. The Town made an offer to recognize the use of the Property for a transportation business as legal non-conforming, but a use that was restricted in its operations to the land shown on a site plan. It also would permit four tractors and seven trailers on a permanent basis and allow a further 6 tractors and 12 trailers on a temporary basis for less then a 12 hour-daylight period, which include the four tractors and seven trailers already allowed.

28The Merolas eventually withdrew their appeal. It is agreed that although the Merolas and the Town put a great deal of work towards satisfying the conditions in the Committee of Adjustment decision, no site plan agreement was ever entered into. Accordingly, the minor variance was never implemented.

29Following the application to the committee of adjustments in 1995, a change in size of Keena’s operations was evident from aerial photos taken in 1999. There were now between 8 and 10 trailers parked in the back of the lot. There may be some storage, but it is hard to ascertain. The Colour Photo, which I place sometime after 1995, shows approximately 10 to 12 trailers, one tractor, and no other outside storage, no machinery, or any equipment.

30Admittedly, trucks and trailers that are part of an ongoing transportation business will go in and out of the Property throughout the day, making the number parked on site variable. Other than Mr. Tammaro’s childhood memories and the Applicant’s hearsay evidence of Mr. Merola, there is no evidence that the Merolas’ use of the Property extended beyond the parking of transport tractors and transport trailers that was ancillary to their commercial business, with a small amount of ancillary outside storage from time to time.

31Viewing the evidence in its totality, I find I cannot rely on the recollection of Mr. Tammaro. His recollection of dates is clearly wrong. The photographic evidence and the correspondence between Mr. Merola and the Town show no evidence of use to the extent submitted by the Applicants. Accordingly, I find that from the time the Merolas purchased the Property, it was used for:

(1) commercial operation of a trucking and transportation business, (2) parking of tractor and trailers routes, and (3) outside storage ancillary to an ongoing transportation business (the “Original Uses”).

It did not involve the storage of construction equipment, derelict vehicles, machinery, and shipping containers.

32This finding is further confirmed by the evidence of Mr. Sewa More, who produced the MLS Listings for the Property in 2007 and 2011. The MLS Listing for the Property dated July 21, 2007, indicates that the property is a “multi Resi & Commercial. Total 2.5 Acres of which 1 Acre Truck Parking (Non-Conforming Use)”. The emphasis is on parking. No mention is made of storage, construction equipment, or shipping containers.

B. Were the Original Uses Legal?

33On the date the Merolas purchased the Property, it was governed by Zoning By-Law No. 840, of the former Township of Albion. This by-law had been in force since 1962 (“By-Law 840”). It was a general zoning by-law that prohibited or regulated the use of land, and regulated the size, location, and use of buildings or structures erected in the Town.

34Paragraph 9 of By-Law No. 840 indicated that where a property has both a residential and commercial use, the residential regulations would apply. There has never been any indication that the Merolas were in contravention of the residential uses of the Property.

35Paragraph 10 of By-Law 840 stated that no building or structure could be used, or erected for an industrial purpose, or use any land for an industrial purpose, unless the property had a minimum of 3 acres. It is agreed that the Property was approximately 2.5 acres.

36Unfortunately, the terms “Commercial Use” and “Industrial Use” were not defined. There is no indication that a transport or trucking business per se is either industrial or commercial, or that it is prohibited in any way. As long as it complies with the various restrictions, then it appears to be permitted.

37While “industrial” is not defined, I do not find that the Merola’s operation of Keena could be considered industrial. First of all, I can see nothing in the wording of the By-Law itself that prohibits the operation of a trucking business, unless it could be classified as an industrial use. The Oxford Dictionary defines “industry” as the production of goods from raw materials, especially in factories. The Merriam-Webster dictionary defines “industry” as manufacturing activity as a whole. Later in 2006, the Town of Caledon, in By-Law 2006-50, defined “Industrial Use”

…a building or structure, or part thereof used primarily for the purpose of manufacturing, processing, fabrication, assembly, treatment, packaging, and incidental storage of goods and materials….

38I do not believe the type of trucking business operated by the Merolas was of an industrial nature as contemplated by the above-noted definitions. Even if the Property had a commercial use, it also had a residential use, which was the governing use. There were no alleged violations of the residential use of the Property. Accordingly, I find the Original Uses were permitted under By-Law 840 in 1985 when they purchased the Property.

C. Were the Merola Uses Continuous and Uninterrupted?

39By-Law No. 840 remained in force until it was replaced in 1988 by Zoning By-Law 87-250 of the Town of Caledon. By-Law 87-250 divided the zoned areas into residential, institutional, commercial industrial, or restricted zones. At that time, the Property was rezoned as “A3 – Small Agricultural Holdings” (“A3”), which was considered a restricted zone.

40Again, in 2006 By-Law 87-250 was replaced by Zoning By-Law 2006-50. Under By-Law 2006-50, industrial and commercial uses remain prohibited on the Property, which remained zoned as A3. By-Law 2006-50 provides definitions for “industrial use”, “open storage area”, “parking area”, “transportation depot”, which are possible definitions of the Applicant’s use of the Property. None of these are permitted on a property zoned A3.

i. 1985 to 2010

41Despite the Original Uses being contrary to the By-Law 87-250 and By-Law 2006-50, I find that the Original Uses remained continuous and uninterrupted throughout the time of the Merolas’ ownership. Accordingly, the Original Uses were legal non-conforming uses and were protected under s. 34(9) of the Planning Act (hereinafter “LN-C Uses”).

42In making this finding, I recognize that the LN-C Uses intensified throughout their period of ownership. While the number of trucks increased, the commercial operations did not alter in nature, just in size. The Property continued to be used for a family-owned business, and to park trucks and trailers which would increase and decrease depending on the time of day and week.

43I also rely on the Town’s willingness to allow an intensification of the number of trucks that could be allowed on the Property. It recognized a legal non-conforming use but took the position that the intensification would require a minor variance. This would allow the neighbours of the Town to provide input on the intensification.

44As indicated in Saint-Romuald v. Oliver, 2001 SCC 57, [2001] 2 S.CR. 898, at para. 39, once the pre-existing use is determined, the intensification of a pre-existing activity will rarely be open to objection. While it is difficult to determine at what point exactly intensification changes the nature of a use, I am not prepared to find it with respect to the time that the Merolas owned the Property.

ii. 2010 to 2013

45Mr. Balwinder Virk purchased the Property from the Merolas on July 2, 2010. Mr. Virk has not provided evidence himself of his use of the Property. Mr. Chahal’s evidence of how the Property was used during that time was through affidavit hearsay evidence of what Mr. Virk told him about what he had used the Property for. There are no specific details of this conversation, such as when it occurred, or that it was used for all the Desired Uses at any one time. Mr. Chalal himself gave evidence that when he used to drive by the Property, when owned by Mr. Virk, he saw transport trucks and trailers. He also states that he saw machinery, equipment, and shipping containers. He gives no further details of the time of these drive-bys. As indicated though, if the machinery, equipment and shipping containers were there, they were not part of the LN-C Uses.

46There are two aerial photos taken during Mr. Virk’s period of ownership. The first, taken on May 9, 2011, show two tractor/trailer combinations, and a small amount of outside storage. The next photo, taken on April 22, 2013, show approximately 5 trailers parked to the back of the Property, but less outside storage. There is no evidence of construction equipment, machinery, or storage containers.

47I have also reviewed the MLS Listing for the Property dated September 8, 2011, which again represented: “Property Can Be Use For Multi Resi & Commercial. Aprox. 1 Acre Truck Parking (Non-Conforming Use)”.

48Viewing the available evidence in its totality, though, I find that the Applicant has shown that Mr. Virk’s use of the Property was in accordance with the LN-C Uses. Accordingly, the LN-C Use remained consistent and uninterrupted throughout this period of ownership.

iii. 2013 to present

49Mr. Chahal purchased the Property on May 31, 2013. A note in the Town file shows that, when a complaint was later filed about the Chahal’s use of the Property, Mr. Chahal was contacted. He told the Town employee on November 26, 2014, that when he purchased the property, he was told that he could keep 4-5 tractors and 7-8 trailers on the Property. Mr. More, on behalf of Mr. Chahal approached the Town prior to purchasing the Property. Mr. More indicates that he was told that his client could operate a trucking business as a legal non-conforming use as long as it continued to be used in the same manner without interruption.

50Unfortunately, after the Applicants purchased the Property, I find that the Applicants’ use of the Property changed to the point where its use was something completely different. As a result of this change, the Property is no longer protected by s. 34(9) of the Planning Act, and the Town’s orders as against the Applicant are to be enforced.

D. Intensification of Use

51In Saint-Romuald, Justice Binnie provided guidance in finding a balance between an individual’s right to the continued use and enjoyment of their property, and the power of the community, through its municipality, to enhance the amenities of surrounding and other affected landowners, by changing land use regulations.

52In a case of this type, Justice Binnie stated that the court’s objective should be to maintain a fair balance between the individual landowner’s interest and the community’s interest. A property owner is said to overreach in its use if,

a) The scale or intensity of the activity can be said to bring about a change in the type of use; b) The addition of new activities or the modification of old activities (within the same general land use purpose) is seen by the court as too remote from the earlier activities that were entitled to protection; or c) The new or modified activities can be shown to crease undue additional or aggravated problems for the municipality, the local authorities or the neighbours, as compared with what went before.

These factors are to be balanced against one another.

Saint-Romuald at para. 34; Colbalt (Town) v Coleman (Township), 2019 ONCA 134, at para. 25.

53When considering whether there should be any limitations on the acquired rights of a landowner to use their property, the following approach should be taken:

a) First, characterize the purpose of the pre-existing use. The purpose for which the premises were used (i.e., “the use”) is a function of the activities actually carried on at the site prior to the new by-law restrictions; b) If the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection. However, where the intensification is such as to go beyond a matter of degree and constitutes, in terms of community impact, a difference in kind, protection may be lost; c) To the extent a landowner expands its activities beyond those it engaged in before, the added activities may be held to be too remote from the earlier activities to be protected under the non-conforming use. In such a case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate “neighbourhood effects”; d) To the extent activities are added, altered or modified within the scope of the original purpose (i.e., activities that are ancillary to, or closely related to, the pre-existing activities), the Court has to balance the landowner’s interest against the community interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects. The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right. This approach does not rob the landowner of an entitlement. By definition, the limitation applies only to added, altered or modified activities; e) Neighbourhood effects, unless obvious, should not be assumed but should be established by evidence if they are to be relied upon; f) The resulting characterization of the legal non-conforming use should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities. The degree of this flexibility may vary with the type of use; g) While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court’s decision in the objective facts.

Saint-Romuald at para. 39.

54On the facts before me, I find that the Applicants have overreached the use of the Property and thus no longer are afforded the protection of s. 34(9) of the Planning Act.

55I have already characterized the use of the Property, which I summarized as the LN-C Uses. It was a commercial business run from the Property, a trucking business, which necessitated the parking of tractors and trailers in between their routes. The number of tractors and trailers varied from day to day, and depending on the time of day, but the role of the property itself, was to provide a place to park the trucks until which time they were on the road.

56The current use of the Property exceeds its use as a commercial trucking business that requires a place to park its trucks, when not in use. If the Applicant had only accumulated more trucks and needed to park more trucks and trailers in the operation of his business, my analysis would be different. This is not the case. The photographs provided by the by-law investigator show that the Property is being used for other purposes that are sufficiently remote to the LN-C Uses and which would have aggravating neighbourhood effects. The photos show, in addition to transport trailers and transport trucks:

a) The storage of derelict transport trucks and transport trailers without license plates, or even without wheels, and parked in way that makes it hard to be removed, and are unusable; b) The storage of derelict unlicensed automobiles and vans unrelated to a transport trucking business, and undriveable; c) The storage of at least two boats, and two recreational vehicles, which are unrelated to a trucking business and appear to be unusable; d) The installation of a pad with two large fuelling tanks dispensing diesel fuel; e) A transport trailer filled with machinery designed to repair or service transport trucks, and transport trucks that appear to be under repair; f) A catering truck, double parked behind a transport trailer, not related to a trucking business; g) Piles of unused tires, around and under unused transport trailers, in a quantity (over 100) that suggests they are being stored or discarded, and not for ongoing use; h) Discarded automobile parts, strewn throughout parking area and in the overgrown grass; i) Piles of asphalt gravel and concrete blocks; j) A large forklift (not clear if it was operational); k) Overflowing garbage bins, and miscellaneous garbage strewn across the truck parking area; and l) The parking of various shipping containers.

57This photographic evidence is in addition to pictures of random piles of garbage, including household, construction, and industrial type garbage, strewn across the front lawn of the residential home, which was cleaned up at times.

58It should be noted that at no time did the Applicants deny this type of activity. Instead, they argue that it is part of the Desired Uses, which they claim are legal non-conforming uses. In fact, in his affidavit, Mr. Chahal states,

One of the reasons I purchased the Subject Property was because the Subject Property was used for business/commercial purposes since in or around 1985 including, but not limited to, outside storage of vehicles, machinery, equipment, transport trucks, trailers, shipping containers and truck containers.

59By Mr. Chahal’s own evidence, he wanted the property to operate a commercial enterprise related to the outside storage of various types of vehicles, trucks, and equipment. He was not looking to operate a transport trucking company, and if he was, that was only one use. With the exception of photos of cars, which Mr Chahal told the by-law inspector belonged to his drivers, and the presence of various trucks and trailer with valid license plates, there is no other evidence of the operation an ongoing transportation business from this property. Mr. Chahal provided no evidence of an ongoing business -- no incorporation documents, no business license, no tax returns, or communications with the various government authorities that regulate this industry. Based on this finding, it is hard to conclude that the Applicant’s uses were an intensification of the transportation business.

60I also find that the Mr. Chahal added to the LN-C Uses to include storage of derelict vehicles, those related to and unrelated to the transportation business, a fuelling station, a repair facility, and a general dumping ground of vehicles, mechanical parts, and construction waste. These additional uses are too remote from the LN-C Uses, which where to park transport trucks in between routes as part of an ongoing transportation business.

61Even if I were to find that this storage use was a modification within the scope of an original purpose, I find that the impact of these new uses has created undue additional or aggravated problems for the neighbours, which weighs in favour of disallowing this type of use.

62In 1995, when the Merolas made an application to the Committee of Adjustments, a group of neighbours wrote a letter in opposition. In that letter, they noted a number of concerns:

(1) that the road on which the Merola lived was not made for the continuous use of heavy trucks; (2) that the 24/7 nature of the operation caused noise and pollution; (3) the rates of speed of the trucks was dangerous to the neighbourhood children and dogs, especially given that houses were built close to the roads; and (4) the washing and serving of the trucks caused ground water pollution and the discarding of hazardous waste.

63Since the Applicants have purchased the Property, the Town has provided evidence of at least eight (8) by-law complaints from neighbours. Granted, some of them were with respect to the piling of garbage in front of the residential home, but the following complaints are particularly pertinent:

a) Property Complaint May 29, 2014: Made with respect to unlicensed vehicles and garbage accumulation; upon investigation, in addition to garbage and household items strewn across the Property, and the smell of rotting garbage, the enforcement officer identified a number of vehicles, recreational vehicles, boats, trailers and trucks, many in derelict condition; b) Property Complaint September 30, 2014: Made with respect to the large number of transport trucks and trailers, and the accumulation of garbage; photos by the by-law enforcement officer show loose garbage throughout, including foodstuff, a derelict boat, an unlicensed van and car, including tractor trailers; c) Property Complaint November 24, 2014: This complaint was made as a result of 12-15 trucks and trailers being parked on property that was zoned A3; d) By-Law Complaint July 29, 2016: It was alleged that the Applicants were renting space out to park commercial trucks in excess of the limits imposed in the committee of adjustments decision. There was no indication of what came of this complaint; e) By-Law Complaint May 29, 2018: In this complaint, it was alleged that a commercial trucking operation was being run on the Property on a 24/7 basis, causing noise and the pollution. It is further alleged that the waterway which is accessible to the Property and the complainant’s property was contaminated as a result of the activities of the Applicants on the Property; following the investigation, the by-law enforcement officer concluded that the property was being operated as a transportation depot in late 2018 and early 2019. “Transportation Depot” was defined in the by-laws at the time of the investigation as follows:

Transportation Depot means a lot used principally for the storage, servicing, hiring, loading or unloading or trucks, business or other fleet vehicles and must include a building containing a use directly related to the parking, storing, servicing, hiring, loading or unloading of such fleet vehicles. This may include the temporary storage of goods or wares prior to shipment.

64Clearly, the installation of a fuelling station, the noise, the contamination of water, and the junk accumulating on the Property are aggravating factors to consider when assessing the impact on the neighbours. This level of disruption also supports a finding that these additional uses are not part of the LN-C Uses.

65Applicants rely on the cases of R v. Visco, 2009 ONSC 6514, [2009] O.J. No 6514 (Ont. C.J.), and Forbes (2009), in support of the use of the Property. The evidence provided by the Applicants in this case is clearly different, and more deficient than in these other cases. As indicated in Forbes, each case has to be examined on its own facts. In the case before me, the facts clearly distinguish themselves from the proffered cases and the results reached at that time.

66Accordingly, I find that the Applicants have failed to show that they are operating an ongoing transportation business, with the necessary parking and ancillary outside storage, which was a LN-C Use. By abandoning this use of the Property, the Applicants have lost the protection under s. 34(9).

67In the alternative, even if I am wrong, and Mr. Chahal does continue to operate trucking and transportation business from the Property, I find that the additional uses of the Property, in addition to is use as a transportation business, are too remote to the additional use, and cause too much of an aggravating impact on the neighbours, to warrant protection. The Property is not just used for the LN-C Uses, but it is also being used as a fuelling station, repair station, and general junk yard. Accordingly, I find that from at least February 2019, the Applicant’s use of the Property was not a LN-C Use, or even an intensification or an evolution of the LN-C Use, but rather something changed entirely. Either way, the Applicants have lost the protection of s. 34(9) and the LN-C Uses are no longer permitted under the current by-law.

E. Perimeters of Current Use

68Given my findings that there are no longer any legal non-conforming uses permitted on the Property, there is no need to address this issue.

III. Conclusion

69For the foregoing reasons,

a) The Application is dismissed; b) Any orders to comply issued with respect to the Property are enforceable; and, c) The parties are urged to resolve the issues of costs as between themselves; if they are unable, the Town is to serve and file their written costs submissions, limited to two page, single sided and double spaced, excluding their Bill of Costs and any Offers to Settle, on or before April 8, 2022; the Applicants shall have until April 22, 2022 to serve and file their responding written costs submissions, with the same size restrictions; any reply costs submission must be served and filed by May 6, 2022.

Fowler Byrne J.