Toronto (City) v. Gallos, 2008 ONCA 617

CITATION: Toronto (City) v. Gallos, 2008 ONCA 617

DATE: 20080911

DOCKET: M32031

COURT OF APPEAL FOR ONTARIO

SIMMONS J.A. (IN CHAMBERS)

BETWEEN:

THE CITY OF TORONTO

Respondent

and

WILLIAM GALLOS

Applicant

Robert Zigler, for the applicant on March 26, 2008 William Gallos, acting in person on June 19, 2008 Geoffrey Uyeno, for the respondent

Heard: March 26, 2008 and June 19, 2008

SIMMONS J.A.:

I. Overview

[1] The applicant applies for leave to appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33.

[2] The applicant owns the 7th Wave Bistro, a restaurant located on the bottom floor of a building in the Beaches area of Toronto.[^1] In the spring of 1997, in order to satisfy a condition for obtaining a new liquor licence, the applicant asked the City of Toronto Building Department for a letter confirming his restaurant complied with municipal by-laws. The City refused to issue the compliance letter unless the applicant reduced the size of his restaurant to conform to the then applicable zoning by-law.

[3] On July 11, 1997, the City issued building permit #400567, which permitted the applicant to move the front doors of his restaurant inward, thereby reducing the size of the restaurant to less than 165 square metres of non-residential gross floor area as required under the zoning by-law. However, after the compliance letter was issued, the applicant moved the front doors back to their previous location without obtaining permission from the Building Department to do so.

[4] As a result of the applicant’s conduct, the City laid two charges against him:

i) carrying out construction that was not authorized under building permit #400567, contrary to s. 8(13) of the Building Code Act, S.O. 1992, c. 23; and

ii) exceeding the maximum permissible non-residential gross floor area for a restaurant as set out in a zoning by-law, contrary to s. 67(1) of the Planning Act, R.S.O. 1990, c. P.13.

[5] The applicant was originally tried and convicted of both offences in July 1999. Following an appeal to the provincial offences appeal court, a new trial was ordered. On the re-trial, Napier J.P. convicted the applicant of both offences. On the second appeal to the provincial offences appeal court, Paris J. upheld the convictions.

[6] The Provincial Offences Act sets a high threshold for obtaining leave to appeal to this court. Section 131 requires that an applicant establish: i) special grounds; ii) a question of law alone; and iii) that in the particular circumstances, it is essential in the public interest or for the due administration of justice that leave be granted.

[7] The applicant raises two main issues on his leave application.

[8] First, he submits that the provincial offences appeal court judge erred by refusing to admit as fresh evidence copies of a memo between City officials concerning building permit #400567. The memos were not disclosed to the applicant until after the re-trial. The applicant claims that the memos would have supported his position that the signature “William Gallos” on the building permit application was a forgery and that the permit was issued fraudulently. He says it is essential in the public interest and for the due administration of justice that a prosecution based on fraud not be permitted.

[9] Second, the applicant submits that the provincial offences appeal court judge erred by failing to find that the applicant enjoys legal non-conforming use status in relation to the size of his restaurant. He claims he is entitled to this status because his restaurant is below grade and because a June 1989 zoning by-law that extended the 165 square metre size restriction on restaurants to below grade space is invalid.

[10] The applicant submits that the provincial offences appeal court judge erred in upholding a finding that his restaurant is at grade, because in making that finding the justice of the peace improperly relied on evidence of a City policy concerning the meaning of grade. Further, the applicant contends that the provincial offences appeal court judge erred by failing to address the applicant’s submission that the June 1989 zoning by-law is invalid. Finally, the applicant submits that it is essential in the public interest that this court determine whether the meaning of “grade” should be interpreted based on a City policy and whether the June 1989 by-law is valid.

[11] For the reasons that follow, the leave application is dismissed.

II. Background

[12] The history of the applicant’s restaurant and of the enactment of the applicable by-laws is somewhat complicated.

[13] The applicant purchased his property, which is located on the north side of Queen Street East, east of Woodbine Avenue, in 1976. According to the applicant, in 1976 the building on the property was set back about 35 feet from the property line and there was a hill in front of the building sloping upwards at an angle of about 60 degrees.

[14] After purchasing his property, the applicant continued to operate an existing laundromat in the basement for a year or two but then started work on developing the basement for use as a family restaurant. By the end of 1985, the applicant had exposed the basement by removing the earth in front of the building and had also excavated a portion of the basement to make it deeper. In addition, he had lengthened the building by constructing a new front wall about seven or eight feet out from the original building and had built a first-floor veranda and steps up to the first floor.

[15] The applicant obtained a permit to build a restaurant on his property on May 31, 1989. At that time, By-law 438-86, as amended by By-law 69-87, established a size restriction for restaurants in the Beaches of 165 square metres of gross floor area.

[16] There was no dispute on this application that the general definition of “gross floor area” in By-law 438-86, as it applied to the applicant’s restaurant on May 31, 1989, did not include below grade space: see Appendix “A” for the text of the relevant by-laws. However, on June 1, 1989, the day after the applicant obtained his original building permit, the City passed amending By-law 361-89.

[17] Among other things, amending By-law 361-89 changed the applicable size restriction for the applicant’s restaurant from 165 square metres of “gross floor area” to 165 square metres of “non-residential gross floor area”. Subject to certain exclusions, the general definition of “non-residential gross floor area” in By-law 438-86, as it applied to the applicant’s restaurant, included below grade space: see Appendix “A”.

[18] In 1994, the applicant decided to renovate the first-floor veranda to make the front of his building more aesthetically pleasing. He demolished the front of the building, including the front stairway; moved the stairs to the other side of the building; extended the first-floor veranda; and extended the front wall of the bottom floor restaurant to match the first-floor extension, thereby increasing the size of the restaurant. According to the applicant, all of this work was completed under building permit #366550.

[19] On May 28, 1996, the applicant obtained building permit #383446, allowing him to expand his restaurant upstairs. In order to grant this permit, Mr. Mathewson, a plans examiner for the City, had to determine that the additional space would not cause the applicant’s restaurant to exceed the 165 square metres size limit. Although building permit #383446 was later revoked, Mr. Mathewson testified that he was able to grant the extra space to the applicant by classifying the kitchen as a below grade accessory use to the restaurant. Prior to July 2, 1996, below grade accessory uses were not included in the calculation of non-residential gross floor area. As accessory use was not defined in the by-law, plans examiners had discretion to determine whether a particular use was properly considered to be accessory. [^2]

[20] Mr. Mathewson indicated that he excluded the kitchen from the 165 square metre size limit by classifying the kitchen as “basically mechanical space” and therefore as an accessory use. He confirmed that the plans filed for building permit #383446 showed a step down to the kitchen and therefore that the kitchen was below grade at the time. He also confirmed that the front doors of the restaurant were in their pre-building permit #400567 location, and that with the kitchen excluded, the restaurant area was less than 165 square metres.

[21] Mr. Mathewson acknowledged that his interpretation was “stretching things” but explained that the applicant seemed “fairly desperate”, that he [Mr. Mathewson] “felt maybe [he] should help [the applicant]”, and that it was not a large space on the second floor. In re-examination, Mr. Mathewson confirmed that rather than being an accessory use, a kitchen is generally considered an essential part of a restaurant. He also confirmed that his interpretation was subsequently overruled.

[22] On July 2, 1996, the City passed amending By-law 1996-0332. Among other things, this by-law added a new definition of “non-residential gross floor area” to the section of By-law 438-86 that creates the size restriction for restaurants in the Beaches. This definition omitted the exclusion for accessory uses, electing instead to specify the particular uses that were to be excluded from the calculation of non-residential gross floor area. In addition, this definition deleted an exclusion for below grade space used for a permitted non-residential purpose as of January 31, 1976. This deletion closed a perceived loophole created by By-law 361-89 that may have allowed building owners to create large restaurants by expanding into below grade space formerly used for commercial purposes: see Appendix “A”.

[23] On December 12, 1996, city officials convened a meeting with the applicant to discuss issues concerning the size of his restaurant. By letter dated January 23, 1997, Ms. Coburn, the chief building official at the time, revoked building permit #383446 under s. 8(10)(d) of the Building Code Act, stating that the permit “was issued in error.”

[24] On April 6, 1997, the Alcohol and Gaming Commission decided that the applicant could expand the licensed capacity of his restaurant provided that he satisfied certain conditions, one of which was to obtain a compliance letter from the City of Toronto Building Department. The Building Department declined to issue a compliance letter because they claimed that, under By-law 438-86, as amended, the applicant’s restaurant exceeded the permissible non-residential gross floor area.

[25] On July 11, 1997, the City issued building permit #400567 to permit the applicant to move the front doors of the restaurant and perform certain other work to achieve the necessary size reduction. The building permit application was dated July 7, 1997 and bore the signature “William Gallos”, as well as the signature of a Building Department witness. The application was accompanied by a plan prepared by Delta Engineering dated June 30, 1997 (the “Delta Engineering Plan”) containing some printed calculations concerning the dimensions of the restaurant.

[26] The applicant obtained his new liquor licence on August 17, 1997, after the City issued a compliance letter. In late September or early October 1997, the applicant returned the front doors to their original location. The City laid charges against the applicant on October 3, 1997.

III. Evidence at the Re-Trial and on the Appeal to the Provincial Offences Appeal Court [^3]

[27] At the re-trial, Mr. Tipping, the Inspection Manager for the City Building Department testified that the Delta Engineering Plan called for the front doors of the restaurant to be moved inward 12 feet and 7 inches, and showed the resulting gross floor area as 1737.91 square feet, just under the permitted maximum of 1776 square feet (165 square metres). Mr. Tipping described the applicant’s restaurant as being located in the basement. He also confirmed that on September 30 or October 1, 1997, after the compliance letter was issued, he visited the applicant’s restaurant and noted that the front doors had been moved back to their original location.

[28] Mr. Mathewson was the City plans examiner for building permit #400567. In his examination-in-chief, he testified that “grade” was defined in the zoning by-law as meaning “the average elevation of the sidewalk in front of the lot in which the building stands” and that Building Department policy was that they “determine the basement to be six inches below that level.”

[29] When asked what areas of the applicant’s restaurant were below grade, Mr. Mathewson said, “[p]retty well the whole restaurant; all the seating areas and the kitchen area.” When asked to repeat his answer, he clarified that the whole restaurant seating area and the kitchen area were at grade and that the mechanical room, storage room and washrooms were the only areas below grade. In cross-examination, Mr. Mathewson confirmed his understanding that “you walk in [the restaurant] at level” and that there was a step down somewhere at the back. Mr. Mathewson was never asked to clarify how he arrived at the conclusion in May 1996 that the restaurant kitchen was below grade but reached a different conclusion when reviewing the Delta Engineering Plan in 1997.[^4]

[30] A building inspector called by the applicant, Mr. Padanyi, testified that under the Building Code Act, the applicant’s restaurant was classified as a basement. He said that the restaurant was built into a hill and that based on definitions in the Building Code Act, it was below grade.

[31] The applicant gave extensive evidence about the history of his restaurant. Further, he claimed that all of the renovations to his restaurant were completed under approved permits. He also claimed that he did not apply for permit #400567, and that the signature of his name on the application was a forgery. Mr. Arora, the engineer who prepared the Delta Engineering Plan, testified that he did not prepare that plan for the purpose of a building permit application and that it would not be suitable for that purpose.

[32] At the appeal hearing, the provincial offences appeal court judge permitted the applicant to lead further evidence to confirm that his original building permit was issued on May 31, 1989 and permitted the City to lead evidence concerning the various by-law amendments that had taken place. The City witness who gave this evidence also confirmed that the applicant’s original building permit was issued based on plans for a 100 square metre restaurant.

IV. Decisions Below

i) The Justice of the Peace’s Decision

[33] Following a five-day trial that spanned over seven months, the justice of the peace delivered her decision convicting the applicant of both offences on October 3, 2003. Concerning the offence under the Building Code Act, she acknowledged that the applicant “[was] in a way compelled to abide by the City request [to reduce the size of his restaurant] to obtain [his] liquor licence approval”, but rejected the applicant’s evidence that he did not apply for building permit #400567 and that the signature on the building permit application was a forgery. Instead, she accepted the reply evidence of the City employee who witnessed the building permit application and who stated that she knew the applicant and would not have let anyone other than him sign the application.

[34] In addition, the justice of the peace observed that the applicant had not complained to the police about any forgery, had only raised this issue during his testimony near the conclusion of the second trial, and had not cross-examined any witnesses about it. She concluded that “the allegation of [a] counterfeit permit application…does not hold.”

[35] As for the applicant’s claim that he was authorized under permit #366550 to move the front doors of his restaurant back to their original location, the justice of the peace noted that building permit #400567 superseded building permit #366550.

[36] Concerning the offence under the Planning Act, the justice of the peace rejected the applicant’s claim that he had a legal non-conforming use. After noting that the applicant bore the onus of proving a legal non-conforming use on a balance of probabilities, she identified three reasons for holding the applicant did not have a legal non-conforming use:

▪ the size restriction for restaurants was created in 1986, before the applicant’s restaurant was open;

▪ even if the applicant’s restaurant was below grade, the applicant was not eligible for a legal non-conforming use vis-à-vis By-law 361-89 because his restaurant was not open before By-law 361-89 was passed; and

▪ she had received evidence that all of the applicant’s restaurant was at grade and that only the mechanical room, the cooling room, the washroom, and storage room were below grade; as a result, the applicant was not eligible for a legal non-conforming use vis-à-vis By-law 1996-0332 based on any form of pre-existing exclusion for accessory uses.

ii) The Provincial Offences Appeal Court Judge’s Decision

[37] The provincial offences appeal was heard over two days and the decision was delivered on November 16, 2004.

[38] Although he apparently did not advance this argument at the original trial or on the re-trial, on the second appeal to the provincial offences appeal court the applicant claimed that By-law 361-89 is invalid because the City failed to give notice of its intention to amend the size restriction for restaurants as required by s. 34(12) of the Planning Act.

[39] The provincial offences appeal court judge dismissed the applicant’s motion to introduce fresh evidence concerning the application for building permit #400567 based on a finding lack of due diligence. He noted that the case had been before the courts since November 1997 and had been appealed previously. He said:

Although Mr. Gallos should have known at the outset that his name had been forged he did not raise the issue until the very end of the second trial. Mr. Gallos obviously acted this way for tactical reasons. He should not now be allowed to re-litigate this case.

[40] Further, the provincial offences appeal court judge determined that the conclusion of the justice of the peace that the applicant did not have a legal non-conforming use could be supported on two bases.

[41] The first basis was the justice of the peace’s finding that the applicant’s restaurant was at grade. The provincial offences appeal court judge noted that the confusion in relation to this issue arises from the fact that the building is built into a hill and from the different definitions of grade under the Planning Act and the Building Code Act. The provincial offences appeal court judge concluded that the justice of the peace was entitled to find that the restaurant was at grade based on Mr. Mathewson’s evidence. Moreover, in the light of this finding, it was unnecessary that the provincial offences appeal court judge determine whether amending By-law 361-89 was invalid.

[42] The second basis was the applicant’s conduct in moving the front doors of his restaurant, thereby reducing the floor space of his restaurant below the 1996 By-law maximum, and causing him to lose any legal non-conforming use to which he may otherwise have been entitled. In making this finding, the provincial offences appeal court judge said:

When, in 1997, he moved back the wall in order to reduce the floor space area to less than 165 sq. metres he lost his non-conforming use as the restaurant then complied with the relevant zoning By-law.

V. Analysis

i) Should leave be granted concerning the fresh evidence issue?

[43] The applicant’s motion to introduce fresh evidence in the provincial offences appeal court involved two areas of evidence: i) evidence from a handwriting expert; and ii) two copies of a memo to file dated July 4, 1997 from Werner Sommer, a City of Toronto Building Department employee, and a fax cover sheet dated July 4, 1997, together with a third copy of the July 4, 1997 memo. Both areas of evidence related to the applicant’s position that building permit #400567 was issued fraudulently. The issue raised on this leave application concerning the proposed fresh evidence relates solely to the second area of evidence, namely, the copies of the July 4, 1997 memo and the fax cover sheet.

[44] The July 4, 1997 memo states, in part, that the Delta Engineering Plan “will not be accepted for a building permit.” Further, it indicates on its face that it was copied to City Building Inspection Manager Tipping. The fax cover sheet shows that Mr. Tipping faxed the memo to Ms. Coburn, the chief building official. The words “resolved and permit issued” are handwritten on the copy of the memo included with the fax cover sheet. In addition, a handwritten line is drawn through the body of the memo.

[45] The applicant contends that the copies of the July 4, 1997 memo and the fax cover sheet support his position that building permit #400567 was issued fraudulently for three reasons:

▪ they show that City employees were discussing the building permit application as early as July 4, 1997, although the application itself was not submitted until July 7, 1997;

▪ the memo states that the Delta Engineering Plan would not be accepted for a building permit application and yet that was the only plan that was ever filed in relation to building permit #400567; and

▪ the faxed copy of the memo and the fax cover sheet support an inference that a building permit was issued before the building permit application was filed.

[46] There is no dispute on this application that the applicant did not obtain these documents until January 2004, well after the re-trial, and then only from an anonymous source.[^5]

[47] Given that the applicant requested disclosure from the City prior to trial and given that the City failed to produce this material, the applicant submits that the provincial offences appeal court judge erred in law by relying on lack of due diligence as a basis for dismissing this aspect of the fresh evidence application. In the alternative, the provincial offences appeal court judge erred in law by failing entirely to consider it. Either way, the applicant submits that he was deprived of the opportunity to cross-examine City witnesses concerning these matters because of the City’s failure to disclose this material, and consequently that he was deprived of a fair trial.

[48] I do not accept the applicant’s submissions.

[49] I agree that to the extent that he relied on the due diligence criterion set out in R. v. Palmer (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.) to dismiss this aspect of the applicant’s fresh evidence application it appears that the provincial offences appeal court judge erred. The applicant did not receive these documents until after the re-trial. Moreover, the criteria for admitting fresh evidence on appeal set out in Palmer are modified in circumstances where the defence did not have the proposed fresh evidence at trial because of the prosecution’s failure to meet its disclosure obligations: see R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307 at paras. 81-84.[^6]

[50] Under Taillefer, the test for admission of fresh evidence where the prosecution has breached its disclosure obligations is twofold: i) whether there is a reasonable possibility the verdict would have been different had the breach not occurred; and ii) whether there is a reasonable possibility that trial fairness was compromised as a result of the non-disclosure. Unlike under the Palmer test, the applicant is not required to demonstrate that it is probable that the fresh evidence would have affected the verdict: see Taillefer at para. 78.

[51] However, the applicant in this case can only meet the threshold of demonstrating that it is essential in the public interest or for the due administration of justice that leave to appeal be granted if he has an arguable ground of appeal relating to the admission of the proposed fresh evidence. I have read the entire transcript in this matter. Based on my review, the copies of the memo and the fax cover sheet are not capable of demonstrating either a reasonable possibility that the justice of the peace’s decision might have been different had these documents been disclosed or a reasonable possibility that trial fairness was compromised as the result of non-disclosure. [^7]

[52] The applicant’s core assertion in relation to the Building Code Act offence was that his signature on the building permit application was a forgery. As already noted, the justice of the peace rejected the applicant’s evidence in this respect. In doing so, she relied on the evidence of the City employee who witnessed the building permit application, the applicant’s failure to complain to the police or raise the issue in a timely way, and the applicant’s failure to cross-examine City witnesses in relation to the issue.

[53] At the re-trial, the applicant adduced evidence from Mr. Arora that the Delta Engineering Plan was not prepared for the purpose of applying for a building permit and was not suitable for that purpose. Accordingly, cross-examination of City witnesses to confirm the statement to that effect in the memo would have added little, if anything, to the evidence already before the justice of the peace on that point.

[54] Further, in addition to the statement that the Delta Engineering Plan would not be accepted for a building permit, the subject line of the July 4, 1997 memo reads “1982 Queen St. E. Revised Plans to Reduce NRGFA” and the memo itself includes the following statements:

▪ “The plans are misleading and do not represent the site conditions with respect to the reduced size of the building”;

▪ “The evidence is that exterior doors were removed from the columns and the previous interior space is intended to qualify as exterior space. The fact that the door hinges are still in place confirms that it is probably the owner’s intent to remount them in future. (Has history of similar actions)”;

▪ “The inspector’s field measurements re the width of the building appear inconsistent with previous files and measurements.”

[55] When considered in their entirety and in the context of the evidence at trial and the justice of the peace’s findings, the copies of the July 4, 1997 memo and the fax cover sheet are consistent with an inference that City officials worked out a resolution with the applicant of the issues set out in the memo and that building permit #400567 was issued as a result. Even if the handwritten annotations were on the faxed copy of the memo when it was faxed[^8], that would be consistent with a resolution and a subsequent formal application and approval.

[56] In any event, when considered in context, I fail to see how the timing of the memo or of the handwritten annotations raise or support any suggestion that the applicant’s signature on the building permit application was forged. Moreover, the copies of the fax cover sheet and the memos do nothing to undermine the credibility of the City employee who witnessed the building permit application on whose evidence the justice of the peace relied.

[57] In my view, the copies of the memo and the fax cover sheet are not capable of undermining the reliability of the verdict; nor do they suggest potentially fruitful avenues of cross-examination or investigation that might have been pursued on the re-trial.

[58] In the result, I am not satisfied that the copies of the memos and the fax cover sheet would be capable of supporting a finding of either a reasonable possibility that the justice of the peace’s decision in relation to the Building Code Act offence might have been different but for the non-disclosure or a reasonable possibility that trial fairness was compromised as the result of non-disclosure. It follows that I am not satisfied that it is essential in the public interest or for the due administration of justice that leave to appeal be granted concerning this issue.

ii) Should leave be granted concerning the legal non-conforming use issue?

[59] The applicant’s position on this issue involves several components:

▪ in finding that his restaurant is at grade, the justice of the peace improperly relied on evidence of a City policy concerning the meaning of grade and the provincial offences appeal court judge erred in upholding that finding;

▪ the provincial offences appeal court judge erred in failing to address the applicant’s submission that the provision in By-law 361-89 restricting the size of restaurants in below grade space is invalid;

▪ the foregoing issues raise a question of law alone; and

▪ it is essential in the public interest that this Court determine whether the meaning of “grade” in By-law 438-86 should be determined based on a City policy and whether By-law 361-89 is valid.

[60] I would not grant leave to appeal concerning this issue for four reasons.

[61] First, even assuming that the applicant’s claim that the provincial offences appeal court judge erred in upholding the finding that his restaurant is at grade raises a question of law alone, the applicant’s position on the grade issue misconceives the onus of proof.

[62] As the justice of the peace observed, the applicant bears the onus of proving that he is entitled to legal non-conforming use status for the size of his restaurant: see s. 47(3) of the Provincial Offences Act; Toronto (City) v. San Joaquin Investments Ltd. (1978), 1978 CanLII 1576 (ON SC), 18 O.R. (2d) 730 (H.C.). The applicant does not dispute this proposition.

[63] Accordingly, once the City led evidence that the applicant’s restaurant exceeded 165 square metres of non-residential gross floor area as defined in By-law 1996-0332, the applicant bore the onus of proving that he was entitled to a legal non-conforming use.

[64] In order to succeed, the applicant was required to show either: i) lawful use of a restaurant in excess of 165 square metres prior to the passing of a by-law that would otherwise prohibit that use, or ii) the existence of an unrevoked building permit for construction of a restaurant in excess of 165 square metres prior to the passing of a by-law that would otherwise prohibit that use: s. 34(9) of the Planning Act.

[65] Given that the evidence adduced before the provincial offences appeal court demonstrated that the building permit that the applicant obtained on May 31, 1989 was for a restaurant of 100 square metres, in the context of this case, the applicant was required to demonstrate:

i) By-law 361-89 is invalid and therefore the size restriction on restaurants in the Beaches remained at 165 square metres of gross floor area until July 2, 1996, when By-law 1996-0332 was passed;

ii) his restaurant was properly excluded from the calculation of gross floor area; and

iii) the size of his restaurant exceeded 165 square metres of non-residential gross floor area prior to July 2, 1996, in accordance with building permits that have not been revoked.

[66] The applicant acknowledges that if his restaurant was at or above grade as defined in By-law 438-86, it was not excluded from the calculation of gross floor area. Accordingly, in order to prove that he was entitled to a legal non-conforming use, the applicant was required to prove that his restaurant was below grade within the meaning of By-law 438-86.

[67] The applicant led no evidence on this issue. Rather, as the provincial offences appeal court judge observed, the evidence that the applicant relied on (the evidence of Mr. Tipping and Mr. Padanyi) was directed at the issue of grade under the Building Code Act. Even if the applicant is correct in submitting that the justice of the peace erred in relying on Mr. Mathewson’s evidence that the restaurant is at grade because Mr. Mathewson’s evidence was premised on a City policy, that would serve only to neutralize the impugned evidence; it would not prove that the applicant’s restaurant is below grade within the meaning of By-law 438-86.

[68] Accordingly, because the applicant failed to lead evidence proving that his restaurant was below grade within the meaning of the zoning by-law, he could not meet his burden of proving his restaurant was below grade based on the evidence adduced at trial.

[69] Second, in his application for leave to appeal, the applicant has not challenged the provincial offences appeal court judge’s conclusion that the applicant lost any legal non-conforming use to which he may otherwise have been entitled when he moved the front doors of his restaurant inward in order to comply with By-law 438-86, as amended. Even if I am wrong in relation to the first point, this conclusion is a complete answer to the applicant’s arguments concerning the legal non-conforming use issue.

[70] The Planning Act grants protection to legal non-conforming uses, but only if the land, building or structure in question continues to be used for that purpose: Planning Act, s. 34(9)(a). Even assuming that the applicant was entitled to a legal non-conforming use entitling him to a restaurant larger than 165 square metres of non-residential gross floor area at some point, he discontinued that use when he moved the doors of his restaurant inward so the City would issue a compliance letter. In these circumstances, I fail to see any available argument that the provincial offences appeal court judge erred in holding that the applicant lost any legal non-conforming use to which he may otherwise have been entitled when he moved the doors of his restaurant to bring it into compliance with the then current by-law.

[71] Third, to the extent that Mr. Mathewson’s evidence may give rise to an argument that the applicant was entitled to legal non-conforming use status because, as of May 28, 1996, the kitchen was below grade and therefore properly excluded from the calculation of gross floor area if By-law 361-89 is invalid, I am sceptical that the applicant led evidence at trial capable of supporting a finding that he was authorized to have a restaurant of the size that it was on May 28, 1996.[^9]

[72] In any event, I am unable to see how this issue would give rise to a question of law alone that could meet the test that it is essential in the public interest or for the due administration of justice that leave be granted. Subject to what I will say about reasons, any issue concerning whether the applicant demonstrated at trial that he was authorized to have a restaurant of the size that it was on May 28, 1996 involves a factual determination specific to the applicant’s premises.

[73] I acknowledge that the provincial offences appeal court judge did not address in his reasons the question of whether the applicant had demonstrated that he was authorized to have a restaurant of the size that it was on May 28, 1996. However, because of his finding that the applicant lost any entitlement he may otherwise have had to a legal non-conforming use when he moved the front doors of his restaurant inward, the provincial offences appeal court judge was not required to address the authorized size issue. Absent an arguable basis for holding that the provincial offences appeal court judge’s finding concerning losing any entitlement to legal non-conforming use was wrong and that the provincial offences appeal court judge therefore erred in failing to address the authorized size issue, I see no basis for holding that the authorized size issue involves a question of law alone that could meet the balance of the test for granting leave to appeal.

[74] Fourth, given the foregoing conclusions, even if By-law 361-89 was invalid, the applicant failed to demonstrate that he was entitled to a legal non-conforming use. In these circumstances, it was unnecessary that the provincial offences appeal court judge address the validity of By-law 361-89.[^10]

[75] Finally, I wish to note that the applicant raised an issue in his factum about being treated unfairly by the City and claimed that Building Department officials failed to advise him about what he would have to prove to demonstrate a legal non-conforming use. I am not persuaded that the applicant’s submissions concerning this issue raise a question of law alone that meets the remaining elements of the test for granting leave to appeal.

[76] The evidence of some City witnesses appears to contradict the applicant’s assertions about lack of advice. Further, the applicant has not provided any authority to support the proposition that City officials have a duty to provide such advice. Finally, in the context of this case, it would hardly be surprising if City officials did not fully understand the basis upon which the applicant claimed to be entitled to a legal non-conforming use. The applicant’s position is premised on the invalidity of By-law 361-89, a position he did not raise until the provincial offences appeal.

V. Further Submissions

[77] Following the leave application, I asked the applicant to provide a concise statement of the basis on which he claims he is entitled to a legal non-conforming use and provided both parties with an opportunity to make brief oral submissions.

[78] The applicant appeared in person on June 19, 2008 for that purpose, and filed additional material and extensive submissions. His written submissions go well beyond the concise statement that I invited him to file. He has also sent several letters since June 19, 2008 requesting an opportunity to file further evidence. Although I have examined this material, I have not asked the City to respond to it.

[79] Much of this new material is not in the form of evidence. Accordingly, it is not admissible on the leave motion. Moreover, the material is rife with conclusory statements and attempts to recast or revisit issues and the evidence of witnesses who testified at trial. In my view, the material filed by the applicant does not warrant re-examining the conclusions I have reached based on the material properly filed on the leave application, the submissions on the leave application, and the further submissions that I invited.

VI. Disposition

[80] The leave application is accordingly dismissed.

Signed: “Janet Simmons J.A.”

Appendix “A”

i) On May 31, 1989, the relevant portion of exception 174 of s. 12(2) of By-law 438-86 provided as follows:

No person shall, on any lot … erect or use any building or structure for the purpose of an eating establishment unless

(i) the portion of the gross floor area used for such purpose does not exceed 165 square metres…

ii) On May 31, 1989, the general definition of gross floor area in By-law 438-86 stated:

‘gross floor area’ means:

(i) in the case of a C building or C structure other than a residential building or structure, at the level of the first storey below a sloping roof, the finished space enclosed by the interior face of any vertical ‘dwarf’ or ‘knee’ wall closest to the exterior face of the exterior wall below that level, combined with the aggregate of the areas at all other levels of each storey above grade measured between the exterior faces of the exterior walls of the building or structure at the level of each storey; and

(ii) in the case of an R building or R structure or a residential building or structure, means at the level of the first storey below a sloping roof, the finished space enclosed by the interior face of any vertical ‘dwarf’ or ‘knee’ wall closest to the exterior face of the exterior wall below that level, combined with the aggregate of the areas at all other levels of each floor, whether the floor is above or below grade, measured between the exterior faces of the exterior walls of the building or structure at the level of each floor, exclusive, however, of any part of the building or structure below grade that is used for heating equipment, the storage or parking of motor vehicles, locker storage and laundry facilities, children’s play areas, and other accessory uses or used as living quarters by the caretaker, watchman or other supervisor of the building or structure.

iii) On June 1, 1989 s. 12(2)174 of By-law 438-86 was amended by By-law 361-89, the relevant portion of which provided as follows:

Section 12(2)(174) of By-law 438-86, as amended, is amended by replacing the words “the purpose of an eating establishment” with the words “the purpose of a restaurant or a take-out restaurant or a caterer’s shop” and the words “gross floor area used for such purpose” in 174(i) and 174(ii) with the words “gross floor area used for such purpose or purposes, or in the case of a CR building, the non-residential gross floor area used for such purpose or purposes.

iv) On June 1, 1989, the general definition of non-residential gross floor area in By-law 438-86 was as follows:

‘non-residential gross floor area’ means:

(i) in the case of a non-residential building, the aggregate of the areas of each floor above or below grade, measured between the exterior faces of the exterior walls of the building or structure at the level of each floor; or

(ii) in the case of a mixed-use building, the aggregate of the areas of the parts of each floor used for non-residential purposes above and below grade, measured between the exterior faces of the exterior walls of the building or structure at the level of each floor, or measured between those walls and the centre line of the interior wall or projection thereof that separates a non-residential use from a residential use,

exclusive of the following areas:

(iii) a room or enclosed area within the building or structure above or below grade that is used exclusively for the accommodation of heating, cooling, ventilating, electrical, mechanical or telecommunications equipment that service the building’

(iv) loading facilities above or below grade required by Section 4(6), (7) and (8);

(v) a part of the building or structure below grade that is used for the parking of motor vehicles or for storage or for other accessory use; and

(vi) a part of the building or structure below grade that was erected and used for one or more non-residential purposes permitted by this by-law on the lot on January 31, 1976.

This definition was amended on December 18, 1995 by By-law 1996—0028, by adding the following to the definition:

But, despite the foregoing, for a restaurant, there shall be included in the calculation of non-residential gross floor area any floor area below grade exclusive of only a room or enclosed area, including its enclosing walls, that is used exclusively for the accommodation of heating, cooling, ventilating, electrical, mechanical (other than escalators) or telecommunications equipment that services the building, storage or washrooms.

v) On July 2, 1996, s. 12(2)174 of By-law 438-86 was amended by By-law 1996-0332. The portion of By-law 1996-0332 that is relevant to this proceeding is as follows:

For the purposes of this exception 174:

(i) the expression “non-residential gross floor area” means the aggregate of the areas of each floor and the spaces occupied by walls and stairs above and below grade of a non-residential building or the non-residential portion of a mixed-use building, measured between the exterior faces of the exterior walls of the building or structure at the level of each floor, exclusive of the following areas:

(a) a room or enclosed area, including its enclosing walls, within the building or structure above or below grade that is used exclusively for the accommodation of heating, cooling, ventilating, electrical, mechanical (other than escalators) or telecommunications equipment that service the building;

(b) loading facilities above or below grade required by By-law No. 438-86;

(c) a part of the building or structure below grade that is used for the parking of motor vehicles or bicycles, storage or washrooms; and

(d) a part of the building or structure above grade that is used for the required parking or storage of bicycles.

[^1]: The restaurant is no longer in existence, as it was burnt down in a fire. This application, which was originally scheduled for 2005, was adjourned sine die on consent, following the fire. The fire has no bearing on the issues on this application.

[^2]: Mr. Mathewson’s evidence concerning this issue, which was led by the applicant in cross-examination, is confusing. He referred to the definition of gross floor area and to an exception from gross floor area for below grade accessory uses applicable to residential space as the basis for granting building permit #383446. However, the applicant’s restaurant was commercial space and the definition of gross floor area as it applied to commercial space did not include below grade space in any event. Further, building permit #383446 was granted long after By-law 361-89 came into force, introducing the definition of non-residential gross floor area for commercial-residential space.

It appears more likely that Mr. Mathewson may have relied on an exception for below grade accessory uses that at one time formed part of the definition of non-residential gross floor area. However, this exception appears to have been removed for restaurants as of December 18, 1995: see Appendix ‘A’, By-law 1996--0028.

Mr. Mathewson was not asked to clarify any of these matters while testifying.

[^3]: This section is not intended to be a comprehensive review of the evidence. Rather, it is a brief summary of some of the evidence most relevant to an understanding of the issues on this leave application.

[^4]: On an examination of the relevant plans, I see “DN” in an area leading to the kitchen on the plan filed in support of the May 1996 plan, but I see no similar notation on the Delta Engineering Plan. However, as I have said, Mr. Mathewson was not asked for an explanation of his evidence on this point.

[^5]: Counsel for the City has acknowledged that at least the typewritten portion of the memo dated July 4, 1997 is an authentic document from the City’s files.

[^6]: In fairness to the provincial offences appeal court judge, it does not appear that the applicant tendered these documents by way of affidavit as part of a proper fresh evidence application in the provincial offences appeal court. Moreover, neither party drew Taillefer to the attention of either the provincial offences appeal court judge or this court.

[^7]: Although there may be an outstanding issue concerning the authenticity of some portions of the documents tendered by the applicant on this application, any outstanding issue is as much the result of the City’s failure to respond to the merits of the fresh evidence application as it is the result of any failing on the applicant’s part. I will accordingly assume, for the purposes of this application only, that the documents are authentic in their entirety and that the City failed to meets its disclosure obligations by failing to produce these documents to the applicant prior to the re-trial.

[^8]: As the fax cover sheet and copies of the memos are photocopies, it not clear when the handwritten annotations were made.

[^9]: In my view, it is questionable whether the applicant adduced evidence at trial capable of supporting a finding that, prior to July 2, 1996, he made renovations increasing the size of his restaurant to more than 165 square metres of non residential gross floor area in accordance with building permits that have not been revoked.

The applicant claimed that he extended the front wall of his restaurant under building permit #366550 issued in 1994. However, the approved plan he filed as an exhibit at trial relating to this permit shows a proposed balcony extension and does not indicate that the front wall of the restaurant is to be moved. Another 1994 plan filed as an exhibit appears to show that the front wall of the restaurant was in fact moved, but that plan does not have a Building Department approval stamp.

The applicant called Ms. Coburn, the chief building official as of December 1997, as a witness at trial. Among other things, she testified that leading up to the December 12, 1997 meeting, the Building Department had concerns that the applicant had obtained previous building permits based on drawings that reflected prior changes that had not been previously approved. According to Ms. Coburn, the applicant knew that it was open to him to prove to City officials that he had a legal non-conforming use concerning the size of his restaurant but as far she was aware he did not take steps to do so.

[^10]: On this leave application, the applicant also claimed that, in the light of s. 34(9)(b) of the Planning Act, the justice of the peace erred when she found that the applicant was not entitled to a legal non-conforming use in relation to By-law 361-89 because his restaurant was not open on the day By-law 361-89 was passed. I agree that it appears that the justice of the peace erred in that respect. However, any such error is irrelevant for the purposes of this application because the evidence adduced at the provincial offences appeal court demonstrated that the applicant’s original building permit was for a restaurant of less than 165 square metres. In any event, in the provincial offences appeal court and on this application, the applicant claimed that By-law 361-89 is invalid.