Court of Appeal for Ontario

Citation: Forbes v. Caledon (Town), 2009 ONCA 605

Date: 2009-08-05

Docket: C50228

Before: Gillese, Juriansz and LaForme JJ.A.

Between:

Frederick George Ian Forbes and Doreen Forbes

Applicants (Respondents in Appeal)

and

The Corporation of the Town of Caledon

Respondent (Appellant in Appeal)

Counsel:

Lee A. Pinelli and Sean Morrison, for the appellant

Bernie Romano, for the respondents

Heard: July 28, 2009

On appeal from the order of Justice D.G. Price of the Superior Court of Justice dated February 26, 2009.

ENDORSEMENT

[1] On October 17, 1988, Caledon enacted Zoning By-law No. 87-250 which zoned the subject lands “A-1 Agricultural”. This zoning did not permit the uses allegedly carried on by the respondents on the subject lands since 1974. The respondents applied for a declaration that the uses carried on by them on are legally permissible as legal non-conforming uses pursuant to s. 34(9) of the Planning Act, R.S.O. 1990, c.P.13.

[2] The application judge granted the application and ordered that the respondents had established land uses as legal non-conforming uses and that they have the right to use the subject lands for purposes, which include: (a) the outdoor storage of vehicles, machinery and equipment; (b) for business operation; (c) the storage of heavy trucks; and (d) other uses as may be ancillary to the business use of the subject lands set out in (a) to (c). Caledon appeals.

[3] Caledon does not assert on this appeal that the application judge failed to consider relevant evidence, or that he misapprehended relevant evidence or considered irrelevant evidence, or that he made findings that had no basis in the evidence. Rather, the submission of Caledon is simply that the application judge’s conclusions based on the evidence are unreasonable.

[4] In support of the assertion that the application judge made unreasonable findings, Caledon vigorously argues that photographs it obtained for periods between 1973 and 2007 clearly demonstrate the state of the subject lands in the stated years. It argues that the aerial photographs are the best objective evidence, and that they are to be preferred to all the evidence adduced by the respondents and accepted by the application judge.

[5] By way of example, Caledon claims that the aerial photograph of May 27, 1988 — just prior to the relevant date of October 17, 1988 — shows a virtual absence of the alleged storage use claimed by the respondents. And, that the aerial photograph of April 23, 1989 — just after the relevant date — reflects the same.

[6] Other examples include, that the aerial photograph taken on April 12, 1993 indicates what might be the beginnings of non-agricultural activity on the subject lands. Next, it says that the aerial photograph taken in 2005 shows at that time, the subject lands were being utilized intensively for the purposes of outdoor storage of various types of heavy equipment and machinery, and that the use of the property for these purposes had increased substantially from what is apparent in previous aerial photographs. Further, it says that an aerial photograph taken in April, 2007 shows similar intensive outdoor storage activity. All of which, Caledon notes, is after the relevant date of October 17, 1988.

[7] In addition to the testimony of the respondents themselves, the evidence that Caledon says should be rejected when weighed against the photographic evidence it adduced, includes affidavits from individuals who had personal knowledge of the respondents’ use of the subject lands throughout the years. In brief, some of that evidence is as follows.

[8] First there is John Baillie, a retired Ontario Provincial Police Officer, who was hired by the respondents from 1980 to 1988 to provide security services after hours on the subject lands. He swore that he observed large commercial and industrial equipment being stored on the subject lands throughout these years.

[9] Next is Peter Newsome, a Chartered Accountant who acted on behalf of the respondents for a period of 26 years commencing in 1979, who swore that during that entire time period the respondents used the subject lands to store trucks, trailers and campers on a rental basis. His evidence was that the rental income has been part of the respondents’ livelihood and represented a significant part of their income.

[10] And, there is David Gellatly, a registered insurance broker who, since the late 1960’s, has served as the insurance broker for the respondents. His evidence included that he personally attended at the subject property at least once a year to ensure there was adequate insurance coverage for the respondents’ business. In doing so, he testified that he personally saw heavy machinery, trucks and equipment in continuous and open use for business purposes and for outside storage at the subject lands by the respondents throughout this time.

[11] In the end, the application judge accepted the evidence of the respondents and the affidavit evidence of other witnesses sworn in support of their position. He did not, as Caledon believed he should, find that Caledon’s photographic evidence was more persuasive than this evidence.

[12] There is no reason that has been advanced by Caledon, or that we can otherwise look to, which supports any legal principle that says the application judge was not entitled to accept that evidence. We find no basis on which to conclude that the facts found by the application judge are palpably or clearly wrong, or that they are unreasonable: see Peart v. Peel (Regional Municipality) Police Services Board, 2006 CarswellOnt 6912, at paras. 158-59 (C.A.).

[13] Given our reasons for decision, it is of no consequence to this appeal whether or not the application judge properly considered and decided the issue of estoppel in the circumstances of this case. In our view the appeal is fully answered by the reasons just stated.

[14] In conclusion, in reaching his decision the application judge made findings of fact relating to the respondents’ use of the subject lands from the 1970’s to the date of the hearing of the application. There was ample evidence to support his findings and his conclusion that the respondents’ have the right to continue their legal non-conforming use of the subject lands. Nor do we see any basis for interfering with the trial judge’s findings that the non-conforming use could not be limited to certain areas of the land, or that any intensification of the activities did not amount to a new and different use.

[15] For these reasons, the appeal is dismissed. The respondents are awarded their costs of this appeal in the agreed upon amount of $25,000, inclusive of disbursements and GST.

“E.E. Gillese J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”