CITATION: Newcastle Recycling Ltd. v. Clarington (Municipality), 2010 ONCA 314
DATE: 20100503
DOCKET: C50431
COURT OF APPEAL FOR ONTARIO
Laskin, Moldaver and Armstrong JJ.A.
BETWEEN:
Newcastle Recycling Ltd., William Hale and James Hale
Applicants Respondents in the Counter-Application (Plaintiffs in Trial of Issues) (Appellant Newcastle Recycling Ltd.)
and
The Municipality of Clarington
Respondent Applicant in the Counter-Application (Defendant in Trial of Issues) (Respondent in Appeal)
and
Walter John Hale, Walter John Hale in his capacity as trustee, James Hale in his capacity as trustee and JCLJB Holdings Ltd.
Respondents in the Counter-Application (Plaintiffs in Trial of Issues)
N. Cameron Murkar, for the appellant Newcastle Recycling Ltd.
Ian Godfrey and Matthew Benson, for the respondent Municipality of Clarington
Heard: March 24, 2010
On appeal from the order of Justice Gregory Mulligan of the Superior Court of Justice dated April 2, 2009, granting injunctive relief to the Municipality of Clarington and from the order of costs dated July 17, 2009.
By The Court:
INTRODUCTION
[1] The appellants, Newcastle Recycling Ltd., JCLJB Holdings Ltd. and various members of the Hale family appeal from the order of Mulligan J. dated April 2, 2009, permanently enjoining them from “carrying on the operation of a scrap yard, landfill, garbage collection and/or garbage transfer business” on certain lands owned by Newcastle, referred to as the B Parcels, situated in the Municipality of Clarington. The appellants also appeal from a related aspect of the order requiring them to “remove at their own expense all materials deposited ... on the B Parcel other than tire storage and auto wrecking.” Finally, the individual appellants and JCLJB appeal from Mulligan J.’s costs order, dated July 17, 2009, to the extent that it holds them, along with Newcastle, responsible for the costs of the trial proceedings.
[2] This is the second appeal to this court by the same parties, involving the same parcels of land, and the same overriding issue, namely: whether the appellants, and in particular Newcastle, have acquired a legally protected non-conforming use which entitles Newcastle to use the B Parcels to store and recycle scrap metal and “white goods”, such as fridges and stoves.
[3] That issue formed one of several issues in a trial that initially took place before Boyko J. in 2004. In an appeal and cross-appeal to this court from Boyko J.’s order, both sides took issue with her findings and conclusions in respect of the B Parcels, along with other matters that have no bearing on the present appeal. With respect to the B Parcels, the appeal and cross-appeal proved successful and by order dated December 14, 2005, this court directed the trial of an issue, before a different judge, on the following two matters:
(i) Whether a legal non-conforming use has been established on parcels B1 and B2; and
(ii) Whether the appellant [the Municipality] is entitled to a permanent injunction in respect of the B Parcels, as originally sought by the appellant in its counter-application.
[4] The trial of those issues proceeded before Mulligan J. on October 14, 2008. Evidence was heard over the course of 8 days and the parties made closing submissions on February 5 and 6, 2009. On April 2, 2009, Mulligan J. released extensive reasons for judgment in which he vindicated the Municipality’s position and granted the injunctive relief that forms the subject of this appeal.
THE TRIAL JUDGE’S REASONS
[5] In his reasons for judgment, the trial judge framed the issues, as he understood them to be, at paras. 6, 38, and 40 of his reasons, as follows:
[6] … The issue before the court is whether or not the Hales have established a lawful non-conforming use on two discreet portions of Lot 12, Concession 3, known as Parcel A-3 and the B Parcels prior to the establishment of the by-law and its subsequent amendments. If lawful non-conforming uses were so established, a further issue is whether or not those uses were discontinued or abandoned such as to lose the protection afforded in the by-law.
[38] It is clear that on the B Parcels, by reason of the Municipality’s by-law or recognition of pre-existing uses, tire storage and a motor vehicle wrecking yard are permitted uses. The issue before the court is whether or not the Hales have established the use of the property as a scrap yard and the collection and storage of white goods, such as fridges, stoves, etc. If those uses were established prior to the 1968 by-law was there a discontinuance of use such as would end the protection of the use afforded by the zoning by-law.
[40] … Based on the evidence of Mr. Hale Sr. and Mr. Hale Jr., I am satisfied that there was some storage of scrap metal and white goods on the B Parcel when the by-law was passed in 1968. That would therefore give these uses the protection afforded by the by-law in 1968. However, the B Parcel is now being used for the storage of scrap metal and white goods. The issue before the court is whether or not these uses were discontinued in previous years so as to lose the protection of the non-conforming use section of the by-law.
[6] The trial judge’s reference in para. 40 to the “protection afforded” by the 1968 by-law is a reference to s. 12 of the by-law, quoted at para. 6 of his reasons, which provided that non-conforming uses could continue.
[7] Given the trial judge’s finding, at para. 40, that “there was some storage of scrap metals and white goods on the B Parcel when the by-law was passed in 1968” and his further finding that those uses were protected under s. 12 of the by-law, the only remaining issue, according to the trial judge, was “whether or not these uses were discontinued in previous years so as to lose the protection of the non-conforming use section of the by-law.”
[8] In responding to that question, the trial judge engaged in an exhaustive review of the pertinent evidence. As his reasons demonstrate, the problem for the Hales was that in 1972, they sold the B Parcels to a man named Harold Price and did not reacquire them until 1982. During that ten-year period, Mr. Price used the property to carry on his business, the primary focus of which “was the collection and storage of used tires, together with some limited auto wrecking.” From the Hales’ perspective, that was not fatal, so long as it could be shown that during the ten-year period, when they were not in possession of the property, the property continued to be used, even on a minor scale, for the storage and recycling of scrap metal and white goods.
[9] Unfortunately for the Hales, they failed to satisfy the trial judge of this. At para. 60 of his reasons, the trial judge made the following findings of fact:
[60] The Hales did not own the B Parcels from 1972 to 1982 when the property belonged to Harold Price or his company. Mr. Price passed away before this litigation commenced; however, he was actively engaged in minor variance and re-zoning applications with the municipality. In addition, he provided a Statutory Declaration to the Hales after he sold the property to them. In all such documents he was careful to acknowledge that the use of the property during his ownership was for his tire storage business and for auto wrecking. None of these documents mentioned a scrap yard or the storage of white goods. Although Mr. Hale Sr. may have been using the property for this purpose prior to the first by-law in 1968, I am not satisfied that these uses continued throughout the Price period of ownership. The aerial photograph taken in 1978 during Mr. Price’s ownership showed no evidence of a scrap yard or the storage of white goods. I am satisfied on all the evidence that these uses were only resumed after the Hales’ reacquired the property in 1982 and only after a prolonged discontinuance. In my view the municipality has satisfied the onus upon it and is entitled to the relief sought in its counter-application prohibiting the use of the B Parcel as a scrap yard or for the storage of white goods. [Emphasis added.]
THE APPEAL
[10] On appeal, the appellants do not take issue with the trial judge’s conclusion that the use of the property to store and recycle scrap metal and white goods was discontinued for the ten-year period in which Mr. Price owned the property; nor could they. The trial judge’s findings in this regard are amply supported by the evidence and in our view, they are unassailable.
[11] Instead, the appellants raise the following two grounds of appeal which are found at para. 19 of their factum:
Did the Trial Judge err in finding that the depositing and sorting of scrap metal, including white goods, on the B Parcels, was not legal non-conforming?
Did the Trial Judge err in granting the Municipality injunctive relief prohibiting the Appellants from depositing and sorting “scrap” on B2 without addressing the argument that such “use” is in fact accessory to the permitted principal use of a motor vehicle wrecking yard?
[12] A bare-bones summary of the appellants’ first ground of appeal is found at para. 20 of the appellants’ factum as follows:
The Appellants submit that in determining whether a particular activity is part of a legal non-conforming use the court must apply the approach set forth by the majority decision in the Supreme Court of Canada in Saint-Romuald (Ville) c. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898.
[13] At para. 22 of their factum, the appellants flesh out this ground of appeal as follows:
The Appellants submit that having concluded that a motor vehicle wrecking yard and tire storage was permissible on B2 because of the zoning by-law and because it was legal non-conforming it was incumbent on the Trial Judge to apply the test set forth in Saint-Romuald (Ville) to determine if the activity of collecting scrap and/or white goods could also be deemed to be legally non-conforming. The Appellants’ position is that if you apply the approach set out in Saint-Romuald (Ville) the depositing and sorting of scrap metal on B2 is permissible because:
The recognized pre-existing use consisted of a number of activities including tire storage, carrying on a motor vehicle wrecking yard. The “purpose” of this use was recycling. Even if the activity of collecting scrap was discontinued the Saint-Romuald (Ville) approach allows for it be brought back if it is within the scope of the original purpose which was recycling. In fact this new approach even allows for a new “activity” that has never been carried on at the property if it is within the scope of the original purpose. The new approach requires that an assessment be made of the community interest vs. the interest of the property owner and it also requires a consideration of “neighbourhood” effects. In this case there was no evidence whatsoever of any negative neighbourhood effects resulting from the depositing and sorting of scrap on B2 and in fact “recycling” is in the community interest. The evidence was that the Appellants are serving the needs and interests of the Region of Durham as they have a contract with the Region for the collection of the Region’s white goods recyclables.
The Appellants argue that following the Saint-Romuald (Ville) approach, the depositing and sorting of scrap metal on B2 should be found to be legally non-conforming.
[14] The appellants second ground of appeal is summarized at para. 25 of their factum as follows:
The Appellants argue that it is not unusual for a motor vehicle wrecking yard to also have a small intake percentage of other scrap metal that is not in the form of wrecked motor vehicles and furthermore it is all devoted to the same purpose of recycling “scrap metal”. The Trial Judge erred in granting injunctive relief without ever addressing this issue. If the depositing and sorting of white goods on B2 is an accessory use then the injunctive relief is inappropriate.
[15] Leaving aside for the moment whether those grounds, or either of them, has merit, the appellants face an initial hurdle. The Municipality, in its factum, submits that the second issue (accessory use) was not raised at trial. As for the first issue (the Saint-Romuald issue), in oral argument, the court sought clarification from counsel for the appellants as to whether it had been raised at trial. Our concern stemmed from the fact that the trial judge’s reasons, which by any standard are exemplary, make no mention of it – or the “accessory use” issue.
[16] Counsel for the appellants responded in a less than certain fashion. Upon request, he willingly produced the factum that he had filed with the trial judge. Unfortunately, it does not assist the appellants. In contrast, counsel for the Municipality was adamant that neither issue was raised at trial. In support of this contention, he too referred to the thoroughness of the trial judge’s reasons. Moreover, he pointed to the evidentiary record and in particular, the absence of pertinent evidence the Municipality would have called to address the issues had they been raised at trial. Because of that, the Municipality urges us not to entertain the appellants’ arguments, regardless of their potential merit.
[17] In this regard, the Municipality submits that because the record is incomplete, the most we could do would be to order a new trial – and that would be very unfair to the Municipality. The appellants have already had two bites at the cherry and they should not be permitted a third. They have been ably represented throughout by counsel and no valid reason has been offered to explain why the two issues that the appellants seek to argue on appeal were not raised at trial.
[18] The Municipality relies on an established body of authority in support of its position that we should not entertain argument on the new issues: R. v. Perka, 1984 23 (SCC), [1984] 2 S.C.R. 232; Farr-Mor Fertilizer Services Ltd. v. Hawkeye Tanks and Equipment Inc., [2002] SKCA 44; 767269 Ontario Ltd. v. Ontario Energy Savings LP, [2008] ONCA 350; and Ross v. Ross, [1999] NSCA 162. See also Kaman v. Graham, [2009] ONCA 77.
ANALYSIS AND CONCLUSION
[19] We agree with the position taken by the Municipality and would accordingly dismiss the appeal.
[20] In short, we are satisfied that the issues which the appellants now seek to argue were not raised at trial. Had they been, we are confident that the learned trial judge would have addressed them.
[21] We also acknowledge the Municipality’s concern that the record before us is incomplete and for that reason, we are not in a position to resolve the new issues. The only available remedy would be to order a new trial and the Municipality, in our view, ought not to have to relitigate, for a third time, a matter that originated in 2002.
[22] Our decision to leave the appeal untested on the merits has not been taken lightly. We are particularly concerned by the “Saint-Romuald” issue raised by the appellants. Whether the appellants would have succeeded had they raised it at trial, we cannot say; but in disposing the appeal as we have, we should not be taken as diminishing its potential merit.
COSTS AT TRIAL
[23] Turning to the costs appeal, because we have dismissed the main appeal, the appellants require leave to appeal. In the circumstances, we would grant leave but dismiss the appeal.
[24] The trial judge addressed the issue as to whether Newcastle should bear sole responsibility for costs of the proceeding before him. At para. 8 of his costs endorsement, the trial judge stated:
Newcastle raises the issue in its submissions of whether or not costs should be against all of the applicants. That issue was not raised at trial. There was no application to have any of the named applicants released from this matter. I am therefore not prepared to grant relief on that issue in a costs submission after trial.
[25] We see no basis for interfering with the trial judge’s decision. Accordingly, the appeal from costs is dismissed.
COSTS OF THE APPEAL
[26] If the parties cannot agree on the costs of the appeal, they may file written submissions, not exceeding 3 pages double-spaced, within 10 days of the release of these reasons.
Signed: “John Laskin J.A.”
“M. J. Moldaver J.A.”
“Robert P. Armstrong J.A.”
RELEASED:”JL” May 3, 2010