COURT OF APPEAL FOR ONTARIO

CITATION: Donnell v. Joseph, 2012 ONCA 240

DATE: 20120417

DOCKET: C54577

Cronk and Epstein JJ.A. and Strathy J. (ad hoc)

BETWEEN

Mary Donnell

Applicant (Appellant)

and

Wayne Joseph and Kim Joseph, carrying on business as WJ Moving & Storage and The Corporation of Norfolk County

Respondents (Respondents in Appeal)

Paul Amey and Heather Hall, for the appellant

Richard A. Wellenreiter, for the respondents, Wayne Joseph and Kim Joseph

Mark Abradjian, for the respondent, The Corporation of Norfolk County

Heard: March 23, 2012

On appeal from the judgment of Justice P.B. Hambly of the Superior Court of Justice, dated October 24, 2011, with reasons reported at 2011 ONSC 6307.

Cronk J.A.:

[1] The appellant, Mary Donnell, appeals from the dismissal of her application for declaratory and injunctive relief in respect of alleged infractions by the respondents, Wayne and Kim Joseph, of land use zoning and sign by-laws passed by the respondent municipality, the Corporation of Norfolk County (the County). At the conclusion of oral argument by the appellant, this court dismissed the appeal, with reasons to follow. These are those reasons.

I. Background

[2] Mr. and Mrs. Joseph operate a moving business from a single family dwelling on a property located in the County, near the Town of Simcoe, Ontario. They also reside in the dwelling. The property is zoned for agricultural uses under the County’s applicable zoning by-law, By-law No. NW 1-2000 (the zoning by-law).

[3] Section 10 of the zoning by-law permits a “home occupation” or a “home industry” to be conducted in an agricultural zone, subject to certain conditions. The Josephs maintain that their moving business constitutes a “home occupation” within the meaning of that term under the zoning by-law, such that the operation of their moving business, in the manner conducted by them, is a permitted land use under the zoning by-law.

[4] The term “home occupation” is defined under s. 2.70 of the zoning by-law as meaning, in part, an “occupation, personal service, business, arts and craft or profession” that is “carried on as a secondary use entirely within a dwelling unit provided the proprietor carrying on the activity resides within such dwelling unit”. Under s. 3.17 of the zoning by-law, any home occupation is subject to certain conditions, including:

a. there shall be no goods, wares or merchandise ... offered or exposed for sale or rent on the premises;

c. only one employee shall be permitted;

e. no home occupation shall occupy any portion of an accessory building.

[5] Ms. Donnell is Mr. Joseph’s former spouse. She operates a moving business in the County, in competition with the Josephs’ business.

[6] Ms. Donnell maintains that the Josephs’ operation of their moving business contravenes the zoning by-law because it is not carried on “entirely within a dwelling unit” on their property, as required under the definition of a “home occupation”. More particularly, she argues that the following aspects of the Josephs’ moving business fall outside the definition of a home occupation because they are carried on outside the Josephs’ dwelling unit:

(1) the storage of packing materials in a shipping container or “sea bin” on the property;

(2) the parking of two moving vans on the property, when the vans are not in use to move customers;

(3) the parking of employees’ motor vehicles on the property, when the employees are not engaged in moving customers; and

(4) the conduct of daily safety and related inspections of the moving vans.

[7] Ms. Donnell further submits that a sign erected by the Josephs regarding their moving business, positioned near a public highway at the entrance to their property, fails to comply with the size and content requirements of the County’s By-law No. 2009-66 (the sign by-law).

[8] The application judge considered, and rejected, Ms. Donnell’s claims that the above-described aspects of the Josephs’ moving business and their business sign contravened the County’s zoning and sign by-laws.

[9] Ms. Donnell appeals. For the reasons that follow, I would dismiss the appeal.

II. Alleged Zoning By-law Infractions

[10] I begin with the applicable standard of review. In order to determine whether the challenged aspects of the Josephs’ moving business breached the zoning by-law, the application judge was required to interpret the relevant provisions of the zoning by-law and to apply those provisions to the facts, as established by the evidentiary record before him, concerning the Josephs’ operation of their moving business on their property. This task involved a question of mixed fact and law.

[11] Accordingly, the application judge’s ruling on the alleged zoning by-law infractions attracts deference from this court. Unless the application judge made some extricable error in principle in his interpretive analysis or in his application of the zoning by-law, there is no basis for appellate interference with his decision, absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26 to 37.

[12] In my view, Ms. Donnell’s zoning by-law challenge fails for two reasons. First, her zoning by-law-related complaints are undercut by the application judge’s numerous factual findings regarding the Josephs’ conduct of their moving business on their property. His key factual findings included the following:

(1) the Josephs’ moving business is a personal service administered from a small office located in the single family dwelling unit on the Josephs’ property, in which the Josephs also reside;

(2) the Josephs’ moving business is offered to customers “off Wayne’s property”;

(3) Kim Joseph is the only employee of the business who works on the property. Her work is performed from the office located in the family dwelling unit;

(4) the Josephs employ two other individuals in their business. These employees park their vehicles on the property when they are working off-site with customers. Their work in assisting customers is performed “off the property”;

(5) a shipping container or “sea bin” consisting of four compartments is located on the property. The Josephs store packing materials in one of the four compartments. These packing materials, although stored on the property, are sold off the property to customers or otherwise used by the Josephs in the course of moving customers at venues located off the property;

(6) the parking of the moving vans and employee vehicles on the property was approved by the responsible County building official on the basis that these vehicles “were not being used for work carried out on the property”; and

(7) the daily safety inspections carried out on the Josephs’ moving vans were not significant.

[13] Virtually all these factual findings are uncontested. They were open to the application judge on the evidentiary record before him. Based on these findings, the application judge concluded that the definitions of “home occupation” and “home industry” under the zoning by-law were satisfied.

[14] Ms. Donnell argues that the application judge erred by referencing the definition of “home industry” under the zoning by-law and by holding that the impugned features of the Josephs’ business met the requisite elements of that term, as defined under the by-law. I agree.

[15] However, this error is irrelevant. The Josephs do not invoke the concept of a home industry to defend their business activities on their property. Rather, before both the application judge and this court, the Josephs rely on the home occupation use permitted under the zoning by-law to contend that their business activities on their property do not breach the zoning by-law.

[16] Ms. Donnell argues that the identified aspects of the Josephs’ business, above-described, are contrary to the conditions specified under the zoning by-law for a home occupation. I disagree.

[17] On the application judge’s findings, described above: (1) the activities of the Josephs’ moving business are centred on two geographical areas: the office located in the dwelling house on the Josephs’ property and customer venues situated off the property; (2) only one employee works in the business on the property; (3) no retail sales or leases of goods, wares or other merchandise are carried out on the property; and (4) no part of the Josephs’ moving business is actively carried on from or occupies “any portion of an accessory building”. Thus, the pertinent conditions applicable to a home occupation as specified under the zoning by-law are satisfied.

[18] I recognize that the views of the County’s responsible building official concerning the meaning of the relevant provisions of the zoning by-law and their application to the Josephs’ use of their property are not determinative of whether the challenged activities contravene the zoning by-law. But in this case, there is a concordance between the application judge’s factual findings and the conclusions of the County’s building official: the Josephs’ challenged activities do not offend the zoning by-law.

[19] Ms. Donnell points out that under the definition of home occupation set out in s. 2.70 of the zoning by-law, a home occupation must involve a secondary use of a property “entirely within a dwelling unit” in which the proprietor resides (emphasis added). She contends that, in making his critical findings, set out above, the application judge erred by ignoring or misapprehending the plain meaning of the word “entirely” in this definition.

[20] Again, I disagree. Apart from administrative aspects of the Josephs’ business, which are carried out in the office in their family dwelling, the activities of the Josephs’ moving business are conducted off-site – that is, off their property. That the Josephs allow vehicular parking on their property, and store materials on the property that are then sold or used off the property, does not cut against this conclusion. Further, only one employee works on the property.

[21] In these circumstances, in my opinion, the challenged aspects of the Josephs’ business are, at the highest, tangential activities, carried out solely for convenience, that form no essential part of the Josephs’ actual moving business. I do not think that they can be said to constitute part of the Josephs’ moving business in any meaningful sense. On this ground alone, I would dismiss Ms. Donnell’s appeal regarding the Josephs’ alleged zoning by-law infractions.

[22] In my view, there is also a second, important basis on which Ms. Donnell’s appeal from the application judge’s zoning by-law ruling founders.

[23] In her notice of application, Ms. Donnell sought mandatory injunctive relief against the County to compel it to restrain the Josephs from allegedly contravening the zoning and sign by-laws. The sole ground advanced for this relief, both in Ms. Donnell’s notice of application and in her supporting affidavit, was the County’s failure to enforce the by-laws against the Josephs. No express assertions of bad faith or unreasonable conduct by the County were made. However, at the outset of the hearing before the application judge, Ms. Donnell abandoned her claim for relief against the County.

[24] Subsequently, in her factum on appeal, Ms. Donnell appeared to renew her complaint that the County had wrongly failed to enforce its by-laws against the Josephs. It was not until the commencement of oral argument before this court that Ms. Donnell’s counsel clarified that this complaint was relevant only to Ms. Donnell’s claim for relief from the costs award made by the application judge in favour of the County. Thus, in effect, Ms. Donnell again abandoned her allegation of wrongful conduct by the County at the outset of a court hearing, save with respect to the issue of costs.

[25] However, Ms. Donnell did not seek leave to appeal the application judge’s costs award in favour of the County. Nor did she seek any relief against the County in her Notice of Appeal.

[26] In the result, Ms. Donnell’s late clarification of her position regarding the County came only after the County, quite understandably in my view, had filed a detailed factum on appeal, responding to the suggestion that it had acted improperly in its enforcement decisions concerning the zoning and sign by-laws.

[27] I make two points regarding this conduct. First, the timing of Ms. Donnell’s clarification in this court of her position regarding the County’s conduct obviously has implications for the costs of the appeal.

[28] Second, Ms. Donnell’s abandonment of her claim that the County acted improperly in its by-law enforcement decisions regarding the Josephs, both here and in the court below, is tantamount to an implicit acknowledgement that a municipality has considerable discretion in determining by-law enforcement matters. This principle is well-established. While a municipality’s interpretation of the legal meaning of a municipal by-law attracts no deference from a reviewing court, its by-law enforcement decisions stand on a different footing. Justice Laskin of this court put it this way in Foley v. Shamess, 2008 ONCA 588, 297 D.L.R. (4th) 287, at para. 29:

For it is one thing to say a municipality has a duty to enforce its by-laws. The way it enforces them is quite another thing. As I read the case law, a municipality has a broad discretion in determining how it will enforce its by-laws, as long as it acts reasonably and in good faith. That makes common sense. The manner of enforcement ought not to be left to the whims or dictates of property owners. [Citations omitted.]

See also Runnymede Development Corp. v. 1201262 Ontario Inc. (2000), 2000 CanLII 22337 (ON SC), 47 O.R. (3d) 374 (Ont. S.C.); Suprun v. Bryla (2007), 41 M.P.L.R. (4th) 174 (Ont. S.C.), 2007 CanLII 56089, aff’d 2008 ONCA 94 (C.A.).

[29] Here, the application judge made no finding that the County acted in bad faith in its investigation of Ms. Donnell’s zoning-related complaints or in the process it followed to eventually decide, through its responsible building officials, that the Josephs’ impugned activities did not contravene the zoning by-law. Nor did he make any finding that the County’s conduct in this regard was in any way unreasonable. Absent findings of bad faith or unreasonable conduct by the County, it cannot be said that the County’s discretionary decision regarding the enforcement of the zoning by-law against the Josephs is vulnerable to reversal by a reviewing court.

[30] I note that the record in this case does not support any claim that the County ignored or failed to investigate Ms. Donnell’s by-law complaints. On the contrary, the evidence before the application judge established that upon receipt of Ms. Donnell’s complaints, the County conducted an investigation, provided recommendations to the Josephs as to how they could satisfy the requirements of the zoning and sign by-laws, and provided reasons for its decisions concerning their compliance with the by-laws. As a result of this process, the County’s responsible building officials determined that the Josephs’ impugned activities did not offend the zoning by-law in any manner requiring enforcement.

[31] This decision was within the scope of the County’s discretionary enforcement authority and should not be lightly interfered with. The County enjoys ‘real world’, day-to-day expertise with the enforcement of its by-laws, in the context of the needs and interests of members of the entire municipality and the goals and purposes of the County’s land use planning policies. In this case, no showing of bad faith or unreasonable conduct by the County has been made out so as to anchor judicial interference with the County’s enforcement decisions.

[32] I would therefore dismiss Ms. Donnell’s appeal from the application judge’s decision on her zoning by-law complaints.

III. Alleged Sign By-law Infractions

[33] I turn now to Ms. Donnell’s claim that the Josephs are in breach of the County’s sign by-law.

[34] Section 6 of the sign by-law sets out certain restrictions on the dimensions, content and placement of signs identifying a home occupation permitted under the zoning by-law in agriculturally zoned areas. For example, s. 6 of the sign by-law states, among other things, that a sign identifying a home occupation may indicate “not more than the name, occupation and operating hours of the home occupation” and may “not exceed 3.0 sq. m. (32.30 sq. ft.) in sign area”.

[35] At the relevant times, the sign located on the Josephs’ property read “Looking for Wayne? Call WJ Moving 519-426-8448.” Initially, the sign was approximately 8.8 feet long. It was subsequently reduced in size to about 7.8 feet in length, in excess of the 3.0 square metres permitted by the sign by-law.

[36] Ms. Donnell advances two complaints concerning the Josephs’ sign. First, she submits that it exceeds the enumerated physical size limits of the sign by-law. Second, she contends that, contrary to the sign by-law, the Josephs’ sign includes the telephone number for their moving business and words directing passersby to that business.

[37] The application judge, for reasons that I will describe, declined to give effect to these complaints. I see no basis on which to interfere with his decision.

[38] Section 17 of the sign by-law permits minor exceptions to the requirements of the by-law on approval by the County’s By-law Appeals Committee. The Josephs modified the dimensions of their sign at the County’s request to reduce its overall size. Then, when the County expressed continuing concern after this initial modification, the Josephs obtained approval from the County’s By-law Appeals Committee for a minor exception to the sign by-law, approving the dimensions of their sign.

[39] Thus, on at least two occasions, the County took steps to require the Josephs to adapt the size of their sign in order to adhere to the requirements of the sign by-law. When the Josephs’ sign continued to be ‘off-side’ the size dimensions permitted under the sign by-law, the Josephs availed themselves of the by-law exception procedure contemplated under the sign by-law. They were entitled to do so.

[40] As a result, by the time of the hearing before the application judge, the dimensions of the Josephs’ sign conformed to the sign by-law based on the exception granted by the County’s By-law Appeals Committee. There was, therefore, no size infraction of the sign by-law.

[41] This leaves the issue of the content of the Josephs’ sign. Two considerations are relevant. First, by the time of the hearing before the application judge, the Josephs had again applied to the County’s By-law Appeals Committee for approval of a further minor exception to the sign by-law, to permit the content of their sign attacked by Ms. Donnell. During oral argument, we were informed by counsel that the requested exception was granted. Accordingly, for all practical purposes, the issue whether the content of the Josephs’ sign contravenes the sign by-law is now moot.

[42] Moreover, before this exception was granted by the County’s By-law Appeals Committee, County officials who had been involved in drafting the sign by-law considered the impugned content of the Josephs’ sign and concluded that it conformed to the intent of the sign by-law for the advertisement of a home occupation permitted under the zoning by-law.

[43] While the evidence of these officials’ conclusion on compliance with the sign by-law is not determinative of whether the Josephs in fact complied with the sign by-law, it is some evidence of the municipality’s perspective on the nature and seriousness of the alleged infraction of the sign by-law, if any, and of the overall context of the County’s land use regulatory regime: see Runnymede at para. 44.

[44] On these facts, the application judge concluded that the sign in question, “with the minor variances that [Mr. Joseph] obtained and the one that he seeks [if granted] does not violate the sign by-law”. I agree. I also again note that, as it happens, the second sign by-law exception requested by the Josephs has apparently been granted.

IV. Complaints Regarding the County’s Conduct

[45] As I have already indicated, Ms. Donnell did not pursue the question of the propriety of the County’s conduct during oral argument before this court. In particular, her counsel did not press the suggestion that the County’s conduct somehow disentitled it to its costs of the proceeding before the application judge, a matter that was not appealed by Ms. Donnell. Consequently, the attack on the County’s conduct in the investigation of Ms. Donnell’s complaints and the process it followed regarding enforcement of the zoning and sign by-laws against the Josephs need not be considered further.

V. Conclusion

[46] I cannot leave this appeal without one final comment. Ms. Donnell’s by-law complaints are based on a strict, and narrow, construction of the by-laws at issue. While Ms. Donnell was entitled to pursue her complaints, I agree with the application judge that an unduly restrictive interpretation of the by-laws in question, as urged by Ms. Donnell, could have a chilling effect on the operation of small businesses from homes in the County located on agriculturally-zoned lands, where the employees of the relevant businesses perform their work elsewhere. For example, as the Josephs’ counsel emphasized, if Ms. Donnell’s interpretive approach to the County’s by-laws were to be accepted, small contractors or persons operating on-line businesses from home, with employees who perform their work elsewhere, could not operate their businesses from homes in the County located on agriculturally-zoned lands. As well, the owners of such businesses would be precluded from parking vehicles used in connection with their home occupations on their properties.

[47] Furthermore, on Ms. Donnell’s interpretation of the zoning and sign by-laws, little room, if any, would be left for discretionary by-law enforcement decisions by municipal by-law officials.

[48] I reject the notion that either result was intended by the County in passing its zoning and sign by-laws or, more importantly, that either result would advance the public interest goals of the County’s by-law regulation regime.

[49] Accordingly, for the reasons given, I would dismiss the appeal. In the circumstances, I would award the respondents their costs of the appeal in the amounts of $10,000 for the Josephs and $10,000 for the County, each inclusive of disbursements and all applicable taxes.

Released: “Apr 17 2012” “E.A. Cronk J.A.”

“EAC” “I agree G.J. Epstein J.A.”

“I agree G. R. Strathy J.A. (ad hoc)”