Court of Appeal for Ontario

Citation: 2018 ONCA 945 Date: November 26, 2018 Docket: C65367

Judges: Strathy C.J.O., Benotto and Roberts JJ.A.

Parties

Between

The Corporation of the Township of Havelock-Belmont-Methuen Applicant (Respondent on Appeal)

and

Albert Kloosterman and Mary Lynne Kloosterman Respondents (Appellants on Appeal)

Counsel

Christopher Robertson, for the Appellants

M. John Ewart and Jessica Chapman, for the Respondent

Heard: November 19, 2018

On appeal from: The order of Justice Alexander Sosna of the Superior Court of Justice, dated April 12, 2016.

Reasons for Decision

Overview

[1] The appellants are owners of a piece of vacant land in the Township of Havelock-Belmont-Methuen. They appeal from the application judge's order granting the Township a declaration that the placement on the appellants' property of a "trailer/recreational" vehicle or any vehicle for the purposes of human habitation is a non-permitted use, and an injunction prohibiting the appellants from placing a "trailer/recreational" vehicle or any vehicle upon their property.

[2] The order arises out of the Township's application under its Comprehensive Zoning By-Law No. 1995-42 ("the By-Law") and its allegation that the appellants infringed s. 4.31 of the By-Law by placing a prohibited vehicle for temporary or permanent human habitation on their property.

The By-Law Provisions

[3] Section 4.31 of the By-Law reads as follows:

S. 4.31 Prohibited Habitation and Storage of Goods, Materials, Animals or Equipment

No truck, bus, coach, cargo or freight container, recreational or any other type of trailer shall be used for either temporary or permanent human habitation, the keeping of animals, storage of goods, materials, ore, equipment, whether or not the same is mounted on wheels.

Human habitation, whether temporary or permanent, shall only be permitted in a dwelling unit located within a zone permitting residential uses; erected and used in accordance with this and all other by-laws of the Corporation.

[4] The following definitions under s. 2 of the By-Law are relevant:

"RECREATIONAL MOTOR HOME" means a self-propelled vehicle designed for temporary or seasonal living, sleeping or eating accommodation, including a truck camper, but does not include a mobile home or recreational travel trailer as defined herein.

"RECREATIONAL VEHICLE" means any small vehicle used primarily for recreation, powered, propelled or driven otherwise than by muscular power. This definition shall include all-terrain vehicles, snowmobiles, hovercraft, amphibious vehicles and vehicles of a similar nature.

"TRAILER" means any vehicle designed to be towed by a motor vehicle.

"TRAVEL TRAILER" means a vehicular portable structure with the running gear intact that is not more than 2.6 metres (8.5 feet) wide and 12.5 metres (41 feet) long and is designed for short-term occupancy to be used for travel, recreation and vacation. This definition shall not include a mobile home or motor home.

Application Judge's Decision

[5] The application judge interpreted s. 4.31 of the By-Law to include the vehicle depicted in the photographs taken by the Township's by-law inspector and produced in support of the Township's application. It is acknowledged that the vehicle falls within the By-Law's definition of a "recreational motor home". The application judge found that the connection of the appellants' vehicle to the power line on the property was evidence of intended habitation despite finding no evidence of actual habitation. He granted the Township's application.

Issues on Appeal

[6] The appellants submit that the application judge erred in his interpretation of the By-Law, in his finding that the connection of the appellants' motor home to the property's power line was evidence of intended habitation, and in his overly broad order that prohibited the placement of any vehicle on the appellants' property.

[7] We agree.

Court's Analysis

Interpretation of the By-Law

[8] First, it is clear from a plain reading of the By-Law, including its definitions, that recreational vehicles and motor homes are not included in s. 4.31. Section 4.31 expressly prohibits the placement of any "truck, bus, coach, cargo or freight container, recreational or any other type of trailer" but not a motor home. The definitions under s. 2 cited above for "recreational vehicle", "trailer" and "travel trailer" do not include recreational motor homes. Moreover, the Township's by-law inspector admitted on his cross-examination that the vehicle depicted in the photographs in support of the application was not a trailer but a motor home.

[9] It was therefore not open to the application judge to conclude that "[t]he overall appearance, structure [of the vehicle depicted in the photographs] is consistent with a vehicle built and intended for 'recreational' use and therefore captured as being prohibited by the By-Law", when the unambiguous definitions of the By-Law and the unchallenged evidence of the Township's by-law inspector excluded the appellants' vehicle.

Evidence of Habitation

[10] Second, having accepted that "'human habitation' goes beyond sleeping, eating, and executory functions", the application judge erred in determining that providing electrical power to the appellants' motor home was consistent with intended habitation despite no evidence of actual habitation. There was no evidence of actual use beyond the appellants' evidence that seasonally Mr. Kloosterman and his grandchildren might occasionally use the motor home for privacy in changing bathing suits or for its washroom facilities. These kinds of uses fall far short of "human habitation".

Scope of the Injunction

[11] Finally, the application judge's order is overly broad. It goes beyond the scope of the By-Law and enjoins the placement on the appellants' property of all vehicles, even cars, which are clearly not prohibited under the By-Law.

Disposition

[12] Accordingly, the appeal is allowed and the order is set aside.

[13] As agreed, the appellants are entitled to their partial indemnity costs in the amount of $5,000 plus HST for the appeal and $8,000 plus HST for the application; both amounts include disbursements.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

L.B. Roberts J.A.