Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20200306 DOCKET: C65414
Feldman, Huscroft and Harvison Young JJ.A.
BETWEEN
The Corporation of the Town of Whitchurch-Stouffville Applicant (Respondent)
and
Paul Bolender, John Bolender, Bruce Bolender and Karen McConnell Respondents (Appellants)
Counsel: Al Burton, for the appellants John Hart, for the respondent
Heard: March 2, 2020
On appeal from the judgment of Justice Anne Mullins of the Superior Court of Justice, dated April 24, 2018, with reasons reported 2018 ONSC 2621, 74 M.P.L.R. (5th) 263.
Reasons for Decision
[1] The appellants own two properties in the respondent municipality, one since the late 1960s and the other since the late 1970s. They have carried on the business of harvesting peat moss and making triple mix on the properties, which are zoned for rural use. They have also, in the past, altered the sites without obtaining a permit as required by a site alteration by-law by having trucks come onto the property to dump fill and other materials.
[2] The town obtained an interim and then a permanent injunction to stop these activities in 2013 and 2014, but the injunction was set aside by this court in July 2015 on the basis that a trial of the issues was required and such a trial was ordered.
[3] After a 12-day trial, the trial judge rendered the following judgment:
THIS COURT ORDERS that the open storage of heavy equipment at 14547 Highway 48 Whitchurch-Stouffville, Ontario constitutes a lawful non-conforming use at that address.
THIS COURT ORDERS that the Respondents, Paul Bolender, Karen McConnell, Bruce Bolender and John Bolender are hereby prohibited from extracting peat, assembling triple mix and receiving waste, and any activities incidental thereto, at 14857 Highway 48 Whitchurch-Stouffville and 14547 Highway 48 Whitchurch-Stouffville.
THIS COURT ORDERS that the receipt and accumulation of waste or fill, the extraction of peat and the compilation of triple mix, and the incidental uses thereto, are not and have never been permitted uses under the various Zoning By-laws of the Town of Whitchurch-Stouffville at 14857 Highway 48 Whitchurch-Stouffville and 14547 Highway 48 Whitchurch-Stouffville.
THIS COURT DECLARES that the Respondents Paul Bolender, Karen McConnell and Bruce Bolender have breached the provisions of the Site Alteration By-law of the Town of Whitchurch-Stouffville, being By-law 2017-017-RE.
THIS COURT ORDERS that Paul Bolender, Karen McConnell and Bruce Bolender be and the same are hereby restrained from contravening Section 2.2 of the Site Alteration By-law of the Town of Whitchurch-Stouffville, being By-law 2017-017-RE, which provides that no person shall undertake, cause, or permit any site alteration of any Property within the Town without the owner first receiving a permit issued under the said By-law by the Director, as defined therein, authorizing the Site Alteration.
THIS COURT ORDERS that costs may be spoken to by the parties.
[4] Dealing first with paras. 4 and 5 of the order, which are relevant only to the North property, the appellants submit that there was no evidence of any activity being carried out on the property in 2017 and therefore no order could be made in respect of enforcing the 2017 by-law. The appellants also submit that by using evidence from 2012 and 2013 to substantiate an injunction that enforces a 2017 by-law, the trial judge gave the by-law retroactive effect, contrary to this court’s decision in Burlington (City) v. Burlington Airpark Inc., 2017 ONCA 420, 138 O.R. (3d) 309.
[5] The respondent conceded in oral argument that para. 4 of the order, which finds a breach of the 2017 by-law, cannot stand as no evidence of any such breach was led. We agree.
[6] We do not agree, however, that any error was made in the order in para. 5. While the appellants discontinued their activities on the properties in response to the injunction and did not recommence pending the trial and disposition by the court, they did not give evidence at the trial that they did not intend to carry on their business on the North Property in the future. We are satisfied that in those circumstances, the evidence of what occurred before the interim injunction was ordered in 2013 was the only relevant evidence that could be led on the trial that was ordered by this court.
[7] Nor is there any improper retroactive effect by that approach. This is not a case like Burlington, in which the town wanted the property-owner to seek a permit based on a repealed by-law. In this case, the effect of para. 5 is to require the appellants to comply with the 2017 by-law in the future by obtaining a permit before doing any site alteration, in the face of evidence that they failed to obtain the required permits, contrary to previous by-laws, in the past.
[8] The appellants further argued that the trial judge erred in making the orders in paras. 1-3 by failing to find that the peat moss extraction, triple mix compilation, and related activities constituted legal non-conforming uses of the properties. They submit that the trial judge failed to apply the factors set out by the Supreme Court in Saint-Romuald (City) v. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898, at para. 39, for determining which non-conforming uses of property will nevertheless be legal. They argue that the placement of heavy equipment on the North Property in 1968, which the trial judge found was a legal non-conforming use, expanded into the other activities on both properties in a way which extended that legal protection to all the appellants’ uses of the lands.
[9] We do not agree. The trial judge gave reasons for finding that the activities carried out by the appellants constituted industrial rather than rural or agricultural uses, that these activities were prohibited from their commencement by the by-laws, and that they were not an extension of the storage of heavy equipment, within the meaning of the Saint-Romuald factors.
Disposition
[10] Given our conclusions above, it is unnecessary to address the appellants’ arguments regarding the quantification of damages had they succeeded on the merits. We also see no basis to interfere with the costs order below.
[11] The appeal is therefore dismissed, subject to setting aside para. 4 of the order on consent. We order costs of the appeal to the respondent in the agreed amount of $22,500, inclusive of disbursements and HST.
“K. Feldman J.A.”
“Grant Huscroft J.A.”
“Harvison Young J.A.”