COURT OF APPEAL FOR ONTARIO

Date: 2022-03-31 Docket: C66417

Judges: Simmons, Miller and Nordheimer JJ.A.

Parties

BETWEEN

Regional Municipality of York Respondent

and

1085638 Ontario Limited and Meadow Valley Garden Centre Ltd. Appellants

Counsel: Adam Marchioni, for the appellants Chris G. Bendick, for the respondent

Heard: March 21, 2022 by video conference

On appeal from the judgment of Justice David S. Rose of the Ontario Court of Justice, dated September 28, 2018, dismissing an appeal from the convictions entered on June 6, 2017 by Justice of the Peace Herbert B. Radtke of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant, 1085638 Ontario Limited, was convicted of one offence under the Building Code Act, 1992, S.O. 1992, c. 23 and both appellants were convicted of two offences under the Planning Act, R.S.O. 1990, c. P.13. All of the offences relate to the operation of a garden centre in the City of Vaughan. The appellants now appeal, with leave, from those convictions.

A. Background

[2] There is a lengthy history to this matter which we need not repeat for the purposes of our analysis and conclusion. The relevant facts may be stated briefly.

[3] The appellants operated a garden centre on Keele Street in the City of Vaughan. There is no dispute about this fact. There is, however, a dispute about the length of time that the garden centre operated, about which we will have more to say later.

[4] The first offence relates to the construction of a building that houses the garden centre. It was constructed without obtaining a building permit. On March 10, 2005, a building inspector for the City of Vaughan issued an order to comply that required that an engineer’s report be filed with the City. That was never done. This led to the charge under the Building Code Act.

[5] Many years later, in April 2012, a by-law officer for the City of Vaughan attended at the garden centre. She observed vehicles and equipment along with gardening materials and supplies. Trees and shrubs were for sale. The location of the garden centre is on lands that are part of the Oak Ridges Moraine. Zoning for the lands did not permit the operation of a retail nursery nor did it permit open storage. This led to the two offences under the Planning Act.

[6] We should add that, back in 1992, 1085638 Ontario Limited had submitted an application to amend the official plan and zoning to permit the operation of a garden centre. That application was granted subject to certain conditions. Those conditions were never fulfilled. Consequently, the amendment never came into effect.

B. The decisions below

[7] The Justice of the Peace convicted the appellants at first instance. He found that the appellants had shown a lack of respect for the process and had “flouted” the law. With respect to the appellants’ argument that the garden centre constituted a legal non-conforming use, the Justice of the Peace found that there was insufficient evidence that the garden centre was “in fact operating on the day of the passing of the bylaw.” Thus, there was no evidentiary foundation for the argument of legal non-conforming use.

[8] The appeal judge reviewed the reasons and conclusions of the Justice of the Peace and, in detailed reasons, he upheld them.

[9] It is not necessary for us to consider all of the issues that the Justice of the Peace dealt with because this court, in granting leave to appeal, restricted the issues on the appeal to two: (i) the issue of legal non-conforming use under s. 34(9) of the Planning Act and (ii) the issue of delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

[10] On the first issue, the Justice of the Peace found, as we have said, that there was insufficient evidence led by the appellants to establish that the garden centre was in operation at the time that the municipal by-law came into force. The by-law prohibited the use of the lands for the retail operation of a garden centre. The appeal judge upheld that conclusion, finding that it was a question of fact which was entitled to deference. However, the appeal judge went on to find a second reason for sustaining that conclusion. He found that the building for the garden centre had been erected in 1992, long after the by-law was passed. He found that that fact also meant that the appellants could not rely on a legal non-conforming use.

[11] The second issue raised the question of delay in the prosecution, and an asserted breach of s. 11(b) of the Charter. The issue was raised back in 2011 and with reasons delivered in January 2012, prior to the second and third charges being laid. The application for a stay was dismissed. As if this matter was not confused enough, we should point out that the s. 11(b) issue was heard and determined by another Justice of the Peace, not the one who convicted the appellants.

[12] There is no issue raised regarding any delay in the prosecution after that ruling. It is also agreed that the only challenge to the s. 11(b) ruling is whether the Justice of the Peace, who heard and determined that challenge, was correct in holding that 1085638 Ontario Limited had failed to demonstrate that it had suffered any prejudice arising from the delay.

[13] The appeal judge found that the correct test had been applied in considering the s. 11(b) issue. He also found that the Justice of the Peace had not committed any error in concluding, on the evidence, that no prejudice had been established.

C. Analysis

[14] In our view, the appeal judge was correct in both of his conclusions.

(1) Legal non-conforming use

[15] The argument on this issue, and which led to leave to appeal being granted, was whether s. 34(9) of the Planning Act requires that the non-conforming use be in active operation on the very day that the zoning by-law comes into force. That question is of importance in this case because, as found by the Justice of the Peace, the appellants could not state with any certainty that that was the case. Indeed, there was some evidence that could suggest the garden centre had not become operational until much later in time.

[16] The appellants submit that to hold that the business must be in operation on the very day when the zoning by-law comes into force is inconsistent with the wording of the Planning Act and is also inconsistent with this court’s decision in Feather v. Bradford (Town), 2010 ONCA 440, 320 D.L.R. (4th) 228.

[17] We do not agree. In our view, the wording of s. 34(9) is clear. It reads:

No by-law passed under this section applies,

(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or

(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8(1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8(10) of that Act. [Emphasis added.]

[18] The emphasized words from s. 34(9)(a) do not allow for any other interpretation. Had the Legislature intended that the use could exist at some point prior to the by-law being passed, it could have used the language that appears in s. 34(9)(b), that is “prior to the day of the passing of the by-law”, but it did not. The express language of the section must be given effect.

[19] We also do not see any inconsistency in that conclusion and the decision in Feather for two reasons. The first is that the decision in Feather did not deal with the issue that is before us. Rather, the decision addresses an attempt by the property owner to reconstruct a cottage. It did not involve an issue over the use of an existing cottage. The second is that there was a factual finding in Feather that the owner of the cottage had used it continually up to and including the date on which the applicable zoning by-law was passed. That is an important factual distinction between this case and Feather.

[20] The appellants advance a further basis for submitting that the finding of the Justice of the Peace was in error. They contend that the finding that there was insufficient evidence that the business was operating on the day the by-law was passed was premised on the fact that the witnesses who testified to the issue could not recall whether the garden centre was open on the specific day the by-law was passed. They say there was unchallenged evidence that the appellants began operations prior to the date on which the by-law was passed and continued thereafter to the date of the hearing. The finding of insufficient evidence that the business “was operating” on the date the by-law was passed is therefore an error in law.

[21] We cannot accept this argument. The appellants’ evidence that the garden centre began operations prior to the date on which the by-law was passed was not unchallenged. As we have said, there was also evidence on which the Regional Municipality of York (the “Region”) relied that could suggest the garden centre was not operational until well after the by-law was passed. Counsel for the Region cross-examined the appellants’ witnesses concerning whether the business was in operation on the day the by-law was passed. The appellants’ argument in this regard is not a question of law, rather it is a question that attracts review on a standard of palpable and overriding error. This court’s jurisdiction on appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990 c. P.33 is limited to a question of law alone. The appellants’ argument in this regard was addressed and dismissed by the appeal judge.

(2) The s. 11(b) argument

[22] The respondent concedes that the appeal judge erred, when considering this issue, in not applying the test in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and more specifically, the application of the transitional exceptional circumstance. In our view, that error is of no moment in this case. The decision in Jordan provides for a transitional exceptional circumstance to excuse delay in cases that were still in the system when the decision in Jordan was released, but where the delay in the case is explained by reliance on the pre-existing law. At para. 96, the court said: “This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed.”

[23] All of the delay in this matter preceded the decision in Jordan by more than four years. In determining the s. 11(b) issue, the Justice of the Peace properly applied the law that existed at the time, that is, the decision in R. v. Morin, [1992] 1 S.C.R. 771 and related cases. On that point, the decision in R. v. CIP Inc., [1992] 1 S.C.R. 843, made it clear that in order for a corporation to obtain a stay of proceedings under s. 11(b), it was required to show prejudice to its ability to make full answer and defence. The court said, at p. 863:

It is therefore my opinion that with respect to this fourth factor, a corporate accused must be able to establish that its fair trial interest has been irremediably prejudiced.

[24] The appellant, 1085638 Ontario Limited, did not lead any evidence of any prejudice to its right to make full answer and defence. The s. 11(b) challenge was, therefore, properly dismissed. It is not necessary for us to consider the issue whether, in cases that involve a corporation and where the delay includes delay post-Jordan, there is still a need to demonstrate prejudice.

D. Conclusion

[25] The appeal is dismissed.

“Janet Simmons J.A.”

“B.W. Miller J.A.”

“I.V.B. Nordheimer J.A.”