Court of Appeal for Ontario

Date: 2025-04-25
Docket: COA-24-CV-1067
Panel: Grant Huscroft, S. Coroza, J. George JJ.A.

Between

Corporation of the Municipality of Temagami
Applicant (Respondent)

and

Temagami Barge Limited, Dashiel Lowery Delarosbel, and His Majesty the King in Right of the Province of Ontario as Represented by the Minister of Northern Development, Mines, Natural Resources and Forestry
Respondents (Appellants/Respondent)

Appearances:

• Leo F. Longo, for the appellants
• Charles M. Loopstra and Jenelle Westworth, for the respondent Corporation of the Municipality of Temagami
• Eunice Machado, for the respondent His Majesty the King in Right of the Province of Ontario as represented by the Minister of Northern Development, Mines, Natural Resources and Forestry[^1]

Heard: 2025-04-17

On appeal from the order of Justice Julie Richard of the Superior Court of Justice, dated September 20, 2024.

Reasons for Decision

Background

[1] Temagami Barge Limited (“TBL”), owned by Dashiel Lowery Delarosbel (the “appellants”), operates a barging business on the property located at 1658 Temagami Access Road (the “property”). TBL’s core services include septic sewage pump-outs, a propane dispensary and commercial barging. It has operated on the property since 1988, prior to which the property was used for a logging operation. Two by-laws govern the zoning of the property. By-law No. 06-65 (the “2006 by-law”) currently zones the property. Prior to 2006, by-law No. 81-62 (the “1981 by-law”) zoned the property for light industrial use.

[2] The Corporation of the Municipality of Temagami (the “municipality”) brought an application alleging that 13 of TBL’s uses of the property contravened the 2006 by-law and could not be deemed legal non-conforming uses under the 1981 by-law. The application proceeded on a written record.

[3] The application judge found that none of the uses were permitted under the 2006 by-law or saved as legal non-conforming uses under the 1981 by-law. She ordered a permanent injunction to restrain the appellants from using the property for these 13 uses. She also ordered the appellants to pay the municipality costs on a substantial indemnity basis in the amount of $161,323.61. This amount was 70% of the municipality’s legal fees.

Grounds of Appeal

[4] On appeal, the appellants argue that the application judge erred by granting a permanent injunction and effectively shutting down a business that they have been continuously operating at the property for over 36 years. The appellants make several submissions.

Legal Non-Conforming Use

[5] First, the appellants submit that the application judge erred in applying the test for determining legal non-conforming use, or acquired rights, set out by the Supreme Court of Canada in Saint-Romuald (City) v. Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898. We reject this submission. The application judge correctly stated the law, summarized the principles outlined in Saint-Romuald and applied them to each of the alleged prohibited uses. The application judge clearly found that many of TBL’s uses of the property were not “legal non-conforming” because they were too remote from both the earlier activities of the logging operation and TBL’s activities from 1988 to 2006. The application judge’s analysis was necessarily a fact-driven exercise and we see no error in her comprehensive reasons.

Expert Evidence

[6] Second, the appellants argue that the application judge disregarded expert opinion evidence that they tendered regarding the content and application of the two zoning by-laws. We do not accept this argument. The application judge did not exclude all of the expert evidence. For example, she did accept as reliable the documentary evidence introduced by way of exhibits attached to the expert affidavits. In any event, the application judge’s decision to give no weight to the opinions provided by the parties’ experts as to lawful use was not an error. A court can choose to reject expert evidence if it is not necessary to enable the court to perform its fact-finding function. We see no error in the application judge’s approach and it is consistent with her role as a gatekeeper of the admissibility of expert opinion.

Findings of Fact

[7] Third, the appellants contend that the application judge misapprehended evidence and made findings of fact without supporting evidence. For example, they note that the application judge referred to a Notice of Zoning Contravention as an “order” that was not complied with. We see nothing in this submission. None of the errors identified by the appellants, assuming that they were made, are palpable and overriding.

Procedural Issues

[8] Fourth, the appellants submit that the application judge failed to direct herself as to the appropriateness of proceeding by way of an application rather than converting the matter to an action under r. 38.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. We reject this submission because it is being raised for the first time on appeal. At no time did the appellants ask the application judge to exercise her discretion under r. 38.10. In any event, the appellants have not pointed to any prejudice that flowed to them from proceeding by way of an application. We do not agree with the appellants’ submission that the application judge clearly found that the record was deficient and this should have alerted her to raise the issue to convert the application into an action. To the contrary, the application judge observed that she did not need viva voce evidence to make credibility findings, because she preferred the affidavit evidence led by the municipality, including evidence from a witness who worked and lived on the property during the period when logging operations were taking place. In contrast, the appellants relied on the evidence of Mr. Delarosbel who was seven years old during the same time period, and a planning expert who admitted that he had no knowledge of the uses carried out on the property by the previous owner other than what he read in the record.

Costs

[9] Finally, the appellants argue that the application judge erred in granting substantial indemnity costs to the municipality without hearing submissions on costs from either party and without providing any reasons regarding the entitlement to costs or the scale of costs.

[10] If there is an appeal before this court from both an order on the merits and from a costs order and the appeal on the merits is dismissed, leave to appeal costs is required pursuant to s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c C.43: Murano v. Bank of Montreal, 41 O.R. (3d) 222 (C.A.), at paras. 74-80; McFlow Capital Corp. v. James, 2021 ONCA 753, at para. 50. The appellants did not seek leave to appeal costs. This is sufficient to dispose of their costs’ appeal.

[11] In any event, leave to appeal costs will only be granted where there are strong grounds upon which this court could find that the judge below erred in exercising their discretion. While the application judge should have heard submissions from the parties as to the appropriateness of substantial indemnity costs, we see no error in her awarding costs that were calculated at 70% of the municipality’s legal fees – an amount akin to partial indemnity as opposed to substantial indemnity.

Disposition

[12] Accordingly, we dismiss the appeal. The municipality is entitled to costs of the appeal fixed in the agreed upon amount of $25,000 inclusive of disbursements and applicable taxes.[^2]

“Grant Huscroft J.A.”
“S. Coroza J.A.”
“J. George J.A.”

[^1]: Ms. Machado appeared but made no written or oral submissions on behalf of the respondent.

[^2]: Although counsel for Ontario appeared for the appeal, Ontario did not file any material, nor did it make any submissions. Consequently, there are no costs awarded to Ontario.