Court File and Parties

Court File No.: City of Sarnia 09-120

Date: 2012-11-02

Ontario Court of Justice

In the Matter of: An appeal under subsection 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Les Kirk o/a Lakeshore Automotive Appellant and Respondent by Cross Appeal

— And —

The Corporation of the County of Lambton Respondent and Appellant by Cross Appeal

Before: Justice Paul J.S. Kowalyshyn

Heard on: September 19, 2011

Reasons for Judgment released on: November 2, 2012

Counsel:

• J. Kirby, for the Appellant
• J. Benham, Provincial Prosecutor for the Respondent

On appeal and cross-appeal from: A conviction by Justice of the Peace Seneshen on November 18, 2010 and from the sentence imposed on November 18, 2010.

KOWALYSHYN, J.:

Introduction

[1] This is an appeal brought by Les Kirk operating as Lakeshore Automotive (hereinafter the "Appellant"), in which the Appellant seeks, inter alia, to set aside the conviction of Justice of the Peace Seneshen dated November 18, 2010. On that date, the Appellant was convicted of operating an automobile sales and rental establishment at 637 Lakeshore Road in the City of Sarnia, contrary to the permitted uses set out in s. 7(1) of the City of Sarnia Zoning By-law No. 85 of 2002, (the "By-law"). The offence date was March 23, 2009.

[2] It is the Appellant's position that the learned trial justice erred:

a) in stating that the subject property is zoned as an automobile repair establishment when it is in fact zoned as "Urban Residential 1" ("UR-1") with designation as a legal non-conforming use;

b) in failing to properly consider the activities protected by a "non-conforming use" and "acquired rights";

c) in determining that the U-Haul portion of the Appellant's business constitutes an Automotive Sales and Rental Establishment as defined in the City of Sarnia By-law No. 85 of 2002;

d) in finding that the U-Haul receiving and dispatching business constituted more than an "accessory" use of the premises;

e) in failing to resolve an ambiguity in the By-law in favour of the Appellant, and;

f) in failing to analyze and weigh the impact of the U-Haul portion of the business on the Appellant against the impact on the community.

[3] The Appellant submits that the learned Justice of the Peace erred both in his interpretation and in the application of the requisite laws before him and as such the Appellant is requesting that the appeal be allowed and an acquittal entered.

[4] This is also a cross-appeal brought by the Corporation of the County of Lambton (hereinafter the "Respondent") against the sentence imposed by Justice of the Peace Seneshen which was a fine in the amount of $950.00. Justice of the Peace Seneshen also issued an order pursuant to section 67(1) of The Planning Act, R.S.O. 1990, c.P. 13, prohibiting the Appellant from renting and leasing U-Hauls from the subject property. The Respondent appeals the amount of the fine and argues that it is "woefully inadequate" when taking into account the established sentencing principles of general and specific deterrence.

[5] In response to the cross-appeal it is the position of the Appellant that in the event that the conviction is upheld that the said fine is appropriate.

Summary of the Facts

[6] The Appellant, Les Kirk is the director and manager of 748080 Ontario Inc., operating as Lakeshore Automotive located at 637 Lakeshore Road in the City of Sarnia. He has been operating in this fashion since November 26, 2007 when he began leasing the property from Josephine Claester Boyles.

[7] The Appellant's business had previously been operating at 1141 Lakeshore Road in the City of Sarnia.

[8] The business operates generally as an automotive station performing the following services:

a) repair of motor vehicles;

b) installation of car parts;

c) sale of propane;

d) cleaning of motor vehicles;

e) greasing of motor vehicles;

f) servicing of motor vehicles;

g) sale of snacks and beverages;

h) inspection and maintenance of U-Haul vehicles;

i) greasing of U-Haul vehicles;

j) cleaning of U-Haul vehicles;

k) dispatching of U-Haul vehicles. (There is a dispute as to whether or not the business "dispatches" or more properly "leases and rents" which will be addressed later in these reasons).

[9] Pursuant to the By-law, 637 Lakeshore Road is zoned as UR-1 with designation as a legal non-conforming use.

[10] On March 23, 2009 the Appellant was charged under Part III (Section 23) of the Provincial Offences Act, R.S.O. 1990, c.P.33, alleging a violation of the By-law.

[11] The Appellant was charged with operating an Automobile Sales and Rental Establishment which is defined in the By-law as "… a building and/or land used for the display and sale of new and/or second-hand motor-vehicles and may include the servicing, repair, cleaning, polishing, painting and greasing of motor vehicles, the sale of auto accessories and related products, and the leasing or renting of motor vehicles."

[12] Beginning at page 3 of his decision, Justice of the Peace Seneshen said:

"As it is my duty to make a decision on what occurred on or about the 23rd day of March, 2009 and not being persuaded that the evidence given by Mrs. Kirk that to a great extent that the U-Haul operation was a dispatching station rather than a full Rental and Sales Establishment, I'm not satisfied that that indeed is correct according to law, and that the rentals and leasing of U-Haul vehicles constitutes breach of this particular by-law as the property is not zoned for that by-law. I'm not satisfied that the other uses that have been described which would be accessory uses acquire the right to operate as a Sales and Rental Establishment. That Lakeshore Automotive had the opportunity to dispense with that portion of their operation and although I accept that certain parts of the U-Haul operation involve repair of those vehicles that that does not allow the rental and leasing of those as established in the by-law."

[13] Justice of the Peace Seneshen went on to say that in his estimation this was not a complex matter.

[14] He found that all of the witnesses (meaning those offered by both the Appellant and the Respondent) were credible and truthful in their evidence.

[15] He said, however, that he was "…not persuaded that there was any right for Lakeshore to operate beyond their by-law requirement within the establishment and they exceeded this by leasing and renting U-Haul vehicles from that property".

Issues and Law

[16] The Appellant has presented his argument by identifying five main issues. For the most part the Respondent responded in this fashion and accordingly, my decision reflects consideration of these five issues as put forward by the Appellant and the Respondent in both their written (factums) and oral arguments.

Issue #1: Did the Honourable Justice of the Peace err in his classification of the subject property under the zoning By-law?

[17] Both the Appellant and the Respondent agree that the short answer to this question is "yes". Justice of the Peace Seneshen began his analysis of the case law before him by incorrectly stating the zoning of the subject property.

[18] Specifically Justice of the Peace Seneshen stated at the bottom of page 1, "The section under which the property is currently zoned is an Automobile Repair Establishment [which] shall mean a building and/or a lot used for the servicing, repair, polishing and greasing of motor vehicles, it may include vehicular body repair and repainting, but shall not include any other automotive use defined in this by-law."

[19] In actual fact, the subject property is zoned as UR-1 with a legal non-conforming use designation.

[20] There appears to be some dispute between the Appellant and the Respondent as to the legal non-conforming use permitted. It is the Appellant's position that the legal non-conforming use was "Automobile Service Station". It is the Respondent's position that the legal non-conforming use was "Automobile Repair Establishment".

[21] Section 3.30 of the By-law confirms that sections 34(9) (a) and (b) of the Planning Act, R.S.O. 1990, c.P.13 as amended applies. Section 34(9)(a) of the Planning Act provides "no by-law passed under this section applies, 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".

[22] Where property is zoned as a "legal non-conforming use" the law is well settled that "…the nature of a non-conforming use is not defined by reference to definitions in the by-law. Rather, it must be determined by reference to the use to which the property was put at the time the by-law was passed". See: St. Romuald City v Olivier, 2001 SCC 57, [2001] 2 S.C.R. 898 (S.C.C.) at para. 5.

[23] The Appellant submits that the analysis used by Justice of the Peace Seneshen failed to take into account the doctrine of "acquired uses" or "acquired rights". I agree.

[24] I also agree with the Appellant's submission that by analyzing this case in the aforementioned manner (that the subject property was zoned as an "Automobile Repair Establishment"), that the learned Justice of the Peace made an error which was not only prejudicial but fatal to the Appellant's case.

[25] Included within the definition of "Automobile Repair Establishment" in the City by-law is the phrase " but shall not include any other automotive use defined in this by-law" (emphasis added). After categorizing subject property as such, Justice of the Peace Seneshen had no alternative but to analyze the case by disqualifying activities found in other sections of the by-law as impermissible.

[26] Justice of the Peace Seneshen therefore engaged in what the Supreme Court of Canada in St. Romuald, supra, termed as the erroneous use of the "categorical approach" to by-law interpretation.

[27] Hence, given that the property is zoned as a legal non-conforming use, the appropriate analysis would have been to make reference to the use which the property was put to at the time of the passing of the By-law, which is July 15, 2002.

[28] In my view this is a critical part of the analysis.

[29] In situations where the alleged violator of a by-law wishes to assert a claim of a permitted legal non-conforming use the onus is on that person to do so based on a balance of probabilities standard: See R. v. Tantalo, [2005] O.J. No. 1235 (O.C.J.) at para. 8 and 25.

[30] The Appellant argues that it has done so.

[31] Mr. Kirby on behalf of the Appellant has referred the Court to a number of cases in support of his position and properly submits that the commencement point for classification of the legal non-conforming use is the aforenoted St. Romuald decision.

[32] At paragraph 5 of the St. Romuald decision, Justice Binnie said:

"The acquired right is no more than a right to carry on using the land for the purpose to which it was in fact previously being put. The issue, of course, is how widely or narrowly to circumscribe the description of the purpose of that pre-existing use."

[33] In my view this last reference is the most troublesome aspect of this appeal and the most problematic issue from the perspective of the Appellant.

[34] All of the case authority provided by counsel for both parties, makes reference to the "acquired right" relating to the use to which the property was put at the time the by-law was passed.

[35] Justice Binnie in writing for the majority in the St. Romuald decision, cited Justice Gonthier (dissenting) and said at paragraph 5 that "the protected 'acquired right' properly relates only to the status quo.": see also paragraphs 7 and 19; see also Prince Edward Island Museum and the Heritage Foundation v. Charlottetown(City) [1998] P.E.I.J. No. 20 (P.E.I.S.C.) at paragraphs 22, 25, 29 and see also 1218897 Ontario Limited, et al v. Ann Borooah, et al(ON S.C.) at paragraph 8.

[36] The term "status quo" is defined in the Canadian Oxford Dictionary as "the existing state of affairs".

[37] Justice Binnie also stated at paragraph 5 that the protected "acquired right" does not protect a potential or contemplated use that has never materialized.

[38] I do not interpret Justice Binnie's words or those of the other Justices or the provision of s. 34(9) of the Planning Act to provide some sort of protection for past or historic uses. Rather, they relate to the actual use (and hence the "status quo") of the property at the time the By-law was passed.

[39] In his decision the learned Justice of the Peace Seneshen made no reference to the property's use at the time of the passing of the by-law. Given that this is a critical issue and in effect the starting point of any analysis I am obliged to review the evidence that was before Justice of the Peace Seneshen during the trial. I will review this evidence against the back-drop of the procedure set out in the St. Romuald decision.

[40] In St. Romuald, the Supreme Court of Canada held that the proper approach in making determinations about the nature of a non-conforming use and the limitations on acquired rights is to engage in a seven part analysis.

Part 1: What is the Purpose of the Pre-Existing Use?

[41] It is first necessary to characterize the purpose of the pre-existing use actually carried on at 637 Lakeshore Road. The purpose for which the premises are used "is a function of the activities actually carried on at the site prior to the new by-law restrictions": see St. Romuald at para. 39 (emphasis added).

[42] The only witness called by the Respondent was Sarnia By-Law Enforcement Officer and Planning Technician Carol Ann Dillon. Ms. Dillon acknowledged in her evidence that she was only able to speak to events which had occurred since November of 2007. Accordingly, she was not able to give any evidence as to the use of the property on the effective date of the By-law, that being July 15, 2002.

[43] Counsel for the Appellant submits that prior to the enactment of the By-law that the subject premises had "traditionally been used as a location for the repair, servicing, cleaning and greasing of automobiles, as well as the sale of chocolate bars, propane and automotive parts. At one time, it was also used for the sale of gas and a U-Haul depot". This is set out in paragraph 27 of the Appellant's factum.

[44] This evidence was provided by Les Boyles. He is the son of Josephine Boyles and the late Alvin Boyles. Alvin Boyles died in 2002. They were the owners of the subject property from which the Appellant acquired its interest. Les Boyles had been looking after the property since his father passed away in 2002.

[45] Les Boyles testified that his father had "operated" the property since 1972. He stated that at one point in time there was a "U-Haul service there". He was also asked if at some point and time there had actually been a U-Haul business there. His response was that there had been although he had agreed that the type of business that was operated back then was different from the type of U-Haul business being operated at the time of the alleged offence.

[46] The critical point in the evidence of Mr. Boyles in my view is when the U-Haul operation was in existence.

[47] Mr. Boyles said that his father operated the property since 1972. He died in 2002.

[48] He was not specific as to when the U-Haul service station was being operated. He simply agreed with Mr. Kirby, counsel for the Appellant, that "at some point" that a U-Haul business was there.

[49] I am therefore initially left to conclude that it is sometime in the 30 year period between 1972 and 2002 that the U-Haul business was operated at the subject property.

[50] Looking for further information in this regard I reviewed the evidence of Mr. Boyles in more detail.

[51] In cross-examination Les Boyles was specifically asked what time period the U-Haul business operated on the property prior to 2002. The question, at page 101 of the transcript was "O.K. Do you recall what time period that took place?"

[52] His answer was "Not exactly but I know growing up there definitely was a U-Haul there."

[53] Mr. Boyles went on to say that he was growing up there "up until the 80's". He added that the U-Haul business stopped at some time and simply became a repair shop only.

[54] This is the only evidence that Justice of the Peace Seneshen had before him as to when a U-Haul business was being operated on the property. Assuming then that the latest date the U-Haul business could have operated was 1989 then it clearly would have been 13 years from that date to the time that the By-law was enacted in July of 2002. That means that there was no U-Haul business operating on the property for at least that 13 year period and perhaps longer—even as much as 22 years (1980 – 2002).

[55] Les Boyles gave evidence before Justice of the Peace Seneshen that after his father died in 2002 that nothing was being done with the property until 2004 when it was leased out again.

[56] The Kirks did not begin leasing 637 Lakeshore Road until the fall of 2007.

[57] Accordingly, in my view, the evidence clearly and without doubt indicates that there was not in fact a U-Haul business being operated at the subject property on July 15, 2002 which is the date on which the by-law was enacted. This is critical.

[58] I have already made reference to Justice Binnie's language at paragraph 39 of the St. Romuald decision, where he states in the second sentence of paragraph 1: "The purpose for which the premises were used (i.e. "the use") is a function of the activities actually carried on at the site prior to the new by-law restrictions" (emphasis added).

[59] This is consistent with his earlier comments in paragraph 19 when he was discussing the doctrine of "acquired rights" and stated that the respondents in that case were entitled to continue to use the premises as they were used when the new by-law was passed.

[60] The subject premises in the case before Justice of the Peace Seneshen were not in fact being used as a U-Haul business or even a U-Haul service in July of 2002. Therefore, the Appellant cannot in any way argue that under the doctrine of acquired rights that he is entitled to continue that use. He also cannot argue that he is entitled to any "flexibility in the operation of that use" based on changes in technology, market conditions, etc. (also as outlined in para. 19 of St. Romuald, supra) because the U-Haul aspect of the business had not been in operation for some time.

[61] On the basis of all the evidence before Justice Seneshen it is equally clear that it had been a period of at least 18 years (1989 – 2007) since the time that the property was last used in any capacity as a U-Haul Station, whether it be for service, repairs, dispatching, receiving, renting, leasing, or what have you.

[62] There was no evidence before the learned Justice of the Peace that the use "at the time the passing of the by-law" (see para. 34(9) (a) of the Planning Act) included any aspect of any U-Haul business. There is, in my view, a clear distinction to be made between "actually" carried on and "previously" carried on.

[63] In that regard it also cannot be argued that the right to use the premises for U-Haul purposes was simply "abandoned" or "interrupted" for a brief period of time. Although the evidence indicates there was some discussion between Les Boyles and his father Alvin, that Alvin at some point might want to use the property again for the purpose of selling gasoline (he had removed the pumps and underground tanks sometime or close to the mid-80's), there was never any actual discussion of starting up the U-Haul service or the U-Haul business again.

[64] Accordingly, this is not the type of situation which Justice Ducharme was dealing with in 1218897 Ontario Limited v. Ann Borooah, et al, supra. In that case the Court was dealing with a situation where a fire had interrupted the use of the property as a body shop for a period of one year. In that case, Justice Ducharme found at paragraph 11, "at no time was there any intention to abandon any of the previous uses". He was referring to the activities associated with the operating of a body shop.

[65] In this case, the use of the subject property as a U-Haul business (in part) had not occurred for at least 18 years (1989 – 2007).

[66] Reviewing the evidence of Mr. Boyles further, it is apparent that following the time that his father removed the tanks both above and below ground that the business essentially became a repair shop. As he put it on page 102 of the transcript "the tanks were taken out and then [my father] focused on repairing automobiles at that time, yes."

[67] Throughout his evidence Les Boyles testified that this was the manner in which the business was operating up until the time of his father's passing in 2002.

[68] In summary then, in this case there was no evidence of "current activity" of a U-Haul business being operated at the subject property as at July 2002.

[69] The Appellant's argument is focused on what his client did after he took over the property in the fall of 2007 and not what the property was actually being used for at the time the By-law was passed in 2002.

[70] The fact that the City gave no evidence of use from 2002 to 2007 is irrelevant because it does not bear the onus. The Applicant does.

[71] Further, the fact that the evidence disclosed that Les Boyles believed that the operation of a U-Haul business was permissible in 2007 based on his father's business some many years prior is in large part irrelevant having regard to the case law and the strict provisions that the Court is required to consider in relation to the activities carried on at the property at the time the By-law came into effect.

[72] The case law does not provide that if a property was used in some fashion at some prior time in history that this maintains or establishes an "existing" use, except perhaps in cases of "abandonment" or "interruption".

[73] Similarly, the By-law and the Planning Act do not focus on any historical use. They refer to an "existing" use.

[74] So although the Appellant requests that the charge be dismissed, it has not met the onus of demonstrating that the use in existence at the time of the passing of the by-law was in fact a U-Haul business.

[75] Given the agreement between both the Appellant and the Respondent that at the very least automobile repairs were permitted on the property, and given the fact that this is supported by the evidence and having regard to my earlier comments, I find that the actual use of the non-conforming use of the property was in fact "automobile repair establishment".

[76] Acquired rights can flow from that use but for the reasons stated I do not find that a U-Haul business (renting, leasing, dispatching) is one of them.

[77] It is therefore unnecessary to embark on the remaining six tenets of the analysis set out by Justice Binnie in the St. Romuald decision.

[78] However, assuming for a moment that I am mistaken on this first part and that somewhere there was evidence of a U-Haul business being in existence in July 2002, or an acquired right to maintain that business, then the Court would have to go further with the St. Romuald analysis.

Part 2: Is there a intensification in the pre-existing activities which go beyond a matter of degree and constitute, in terms of community impact, a difference in kind?

[79] In the event that the Court was required to consider this point, then it is my view that moving from a cleaning and repairing facility to a "receiving and dispatching" station (in effect, a leasing and renting operation) is more than an intensification of a pre-existing activity.

[80] This is a change of use.

[81] I agree with the submissions of counsel for the Respondent that if the Appellant wanted to add more service bays for repairing and servicing more vehicles then that would amount to a intensification of the use.

[82] I would also be persuaded that if the Appellant wanted to engage in detailing of automobiles or becoming involved in specialty painting of automobiles that this would amount to an intensification.

[83] At its most basic point one cannot "dispatch and receive" U-Haul vehicles unless there is a reason for so doing. There is a distinction to be made between bringing in an automobile, U-Haul or another motorized vehicle for repairs and then returning it back to the person who brought it in, as compared to having a vehicle dropped off by one person (hence receiving it) and then releasing it (hence dispatching it) to another person not for repairs or servicing but for use (lease or rental). This type of receiving and dispatching cannot occur, it cannot take place, without there being some type of rental or lease agreement. This constitutes a difference in kind.

[84] Although "related" I find that the "intensification" of the existing use as argued by the Appellant goes beyond a matter of degree and constitutes in terms of community impact a difference in kind.

[85] Justice Binnie said in paragraph 39 of the St. Romuald, supra, that where the intensification is such as to go beyond the matter of a degree and constitutes, in terms of community impact, a difference in kind, the protection may be lost.

[86] The impact on the community was outlined in the evidence of Carol Ann Dillon when she talked about the different times of day or night when individuals would drop off U-Hauls and the over use of the site.

[87] This is buttressed by the evidence which was included within the Agreed Statement of Facts filed before Justice of the Peace Seneshen in which neighbouring property owners testified as to the negative community impact. Paragraph 15 of the Agreed Statement of Facts attached the OMB's January 5, 2009 decision regarding the Appellant's Request for Review submitted December 5, 2008, as Exhibit #4. Within that Exhibit, the impact on the community is noted on page 2. Justice of the Peace Seneshen had this document before him as well as the OMB decision issued November 5, 2008 which also detailed the community impact.

[88] In the event I am wrong, then this leads to a consideration of the third part of Justice Binnie's analysis.

Part 3: If activities had been added beyond those engaged in at the time the by-law was passed, are those activities too remote to be protected under the non-conforming use?

[89] If I am correct that the Appellant expanded its activities in 2007 to include adding the component of renting and leasing U-Hauls, then I find that these added activities are too remote from the earlier activities (auto repair) to be protected under the non-conforming use. As I previously stated it would have been at least 18 years (and possibly 27) from the time that a U-Haul component was part of the business being operated on the subject property.

[90] The pre-existing non-conforming use is one of "automobile repair establishment". I do not find a renting or leasing operation to be closely aligned to that use.

[91] Justice Binnie stated in St. Romuald that "in such a case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate 'neighbourhood effects'" (para. 39).

[92] However, in the event that I am wrong on this point as well, then the next step is to consider the community interest as balanced against the land owner's interest.

Part 4: What are the neighbourhood effects of the added activities? (More properly described as "Balancing the landowner's interest against the community interest)

[93] Justice Binnie stated in St. Romuald that the Court has to balance the landowner's interest against the community interest, taking into account the nature of the pre-existing use (e.g. the degree to which it clashes with surrounding land uses), the degree of remoteness and the new or aggravated neighbourhood effects).

[94] The evidence before Justice of the Peace Seneshen (and as presented before me) was that the renting and leasing of U-Haul vehicles only accounted for 2 to 3 percent of the Appellant's overall business. It is minimal. I therefore have difficulty with the Appellant's submission that the Appellant in some way might be forced out of business or not be able to carry on his business if he lost the ability to lease or rent U-Hauls. The impact of not being able to carry on this aspect of the Appellant's business is therefore minimal at best.

[95] The "surrounding land uses" for a zone dedicated as "UR-1" in the By-law include accessory uses and buildings, churches, daycare centres, group homes, lawful existing dwellings and dwelling conversions, schools, single detached dwellings and women shelters. But for the non-conforming use as "automobile repair establishment" I find that the added activities of a U-Haul sales and rental establishment do in fact "clash" with the character of what the evidence discloses to be a primarily residential area.

[96] With respect to the new or aggravated neighbourhood effects at trial, Justice Seneshen was provided with a certified copy of the OMB Decision #PL080553 dated November 5, 2008, the OMB's Response to a Request for Review, dated January 5, 2009 and an Agreed Statement of Facts. These documents detailed the objections of a number of neighbours in response to the site-specific rezoning application of the Appellant. The Appellant had previously and successfully made a request that the by-law be altered to allow it to include the sales and rental of automobiles. That decision was struck down by the OMB on November 5, 2008 and the property was restored to one of legal non-conforming use to include an automotive repair shop.

[97] The aforenoted November 5, 2008 OMB decision and the January 5, 2009 letter outlined and referenced the objections of adjacent property owners Roy and Joan Goldsmith as well as Francis VerBeem and Eloise Tardiff as well as "uncontested professional opinion evidence of the Sarnia Planning and Building Department report of March 17, 2008 which recommended refusal of the rezoning application". Those objections included the negative impact associated with traffic, its effects on public health and safety, as well as the concerns about the noise emitted from vehicles being returned late into the evening and vehicles being parked on the property. They also cited concerns with the compatibility of the U-Haul business with the surrounding residential area. Additional concerns were noted in sub-paragraphs "iii" and "iv" of the January 5, 2009 letter.

[98] The neighbourhood effects therefore were not missing but were clearly established by the evidence. This addresses not only Part 4 of the Appellant's submissions under Issue #1, but Part 5 ("Were the Neighbourhood Effects Established by the Evidence") as well. Accordingly, I find that although there was no direct evidence of the "neighborhood effects" before the learned Justice, by inclusion of the Agreed Statement of Facts including the two OMB decisions there was in fact evidence for him to consider in relation to the neighbourhood effects.

[99] For all of these reasons I find against the Appellant in relation to Issue #1.

Issue #2: Did the Honourable Justice of the Peace err in finding that the business constituted a rental and sales establishment in contravention of the zoning by-law?

[100] The Appellant submits that in the event that the U-Haul portion of the Appellant's business is not a protected "acquired use" that Justice of the Peace Seneshen erred in finding that Lakeshore Automotive was carrying on businesses as a sales and rental establishment.

[101] The Appellant acknowledges in its factum and in its submissions that in addition to performing services related to the repair of motor vehicles, installation of parts, cleaning, greasing, servicing of motor vehicles, etc., that it also inspected and maintained U-Haul vehicles, that it greased U-Haul vehicles and that it was involved in the cleaning of U-Haul vehicles.

[102] The Appellant submits that the business operated "only incidentally as a receiving and dispatching station for U-Haul vehicles".

[103] My reading of the By-law is such that it only requires that a building and/or land is used for, inter alia, the leasing or renting of motor vehicles. It is important to note that it does not limit or set out the minimal number of leases or rentals which would constitute the act of leasing or renting. Accordingly, the logical conclusion is that "one" lease or rental is sufficient to bring an individual into contravention of the By-law.

[104] The Appellant relied on the evidence of Lori Kirk when she testified as to the process as to how the Appellant received a reservation for a U-Haul vehicle, either by dialling the 1-800 number or by going on-line thru the company website.

[105] Regardless of the fact that one can rent or lease a U-Haul in either manner, that the request is received in Phoenix, Arizona at a sales and reservation centre and then directed to U-Haul Canada, Western Ontario in Hamilton and then assigned to Sarnia for scheduling and that the Appellant then contacts the customer to confirm the reservation and schedule pick up and return times, this does not mean that the Appellant was operating as a "depot" only. I do not accept that submission. It defies logic and common sense.

[106] More importantly, it is not consistent with the evidence before Justice of the Peace Seneshen. Lori Kirk is the wife of the Appellant, Les Kirk. She described herself as being an active participant in the business with her husband. She was the bookkeeper and administrator. She was also very familiar as to how U-Haul reservations are made and how rentals can be accommodated at their place of business.

[107] First of all Ms. Kirk testified that when she and her husband moved their business from a different location on Lakeshore Road to the subject location in November 2007, that they put up a new sign which was "to the affect of [the] new location of Lakeshore Automotive and U-Haul" (page 64 of transcript).

[108] She also agreed in cross-examination (page 79) that a sign was posted at the top of the garage which reads "trucks and trailers for rent U-Haul".

[109] She went on to say that persons could come in their door and ask to rent a U-Haul. In other words, there would be walk in traffic without people having even first having made arrangements for a rental through either the 1-800 number or on the company website.

[110] Counsel for the Appellant himself confirmed that individuals could walk in off the street and rent U-Haul vehicles. This is what Mr. Kirby referred to "as the incidental 2 to 3 percent".

[111] Again, even 1 percent in my view is sufficient to establish that renting and leasing are going on. Accordingly that use is prohibited by the By-law.

[112] I would also add that by becoming involved in confirming a reservation schedule as well as a pick up and return time that this constitutes the act of rental and leasing.

[113] Accordingly, Justice of the Peace Seneshen had more than ample evidence to make the finding that he did, that being that the U-Haul portion of the Appellant's business did in fact constitute a rental and sales establishment in contravention of the zoning by-law. He did not err in making the finding that he did.

[114] It is therefore not even necessary to get into a discussion as to whether or not dispatching and receiving is distinct from renting and leasing because the Appellant's own evidence and submissions from its own counsel confirm that rentals can be and were in fact made on the subject property.

[115] However, having said that in this case dispatching and receiving is part and parcel of the rental and leasing process because the Appellant is facilitating part of the rental and leasing by having the equipment on site, by procuring some of the contracts and by receiving some of the documentation from U-Haul.

Issue #3: Did the Honourable Justice of the Peace err in determining that the U-Haul portion of the Appellant's business did not constitute an "Accessory" use?

[116] The By-law defines "accessory" as a "use or building subordinate, incidental and exclusively devoted to the main use, building, or structure located on the same lot therewith".

[117] I have already found that the property was zoned UR-1 with a legal non-conforming use as an Automobile Repair Establishment. I would also note that in the Agreed Statement of Facts presented before Justice of the Peace Seneshen that in paragraph 7 of the document the only legal non-conforming use permitted was that of "Automobile Repair Establishment". That was changed by the City of Sarnia on March 31, 2008 by By-law #45 of 2008 to allow for automobile sales and rental. This of course was reversed by the OMB in its decision in November 5, 2008 which restored the legal non-conforming use of the property to one of automobile repair.

[118] I have already addressed the fact that there was no evidence adduced at trial which would indicate or even remotely suggest that on July 15, 2002 a U-Haul business was being operated at the subject property. Therefore, the Court does not need to embark on the St. Romuald analysis, on this particular issue.

[119] I have also previously stated that the evidence before Justice of the Peace Seneshen was that the property was primarily used as an automobile service and repair shop in July 2002.

[120] I therefore agree with the Appellant's submission that the main use of the property at the relevant time included the repair and servicing of automobiles which could also include the repairing and servicing of U-Haul vehicles.

[121] The evidence before Justice of the Peace Seneshen was that the U-Haul aspect of the business at the time of the offence was somewhere between 25 to 30 percent at most (page 65 of the transcript). That means that 70 to 75 percent of the total business related to non U-Haul matters.

[122] Counsel for the Appellant has referred the Court to the Ontario Superior Court Decision in 1121472 Ontario Inc. v. Toronto (City) (ON. SC). At paragraph 30 the Court reviewed case law on the issue and arrived at what can be described as three components to the definition of "accessory". They are:

a) the use must be "naturally and normally" incidental to the principal use;

b) the use must be "subordinate in purpose or floor area, or both … to a principal use"; and

c) the use must be "exclusively devoted to a principal use and be located on the same lot as the principal use".

[123] In my view the Appellant has failed to meet two of the three requisite parts of this 3-component test and as such the appeal on this ground must fail.

[124] The main use of the building is an Automobile Repair Establishment. This necessarily includes the repair and servicing of U-Haul vehicles.

[125] Even accepting for a moment (which I don't) the Appellant's argument that it was "only" involved in the "dispatching and receiving" of U-Haul vehicles, this dispatching and receiving of U-Haul vehicles is not "naturally and normally incidental to the principal use" of repairing and servicing of automobiles, or even U-Hauls for that matter. Rather, it is naturally and normally incidental to "renting or leasing them".

[126] It is no more "naturally and normally incidental" for a corner garage or muffler shop to lease and rent cars than it is for the Appellant.

[127] It is a separate use. It is a distinct use.

[128] It is an unrelated use and not an incidental one.

[129] Specifically, it is not a "common or at all events not unusual incidental use" as highlighted by Justice Kitely in paragraph 28 of 1121472 Ontario Inc. v. Toronto, supra.

[130] I acknowledge that it could be found to meet the second part of the three-part test, that is that it is subordinate in purpose or floor area or both to a principal use. However, I do not find that the third part of the test has been met. I do not find that the evidence disclosed that the U-Haul aspect of the Appellant's business is "exclusively devoted" to its principal use as an automobile repair and servicing station.

[131] Accordingly, although Justice of the Peace Seneshen did not appear to consider this 3-part test I do not find Justice of the Peace Seneshen erred in determining that the U-Haul aspect of the Appellant's business did not constitute an "accessory" use within the meaning of the by-law.

[132] Lastly, it should be pointed out that Issue #3 as stated on page 18 of the Appellant's factum is not factually correct because Justice of the Peace Seneshen did not find that the entire U-Haul portion of the Appellant's business did not constitute an accessory use. He only found that the leasing and rental portion of it did not constitute an accessory use. In that regard, I refer to his comments on page 4 where he says "…I accept that certain parts of the U-Haul operation involve repair of [U-Haul] vehicles…".

[133] Although Justice of the Peace Seneshen's findings may have been based on what the Appellant views to be an erroneous path, his conclusion was correct.

Issue 4: Did the Honourable Justice of the Peace err in failing to resolve ambiguities in favour of the Appellant?

[134] The Appellant submits that an ambiguity is created in this case because the Appellant does not rent or lease U-Haul vehicles (contrary to the finding of Justice Seneshen and my own finding) but rather receives and dispatches them for U-Haul International Inc.

[135] The Appellant goes on to state that "receiving" and "dispatching" are not defined terms within the by-law and as such the question of whether they constitute permitted uses under zoning by-law "could be seen as unclear".

[136] The Appellant goes on to argue that the By-law itself indicates that "where a term is not defined, its common usage shall apply".

[137] The Appellant cites Seguin(Township) v. Grin [2004] O.J. No. 2993 (Ont. S.C.J.) as authority for the proposition that zoning by-laws are to be strictly construed to impinge as little as possible upon the rights of an owner and to resolve any ambiguity in favour of the owner (at paragraph 36).

[138] While that principle is correct, Justice of the Peace Seneshen had no ambiguity that he needed to resolve. Accordingly, he could not err in this respect.

[139] As Justice of the Peace Seneshen found, dispatching and receiving of U-Haul vehicles are part and parcel of the renting and leasing. For reasons which I have already set forward, without the ability to rent or lease there is no ability to dispatch and receive. It is trite law that a trial Judge's findings are to be lightly interfered with.

[140] Furthermore, I have already outlined how the Appellant's own evidence at the trial before Justice of the Peace Seneshen confirmed that the Appellant was involved and could be involved in the leasing and renting of U-Hauls, even apart from any dispatching and receiving that it may have done in relation to orders placed on the U-Haul website or through its 1-800 number.

[141] Accordingly, there is no "ambiguity" as the Appellant suggests and therefore this is not a situation where the Court is obliged to resolve any ambiguity in favour of the land owner.

[142] I would add that the fact that the Appellant's business is known "in the industry" as a "dispatching and receiving station", does not impart on it some special privilege or exemption from the ordinary and common understanding of what is necessarily involved in a leasing and renting transaction.

Conclusion with respect to Appellant's Grounds of Appeal

[143] Having regard to all of the foregoing comments the Appellant's appeal is dismissed on all grounds.

Cross-Appeal

[144] The Respondent (Cross-Appellant) submits that the $950.00 fine imposed by Justice of the Peace Seneshen was "woefully inadequate when taking into account the established sentencing principles of general and specific deterrence and the prescribed fine".

Background Facts

[145] The Respondent has outlined in its "Cross-Appellant's Factum" the history of the zoning and re-zoning issues and decisions made in relation to the subject property as it relates to the Appellant.

[146] The Appellant leases the property from Mrs. Josephine Claester Boyles. The property is zoned UR-1 with a legal non-conforming use as Automobile Repair Establishment.

[147] On November 26, 2007, the City of Sarnia Planning Technician and By-Law Enforcement Officer Carol Ann Dillon received a complaint regarding the Appellant leasing and renting U-Hauls from the property.

[148] It has been previously noted that under the definition of "Automobile Repair Establishment" the use of the property for anything not defined within that definition is prohibited. This would include renting and leasing as that is included under the by-law definition of "Automobile Sales and Rental Establishment".

[149] The Respondent submits that on November 26, 2007 the Appellant was advised that he was not permitted to rent U-Haul trucks from the site and that he would need to seek permission from City Counsel to allow for an amendment to the official plan.

[150] On March 31, 2008, the City approved the re-zoning application and changed the zoning to "Automobile Sales and Rental Establishment".

[151] On May 13, 2008 the neighbouring land owners appealed to the Ontario Municipal Board and on November 5, 2008 the OMB struck down the by-law, restoring the property to the legal non-conforming use of Automobile Repair Establishment.

[152] On December 5, 2008 the Respondent filed a Request for Review with the OMB regarding its November 5, 2008 decision. On January 5, 2009, the OMB released its decision regarding the request for review. The request was denied and the decision was upheld.

[153] On February 5, 2009 Ms. Dillon sent a letter to the owner of the property (Ms. Boyles) requesting that the leasing and rental of U-Haul trucks cease by March 11, 2009 as it was not permitted by the by-law. The Appellant was then charged (March 23, 2009) with the By-law violation and was tried before Justice of the Peace Seneshen on April 12, 2010. Justice of the Peace Seneshen's decision convicting the Appellant was rendered on November 25, 2010.

[154] The Respondent argues that a fine in the range of $7,000.00 to $10,000.00 is appropriate having regard to the amount of time that had elapsed between when the Appellant was first told to cease leasing and renting U-Hauls and the date the decision was rendered by Justice of the Peace Seneshen. Counsel for the Appellant suggests that the fine be in a range of $100.00.

[155] As I have already indicated Justice of the Peace Seneshen imposed a fine of $950.00 with 120 days to pay and also ordered that the Appellant be prohibited from renting and leasing U-Hauls from the property. That Order was made pursuant to S.67(1) of the Planning Act.

Issue Under Appeal

[156] The By-law allows for maximum penalty of $25,000.00 on a first conviction. This is a first conviction.

[157] The Respondent submits that the leasing and renting of U-Haul vehicles continued for a period of 57 days following when the Appellant was advised to stop leasing and renting as a result of the contravention of the by-law (to which the Appellant responded that it would continue).

[158] The Respondent essentially argues that the Appellant acted in a cavalier manner and effectively snubbed his nose in response to the request by the City.

[159] In reviewing the transcript and page 106 specifically, I do not find this to be the case.

[160] The more important consideration in this matter is as argued by counsel for the Respondent in reference to part of the reasoning of Justice Gonthier, in dissent, in St. Romuald, supra.

[161] Justice Gonthier said at paragraph 65:

"…it is still up to the courts to determine whether [certain aspects of acquired rights] are lost when an initial prohibited use is replaced by a different prohibited use. Because that question, by its very nature, can arise only out of a precise fact situation, only a court will be in a position to resolve it".

[162] The situation here is not a straight forward one. It is very complex and I would agree with counsel for the Respondent that it is in large part "more of a technical argument".

[163] Regardless of the fact that the Appellant carried on the U-Haul leasing and renting aspect of his business after being told not to do so, there was evidence before Justice of the Peace Seneshen that the Appellant honestly and truthfully believed that he was entitled to do that as a result of the prior use of the property as explained by Les Boyles, son of the prior owner.

[164] Adding to this, I note that the City approved the re-zoning application which would have permitted the use as a "Sales and Rental Establishment". So even the City of Sarnia itself, at one point, was content that renting and leasing of U-Hauls be permitted.

[165] I do not find any mala fides on the part of the Appellant. I do not attribute any "blameworthy conduct" on the part of the Appellant which would necessitate a higher fine being imposed than that which was imposed by Justice of the Peace Seneshen following a full trial on the merits.

[166] Counsel for the Respondent has provided the Court with authority for the proposition that an appellate court in these circumstances has the jurisdiction and a duty to form its own opinion as to sentence and to vary it if it does not consider the sentence appealed from to be fit: see North Perth(Town) v. Scott [2006] O.J. No. 2723(O.C.J.) at paragraph 66 where it cites the Ontario Court of Appeal decision in R v. Cotton Felts Ltd. (ON CA), [1982] O.J. No. 178 (Ont. C.A.).

[167] My own opinion is that I find the sentence to be a fit one, and the cross-appeal is therefore dismissed.

Released: November 2, 2012

Justice Paul J.S. Kowalyshyn