Court Information
Court File No.: Welland 16-6147, 16-6146, 16-6145, 16-6184, 16-6144
Date: 2020-01-17
Ontario Court of Justice
Parties
Between:
The Corporation of the Town of Fort Erie
— AND —
2312810 Ontario Inc., Daniel Leo Lino Favero, Linda Favero and Leo Joseph Favero
Before the Court
Before: Justice A.D. Hilliard
Heard on: December 11, 2019
Reasons for Judgment released on: January 17, 2020
Counsel:
- T. Hill — counsel for the Appellant
- M. Munro — counsel for the Respondents
Judgment
Hilliard J.:
Overview
[1] This is an appeal of the trial judgment of Justice of the Peace S. Lancaster dismissing all charges against the defendants.
[2] The Appellant is the Corporation of the Town of Fort Erie, the municipality that prosecuted this matter at trial.
[3] The Respondents are 2312810 Ontario Inc., Daniel Leo Lino Favero, Linda Favero, and Leo Joseph Favero, the defendants in this matter who were charged by way of Information as the registered owners of four (4) properties in the Town of Fort Erie.
[4] The Informations before the Learned Justice of the Peace at trial alleged violations of the Fort Erie zoning By-laws, specifically six (6) counts of unlawful storage of cargo containers, and six (6) counts of unlawfully operating a public storage facility.
[5] The Appellant appeals the dismissal of the six (6) counts alleging the unlawful operation of a public storage facility. The dismissal of the six (6) counts related to the storage of cargo containers is not being appealed.
[6] The Appellant's position is that the learned justice of the peace erred in law and therefore the appeal should be granted, and convictions registered, or in the alternative, that the appeal should be granted, and a new trial ordered.
[7] The Respondents' position is that the decision of the learned justice of the peace is legally sound and the appeal should be dismissed.
[8] For the reasons that follow, the appeal is allowed.
Facts
[9] The facts were mostly undisputed.
[10] The Respondents own four (4) properties in the Town of Fort Erie: 0 Wellesley Avenue, 974 Garrison Road, 960 Garrison Road, and Wellesley Avenue (Plan 119 Lot 31 Lot 32 Plan 459).
[11] All four (4) properties are located in the Highway Commercial C3 Zone and therefore subject to the restrictions set out for such properties in the Town of Fort Erie By-laws.
[12] The Respondents acknowledge that a public storage facility is being operated on the impugned properties.
[13] Located on the properties are cargo containers which are utilized as part of the Respondents' public storage business.
[14] The continuity of the public storage operation on the impugned properties is the fact that is significantly in dispute as between the Municipality and the Respondents.
[15] The Appellant takes the position that there is circumstantial evidence to support a finding that the Respondents' public storage business was not in continuous operation from the date of the purchase of the properties in 1988, to present.
[16] The Respondents' position is that there was ample evidence that could have been and was accepted by the Court at trial that the operation of the public storage business was continuous over the course of their ownership of the properties.
Legislation and By-law
Planning Act, R.S.O. c. P. 13
[17] Section 34(1) of the Planning Act authorizes municipalities to enact zoning By-laws to either permit or prohibit land uses:
Zoning By-laws
34 (1) Zoning By-laws may be passed by the councils of local municipalities:
Restricting use of land
- For prohibiting the use of land, for or except for such purposes as may be set out in the By-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.
Restricting erecting, locating or using of buildings
- For prohibiting the erecting, locating or using of buildings or structures for or except for such purposes as may be set out in the By-law within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway.
[18] Section 67(2) of the Planning Act creates an offence for infractions of municipal By-laws by individuals or corporations:
Penalty
67 (1) Every person who contravenes section 41, section 46, subsection 49 (4) or section 52 or who contravenes a By-law passed under section 34 or 38 or an order made under section 47 and, if the person is a corporation, every director or officer of the corporation who knowingly concurs in the contravention, is guilty of an offence and on conviction is liable,
(a) on a first conviction to a fine of not more than $25,000; and
(b) on a subsequent conviction to a fine of not more than $10,000 for each day or part thereof upon which the contravention has continued after the day on which the person was first convicted. 1994, c. 2, s. 48.
Corporation
(2) Where a corporation is convicted under subsection (1), the maximum penalty that may be imposed is,
(a) on a first conviction a fine of not more than $50,000; and
(b) on a subsequent conviction a fine of not more than $25,000 for each day or part thereof upon which the contravention has continued after the day on which the corporation was first convicted,
and not as provided in subsection (1).
Order of prohibition
(3) Where a conviction is entered under subsection (1), in addition to any other remedy or any penalty provided by law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted. R.S.O. 1990, c. P.13, s. 67 (2, 3).
The Corporation of the Town of Fort Erie By-law No. 129-90
[19] Section 1 of The Corporation of the Town of Fort Erie By-law 129-90 (hereinafter referred to as the 1990 By-law) sets out the application and interpretation of the By-law.
[20] Section 1.2(c) provides as follows:
1.2 SCOPE OF THE BY-LAW
(c) EXISTING USES CONTINUED
Nothing in this By-law shall prevent the use of any lot, building or structure for any purpose prohibited by this By-law if such building or structure was lawfully used for such purpose on the date of passing of this By-law, so long as it continues to be used for that purpose.
[21] Public storage is not a defined term under the 1990 By-law.
[22] Section 6.18 addresses the issue of non-conforming uses and the discontinuation of non-conforming land use specifically at subparagraph (a):
6.18 NON-CONFORMING USES, BUILDINGS, STRUCTURES AND LOTS
(a) Where a use, building or structure which was established prior to the date of the passing of this By-law has been used for a purpose not permitted in the zone in which it is situated but said use has been discontinued for a period of twelve consecutive months or longer, the said building or structure may only be used again for a use that conforms to this By-law.
[23] Section 6.22 of the 1990 By-law is the "Prohibited Uses" section, specifying at subparagraph (a) that the uses listed therein are prohibited in any zone, except as otherwise specifically permitted elsewhere in the By-law. Public storage is not specifically enumerated within section 6.22(a) as a prohibited use of land.
[24] However, section 6.22(c) of the 1990 By-law, provides for an overall prohibition on the use of land except as specifically permitted in the By-law as follows:
6.22 (c)
In addition to the uses prohibited in clause (a) of this subsection, all uses of land and the erection or use of any building or structure for a purpose not permitted under the "Permitted Use" subsection of one of more zones established by the By-law are and shall be deemed to be prohibited in each such zone, except for those uses of land and the erection of or use of any building or structure for a purpose expressly permitted under the applicable provisions of Section 6 hereof.
[25] Section 20 of the 1990 By-law is applicable to C3 Zone – Highway Commercial, the zoning to which the Respondents' properties are subject. The permitted uses for C3 Zone properties do not include public storage.
Town of Fort Erie Zoning By-law, By-law No. 590-76
[26] Section 7.1 of the Town of Fort Erie Zoning By-law, By-law No. 590-76 (hereinafter the 1976 By-law) sets out the scope and effect general provisions for all zones:
7.1 Scope and Effect
No person shall use any land or erect or use any building or structure except in conformity with the provisions of this By-law respecting the Zone:
a. in which such land, building or structure is located, or
b. in which it is proposed to use any land or to erect or use any building or structure.
[27] Section 7.9 of the 1976 By-law sets out the enumerated prohibited uses of land at subsection (a) and then at subsection (c) provides the overall prohibition on land use except as specifically permitted:
7.9 (c)
In addition to the uses prohibited in clause (a) of this Subsection, all uses of land and the erection or use of any building or structure for a purpose not permitted under the "Permitted Use" Subsection of one or more Zones established by this By-law are and shall be deemed to be prohibited in each such Zone, except for those uses of land and the erection or use of any building or structure for a purpose expressly permitted under the applicable provisions of Section 7 hereof.
[28] Section 25 of the 1976 By-law relates specifically to properties in Highway Commercial C3 Zone and the permitted uses enumerated within section 25.1 do not include public storage.
Issues
[29] The issues to be determined on this appeal are as follows:
Did the Learned Justice of the Peace err in law by concluding that the use of the property as a public storage facility was lawful?
Did the Learned Justice of the Peace misapprehend the evidence and thereby come to conclusions not supported by the evidence presented at trial?
Did the Learned Justice of the Peace fail to provide adequate reasons for his decision amounting to a palpable and overriding error?
Analysis
Issue 1 – Did the Learned Justice of the Peace err in law by concluding that the use of the property as a public storage facility was lawful?
[30] The standard of review on a question of law is correctness.
[31] The legal analysis of the Learned Justice of the Peace can be found at paragraph 26 of his decision, wherein he indicates that the By-law was "unclear regarding 'public storage' per se. The term is not defined nor is it noted as a 'Permitted' or 'Prohibited' use." He goes on to note that prohibited uses specified locating or storing disused vehicles, with cargo containers being added in a 2006 amendment to the By-law. He makes no reference to the subsection 6.22(c) of the 1990 By-law – the section setting out an overall prohibition on land use that is not specifically permitted under the By-law.
[32] It is settled law that statutes must be given a broad and purposive interpretation by reviewing courts and that statutes must be considered to have the ordinary meaning of the plain language used in the statute:
A broad and purposive approach to the interpretation of municipal legislation is also consistent with this Court's approach to statutory interpretation generally. The contextual approach requires "the words of an Act . . . to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature": Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87; Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (S.C.C.), at para. 26.
[33] Section 34 of the Planning Act provides the authority for municipalities to enact By-laws that are either permissive or prohibitive.
[34] There is no legislative or common law authority supporting the Appellant's position that By-laws must be interpreted as permissive rather than prohibitive. However, in the case of the Fort Erie 1976 and 1990 By-laws specifically, there are in fact specific provisions that provide an overall prohibition of uses of land not specifically permitted in the By-law.
[35] In order for a defence of legal non-conforming land use to succeed, it must be demonstrated on a balance of probabilities that the land use was lawful in the first instance.
[36] Based upon section 7.1 and 7.9 of the 1976 By-law, the use of commercial properties for public storage was not lawful as such use was not specifically enumerated as permitted for properties in Commercial C3 Zone.
[37] Given that the land use for public storage was not lawful at the time the Respondents' purchased the properties, the defence of legal non-conforming land use must fail.
Issue 2 – Did the learned Justice of the Peace misapprehend the evidence at trial and thereby come to conclusions not supported by the evidence?
[38] On issues of mixed fact and law the standard of review is reasonableness and a trial justice is entitled to significant deference on appellate review.
[39] My finding on Issue 1 on this appeal makes an analysis of whether there was a misapprehension of the evidence unnecessary, and so I decline to make a determination on that issue.
Issue 3 – Did the Learned Justice of the Peace fail to provide adequate reasons for his decision amounting to a palpable and overriding error?
[40] Again, given my finding on Issue 1, the analysis of the sufficiency of the reasons for decision provided by the Learned Justice of the Peace is unnecessary and therefore I decline to make any determinations or comments on that issue.
Conclusion
[41] Based upon my analysis of the provisions of the 1990 and 1976 Fort Erie By-laws, a public storage facility is not presently permitted in the zone where the Respondents' properties are located, nor was it permitted in 1988 when the Respondents' initially purchased the properties.
[42] As the use was not lawful in the first instance, the defence of legal non-conforming land use must fail and the Learned Justice of the Peace erred in finding that legal non-conforming land use had been demonstrated on a balance of probabilities.
[43] The appeal is allowed and convictions shall be registered against the Respondents.
[44] The matter is returned back to the Provincial Offences Court for sentencing on a date to be set by that court.
Released: January 17, 2020
Signed: Justice A.D. Hilliard