Ontario Court of Justice

Date: 2024 12 30 Court File No.: 4862 999 22 22200973-00 4862 999 22 22200974-00 4862 999 22 22200971-00 4862 999 22 22200972-00

Between:

THE KING (CITY OF TORONTO)

— AND —

ISLINGTON LAKESHORE MALL INC., 1767734 ONTARIO INC.

Before: Justice of the Peace Beverly Brooks

Heard on: September 5 and 6, 2024 Reasons for Judgment released on: December 30, 2024

Counsel: Michael Gauthey...................................................................... counsel for the Prosecution Giuseppe Di Marco…………………………………………….counsel for the Defendants

Justice of the Peace Brooks:

[1] I conducted this Part III trial under the Provincial Offences Act, R.S.O. 1990, c.P.33 on September 5 and 6, 2024 in Toronto.

[2] Islington Lakeshore Mall Inc. was charged as follows: (i) On or about the 15th of July 2022 at 111 Brockhouse Road in the City of Toronto did commit the offence of within an IC1 zone use or permit the use of land, building, or structure for nonconforming use, to wit: outdoor storage, namely scrap metal, used parts and inoperative and/or derelict vehicles being stored outdoors contrary to sections 304-31(g) and 304-33(g) of the Etobicoke Zoning Code, chapter 304 as amended contrary to the Planning Act, R.S.O. 1990, c. P. 13, as amended, section 67(1); and (ii) On or about the 15th of July 2022 at 506 Evans Avenue in the City of Toronto, did commit the offence of within an IC1 zone, use or permit the use of land, building, or structure for a nonconforming use, to wit: outdoor storage, mainly scrap metal trailers in an inoperative and/or derelict vehicles being stored outdoors contrary to Section 304-31(g) and 304-33(g) of the Etobicoke Zoning Code, chapter 304 as amended, contrary to the Planning Act, R.S.O. 1990, c. P. 13 as amended, section 67(1).

[3] 1767734 Ontario Inc was charged as follows: (i) On or about the 15th of July 2022 at 111 Brockhouse Road in the City of Toronto did commit the offence of within an IC1 zone, use or permit the use of land, building, or structure for a nonconforming use, to wit: outdoor storage, namely scrap metal, used parts and inoperative and/or derelict vehicles being stored outdoors contrary to sections 304-31(g) and 304-33(g) of the Etobicoke Zoning Code, chapter 304 as amended contrary to the Planning Act, R.S.O. 1990, c. P. 13, as amended, section 67(1); and (ii) On or about the 15th of July 2022 at 506 Evans Avenue in the City of Toronto, did commit the offence of within an IC1 zone, use or permit the use of land, building, or structure for a nonconforming use, to wit: outdoor storage, namely scrap metal trailers and inoperative and/or derelict vehicles being stored outdoors contrary to Section 304-31(g) and 304-33(g) of the Etobicoke Zoning Code, Chapter 304 as amended, contrary to the Planning Act, R.S.O. 1990, c. P. 13 as amended, section 67(1).

[4] Both defendants entered pleas of not guilty through their owner, Mr. David Nava, and I conducted a trial in this matter. I am satisfied that these are strict liability offences.

[5] It should be noted that 1767734 Ontario Inc. is charged with the same offences as Islington Lakeshore Mall Inc, but during the hearing, it was disclosed that Islington Lakeshore Mall Inc. and 1767734 Ontario Inc. were amalgamated under Islington Lakeshore Mall Inc. on November 17, 2020. The Corporate Profile Report for 1767734 Ontario Inc. indicated that it is no longer active and was amalgamated into Islington Lakeshore Mall Inc., effective November 17, 2020 (Exhibit 9). Nevertheless, the Prosecutor has proven that both 111 Brockhouse Rd. and 506 Evans Avenue, Toronto, are owned by 1767734 Ontario Inc. (Exhibit 5), and therefore I am satisfied that this matter should proceed against both defendants, as charged.

Prosecution’s Evidence:

[6] The Prosecutor’s evidence is mainly based on the testimony of City of Toronto Property Standards Officer Michael Anastasopoulos, as well as specific provisions of the Etobicoke Zoning Code and certified bylaw maps that he presented during this trial. The Prosecutor also relied on evidence that he had obtained during his cross-examination of the witnesses for the defence, Mr. David Nava, the owner of Islington Lakeshore Mall Inc. and 1767734 Ontario Inc., and Mr. Mario Parravano, a tenant and agent of Mr. Nava’s and the owner of the items that are being stored outdoors on the two properties in question.

Testimony of Mr. Michael Anastasopoulos:

[7] Mr. Michael Anastasopoulos testified that he is a Property Standards Officer at the City of Toronto, which is a position he has held for twenty-one years. He conducted the investigation in this matter.

[8] He testified that the City of Toronto received a complaint from a member of the public about the properties at 111 Brockhouse Road and 506 Evans Avenue on June 23, 2021 under Section 23(1.2) of the POA. The specific complaint was that scrap metal, debris and vehicles were being stored on the two property lots.

[9] As a result of this complaint, he testified that the City of Toronto sent a waste advisory letter (Exhibit 1) to the defendants. This letter notified the defendants that the City of Toronto had been made aware that the conditions on these two properties were in contravention of the City of Toronto Municipal Code Ch. 548, which addresses the issues of littering and dumping of refuse. This letter further indicated that there was an accumulation of refuse material on these two properties and that the owner was required to clean and clear the properties of all refuse garbage.

[10] As a result of this letter, Officer Anastasopoulos received a call from Mario Parravano, an agent for Mr. Nava, on July 8, 2021. During this call, Mr. Parravano told him he was in the process of cleaning up the property and needed 30 to 60 days to rectify the debris issue.

[11] Officer Anastasopoulos continued to closely monitor the situation. He stated that he inspected both properties and met Mr. Parravano on July 8, 2021. The Officer took 70 photos of 111 Brockhouse Road (Exhibit 2) on July 8, 2021. The Officer then inspected the two properties several times after this initial visit (August 31, 2021, September 16, 2021, October 14, 2021, January 19, 2022, March 10, 2022 and May 31, 2022).

[12] Officer Anastasopoulos testified that after making numerous inspections of the two properties, he then visited the properties on July 15, 2022, filed a report and laid the charges because the properties were continuing to be used for open storage, the owner of the properties had not cleaned up all the rubbish and debris and the items stored outdoors covered an area that was greater than 10 percent of the property area of both lots. On July 15, 2022, Officer Anastasopoulos took photos of the debris at both properties (Exhibit 3).

[13] The two companies were charged on July 15, 2022 with violating provisions of the Etobicoke Zoning Code 304-31(G) and 304-33(G) after Officer Anastasopoulos filed his report about his inspection of the two properties. His report was accompanied by 70 photos that he had taken of 111 Brockhouse Road (Exhibit 2), 17 photos that he had taken of 111 Brockhouse Road and 7 photos of 506 Evans Avenue (Exhibit 3). During the hearing, the movable items stored on the property lots were described by Officer Anastasopoulos, who inspected the properties on July 8, 2021 and several times thereafter, as “wooden skids, cardboard paper and metal scrap” as well as “debris…and inoperative and derelict cars”. Officer Anastasopoulos justified his description of the “derelict cars” by pointing out that some of the vehicles stored on the two properties had flat tires, missing and damaged parts, broken glass and no licence plates.

[14] In his report to the City of Toronto filed prior to the two companies being charged on July 15, 2022, Officer Anastasopoulos concluded that very little progress had been achieved since his initial inspection on July 8, 2021 with respect to cleaning up the property lots because the space occupied by the movable items stored outdoors was still more than 10 percent of the total lot size of each property. When questioned by the Prosecutor, Officer Anastasopoulos testified that after the receipt of the advisory letter and his numerous inspections of the two properties, the owner of the two properties, Mr. David Nava, and Mr. Mario Parravano, a tenant of Islington Lakeshore Mall Inc. and Mr. Nava’s agent, had failed to rectify the outdoor storage issue i.e. reduce the percentage of the area occupied by outdoor storage items as a percentage of the total lot size of each property to less than 10 percent.

[15] The Prosecutor asked the Officer to indicate where on the map the properties are located. Officer Anastasopoulos was able to identify the locations of the two properties. In addition, the Prosecutor also tabled several documents as additional evidence of the location and ownership of the two properties and had them marked as exhibits. These documents include:

1. Property Index Map (Exhibit 4);
2. a Registry/Land Titles Act document showing the transfer of property from 2037390 Ontario Inc. (Mario Parravano’s company) to 1767734 Ontario Inc. (David Nava’s company) on June 19, 2019 (Exhibit 5);
3. a transfer of the property at 111 Brockhouse Road from the ownership of Mario Parravano to Islington Lakeshore Mall Inc. (Mr. Nava’s company) which was completed on June 19, 2019 (Exhibit 6);
4. Municipal Assessment Roll for taxation year 2021, (Exhibit 7), and Municipal Assessment Roll for taxation year 2022 (Exhibit 8);
5. a corporate profile report for 1767734 Ontario Inc. which indicates that this company is now inactive and has been amalgamated with Islington Lakeshore Mall Inc. as of November 17, 2020 under the Islington Lakeshore Mall Inc. (Exhibit 9);
6. a corporate profile report for Islington Lakeshore Mall Inc. (Exhibit 10);
7. Google Map, 506 Evans Avenue (Exhibit 11);
8. Google Map, 111 Brockhouse Road (Exhibit 12);
9. City of Toronto Maps (Exhibit 13 and 14).

Cross-Examination of Officer Anastasopoulos:

[16] Defence Counsel cross-examined Officer Anastasopoulos who testified that he had met Mr. Parravano when he inspected the two properties on July 8, 2021. Mr. Anastasopoulos stated that after making numerous inspections of the two properties, he visited the properties on July 15, 2022, filed a report and laid a charge because the properties were continuing to be used for open storage, the owner of the properties had not cleaned up all the rubbish and debris and the items stored outdoors covered an area that was greater than 10 percent of the property area of both lots. Officer Anastasopoulos then took photos of the debris at both properties.

[17] At Defence Counsel’s request, Officer Anastasopoulos described the content of the photos of both properties and noted that there were “a lot of inoperable vehicles parked” outdoors. Although the Officer admitted that some progress had been made with respect to cleaning up the two properties since the advisory letter was issued, he emphasized that there are still movable items (mainly “inoperable cars”) stored outdoors on the two properties.

[18] While cross-examining Officer Anastasopoulos, Defence Counsel asked the Officer about how to establish “legal nonconforming use” of the two properties. The Prosecutor objected to this question by indicating that the Officer was not the “right person to ask” but Defence Counsel justified his question by stating that the City of Toronto had charged his clients with “legal nonconforming use”. The Officer indicated that he could not comment on the zoning regulations established 30 years ago and how they impacted the properties but that he could provide a general definition of “legal nonconforming use”. The Officer defined “legal non-conforming use” as the use of a property not being legal under a current zoning bylaw but that the use was formerly legal under a previous zoning bylaw i.e. its previous use is grandfathered.

[19] Defence Counsel asked Officer Anastasopoulos if he had reached out to the Mr. Nava, the owner of two properties about the waste advisory letter after it was sent to Mr. Nava on July 8, 2021. Mr. Anastasopoulos stated that he had only dealt with Mr. Parravano and had never dealt with Mr. Nava.

[20] Officer Anastasopoulos told Defence Counsel during his cross-examination that there was a bylaw that does not allow outdoor storage to be within 7.5 meters of the lot line. The Officer stated that outdoor storage items are located along the fence of both properties. It should be noted that Islington Lakeshore Mall Inc. and 1767734 Ontario Inc. are not being charged with violating this provision of the Etobicoke Zoning Code.

[21] When Defence Counsel reviewed the photos of items stored outdoors on the two lots with Mr. Anastasopoulos, the Officer indicated that in addition to inoperable vehicles, there was equipment on the two properties that was being used to clean up the two lots such as a flatbed truck, a backhoe, a forklift, and disposal bins. The Officer indicated that although it was necessary to use this equipment to clean up the properties, they added to the appearance of disorganized debris.

[22] While being questioned by Defence Counsel, Mr. Anastasopoulos did admit that he was interpreting the Etobicoke Zoning Code in certain ways that were not explicitly stated in the provisions of the bylaw. For example, Mr. Anastasopoulos stated that the bylaw does not state that items should not be stored at the front of a building but admitted that this was his interpretation of the bylaw. The Officer also stated that the properties were being used in a way (for storage) that was not associated with the business conducted in the building on the property lot but that it was his interpretation that the property use should be associated with the business and the building. Moreover, the Officer was of the view that property owners need a business licence to be able to carry on their business the way they are currently operating. The Officer, however, agreed with Defence Counsel that Mr. Parravano was making “efforts to comply” with respect to the items stored outdoors on the two properties.

Defence Evidence:

[23] Defence Counsel called Mr. David Nava, the owner of Islington Mall Inc. and Mr. Mario Parravano, one of Mr. Nava’s tenants in Islington Lakeshore Mall, as witnesses as well as Mr. Bill Birdsell, Mr. Nava’s architect.

Mr. David Nava:

[24] Defence Counsel questioned Mr. Nava about the state of the properties when he purchased them in 2019 from Mario Parravano. Mr. Nava noted that he has been familiar with the properties since 2012 when he provided a second mortgage to Mario Parravano, the then owner of the two properties.

[25] Mr. Nava testified that the use of the two properties at that time was the same as the current use -- the outdoor storage of cars. He noted that Mario Parravano has been rebuilding vintage cars, as he currently does, since 1996. He also stated that the building at 111 Brockhouse Road was being used as a bakery and then later as a marijuana grow op. He referred to obtaining the City of Toronto’s approval for such a change of usage, so he appeared to be aware of the City zoning approval process.

[26] Mr. Nava testified that he relies heavily on Mr. Parravano, who works for him, to maintain the properties. Mr. Nava said that he wanted to clean up the properties, and that he has instructed Mr. Parravano to clear both sites. Mr. Nava said that 30 to 40 bins of materials have already been disposed, however, the defendants did not produce any evidence to corroborate these statements.

[27] Mr. Nava testified that he is working with an architect, Mr. Bill Birdsell, because he wants to convert his properties to industrial condominiums and, therefore, he is motivated to clean up the outdoor storage items on both properties.

Cross-Examination of Mr. Nava:

[28] The Prosecutor inquired how involved Mr. Nava was with respect to clearing the two properties of debris. Mr. Nava claimed that he was aware that Mr. Parravano was in the process of attempting to comply with the City’s request to clear the debris from the two lots. Mr. Nava also stated that he asked Mr. Parravano how the issue was proceeding from time to time but he (Mr. Nava) had not actively participated in resolving the issue.

[29] The Prosecutor asked Mr. Nava about his understanding of the term “legal nonconforming use”. Mr. Nava stated that this term meant that an activity on a property which had previously been allowed under the municipal zoning laws can become illegal if the bylaws change.

[30] While viewing the photographs of the two properties with the Prosecutor, Mr. Nava admitted that he had never seen the photographs of the properties taken by the Property Management Officer (Exhibits 2 and 3). He agreed with the Prosecutor that many of the vehicles in the photos appear to be inoperable as they had missing or damaged parts. At the same time, Mr. Nava emphasized that the removal of the damaged vehicles was part of the clean up process and that it was important that the vehicles be moved off the properties as he wants to build industrial condos at 506 Evans Avenue. Mr. Nava also noted that the development of these industrial condos had been slowed by COVID and the deaths of Mario’s parents and wife.

[31] Mr. Nava testified that he had given Mr. Parravano 30 days to clear the debris and vehicles from the properties (from the date of the hearing -- Sept. 5 and 6, 2024) and claimed that the front of the 506 Evans Avenue property is completely clear of debris.

[32] Mr. Nava admitted during cross-examination that he did not take any steps to confirm what was permitted or not permitted in terms of zoning.

Mr. Mario Parravano:

[33] Mr. Parravano testified that he has been at the two premises six months before the deal closed in late September, 1996. He stated that since that time, the outside of the buildings have been used for the storage of tractor trailers, cars and parts. He denied operating these properties as a junk yard, however. All the equipment, which includes forklifts, excavators and Bobcats on these premises belong to him.

[34] He was shown Exhibit 2, photographs 7 and 8 of 111 Brockhouse Road, which he testified reflected the driveway beside the disposal container where he was disassembling or destroying or crushing storage trailers to remove them from the site. Further, he claimed that a 1967 Buick Riviera in a photo was driveable, despite its flat tire. He denied that everything was garbage or scrap. He also pointed to photo number 19, which he stated was a WEMA shredder, used to shred car bumpers and plastic gas and car parts, but indicated it was under a wrapper. He also referred to remnants of tractor trailers that were destroyed or being demolished, as well as describing some other vehicles.

[35] Mr. Parravano testified that two tractor trailers are parked in a V-shape to block the gate on 506 Evans Avenue, as a theft deterrent.

[36] He testified in chief that there is probably only 20 percent left, maybe 10 percent left, of storage and trailers, and that they would have it cleared by the end of October 2024, and possibly much sooner.

Cross-Examination of Mr. Parravano:

[37] While being cross-examined by the Prosecutor, Mr. Parravano stated that he had owned the property at 506 Evans Avenue since 1996. He indicated that he had used the two buildings which were located on this property at that time for repairing and selling used vehicles and as a bakery. Mr. Parravano claimed that he had a lawyer provide an opinion which confirmed that under the current municipal bylaws, he could use the two properties for his car repair business and to store vehicles outdoors. He, however, did not provide the court with a copy of this opinion, nor did he provide its date.

[38] Mr. Paravano testified that the back of the property at 506 Evans Avenue had been used for repairing and selling vintage vehicles since 1996 and that he had photos that had been taken of the property at that time which illustrate that the backyard was being used for this auto repair business. Mr. Parravano claimed that he read the applicable bylaw at that time which was the Etobicoke Zoning Code. He stated that there was no limit as to the number of trailers an owner could place on property zoned as industrial and so he bought tractor trailers and stored his vintage cars inside the trailers. He also pointed out that some of the debris was created by destroying the tractor trailers as part of his effort to clean up the two properties because as he took the cars out of the trailers, repaired them, sold them and he then destroyed the trailers on the lots which created wood and plastic debris. He claimed that he was destroying the trailers on site because the trailers’ wheels were sometimes seized, and he could not drive them.

[39] Mr. Parravano stated that he was aware of the advisory letter and had been asked by Mr. Nava to address this issue but that family matters (the deaths of his parents and his wife) had prevented him from completely rectifying the outdoor storage issue. He also claimed that the vehicles parked on the two properties were not “derelict” automobiles and should not be described as “garbage” but rather as vintage cars that he repairs and sells as a business. He maintained that he had been restoring vehicles on these two properties since the late 1990s. He also provided details of the progress that he had made with respect to reducing the debris on the two properties. He pointed out that part of the debris had been generated by the clean up since some of the vehicles were stored in trailers which had to be destroyed as part of the clean up operation.

[40] While the Prosecutor was cross-examining Mr. Parravano about the percentage of outdoor storage items compared to the total lot size as a way of determining whether the outdoor storage items occupied more than 10 percent of the total lot size, Mr. Parravano admitted that if the trailers were included in the calculation of the space occupied by items stored outdoors to total lot size that percentage would exceed 10 percent. Mr. Parravano claimed that his lawyer had told him that the Etobicoke Zoning Code excluded trailers from the definition of outdoor storage items. Mr. Parravano, however, did not indicate when his lawyer had told him about the trailer exclusion provision, and he did not have a written legal opinion from the lawyer.

Mr. J. William Birdsell:

[41] Mr. Birdsell testified that he is a registered architect. Mr. Birdsell testified in his capacity as an architect but was never qualified as an expert at this trial. He is familiar with both properties and has been for the last six years. He has been retained by Mr. Nava to prepare designs to add two new industrial buildings facing Evans Avenue, which will be industrial condominiums.

[42] He was last at this location six months ago. Mr. Birdsell is aware that this land currently has some cars and tractor trailers on it. He testified that this location has been significantly cleaned up, materials have been removed, and the small building has been demolished during the last six years. He added that fences have been maintained. He provided undated google maps of the two properties which were marked as Exhibits 13 and 14.

[43] Mr. Birdsell identified an aerial photograph of the property and adjacent property (Exhibit 13). He believed it was taken in 2015, but was not certain. He compared it to another aerial photograph taken in 2022, although this second photograph (Exhibit 14) was also undated.

[44] Defence Counsel tried to question him about Bylaw 569-2013 and its relevance to these properties, claiming it was the current bylaw, but the Prosecutor objected because there was no copy of it before the court. I upheld this objection and asked Defence Counsel to move on.

Cross-Examination of Mr. Birdsell:

[45] The Prosecutor referred to Bylaw 304 and Bylaw 569, and asked if Bylaw 569 is under appeal on certain provisions, would the previous bylaw still apply? Mr. Birdsell replied, “That would be my understanding that the bill or the bylaw in force would stay in force until the new bylaw is in place. However, the City requires me to work with 569.”

[46] He acknowledged seeing unplated vehicles and scrap metal at this location during his visit in 2022. He also reviewed a photograph of a car at this location that had neither a roof nor a windshield. While he rebutted the suggestion that this location contained a “pile” of material, he did refer to “collections of material” at this site.

Submissions:

The Defendants’ Closing Submissions:

[47] Defence Counsel argued that his clients were not guilty of these offences, since there was no scrap metal process at their premises. Rather, the scrap metal process was created by the destruction of the trailers in order to reduce and remove those units.

[48] In terms of the bylaw, which capped storage at 10 percent, he urged me to review all the photographs taken by the Officer of the vehicles, not trailers, which he submitted do not cover 10 percent of these premises, since it is a very large lot.

[49] The restaurant equipment that was contained in the trailers was being removed in order to dispose of it or to relocate it. The defendants had done an extensive amount of reduction of both vehicles and trailers on site. Mr. Parravano testified that the vehicles on the premises were operational with the exception of two vehicles with engine problems. Mr. Parravano’s family had endured medical issues and deaths for the last four years, and COVID-19 restricted activity, which set them back six months. The trailers had been positioned on the site along the fence to prevent their property from being vandalized and to prevent theft. He submitted that the trailers cannot be attributed to the percentage of the lot area covered with moveable items.

[50] Defence Counsel claimed that the Etobicoke Zoning Code under which the two companies have been charged, was replaced in 2013 by Bylaw 569-2013 after Etobicoke was amalgamated into the City of Toronto in 1998. Moreover, he claimed that the current zoning Bylaw 569-2013 applies but has been appealed and, therefore, cannot be used to convict the companies and should not be considered by the court for the same reason.

[51] The Prosecutor objected to this submission regarding Bylaw 569-2013, since it was not entered into evidence. Defence Counsel replied that Mr. Birdsell testified he was directed to use Bylaw 569 when making his designs.

The Prosecutor’s Closing Submissions:

[52] The Prosecutor submitted that a certified copy of the Etobicoke Zoning Code is before the court, and that there is no evidence at this trial that it was repealed in any fashion or any way. He asserted that it is in full force and effect.

[53] The property in question is zoned as IC1, as per the Etobicoke Zoning Code. According to the assessment roll, the properties at 506 Evans Avenue and 111 Brockhouse Road are owned by 1767734 Ontario Inc, and that corporation is amalgamated into Islington Lakeshore Mall Inc. Based on this evidence, the Prosecutor maintained they are both the owners of the premises. While they are two distinct municipal addresses, they are connected properties which have been merged in title.

[54] The court must consider what occurred on July 15, 2022 at these properties. Only the Officer testified about that date and he provided a series of photographs to support his evidence. The Prosecutor argued that all the other witnesses agreed in part or substantially that they reflected the state of the premises on that date.

[55] The Prosecutor reviewed the extensive evidence given by the Officer about 111 Brockhouse Road regarding the storage of items in the back of the property, which includes scrap metal, debris, rubbish, wood, automotive parts, trailers and inoperative and derelict vehicles. On the front of the property, the Officer testified about finding a few trailers, and some cars without licence plates, as well as mechanical equipment, on July 15, 2022.

[56] With respect to 506 Evans Avenue, the Prosecutor reviewed the Officer’s testimony that he saw scrap metal, broken down trailers, wood, debris, trailers and inoperative and derelict vehicles, all being stored on this property as well.

[57] The witnesses for the defence corroborated the Officer’s testimony in large part as to the condition of the premises on that date. Mr. Nava and Mr. Parravano testified about the value of the vehicles, and Mr. Parravano also spoke about the trailers, highlighting that 26 of them had been destroyed.

[58] He urged the court to look at the use of the premises as a whole, and from his perspective, based on the evidence heard, it was continuous from July, 2021 to July, 2022. The use of the property was essentially storage of vehicles, trailers being torn down, and recycled. It was also used to store and organize parts, metal and wood, which were then resold or sent to the garbage.

[59] The Prosecutor reviewed the legislative requirements in detail and indicated that he had established the actus reus of these offences and that the defendants have failed to establish a due diligence defence. The Prosecutor maintained that the evidence provided by Mr. Parravano regarding the receipt of legal advice was hearsay, since no counsel was called to testify and no legal opinion was entered as evidence.

[60] It was clear that the defendants were aware of the issue a year prior to being charged. While Mr. Nava was uncertain if he received the letter, he did give something to Mr. Parravano, who told him it was a legal nonconforming use and that he would take care of it. Mr. Nava should have followed up with Mr. Parravano, who was his tenant, but he did not until 2023. The due diligence defence has not been established on a balance of probabilities.

[61] In order to establish a legal nonconforming use, the burden of proof would fall to the defendants, as per Feather v. Bradford (Town), 2010 ONCA 440 at para. 27.

[62] This bylaw has been in effect in Etobicoke since December 9, 1996, and so the onus is on the defence to establish what was the permitted use when Mr. Parravano was the owner. There is no evidence from the defence about what the previous bylaw allowed, nor was the use of the property continuous, since it went from being a bakery to a marijuana grow-op in the building, and the exterior went from the storage of cars and trailers to being what the Prosecutor submits is now a recycling yard or salvage yard. There is no clear evidence of what was in place to fall within the exemption under the Planning Act.

[63] The Prosecutor sought a conviction on all counts as charged.

Requested Written Submissions:

[64] After the hearing, I asked both the Prosecutor and Defence Counsel to prepare written submissions regarding which industrial municipal zoning bylaw applied, the justification for same, and any relevant case law, since this contentious issue based on the amalgamation of the City of Toronto was only raised by Defence Counsel in his closing argument.

The Prosecutor’s Written Submissions:

[65] The Prosecutor relied on sections 34 and 67(1) of the Planning Act to establish that municipalities may pass zoning bylaws restricting the use of land and outlining the obligations of directors and officers of corporations to ensure that their companies comply with any bylaw changes and do not engage in contraventions of the bylaw.

[66] The Prosecutor submitted that there is only one certified bylaw before this court, being Chapter 304 of the Etobicoke Zoning Code and two certified maps of Etobicoke Zoning B14 North, which applies to the properties in question, and which is an IC1 Zoned area.

[67] There is no evidence that this bylaw was repealed, nor does that apply in this case. Defence Counsel did not challenge or object to the bylaw nor provide any alternative certified bylaw or maps.

[68] Both Officer Anastasopoulos and Mr. Nava confirmed the location of the property on the Zoning map and this property was zoned IC1 according to the certified map. Further, Exhibit 4, Map from Service Ontario, and Exhibits 11 and 12, Google Maps, all confirm the locations of the property located north of Evans Avenue, south of Brockhouse Road and west of Bestobell Road when overlaying these maps with the zoning map, thus confirming it is within a IC1 zone.

Defence Counsel’s Written Submissions:

[69] In his written submissions, Defence Counsel maintained that the two properties should not have been charged under the Etobicoke Zoning Code as it was replaced by a city-wide Bylaw 569-2013 in 2013, which was approved after the amalgamation of several municipalities, including the City of Etobicoke, into the City of Toronto in 1998. Defence Counsel also noted that Bylaw 569-2013 is being appealed and, therefore, the charges against the defendants should be dismissed.

[70] Defence Counsel also reiterated his submission that the outdoor storage items did not cover more than 10 percent of each of the property lots.

[71] In addition, he offered a defence of legal nonconforming use, stating that outdoor storage was originally allowed to occupy 10 percent of the lot size at this location.

Issues:

[72] The following are the relevant issues in this matter: (a) has the defence established that Bylaw 569-2013 applies? (b) if the answer is no, have the actus reus of these offences as charged been proven beyond a reasonable doubt? (c) If the answer is yes, has the defence established a due diligence defence to the charges as laid? (d) If the answer is no, has the defence established a defence based on legal nonconforming use?

Analysis:

The Bylaw Issue:

[73] The only certified evidence before me is from the Prosecutor, who provided me with a certified copy of the Etobicoke Zoning Code and related certified maps. Defence Counsel has not demonstrated that his clients were charged under an incorrect bylaw.

[74] Moreover, I note that the general provisions of Bylaw 569-2013 state that the former zoning bylaws of the cities that were amalgamated by the City of Toronto in 1998 have not been repealed, which means that the City of Etobicoke Zoning Code still applies. Whether or not Bylaw 569-2013 is under appeal is not relevant at this trial. Mr. Birdsell was not qualified as an expert, and I give his evidence that he is using the new bylaw in his plans very little weight.

[75] I am satisfied that the defendants were charged under the correct bylaw, which remains in effect.

Have the Actus Reus of the Offences Been Proven Beyond a Reasonable Doubt?

[76] There is no dispute about the municipal address of these two properties being 111 Brockhouse Road and 506 Evans Avenue, Toronto, nor is there any dispute about these two properties being owned by 1767734 Ontario Inc, and Islington Lakeshore Mall Inc, which as of November 17, 2020 are both carrying on business as Islington Lakeshore Mall Inc.

[77] I accept Mr. Nava’s evidence that he is the President of Islington Lakeshore Mall Inc and 1767734 Ontario Inc. I further accept his evidence that he purchased both properties in question from their previous owner, Mr. Parravano, in 2019, who is now his agent and tenant. Mr. Nava agreed that both properties are zoned as industrial.

[78] I have considered the evidence of Officer Anastasopoulos very carefully. He inspected both properties on July 8, 2022, August 31, 2021, September 16, 2021, October 14, 2021, January 19, 2022, March 10, 2022, May 31, 2022, July 8, 2022 and again on July 15, 2022 when he charged the companies. In his testimony, he stated that he took 70 photographs of 111 Brockhouse Road on July 8, 2021 and 17 and 7 photographs of 111 Brockhouse Road and 506 Evans Avenue, respectively, on July 15, 2022.

[79] I am relying on R. v. Gagnon, 2006 SCC 17 at paragraph 20 when assessing his credibility:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events…

[80] I have considered Mr. Anastasopoulos’ testimony carefully, and I find it to be highly credible. His testimony was clear, and unshaken during cross-examination. I accept that the photographs provided in Exhibits 2 and 3 are accurate depictions of what he observed at the time.

[81] These photographs have satisfied me that both properties were replete with scrap metal, used parts, industrial equipment, inoperative motor vehicles as well as enclosed and broken truck trailers, far in excess of the 10 percent limit prescribed by the bylaw. In some photographs, I find that these materials dominated the space available on these lots.

[82] Despite the defendants lacking any testimony from their prior lawyer or the furnishing of an opinion that trailers should be deducted, I rely on the operation of s.34(4) of the Planning Act, to deduct the trailers (provided that they are enclosed and not in derelict condition), as well as Section 304-31(3) of the Etobicoke Zoning Code, which permits materials to be stored in “enclosed truck trailers”. Mr. Parravano admitted that debris had been created by his destruction of trailers, but there was no evidence that this debris had been subsequently removed. Nevertheless, even after deducting only the enclosed trailers, I still find that the remaining materials as described above remain more than the 10 percent prescribed limit.

[83] I am satisfied that since these properties are both zoned as industrial and the Etobicoke Zoning Code states that no more than 10 percent of the total lot area may be used for outdoor storage, the photographs taken, and the testimony of Officer Anastasopoulos prove that more than 10 percent of the total lot area was being used to store movable items.

[84] As such, I am satisfied that the actus reus of the charges before me, namely storing scrap metal, used parts and inoperative and/or derelict automobiles and trailers in derelict condition outdoors contrary to the requirements specified in the Etobicoke Zoning Code for outdoor storage lots zoned as industrial (IC1) and contrary to the Planning Act, section 67(1), have been established for both properties located at 111 Brockhouse Road and 506 Evans Avenue, Toronto.

Have the Defendants Established A Due Diligence Defence?

[85] In order to establish a due diligence defence, the defendants must establish an honest and reasonable belief in a certain state of facts. In principle, the due diligence defence is that “all reasonable care was taken”, see: R. v. Sault Ste. Marie (City), [1978] 2 SCR 1299 and R. v. Sutherland (1990), 96 NSR (2d) 271 (CA), as noted by Justice Libman in his work, Libman on Regulatory Offences in Canada, Earlscourt, Update 34- July 2023 at page 7-2.

[86] In other words, can the defendants establish that they took all reasonable steps to prevent it?

[87] As noted in Libman on Regulatory Offences, at page 7-4, in R. v. Burko, 2011 ONSC 479 at paragraph 30, the court explained the operation of the burden of proof for regulatory offences as opposed to criminal offences, in these terms:

…once the actus reus of the offence has been proven, and the onus shifts to the accused to establish a due diligence defence, I cannot see that a W.(D.) analysis is required. In doing so, a trial judge must consider whether defence evidence raises a reasonable doubt, even if it is not believed. However, in the case of a regulatory offence, once the actus reus has been established, and the onus is on the accused to establish a due diligence defence, it is no longer relevant to consider whether the evidence of the accused, even if not believed, raises a reasonable doubt.

[88] I am satisfied that the City of Toronto sent the defendants a letter after June 23, 2021 and on or before July 8, 2021 (Exhibit 1), outlining their concerns about the debris on the property lots and asking the property owner to rectify the situation.

[89] In chief, Mr. Nava was asked if he had ever seen this document, and he replied, “We received a few documents which I passed them on to Mario. One of them would probably be this one….Mario said he would deal with it because that was his issue… I told, Mario, please call the inspector because I want you to get…to deal with it. And that’s exactly what happened. He, he called him.” He added, “I really don’t know what happened between the two of them…I was told everything is okay, then I didn’t hear anything until I got the summit [sic].” See: transcript at page 103. Based on this testimony, which I find credible, I am satisfied Mr. Nava received this letter.

[90] Mr. Nava testified that he relies heavily on Mr. Parravano, who works for him, to maintain the properties. Mr. Nava said that he wanted to clean up the properties, and that he has instructed Mr. Parravano to clear both sites. Mr. Nava said that 30 to 40 bins of materials have already been disposed, however, the defendants did not produce any evidence to corroborate these statements.

[91] Mr. Nava testified that he is working with an architect, Mr. Bill Birdsell, because he wants to convert his properties to industrial condominiums and, therefore, he is motivated to clean up the outdoor storage items on both properties.

[92] In his testimony, Mr. Birdsell, an architect working on contract for Mr. Nava, stated that the two aerial photographs he provided (Exhibits 13 and 14) were taken in 2015 and 2022, however, they do not have a date included on the photographs.

[93] Mr. Parravano testified that he works for Mr. Nava, that Mr. Nava had asked him to deal with the advisory letter from the City of Toronto and that he was working very diligently to clean up the property at both addresses. He testified that he bought and sold vintage luxury cars. He identified several cars that he is selling. He stated that the items identified could be removed by the end of October, 2024.

[94] Mr. Parravano testified that he had been trying to deal with the issue of the bylaw violation, but that for the last four years his parents and his wife had all passed away. He explained that his wife had cancer and that he had been with her at the hospital a great deal of the time before she passed away.

[95] While I have a great deal of sympathy for Mr. Parravano and his role as caregiver for his family members, nevertheless, this does not establish a due diligence defence.

[96] The defendants did not produce any evidence of the steps that they have taken to remove the scrap metal, cars, debris, and parts from these lots. For example, they did not produce any invoices for the cost of 30 to 40 bins. They did not produce any contracts of sale to demonstrate the vehicles which have been sold. They did not produce any documentation, nor did they testify, to any sales of scrap metal to scrap metal dealers.

[97] Because these materials were all stored outside, progress to remove them could have been achieved during the COVID-19 epidemic, since they could have been towed away. For this reason, I am not prepared to deduct this time period.

[98] The evidence of Mr. Birdsell, the architect working for Mr. Nava, to redevelop these properties and turn them into industrial condominiums does not address the bylaw violation at hand. At no time did Mr. Birdsell testify that the defendants were hiring a contractor to assist with the removal of this extensive amount of scrap metal.

[99] For these reasons, the due diligence defence on all counts has not been established by the defendants on a balance of probabilities.

Have the Defendants Established a Defence Under Legal Nonconforming Use?

[100] Section 34(9) of the Planning Act provides as follows:

Excepted lands and buildings

(9) 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) 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. R.S.O. 1990, c.P.13, s.34(9); 2009, c.33, Sched.21, s.10(1).

[101] In Feather v. Bradford (Town), 2010 ONCA 440 at paragraph 27, the Ontario Court of Appeal established the test a party must prove to establish legal nonconforming use:

(1) The use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restriction, and

(2) The previously lawful use has continued thereafter.

[102] Mr. Parravano testified that his previous counsel assured them that the current uses of the properties could continue, but he did not provide a written legal opinion from his counsel on which he could rely regarding that what is on its face is a nonconforming use of the properties. If the defendants had wanted to assert that it is a legal nonconforming use, they should have provided the court with a legal opinion stating the same or had their earlier counsel testify to this effect. Mr. Parravano’s testimony in this regard is hearsay and I am giving it no weight.

[103] When Mr. Nava testified in chief, he said that when he acquired the property in 2019, it was “the same property packed with cars and everything else” but there had been a bakery business in the building at the time, and that remained when he first took over, but then a marijuana business came into the building as his tenant. By his own admission, the use of these properties has changed over the years. In fact, Mr. Nava referred to obtaining the City of Toronto’s approval for such a change of usage during his own testimony.

[104] None of the witnesses for the defence were able to tie the prior use of these properties to the date of the enactment of the bylaw. Their evidence about its past use was more anecdotal, and thus, does not meet the test set out under s.34(9)(a) of the Planning Act nor under Feather v. Bradford.

[105] The defence of legal nonconforming use also fails on all counts.

Order

[106] For the reasons noted, the defendants are guilty on all counts as charged.

Released: December 30, 2024 Signed: Justice of the Peace Beverly Brooks