Court File and Parties

Ontario Court of Justice

Date: 2025-09-04

Court File No.: Norfolk (County) 23-159

Between:

The County of Norfolk

— AND —

Laurie Ann Balonjan Jerome

Before: Justice of the Peace K.W. Bouchard

Trial Dates: July 8th, 2025 and July 15th, 2025

Judgment and Written Reason Delivered: September 4th, 2025

Counsel

Municipal Prosecutors: J. Schmidtz and W. Poziomka

Counsel for the Defendant: J.P. Maloney

Decision

BOUCHARD K.W. J.P.:

Introduction

[1] The defendant, Laurie Jerome (LJ), is charged with two counts contrary to s.36(1) and s.8(1) of the Building Code Act (BCA). Specifically, it is alleged that on or about December 16th, 2022 that the defendant committed the offence of failing to comply with an order to comply made under s.12(2) thereby committing an offence under s.36(1) of the BCA (count 1); further it's alleged that LJ, on or about October 25th, 2022, caused the construction of a building without a permit issued by a chief building official contrary to s.8(1) of the BCA (count 2).

[2] Proceedings were commenced by laying an information under part III of the Provincial Offences Act (POA). Pre-trial motions were heard on September 18th, 2024, October 17th, 2024 with a verbal ruling delivered November 14th, 2024. The matter was set for trial on May 7th, 2025 and May 8th, 2025; however, on May 7th, 2025 late disclosure was provided by the prosecution which had not been reviewed yet by the defence. To ensure trial fairness I vacated the trial dates and rescheduled the 2-day trial for July 8th, 2025 and July 15th, 2025. For reasons contained herein I previously seized myself with the trial as I made rulings on two pre-trial motions.

[3] This prosecution centered around a property at 159 Hastings Drive (exhibit 4) near Port Rowan on Long Point Ontario. It was alleged by the prosecution that the defendant LJ caused a non-conforming structure to be constructed on her property without the required building permit, and subsequently did fail to comply with an order to comply by a building inspector. The facts that are agreed are that LJ is the legal owner of that property since 2006 (exhibit 2), and that a structure (or structures as will be explained) were built on that property by the defendant's family and a contractor. It is agreed that the property is within a zone that has been designated by Norfolk County as hazard land since approximately 1986. It is further agreed that the property has been within the defendant's family since the 1940s (exhibit 17), with a prior cottage (change house) and boat house constructed in the mid 1950s. It is agreed that the prior structures were destroyed by natural causes in late 1985, during several well-known storm events in that township that destroyed dozens of other cottages and led to the aforementioned rezoning of the land as hazard land. It is agreed that LJ received Long Point Regional Conservation Authority (LPRCA) approval to build a change house on lot 55 (exhibit 5), and LPRCA approval to build a boat dock on her lot 55 (exhibit 6). Further it is not disputed that LJ received Norfolk County Chief Building Official (CBO) approval that a permit was not required for the boat dock based on a legal non-conforming use and LPRCA approval (exhibit 7). Finally, it is not disputed that LJ received approval from the CBO to keep a trailer on 159 Hastings Drive (exhibit 12 pg 5/9) as a legal non-conforming use. Finally, it is not disputed that an order to comply was issued by the building inspector on November 1st, 2022 (exhibit 10), and that the building inspector never entered the property to inspect the structures, instead relying on a roadside inspection (exhibits 4, 8, 9, 11, 15).

[4] The defence submitted three separate defences. The first defence contends that there was no direct evidence at trial that the building inspector, or another delegate, visited 159 Hastings on December 16th, 2022 to ensure non-compliance with the order to comply issued on November 1st, 2022. The defence submits that only direct evidence of non-compliance on that date would meet the burden beyond a reasonable doubt, and that circumstantial evidence and inferences drawn by inspections subsequent to that date cannot meet that burden. The second defence has two branches, branch one contends that the CBO, through his designate the local inspector, fundamentally misconstrued and miscategorized the structures at 159 Hastings by conducting an incomplete inspection. Evidence at trial, the defence submits, showed that there were in fact three legally conforming structures built on the boat dock, which individually were entirely compliant with regulations and therefore exempt from the permitting requirement. They submit the inspector failed to enter the lot, relying entirely on a roadside inspection, where they contend it was unlikely that the inspector would notice the small one-inch gap between three structures and that they had three separate roof assemblies. The second branch of the second defence, hinged on whether there was a legal non-conforming use to the property. The defence argues that 159 Hastings had a legal conforming use in Norfolk County, and its predecessors Counties before the first bylaw on zoning in the 1970s. After a natural disaster destroyed the cottage and boathouse in 1985 they submit the County stymied their attempts to rebuild for decades. They submit that LJ, and the previous owners (her father and grandmother) maintained a legal non-conforming use on 159 Hastings, and have met the requisite demonstration of intent to rebuild and commitment to use. The third defence raised was one of due diligence, where either the defendant proves that they took all reasonable care to avoid the guilty act or proof that they reasonably believed in a mistaken set of facts which if true would render the act innocent. They submit that that the court should focus on the second branch, that LJ had an honest belief that she had a legal non-conforming use, or that she believed in advice received from the contractor she hired that the proposed three separate structures would be a legal conforming use under a BCA exception to size requirements.

[5] The trial completed as scheduled on July 15th, 2025. It was agreed to return on September 4th, 2025 for a status update on the court's judgment and written reasons. For the reasons contained herein the judgment of the court was to dismiss both counts. The court found that the prosecution had succeeded in proving the actus reus (AR) of both offences, first that the defendant failed to comply with an order to comply under the BCA; second that the defendant caused the construction of a building without a permit as required under the BCA. However, the court found that the defendant raised a valid defence of legal non-conforming use, which on a balance of probabilities they have succeeded in proving. The court rejected the alternate defences proposed including: that there was no direct evidence of the AR of count 1; that there was reasonable doubt, on both counts based on the existence of three independent legal conforming structures; finally the court rejected that LJ exercised reasonable care or believed in a mistaken set of facts that excused the non-conforming construction.

Issues

[6] Has the prosecution established, beyond a reasonable doubt, that the defendant failed to comply with an order to comply, to wit to obtain the required building permit or remove the non-conforming structure?

[7] Has the prosecution established, beyond a reasonable doubt, that the defendant failed to obtain a permit to cause the construction of the non-conforming structure at 159 Hastings?

[8] How does the BCA define a conforming structure in these circumstances? Does it matter that the three structures had the same foundation? Does it matter that they share a roof assembly?

[9] What is the proper legal test to establish a legal non-conforming use for property? Who has the onus and what is the proper burden of proof?

[10] Did the County's by-laws extinguish or modify any legal non-conforming uses? Has the County attempted a veiled amortization of the property through its by-laws?

[11] Has the defence raised a reasonable doubt, that there was direct evidence of non-compliance with the order to comply on December 16th, 2022? Is direct evidence required to establish the AR for non-compliance, or can the prosecution meet their burden with circumstantial evidence?

[12] Has the defence raised a reasonable doubt, that there existed three legally conforming structures, not one non-conforming structure, that were constructed on a shared foundation (the boat dock), in accordance with the prior approvals from the LPRCA and CBO?

[13] Has the defence established, on a balance of probabilities, that they had a legal non-conforming use, that would permit in the absence of a building permit continued use, reasonable repairs and evolution of an existing property?

[14] Has the defence established, on a balance of probabilities, a due diligence defence, to wit that LJ had had a honest and reasonable belief that she had a legal non-conforming use, or that there were a mistaken set of facts permitting the non-conforming use.

Rules

[15] In Saint-Romuald (City) v. Olivier, Binnie J. writing on behalf of the Supreme Court of Canada (SCC) majority, held that property owners with acquired rights under Quebec's civil law, are not entitled to any use under previously permitted categories; instead, they are limited to continued use of their premises as they were when the new by-law was passed. Further they held that flexibility in that use is permitted, for example intensified levels of pre-existing activities should be permitted unless that would create an altogether different use. Finally, the court must balance the remoteness and neighbourhood effects of the use.

[16] In Central Jewish Institute, Kerwin J. writing on behalf of the SCC, held that when a property owner has a legal non-conforming use to a portion of a structure or building it can be extended to the whole of the building as a matter of right.

[17] In Dysart, Laskin J.A. writing on behalf of the ONCA, held at para 29 that a defendant need only prove a legal non-conforming use on a balance of probabilities.

[18] In Gallos, Feldman J.A. writing on behalf of the ONCA, affirmed the decision of Trotter J (as he then was) who found that a property owner can extinguish their own legal non-conforming use voluntarily if they modify a building or structure to make it compliant with by-law requirements, including but not limited to when these modifications are necessary to obtain a license. The decision by Trotter J itself was based heavily on a prior decision also for Gallos by Simmons J.A. which found similarly that a legal non-conforming use can be extinguished by a property owner.

[19] In Feather, Rouleau J.A writing on behalf of the ONCA held that when determining legal non-conforming use an application or trial judge must distinguish types of usage under s.34(9) of the Planning Act, to wit evidence of usage of the land, buildings and structures as distinct types of usage. They held it would be an error to conflate usage of land with tentage as demonstrating usage of buildings and structures to maintain a legal non-conforming use.

[20] In Capital Parking Inc, Doherty J.A. writing on behalf of the ONCA, held that the "legal non-conforming use doctrine rests on the principle that zoning by-laws that introduce new restrictions on the use of property should not deny landowners their acquired rights to use their property in the same manner they did before the introduction of the restrictions." The court clarified that the interference with acquired rights has to be determined on a case-by-case basis.

[21] In Cobalt v Coleman, Trotter J.A. wrote on behalf of the ONCA, that Saint-Romuald remains the leading authority on legal non-conforming use. Further they held, at para 23, that intent to use is not determinative; rather to prove legal non-conforming use "it must be shown that the land was actually used for this purpose." Finally, they affirmed the balancing test from Saint-Romuald, where the court determines whether an intensification amounts to a change of use.

[22] In Adams, Gauthier J. of the Ontario Superior Court of Justice (ONSC) found that intention alone was insufficient to demonstrate a legal non-conforming use; rather they state at para 49, if that intention is "coupled with a commitment to use" that may be equivalent to use for the purpose of the court making a finding of legal non-conforming use.

[23] In Tantalo, Forsyth J. sitting as a POA Appeal judge for the Ontario Court of Justice (OCJ), found that a trial justice of the peace properly applied, in pith and substance, the burden on the defence of a balance of probabilities to establish a legal non-conforming use.

[24] In Spirak, Wake J. sitting as a POA Appeal judge, affirmed the decision of the trial justice of the peace, finding that ownership of the impugned property is not determinative of liability under the Planning Act; rather the use of the property determines liability. Additionally, they reiterated the legal non-conforming exemption under s.34(9), which requires that the defendant establish a legal use that pre-dates the by-law.

[25] The prosecution submits Mawhiney, where Gordon J cited a tribunal decision which provided a thorough description of the hazard land at lot 191 and 195 Hastings Drive in Long Point, in a proximate lot to the Jerome case at lot 54 and 55. This decision states that in 2009 by-law 1-NO-85 was in effect for the Township of Norfolk, then part of the Regional Municipality of Haldimand-Norfolk. In Mawhiney the lots were designated as hazard land. The court notes that in 2014 a new comprehensive by-law came into effect 1-Z-2014, which carved out Hastings drive for further study; further, in 2018 by-law 38-Z-2018 was enacted which provided for permission for hazard land to be used as either a public park, or for day use which included personal use on a vacant lot including launching boats. The court noted (at para 13) that the current by-law, or any prior Tribunal decision, did not extinguish any existing legal non-conforming use.

[26] The prosecution submits Boyce, where tribunal member Taylor had to resolve issues and limitations in the draft by-law order concerning Hastings Drive, in particular whether the by-law prohibited development and site alteration or directed development away from natural heritage and hazard features (para 86). The tribunal heard from LJ during Boyce, in particular her opposition to the draft by-law order. The court noted she owned lots 54 and 55 since she purchased them in 2004; however, that her family used the property since 1944. At para 15 member Taylor confirms that nothing in the tribunal's decision decides the legal non-conforming status of specific sites or specific uses; instead those uses are dealt with on a site by site basis (as in Capital Parking Inc).

[27] The defence submits Fagundes, where Carthy J.A. affirmed 572989 Ontario Inc on behalf of the ONCA that found that a property owner can establish a bona fide use by establishing two necessary elements i) intent to continue use ii) and continuation of actual use so far as it is possible in the circumstances. This can be compared with Adams, where the court found a commitment to use could establish continued use. Carthy J.A. quoted 572929 Ontario Inc, how an owner could explain a gap in actual use "the use had continued despite the vacancy, there was some reasonable explanation for the vacancy or some circumstance at least partially outside the owner's control that temporarily prevented the use" (emphasis added). Fagundes was similar to Jerome in many respects, it involves another lot owner in Long Point, that had a cottage destroyed or rendered unusable by the same storms in 1985. In Fagundes the court found that there was no evidence of an intent to use, or an excuse for non-use, and that the owners demonstrated an intent to abandon their prior use of the cottage, thus extinguishing any prior legal non-conforming use they may have enjoyed, the court concluded that their actions had broken the chain of continuance of use (both the fact of use, and intent deferred by some external cause).

Application – Prosecution

[28] The prosecution bears the burden, as a Part III prosecution under the POA, of proving the AR of counts 1 and 2 beyond a reasonable doubt. To do so they must prove each element of each offence to that standard. For count 1 they must prove that the defendant (LJ) failed to comply, on December 16th, 2022 with an order made under the BCA; to wit an order to comply issued on November 1st, 2022 in Norfolk County. For count 2, they must prove that the defendant (LJ) caused the construction of a building without a permit issued by the Chief Building Official. Based on evidence adduced at trial this court granted a motion to amend count 2 during the trial, the offence date for count 2 was amended to October 25th, 2022.

[29] Their burden has been met in part by the agreed facts summarized in para 3 of these reasons; to wit that LJ is acknowledged to be the owner of the subject properties, the ID of the defendant is not in dispute for either count. Further the subject properties where it is alleged an order to comply was ignored, and a permit was not obtained are not in dispute, it is agreed the property is 159 Hastings Drive. Further, it is not disagreed by either party that 159 Hastings Drive Long Point is within Norfolk County as it is currently known. Further, with respect to count 2, there was no dispute at trial that LJ caused or permitted the construction of a structure(s) at that property. What is disputed for count 2 is whether there was one legal non-conforming structure, or whether there existed three independent legal conforming structures on the same foundation. Further, with respect to count 2, it is not disputed that LJ did have a permit to construct a single change house on the boat dock. For count 1, it is also not disputed that there was an informal extension on the order to comply granted by a delegate of the CBO; what is disputed is the length of the informal extension and whether it provides an excuse for count 1.

[30] Applying the evidence at trial to count 1, I find that the prosecution has proven that an order to comply was issued by inspector Kimberly Millen (KM) on November 1st, 2022 and sent by registered mail, this is from KM's testimony and exhibit 10. The prosecution has also proven by KM's testimony and exhibit 10 that a deadline for compliance with the order to comply was set by KM for December 15th, 2022. These two sources of evidence also proved that LJ was the party to which the order was issued. While the court acknowledges from KM and LJ's testimony that an informal extension of the order to comply was granted, the court also accepts and infers from their testimony that this was a grace period provided by KM as a courtesy, and in no way acted as a formal amendment or variation on the order to comply issued November 1st, 2022. When KM inspected 159 Hastings Drive on February 18th, 2023 and directly observed that LJ has not complied she continued her investigation and laid the charges before the court on June 9th, 2023. The court acknowledges that the prosecution relies on the "roadside inspection" of 159 Hastings, shown in exhibits 4, 8, 9, 11, 15. I'm satisfied that these photos are sufficiently clear for the court to determine that a single non-conforming structure exists at 159 Hastings. As the court will explore under defence 2 branch one, the court does not accept that there is an alternate explanation for the photos, the court rejects the notion that they are three independent structures. These exhibits clearly show to a reasonable person, that there exists a single unified structure, with construction wrap and siding that is continuous across the single structure. With a single roof assembly without gaps, and with a single foundation on a boat dock. This inference is drawn from circumstantial evidence from KM (not direct evidence), as she failed to approach the building on the lots to clear up this issue. While this would have been preferable the court is able to draw these conclusions as the only inference consistent with all the evidence. The defense's evidence in exhibits 21 and 22, as discussed in detail below, fail to explain certain details in these exhibits such as the lack of visible gaps in the roof assembly, the lack of separate foundations, and the lack of gaps visible in the construction wrap and siding. Further in the testimony of LJ she acknowledges that the interior of these structure(s) were unfinished in the interior, she acknowledges this was done it part to seek future formal approval to join the structures into one structure. The court infers from KM and LJ's testimony that the single non-conforming structure was present, and in non-conforming status on December 16th, 2022; this is based on a logical inference that the same structure was observed by KM on October 25th, 2022 then on February 18th, 2023, and that LJ confirmed under direct and cross that the structure was not removed over the winter while she sought legal advice. The prosecution has proven the AR of count 1 beyond a reasonable doubt.

[31] Applying the evidence at trial to count 2, first the court accepts the testimony of KM and the CBO that a structure similar to the structure in the roadside inspection (exhibits 4, 8, 9, 11, 15) would require a building permit. Second, the court accepts the testimony of KM that except for the permits in exhibits 5 and 6 which show permission to build a change house and boat dock, that LJ had no permit on file to build a structure observed in the roadside inspection. The court accepts the testimony of KM that she began observing the property on July 5th, 2022 and observed the non-conforming construction. The court further accepts that exhibit 9 (pg 1/3, 2/3) and KM's testimony shows that a single non-conforming structure, without a permit, existed on October 25th, 2022. The court accepts the testimony of LJ under cross that confirms that a structure under construction and without a permit did exist at 159 Hastings on October 25th, 2022. The court accepts the testimony of KM and the CBO that a structure exceeding 10 square meters would require a permit. The court accepts the position of the defence, that if the court finds that there are three independent structures, and that each are under the exclusion size specified by regulations, and that would be legal exception to the permitting requirement. However, as I've already found in para 30, and explained later in para 33 I have accepted that KM observed a single non-conforming structure that greatly exceeded this size exemption. The prosecution has proven the AR of count 2 beyond a reasonable doubt.

Application – Defence

[32] Turning to defence 1, reasonable doubt of direct evidence of a failure to comply with an order to comply. The defence submits that the prosecution must prove the AR of count 1 with direct evidence, they submit that the inspector's evidence at trial indicated that they did not inspect 159 Hastings on December 16th, 2022, and that they did not in fact return to the property until months later February 18th, of 2023. They submit that the prosecution can not meet its burden with circumstantial evidence from the February 2023 inspection, and subsequent site visits in 2023 as those inspections occurred after the completion date of the delict. They submit no inferences therefore can be drawn from those subsequent inspections to support an inference of guilt on the offence date. With respect to the defence I disagree. First, the defence submitted no authorities supporting this position. Second, it is not consistent with the rules of evidence that a rationale inference can't be drawn from a subsequent event that a state of affairs existed on a prior date. What the court must do is to examine the circumstantial evidence, in this case the inspections in 2023, and determine whether beyond a reasonable doubt the only rationale inference drawn from the circumstantial evidence is one of guilt. In the instant case the evidence at trial from the inspector allows the court to find from her site visits prior to the order to comply being issued on November 1st 2022, that a non-conforming structure existed at 159 Hastings, this is based on direct evidence of her observations on October 25th, 2022. Further the court can then make inferences from her subsequent site visits on or about February 18th, 2023 that the non-conforming structure remained, and had not been removed as ordered. The only rational inference I can draw from the direct observation of the non-conforming structure on February 18th, 2023, is that it also existed in a non-conforming state on December 16th, 2022. In fact, there is direct evidence from trial that bolsters this logical inference. First, LJ confirmed in her testimony that the non-conforming structure(s) did remain on December 16th, 2022 as she was unable to have them removed over the winter months, also she believed she had an informal extension on the order to comply, and further she intended to seek legal advice over the winter months on her available options. Second, Exhibit 12, a letter from LJ (and Howie Jerome) indicates they were aware of the order to comply, and that construction had ceased, and that the three structures remained as of March 30th, 2023. For these reasons the first defence has failed to raise a reasonable doubt on count 1.

[33] Turning to defence 2 branch one, the defence submits they have shown reasonable doubt that there were three structures that were legally conforming structures under the BCA and regulations. The court finds that the defence has failed to raise a reasonable doubt on counts 1 and 2.

[34] I have found the testimony of LJ (with respect to 2nd defence, branch one) and the contractor Dudley Stetler (DS) not credible and not reliable for the following reasons. First, I do not accept that the three supposed independent exempt structures were in fact separate. I found LJ's and DS's descriptions of the construction wrap that enclosed all three structures as winterizing material only not credible. Further I found their description of the roof assembly as being composed of three independent roof assemblies not credible. In addition, I have rejected the testimony of DS, and his letter (exhibit 16) in which he claims that he was hired to build a center gazebo and complete construction of two small buildings of 120 sq feet. The photos in exhibits 21, and 22, in particular exhibit 22 pg 2 does not show a center gazebo; rather a reasonable person would infer it was part of one structure. Further I found their description of man door entries on the structures, as being consistent with three structures not credible. Further, I found their description of the three structures as being independent despite being on the same raised boat dock foundation not credible. Instead the court finds that LJ intended to construct a single structure, that was not legally exempt from the permitting requirements, that had construction wrap and siding applied on the single structure to enclose it from the elements but also to unify them as a single structure, that it had roof flashing consistent with a single unified roof assembly (see Exhibit 15 pg 1), and that it was a single structure on a single foundation on a raised boat dock (Exhibit 11 and 15). Further the interior walls of each "independent" structure were deliberately left framed and unfinished to facilitate joining them into a single unified structure, which LJ confirmed was her long-term intent. The only logical inference consistent with the evidence that the structures were not finished on the interior walls, thus potentially exposing them to the elements, is that the owner LJ intended to join them into one unified non-conforming structure. The defence has failed to raise a reasonable doubt on count 1 and 2. Had the defence relied only on this defence, a conviction on both counts would naturally be entered as the prosecutor has proven the AR of counts 1 and 2 beyond a reasonable doubt.

[35] However, on branch two of the 2nd defence, the court finds that the defence has proven on a balance of probabilities that LJ continues to enjoy a legal non-conforming use for the property at 159 Hastings for the following reasons.

[36] Applying Saint-Romuald and Central Jewish Institute, If the court accepts in Jerome that LJ enjoys a legal non-conforming use then LJ would be permitted reasonable efforts to repair and replace buildings and structures. Further based on these authorities she would be permitted to intensity the non-conforming use so long as that use was neither too remote from the prior usage nor too intense as to have neighbourhood effects that would constitute a new use. Further LJ would be permitted for reasonable evolution of her property, such as the expansion of a cottage or boathouse to have an additional floor, as long as the footprint of the building or structure did not unreasonable increase from the legal non-conforming use.

[37] Applying Dysart and Tantalo, this court is satisfied the burden is on the defendant LJ to demonstrate a legal non-conforming use on a balance of probabilities.

[38] Distinguishing from Feather (in part), the court distinguishes Jerome from Feather in several respects. First in Jerome the impugned land, buildings, and structures remained within the same extended family passing from generation to generation unlike Feather where there were several property owners who undertook their own plans and uses. Second, while Jerome had situated a trailer on the land for many years similar to the tent trailer usage on the land in Feather, they differ in that Jerome family (the defendant's father Alvin Moro (AM)) showed an intent and commitment to rebuild a change house or boathouse during that time (exhibit 19 letter of AM), while in Feather no intent to rebuild was demonstrated and in fact the boathouse in Feather was demolished by the owner.

[39] Applying Adams, and Feather (in part), the court accepts the evidence from the defendant LJ that she maintained an intention to rebuild the buildings and structures present at 159 Hastings prior to their destruction in 1985. This was demonstrated throughout her testimony, as well as the evidence provided that her father similarly expressed his intent to the County to rebuild (exhibit 19 and 20). The court also accepts LJs testimony that the defendant, and her father AM before her, showed a commitment to use the land to the extent the County would allow, through the use of a trailer or RV on the land, and by obtaining permission from LPRCA to build a boat dock while simultaneously pursuing avenues to obtain permission to rebuild the buildings and structures.

[40] Applying Capital Parking Inc and Boyce, the court accepts that Norfolk County and it's predecessors, cannot extinguish any acquired rights that the defendant LJ has on her lots merely by passing a zoning by-law. Instead, the court must examine the facts of on a case-by-case basis and determine if LJ enjoys a legal non-conforming use to these lots.

[41] Applying Cobalt v Coleman I'm satisfied that LJ has shown to this court's satisfaction that to the extent permitted by the County and LPRCA, that the defendant continued to use the land with the same intent that her grandmother and father had prior to 1985. LJ substituted a RV for the destroyed change house and boathouse, while pursuing formal approval to restore the change house and boathouses that existed prior to 1985. Further the court finds that the balancing test affirmed from Saint-Romuald is not required in Jerome, as the owner has not intensified their use, they have attempted to restore, repair and evolve their property in a reasonable manner. LJ did not exceed the size and scope of the prior structures, and the addition of a second story to the change house or boat house is seen as a reasonable evolution of the pre-existing structures.

[42] Applying Spirak, the court accepts that the defendant LJ has proven that the Jerome family (grandmother Elsie Moro was owner at this time) did construct or cause the construction in the 1950s prior to the Counties by-law, a building and structures referred to in this trial as either a cottage or change house and a separate boathouse. The photos in exhibit 18 entered into evidence by LJ has satisfied the court that these buildings did exist and continued to exist at 159 Hastings until 1985. The court further accepts that the pre-existing buildings or structures were used as change houses and boathouses prior to the zoning by-laws coming into effect, and that they only ceased to be used in this manner when they were destroyed by storms in 1985. The court further accepts the evidence of LJ that her family used camping trailers and recreational vehicles on the lots both before and after the 1985 storms, and that the RV use continues to this day. Evidence at trial (exhibit 12 pg 5/9) showed that LJ has a permitted use of a RV on the lots. The court finds that the RV serves a similar use that the pre-existing change house and boathouse performed prior to their destruction, and demonstrates a commitment to use the land for the same purpose, to the extent the County will allow.

[43] Applying Gallos, this court observes a conflict between the two branches to the 2nd defence proffered by LJ. If the court accepts branch one, the court must find that the prosecution has failed to prove beyond a reasonable doubt that LJ required a permit (count 2) to cause construction of the impugned structure(s). At the heart of this defence is the evidence that LJ deliberately tried to skirt the permit requirement, by her own admission, by causing the construction of three smaller structures that were not similar in form to the pre-1985 cottage or boathouse, but perhaps similar in use. Further that these three structures were legally exempt from the permit requirement under OReg 332/12.

[44] This voluntary attempt to secure a size exemption to the permitting requirement would appear to be analogous to the situation in Gallos where that property owner extinguished his own legal non-conforming use by voluntarily causing legal conforming construction in order to obtain a license. This voluntary extinguishment of a legal non-conforming use in branch one directly opposes the proposed defence in branch 2 of the 2nd defence. In that branch LJ submits that she enjoys acquired rights or a legal non-conforming use as it is an agreed fact that 159 Hastings has been owned by the Jerome/Moro family since the 1940s, and it is not disputed by the prosecutor that there existed a legal non-conforming use of a cottage/boathouse prior to by-law 1-NO 85 being passed. Defence counsel did not note the tension between these two branches in their submissions. The problem for the defence is that these branches are mutually exclusive. Either there are three structures which seek a legal exemption to the size requirement under OReg 332/12 thereby extinguishing LJ's claim of legal non-conforming use or LJ enjoys legal non-conforming use of a single structure similar in dimensions and use to the pre-1985 cottage or boathouse. Both cannot be true at the same time, yet the defence puts these forward for the court to reconcile.

[45] Distinguishing Mawhiney, In Mawhiney, like Jerome, the owner received LPRCA approval for improvements. Similarly in Mawhiney, like Jerome, the owner built three change houses. However, in Mawhiney the owner purchased multiple lots, that had not previously been in the family, and attempted to alter their use into a camping and recreational campground and seek a declaration of legal non-conforming use; it was this declaration that the court rejected. Also in Mawhiney, unlike Jerome, the owner placed a trailer on two of the eight lots without County approval; in Jerome as evinced at trial the owner LJ had permission from the CBO to have a trailer on one of the two lots based on a legal non-conforming use.

[46] Distinguishing Fagundes. In Fagundes, the appellants sought relief from the decision of the trial justice that they were restrained from using their property for cottage purposes. In Jerome there is no similar restraining order in effect, rather there was evidence of LPRCA approval to build a boat dock and LPRCA approval to construct a change house on a lot, and Norfolk County permission from the CBO to have a trailer on a lot as a legal non-conforming use. Essentially the County, through the CBO, acknowledges at minimum that LJ does have legal non-conforming status to construct a dock, and to have a trailer on her property. The legal issue remaining in Jerome is whether this legal non-conforming use extends, as the defence submits, to rebuild the prior change house and boat house that both parties accept did exist on the property prior to 1985. The court finds that the legal non-conforming use does extend to the entire property 159 Hastings, lots 54 and 55 as the prior owner AM and then the defendant LJ has shown on a balance of probabilities through the testimony of LJ the requisite intent to rebuild the aforementioned structures. It is only through the refusal of Norfolk County to grant permits to begin this construction that it did not legally occur prior to the non-permitted construction that LJ commenced in 2022 that brings her before the court. The court has accepted her testimony that she always intended to rebuild, that she promised her father when she took the property over that she would rebuild, and that since acquiring the property in 2006 she has consistently pursued a commitment to use the property to the maximum extent Norfolk County would allow, while pursuing legal avenues to gain permission to rebuild such as the boat dock and a single change house. The court remains mindful that LJ risked extinguishing her legal non-conforming use by her ruse to construct three independent structures; however, the court in this case has found that the evidence as a whole demonstrated that in fact there was a single unified structure on the boat dock, given this finding the court then finds that LJ has not self-extinguished her legal non-conforming use of 159 Hastings.

[47] Finally turning to defence 3, the defence submits due diligence, in verbal submissions counsel requested the court pay particular attention to the mistake of fact branch, but to give some consideration to the reasonable care branch as well. The defence did not make detailed submissions on this defence, in comparison to their other proffered defences, as such the court's analysis will be similarly brief. The court finds the defence has not proven this defence, on either branch, judged on a balance of probabilities for the following reasons.

[48] First, the court will review the legal standard to apply. The defence submits one authority, Ashley Developments Ltd, which they submits stands for the proposition that the defence need only prove one branch of the defence, either they exercised reasonable care or reasonably believed in a set of mistaken facts that would render the act innocent. The leading case for this defence is Sault Ste. Marie, which held that there is a presumption that public welfare offences will have liability that is strict, where the prosecution must prove the AR beyond a reasonable doubt, but where the defence can avoid liability by proving on a balance of probabilities, that they took all reasonable care to avoid that liability or reasonable believed in a mistaken set of facts that would render the act innocent.

[49] Second, I accept the testimony both of LJ and DS that the contractor DS was hired by LJ to complete the partially completed construction of two structures on a raised boat dock at 159 Hastings. They both testified that he was given clear instructions by LJ to maintain the separation status between the structures, that they were not to be joined and that there needed to be a gap of at least an inch. DS was directed to construct, what he described as a gazebo, or a third structure between the two partially constructed structures that had a slightly elevated roof assembly. Evidence at trial indicated that the design of this structure was prepared by LJ and not furnished by DS. This testimony contradicts counsels' assertions that it was DS that provided mistaken facts to LJ that she then believed. Rather the court finds it was LJ that directed DS to create a small almost unnoticeable gap between the structures in order to later claim they were three independent and not one unified structure. It is disingenuous to say the least to hear evidence that the contractor was ordered to proceed in this manner, then to claim on the other hand that he mislead the defendant by proceeding as directed. This contradiction was unresolved by the defence.

[50] Third, they submit for the court's consideration that LJ reasonably believed that she had a legal non-conforming use, and if true this would excuse the act. I will deal with the substance of the legal non-conforming status of 159 Hastings in my reasons under the 2nd defence, branch two, but in brief the court accepts that a due diligence defence is an independent ground to excuse a guilty act compared to the defence of legal non-conforming use; said another way the court does not find it necessary for the defence to prove a due diligence defence in order to prove a legal non conforming use. A defence of legal non-conforming use is an independent basis for analysis as an excuse for a guilty act.

[51] Fourth, I will only make brief comments on the reasonable care branch, as the defence again made brief submissions that are difficult to reconcile with evidence at trial. The defence in their submissions seems to indicate that LJ took reasonable steps, in the circumstances, to obtain permitting for the non-conforming structure as seen by exhibits 5, 6 and 12. The defence at trial objected to any evidence being considered after the offence date on count 1 of December 16th, 2022. The evidence in particular exhibits 13 and 14 demonstrate that LJ was aware on April 11th 2023 and May 11th, 2023 that she had not yet obtained permits for the construction at 159 Hastings, and was actively still pursuing those permits, this contradicts statements in exhibit 12 in her letter where she indicates that construction had started 7 to 8 months before the March 30th, 2023 (the date of the letter). LJ in her March 30th, 2023 letter undercuts both of her arguments, she argues in para 4 that the structures are exempt from size requirements but non-conforming on separation distance, thus requiring a permit in her own words. She then argues in para 5 that the entire property is legal non-conforming prior to the 1985 official plan, thus exempting the property from the by-laws passed after that date. In these reasons I have already reviewed the tension that exists, under Gallos, where an owner such as LJ can voluntarily or inadvertently extinguish their own legal non-conforming rights by attempting to adopt current by-laws. These contradictions were unresolved by the defence.

Conclusions

[52] Finally, although this court may find it unsettling that the defendant LJ undertook a deliberate plan to circumvent and frustrate the permitting requirements for the construction of a single non-conforming structure on a boat dock, the court's concerns are not dispositive of these two counts. Further, the court's knowledge of the environmental fragility of Hastings Drive, that it is a protected wetland and unique environment, that there remains a risk of future devastating storms and its current hazard land status in the instant case must give way to the legal non-conforming property rights acquired by LJ as the direct descendant of two prior owners and current agreed owner of 159 Hastings. Norfolk county cannot extinguish the legal non-conforming status that LJ enjoys through veiled attempts to amortize or stymy rebuilding and repair uses of her property by enacting by-laws or continuous denials of permits. LJ has demonstrated the required intent to rebuild the structure(s) that existed prior to 1985. Further, LJ has shown, to my satisfaction, the commitment required to legally establish non-confirming use. LJ had and continues to have the right to rebuild, repair and evolve her property in a reasonable manner due to its legal non-conforming status. For these reasons their defence, on these grounds only, has succeeded, and the charges are dismissed. The court has every confidence that this will not be the end of the story at 159 Hastings given the history of the Jerome family and Norfolk County; therefore, the court provides these reasons to explain the judgment of this court, and the reasons for its decision.

Signed: Justice of the Peace K.W. Bouchard