COURT FILE NO.: 473/02
DATE: 20030922
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
dunnet, ferrier and epstein jj.
B E T W E E N:
COINAMATIC CANADA INC. carrying on business as Park Smart
Applicant
- and -
THE CORPORATION OF THE CITY OF TORONTO and JULIAN FANTINO, CHIEF OF POLICE, TORONTO POLICE SERVICES
Respondents
David F. Bell, for the Applicant
Kalli Y. Chapman and Rachael S. Barritt, for the Respondents
HEARD: September 22, 2003
DUNNET J.: (Orally)
[1] In this application the issues involving the Chief of Police have been abandoned. The issue involving the authority of the City of Toronto to require the applicant to apply for a business licence is adjourned sine die.
[2] The remaining issue to be determined is the legality of s.6A(8)(f) of North York By-law 7625 regarding the charging of fees for visitor parking at residential apartment buildings.
[3] The applicant does not attack the validity of the By-law on the basis of good faith. The only attack is on the jurisdiction of the municipality to enact the By-law.
[4] It is common ground between the parties that the enabling statute is the Planning Act. The applicant argues that there is no planning rationale for the By-law and the City has no legislative authority to interfere with the common law rights of property owners.
[5] Section 34(1) of the Act provides that zoning by-laws may be passed by City Council dealing with, among other things, restricting the use of land, restricting, erecting, locating or using of buildings, loading or parking facilities. In our view, the municipal purpose of City Council’s power to pass zoning by-laws dealing with land use, restricting or using buildings and loading or parking facilities is clearly set out in s.34(1) of the Act. Further, the power to pass pay parking prohibition by-laws are powers necessarily or fairly implied from the express power to restrict the use of land through zoning contained in s.34(1).
[6] The respondent’s position is that the pay parking prohibitions in respect to required visitor parking spaces for multiple attached dwellings and apartment house dwellings in the By-law regulate the intended availability of those facilities and the intended impact interests consistent with the provisions of s.34(1) of the Act.
[7] We are satisfied that there is no expert evidence in the Record to contradict the evidence of the respondents as to a planning rationale. The applicant relies on a statement in a February 23, 1995 report prepared by staff at the City of North York which states:
“Staff have not determined a planning rationale for having such a regulation. We are aware, however, that it has been a long standing Council policy not to permit charging for visitor or other required parking. Permitting charging for required visitor parking spaces may lead to increased on street parking and may result in inconveniences to residents in apartment buildings.”
[8] The respondent’s planning expert, Paul Stagl, opined that the statement contained in the 1995 report indicated that it was not that staff concluded that there was no planning rationale. Rather, they had not been able to determine a planning rationale. Moreover, the evidence of the planning expert is that staff, who were registered professional planners, went on to make a recommendation that the prohibition against charging for visitor parking should continue. He states that the professional planners would not have made the recommendation had they felt it was inappropriate.
[9] The applicant submits in addition that the By-law is void because it discriminates between commercial and residential landlords, which are within the same class of business, namely, landlords. The applicant concedes that there is no direct evidence of improper motive. The applicant also concedes that commercial and residential landlords are different classes for zoning purposes. The applicant argues, however, that the discrimination arises from a lack of a planning rationale for the By-law.
[10] For the reasons stated above, this argument must also fail. The Act provides the authority to differentiate between commercial and residential zones. Further, the evidence of the respondent’s planning expert is that the prohibition against charging a fee for visitor parking was enacted in the context of planning policy. Accordingly, the application for an order quashing the By-law as ultra vires the City, is dismissed.
[11] The Application Record will read: “The application is dismissed for oral reasons delivered today. Costs to be agreed upon or to be determined after submissions are provided in writing.”
DUNNET J.
FERRIER J.
EPSTEIN J.
Date of Reasons for Judgment: September 22, 2003
Date of Release: October 6, 2003
COURT FILE NO.: 473/02
DATE: 20030922
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
dunnet, ferrier and epstein jj.
B E T W E E N:
COINAMATIC CANADA INC. carrying on business as Park Smart
Applicant
- and -
THE CORPORATION OF THE CITY OF TORONTO and JULIAN FANTINO, CHIEF OF POLICE, TORONTO POLICE SERVICES
Respondents
ORAL REASONS FOR JUDGMENT
DUNNET J.
Date of Reasons for Judgment: September 22, 2003
Date of Release: October 6, 2003