2312460 Ontario Ltd. et al. v. City of Toronto City of Toronto v. 2312460 Ontario Ltd.
[Indexed as: 2312460 Ontario Ltd. v. Toronto (City)]
Ontario Reports
Ontario Superior Court of Justice,
Himel J.
February 28, 2013
115 O.R. (3d) 206 | 2013 ONSC 1279
Case Summary
Municipal law — By-laws — Validity — Municipal by-law prohibiting "adult entertainment establishments as defined by the Municipal Act, 2001" — Municipal Act defining adult entertainment establishment as premises where "goods, entertainment or services that are designed to appeal to erotic or sexual appetites or inclinations" are provided — Prohibition vague and void for uncertainty as it did not clearly delineate risk zone — By-law also discriminatory — Municipal Act, 2001, S.O. 2001, c. 25.
A municipal by-law prohibited "adult entertainment establishments as defined by the Municipal Act, 2001". The Municipal Act, 2001 defines an adult entertainment establishment as premises where "goods, entertainment or services that are designed to appeal to erotic or sexual appetites or inclinations" are provided. 748 leased premises owned by 231 in order to operate a store that sold lingerie, books, lotions, condoms and devices such as vibrators. 748 and 231 brought an application for a declaration that the prohibition in the by-law regarding "adult entertainment establishments" was void for uncertainty and that it discriminated against 748 as various goods sold by 748 were also sold in other retail establishments that were not deemed to be "adult entertainment establishments".
Held, the application should be granted.
The prohibition was vague and void for uncertainty as it did not provide a delineated zone or area of risk. The by-law did not define "goods". Moreover, what a person considers to be erotic or appealing to their sexual appetites or inclinations can vary widely. It was unclear whose erotic or sexual appetites the by-law [page207] was referring to. It was impossible to determine whether an item met the definition of "erotic". There was no guidance in the by-law on the term "designed to appeal". No reasonably intelligent person could determine with any degree of certainty when he was violating the by-law. Further, no citizen would be able to appreciate what was meant by the words "adult entertainment establishment as defined by the Municipal Act, 2001". No official would be able to enforce the by-law. Neither a common sense approach nor a contextual analysis could fill in the gaps. Furthermore, unless the provincial legislature has expressly conferred powers on the municipality to provide different rules or regulations for different categories of individuals or groups, it is discriminatory for the municipality to pass a by-law which has that effect.
Hamilton Independent Variety and Confectionary Stores Inc. v. Hamilton (City), 1983 3114 (ON CA), [1983] O.J. No. 3, 143 D.L.R. (3d) 498, 4 C.R.R. 230, 20 M.P.L.R. 241, 17 A.C.W.S. (2d) 490 (C.A.), consd
Other cases referred to
1121472 Ontario Inc. v. Toronto (City) (1998), 1998 4637 (ON CA), 39 O.R. (3d) 535, [1998] O.J. No. 1851, 160 D.L.R. (4th) 83, 109 O.A.C. 146, 47 M.P.L.R. (2d) 23, 79 A.C.W.S. (3d) 396 (C.A.); Bunce v. Cobourg (Town), 1963 181 (ON CA), [1963] 2 O.R. 343, [1963] O.J. No. 729, 39 D.L.R. (2d) 513 (C.A.); Canadian Foundation for Children, Youth and Law v. Canada (Attorney General), 2004 SCC 4; Information Retailers Assn. of Metro Toronto Inc. v. Toronto (Metropolitan) (1985), 1985 2223 (ON CA); Jackson v. Vaughan (City), 2010 ONCA 118; Montreal (City) v. Arcade Amusements Inc., 1985 97 (SCC); Niagara Falls (City) v. Jorgensen, 1995 7021 (ON CA); Ontario v. Canadian Pacific Ltd., 1995 112 (SCC); Quebec (Communaute urbaine) v. Corp. Notre-Dame de Bon-Secours, 1994 58 (SCC); R. v. Katigbak, 2011 SCC 48; R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC); R. v. Oakes, 1986 46 (SCC); R. v. Sandler, 1971 478 (ON SC); R. v. Ware, 2005 21094 (ON CA); Xentel DM Inc. v. Windsor (City), 2004 22084 (ON SC)
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 7
City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A, s. 380
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131 [as am.]
Municipal Act, 2001, S.O. 2001, c. 25, ss. 154 [as am.], (2)(a), 380 [as am.]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194
APPLICATION for a declaration of invalidity.
Melissa E. VanBerkum, for applicants 2312460 Ontario Ltd. and 748485 Ontario Ltd./respondent 2312460 Ontario Ltd.
Mark Siboni and Jessica Braun, for respondent/ applicant City of Toronto.
Reasons for Decision
[1] HIMEL J.: — The owner and operator of a property located at 1100 The Queensway, Toronto bring an application under rule 14.05(3)(d) and 14.05(3)(h) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for a determination of their rights under a zoning by-law. The applicants seek a declaration that parts of s. 3.A of City of Toronto By-law 514-2003 (the "By-law" or "Zoning By-law 514-2003") are vague and void for uncertainty, that they are discriminatory in their application to the applicants and that the retail use of the property by the applicant tenant may operate without contravening the By-law. The City opposes the declarations sought and asks that the application be dismissed. The City also brings an application under s. 380 of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A for injunctive relief.
[2] On April 2, 2012, 2312460 Ontario Ltd. ("231") purchased a property located at 1100 The Queensway, Toronto. 748485 Ontario Ltd. ("748") leased the premises in order to operate a business known as Aren't We Naughty ("AWN"). AWN operates a chain of stores that sells goods such as lingerie, books, lotions, condoms and devices including vibrators. AWN sought confirmation of the permitted uses from the City's building department in order to satisfy a condition in the agreement of purchase and sale of the property.
[3] Zoning By-law 514-2003 is part of c. 320 of the Etobicoke Zoning Code, which deals with development along The Queensway between Mimico Creek and Kipling Avenue. The By-law was passed following a municipal planning process which involved public input and study and culminated in policies adopted by Etobicoke community council and City of Toronto council in 2003.
[4] By-law 514-2003 provides as follows [in s. 3.A]:
The following uses shall be prohibited: service stations and public garages; new and used car sales rooms and lots; the manufacture of confectionary; drive-through facilities; monuments related to cemeteries; adult video and massage parlours; and adult entertainment establishments as defined by the Municipal Act, 2001.
[5] On June 1, 2009, 748 submitted information to the City describing how they proposed to operate an "Aren't We Naughty" store on the premises at 1100 The Queensway and described the goods that they proposed to sell as "adult entertainment goods". The zoning examiner issued a notice of zoning by-law compliance on December 14, 2009 in response indicating that the proposed retail use complies with the By-law. On January 19, 2010, the zoning examiner issued a second notice indicating that s. 3.A of the By-law prohibited the sale of adult videos and "novelties" but permitted the sale of clothing and lingerie. To identify the required variances before finalizing its application, AWN applied to the City on October 14, 2009 for a "Preliminary Project Review". Staff of the City of Toronto determined that the proposed use was not permitted because of the By-law which prohibits properties from being used as "adult entertainment establishments as defined in the Municipal Act, 2001".
[6] Section 154 of the Municipal Act, 2001, S.O. 2001, c. 25 empowers a local municipality in a by-law to impose restrictions on adult entertainment establishments and provides as follows:
154(2) Any premises or any part of them is an adult entertainment establishment if, in the pursuance of a business,
(a) Goods, entertainment or services that are designed to appeal to erotic or sexual appetites or inclinations are provided in the premises or part of the premises[.]
[7] As there was no definition of "adult novelties" in the By-law or letter, AWN applied to the Committee of Adjustment for a minor variance to clarify which products could be sold at the property and to seek relief from the land use restrictions set out in the site-specific By-law by obtaining a variance that would permit the proposed use. The Committee of Adjustment refused the application for variance on March 4, 2010. AWN appealed to the Ontario Municipal Board (the "OMB"). Following a four-day hearing, the OMB released its decision on September 1, 2010. The OMB found that the proposed use by AWN for the sale of goods including lingerie, creams and items that are described as "sex toys" would offend the By-law and refused the variance to the By-law. The OMB adopted the opinion of Franco Romano, a professional planner called by the City, concerning the meaning of "adult entertainment establishment". At p. 8 of the decision, the OMB wrote:
Cognizant of Mr. Romano's caveat that it must have the sale of erotic goods as its "focus" before a retail shop could be considered an "adult entertainment establishment", I find that only places of business selling solely or predominantly "goods appealing or designed to appeal to erotic or sexual appetites or inclinations" may reasonably be defined as an "adult entertainment establishment (or parlour)".
[8] AWN did not seek leave to appeal the OMB's decision. The City has not amended the use permissions in the By-law nor has it passed an interim control by-law that affects the area caught by the By-law. AWN opened its store pursuant to a lease on April 5, 2012. Although some of its stores sell videos, there are no adult videotapes offered for sale, rental or viewing at 1100 The Queensway nor are any services offered.
[9] Shortly after the store opened, City of Toronto inspectors attended at the property and determined that the premises were being used as an adult entertainment establishment contrary to the provisions of the site-specific zoning by-law. They charged AWN with operating an adult entertainment establishment by selling goods "designed to appeal to erotic or sexual appetites or inclinations" at the property contrary to s. 3A of Zoning By-law 514-2003. On consent of the parties, the charge has been adjourned pending the determination of this application. Furthermore, the City brought an application for injunctive relief under s. 380 of the Municipal Act to prevent the applicant from using the premises. The parties agreed that the application for injunctive relief should be adjourned pending the result of the application brought under Rule 14.
Issues
[10] The issues raised on this application are as follows:
(1) Is the prohibition in the By-law regarding "adult entertainment establishments as defined in the Municipal Act, 2001" vague and void for uncertainty?
(2) Is the By-law discriminatory in its application to AWN?
Decision
[40] For the reasons outlined above, I find that the provisions in s. 3A of By-law 514-2003 are so vague that the applicants are unable to understand the provisions in order to comply with them. Where provisions of a by-law are so vague, they should be struck down as they are void for uncertainty. "The duty of a municipal council in framing a by-law is to express its meaning with certainty": see Hamilton, supra, at para. 20. I also conclude that the consequences of this site-specific by-law are such that they discriminate against the applicants. Accordingly, the application brought under rule. 14.05 for declaratory relief is granted.
[41] In accordance with s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and rule 57.01, I exercise my discretion and I fix costs at $15,000, inclusive of fees on the partial indemnity scale and disbursements and HST in favour of the applicants to be paid by the City within 30 days. The parties have agreed and I deem this amount to be fair and reasonable in the circumstances of this case.
Application granted.
End of Document