COURT FILE NO.: CV-13-1084-00 ORIGINAL DATE: 20160909 AMENDED DATE: 20170403
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Ahmed Elbasiouni v. The Chief Building Official (CBO) and The Corporation of The City of Brampton
BEFORE: Barnes, J.
COUNSEL: Ahmed Elbasiouni, Appellant Pathik Baxi, Counsel for Appellant Charles A. Painter, for the Respondents
HEARD: September 09, 2016
ENDORSEMENT
Barnes, J.
INTRODUCTION
[1] This is an appeal by Mr. Ahmed Elbasiouni (the “Appellant”) to overturn a decision of the Chief Building Officer of the City of Brampton (CBO). The CBO’s decision was to revoke a building permit issued to the Appellant for the construction of a two-family dwelling on his property, located at 443 Centre Street North in the City of Brampton (the property). The City of Brampton (the City) and CBO are the Respondents on appeal.
[2] In effect, the Appellant seeks, on appeal, a declaration that his property is zoned “R2B (1): Residential Extended One Zone” rather than a “R1B (3): Residential Single Detached” zone or, alternatively, an Order that he is not required to obtain permission from the Committee of Adjustments for zoning variations that he seeks.
[3] In a brief handwritten endorsement of September 9, 2016, I dismissed the appeal, with reasons to follow. These are my reasons for the decision.
BACKGROUND
[4] These are some of the milestones in this lengthy litigation: Between 2012 and 2013, the CBO for the City of Brampton granted and subsequently revoked building permits to the Appellant to construct a duplex on his property (“CBO revocation order”).
[5] The Appellant’s property is a residential home that had already contained two separate residential units before the City enacted By-law R1B (3)-153. This By-law prohibits the use of single detached residential dwellings as duplexes or separate units.
[6] The CBO issued the revocation order per ss. 8(10) of the Building Code Act, S.O. 1992, c. 23 on the basis that the building permit had been issued in error. The building permits were issued on the incorrect conclusion that the property was located in the R1B (3)-153 zone instead of R1B (3) – 153 zone.
[7] The CBO also granted and then subsequently revoked the property’s “legal non-conforming use” status under s. 34(9) of the Planning Act, R.S.O. 1990, c. P.13. The legal non-conforming use status did not prohibit the Appellant from using the property as a two-unit dwelling.
[8] The Appellant appealed the Respondent CBO’s decision to the Superior Court of Justice, as per section 25 of the Building Code Act. I heard the appeal and upheld the revocation order, but restored the property’s legal non-conforming use status: see Elbasiouni v. City of Brampton 2013 ONSC 5261, with additional reasons at 2015 ONSC 6149.
[9] The Appellant further appealed the revocation of the building permit to the Divisional Court. On March 16, 2015, the Divisional Court upheld my decision. None of the parties pursued an appeal of my decision to restore the legal non-conforming use protection.
[10] The effect of my decision was that the stay of the CBO revocation order remains for a period, and the Appellant has an opportunity to remediate the deficiencies in his building permit application. The Appellant is also permitted to continue to use the property as a two-unit dwelling. On September 30, 2016, I ordered a remediation timetable (“the Timetable Order”). The effect of the Timetable Order is that the CBO’s revocation order, dated February 20, 2013, is stayed pending the Appellant’s implementation of one of the following three options, as outlined in paragraph 1 of the Order:
- The Appellant may seek a demolition permit for the property;
- The Appellant may make an application to the committee of adjustment to seek the three minor variances required to bring the property into compliance with the R1B(3)-153 zoning requirement, as listed in the Zoning Non-Compliance checklist attached hereto as schedule A [September 30, 2016, endorsement of Barnes J.],
- The Appellant may submit to the City of Brampton, Building Division, an application for a revision payment, which provides the necessary plans, drawings and other materials required to bring their existing structure into compliance with the applicable R1B (3)-153 zoning requirements, and which satisfactorily addresses the issues listed in that zoning Non-Compliance checklist attached hereto as schedule A [September 30, 2016, endorsement of Barnes J.]
[11] Paragraph 2 of the Timetable Order provides that if the Appellant fails to exercise one of the three options or any other non-court sanctioned options, within 90 days, this failure shall not form a basis to delay or vary the remediation timetable. Paragraph 3 provides that if the Appellant complies with paragraph 1 of the Order, the revocation order shall be stayed until May 30, 2017 and no more extensions shall be granted by the court. This is the third remediation timetable in this case as a result of ongoing disputes between the Appellant and the City.
[12] On August, 6, 2015, the Appellant sought to introduce fresh evidence: a document the Appellant described as part of the City’s by-law 270-2004 (Exhibit “H”). The Appellant argued that this document showed that the proper zone for his property was R3A (2) – 237, not R1B (3)-153 as this court had previously determined.
[13] The parties agreed that if Exhibit “H” was an authentic document, the Appellant’s present construction on the property could continue. In effect, the parties’ dispute would be resolved. I permitted the Appellant to raise a new issue on appeal and to introduce Exhibit H on the basis that this was necessary to prevent a miscarriage of justice. I concluded that Exhibit H was not an authentic document: See Elbasiouni v City of Brampton, 2015 ONSC 6149, paragraphs 64 and 97.
[14] The Appellant now raises a new ground of appeal of the CBO revocation order. He argues that the property’s legal non-conforming use status entitles him to continue the construction of his property without seeking a variation permit from the Committee of Adjustments (COA).
[15] The court must now decide whether the property’s legal non-conforming status, permitting the Appellant to use the property as a two-unit dwelling, exempts the Appellant from compliance with the applicable zoning and property standards set out in City of Brampton by-laws that apply to single detached dwellings (R1B(3) Zone).
[16] The Appellant’s appeal is dismissed. This appeal is directly related to issues already decided on appeal and is therefore res judicata. The CBO revocation order was previously appealed with judgments rendered and entered, and I have ordered the Appellant to correct any deficiencies to his building permit as per my order of September 30, 2016. My previous orders are determinative.
[17] Even if res judicata does not apply, the Appeal is also dismissed on its merits. The Appellant’s proposed use of the property, if continued in its present form, represents an extraordinary intensification of use with obvious deleterious effects on the neighbourhood. The Appellant’s proposed intensification of use is of such a magnitude that it will create a use that differs in kind and will disentitle the property to its current legal non-conforming use protection.
[18] The Appellant’s seeks to enlarge the legal non-conforming use of the property. This constitutes a significant change to the zoning and property standards that continues to govern the property. Therefore, the Appellant must make an application to the municipal Committee of Adjustments for any zoning variations he seeks, pursuant to ss. 44 and 45 of the Planning Act, R.S.O. 1990, c. P.13.
[19] The remaining options available to the Appellant (i.e. apply to the Committee of Adjustments for zoning variations) do not fall within the purview of the CBO. On appeal, only options within the authority of the CBO must be considered: Building Code Act, section 25(4).
ISSUES
[20] This appeal raises the following issues:
- Does the principle of res judicata apply?
- Does the legal non-conforming use protection extend to both “use” and “standards”?
- Does the Appellant’s proposed “use” constitute an enlargement of the legal non-conforming use?
- If yes, does the enlargement of the legal non-conforming use require a zoning variation application to the Committee of Adjustments?
- Do the options available to the Appellant fall under the authority of the CBO?
Issue 1: Does the principle of res judicata apply?
[21] The principle of res judicata applies. The revocation order of the CBO was appealed to this Court and to the Divisional Court. On both appeals, the decision of the CBO was upheld. Therefore, the principle of res judicata applies. Further the Timetable Order resolves the current dispute over the CBO’s revocation order. The principle of finality applies.
[22] The principle of res judicata prohibits the re-litigation of matters already decided. It requires all parties to put forward their entire case in one action. The administration of justice shall be undermined if litigants cannot rely on the finality of judgments: Toronto General Trusts Corporation v Roman, [1963] 1 O.R. 312 (C.A.), aff’d [1963] S.C.R.; Aristocrat v Aristocrat; Elbasiouni v City of Brampton, 2015 ONSC 6149 at paragraph 56, 57.
[23] An exception to the principle of finality is in circumstances where failure to reopen the case would undermine the integrity of the justice system: Tsaoussis (Litigation guardian of) v Baetz (1988), 41 O.R (3d) 257, at para. 47 (C.A.), leave to appeal refused [1988] S.C.C.A. No.518.
Discussion/Analysis
[24] The Appellant seeks to reopen the appeal because the CBO revoked the building permit issued for construction on his property. This is not a new issue and he had the opportunity to raise this issue on appeal of the first instance. His attempt to reargue the appeal by reframing his argument constitutes litigation by installment. This offends the doctrine of res judicata and undermines the integrity of the administration of justice. The Respondent should be able to rely on the finality of the appeal.
[25] Despite the fact that the Appellant is self-represented, he may not reopen the appeal each time he wishes to advance a new complaint, issue, or argument by filing an appeal. My previous orders and findings are determinative of the current “appeal.” However, when also considered on its merits, the appeal must be dismissed.
Issue 2: Does a legal non-conforming use protection extend to both “use” and “standards”?
[26] The legal non-conforming use doctrine protects prior lawful use of property by a land owner from restrictions or prohibitions on the use imposed by a subsequent zoning by law (s). A legal non-conforming use protection extends to both “use” and “standards”.
“Use” and “standards”
[27] The “use” of the property refers to how the property is zoned by the municipality. Zoning by-laws typically govern how the property is zoned; for example, either as a single family unit dwelling, two-family unit dwelling, etc.
[28] “Property Standards” refer to various lot and building requirements for the relevant zone, including standards for building heights, yards, backyards, amenity areas, building areas, lot frontages, etc.
Legal Non-conforming Use
[29] Doherty J. A. described the reason for the legal non-conforming use doctrine in Ottawa (City) v. Capital Parking Inc., [2002] O.J. No. 1511 at para 30 as follows:
The legal non-conforming use doctrine rests on the principle that zoning by-laws which introduce new restrictions on the use of property should not deny landowners their right to use their property in the same manner they did prior to the introductions of those restrictions. In Saint-Romualo (City), supra at para 39. Binnie J. stressed that the characterizations of an acquired right could not free the owner from the constraint of the actual use at the time the limitation was introduced, but should also not be so restrictive as to deny any flexibility in the evolution of that use.
[30] The rationale for the doctrine is summarized by Harry Pock, Justice Todd L. Archibald, and Justice Randall Echlin in Annual Review of Civil Litigation 2005, Chapter H as follows:
Lawful [legal] non-conforming use is premised on the principle that a land owner should not be denied his or her ability to use a property as a result of subsequently enacted zoning by-laws. In determining whether there is lawful non-compliance and its extent, the court will balance an individual property owner’s right to the continued use and enjoyment with the broader planning interests of the community… [ See Ottawa (City) v. Capital Parking Inc. (2002), 28 M.P.L.R. (30) 223 (Ont. C.A.)] [Emphasis Added]
[31] Section 34(9) of the Planning Act “grants protection to a prior existing non-conforming use [if such land, building or structure] was lawfully used for such purpose on the day the by-law was passed and "so long as it continues to be used for that purpose": see: Haldimand-Norfolk (Regional Municipality) v. Copland, [1993] O.J. No. 4380 (O.C.J.) at para 12.
[32] The property owner seeking a legal non-conforming use protection must establish these two criteria on a balance of probabilities:
- The pre-by-law use was lawful on the day the by-law restriction was passed.
- That the land, building or structure continues to be used for that purpose: See Mohammed v. Dysart (Municipality) Building Official paragraphs 15 and 24.
[33] A legal non-conforming use protection prohibits a municipality from depriving a property owner from enjoying a previous lawful use of the property in circumstances where the above criteria are satisfied.
The Parties’ Positions
[34] The Appellant submits that the legal non-conforming use protection extends not only to the “use” permitted in the zone but also to the regulations or performance standards in the zone. Based on this premise, the Appellant requests this Court to conclude that the by-law applicable to the property is the City bylaw for Duplex (two family dwellings) – R2B (1) and therefore, a zoning variation application to the COA is not necessary.
[35] The Respondent submits that despite the legal non-conforming use protection, the Appellant must apply to the COA for a zoning variation to the permitted use and standards in the zoning R1B(3), as his property is currently zoned.
Discussion/Analysis
[36] The legal non-conforming use doctrine extends to pre-existing legal uses and applicable structures prior to the enactment of a by-law. To conclude otherwise would render a legal non-conforming use protection pointless. The Ontario Municipal Board acknowledges this in Luk v. Guelph (City), [1990] O.M.B.D. NO. 929, 25 O.M.B.R. 138, at para. 11, as follows:
…although the [Planning Act] refers to “use”, the long standing interpretation of “use” in the context of “legal non-conforming use” also involves conformity or otherwise with the regulations or performance standards [zone standards/applicable structures] of a zoning by-law. Put another way, a legal “non-conforming use” might also be a “use” permitted in the zone classification applied to the subject land, but not able to fulfil one or more performance standards or regulations prescribed for that zone. Similarly, a legal non-conforming use may be unable to satisfy either use classifications or performance requirement.
[37] Therefore, legal non-conforming use protection granted to the Appellant means a two-family dwelling can be constructed in the single family dwelling zone. The protection also extends to regulations and performance standards. Therefore, the Appellant is presumptively not prohibited from applying performance standards and regulations relating to a two-family dwelling in the single family dwelling zone.
[38] However, the legal non-conforming use protection gives the property owner some flexibility in the use of the property, but not complete protection from new regulations. This is true even if the two criteria in Mohammed v. Dysart have been satisfied.
[39] The issue is one of the degree/extent to which the property’s use intensifies. The degree of “use intensification” proposed calls into question whether the legal non-conforming use protection should remain. The Supreme Court of Canada in Saint-Romuald (City) v. Olivier, 2001 SCC 57, [2001] 2 S.C.R has described the tests that must be applied to determine whether legal non-conforming status for a property can remain. It is a fact specific inquiry.
Issue 3: Does the Appellant’s “use” constitute an enlargement of the legal non-conforming use?
Intensification of the property’s “use”
[40] The extent of the Appellant’s current and proposed use of the property constitutes an enlargement of the use. It is an extraordinary intensification of the use and places the legal non-conforming status of the property in jeopardy.
[41] To determine whether the legal non-conforming status of a property should remain, the Supreme Court of Canada in Saint-Romuald (City), at paragraph 34, articulated this three part test:
The Court’s objective is to maintain a fair balance between the individual land owners interest and the community’s interest. The land owner overreaches itself if (i) the scale or intensity of the activity can be said to bring about a change in the type of use….or if (ii) the addition of new activities or the modification of old activities (albeit within the general land use purpose), is seen by the court as too remote from earlier activities to be entitled to protection, or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for municipality, the local authorities, or the neighbours, as compared with what went before. These factors are balanced against one another.
[42] The three part test focuses on intensification of the use; remoteness of the use and the impact of the use on the neighborhood. The Supreme Court of Canada at paragraph 39, provides further guidance on the three part test as follows:
…(1) It is firstly necessary to characterize the purpose of the pre-existing use actually carried on at the site…The purpose for which the premises were used (i.e. “the use”) is a function of the activities usually carried on at the site prior to the new by-law restrictions.
(2) Where the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection. However, where the intensification is such as to go beyond a matter of degree and constitutes, in terms of community impact, a difference in kind … the protection may be lost.
(3) To the extent a landowner expands its activities beyond those it engaged in before… the added activities may be held to be too remote from the earlier ones to be protected under the non-conforming use. In such a case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate “neighbourhood effects”.
(4) To the extent activities are added, altered or modified within the scope of the original purpose (i.e., activities that are ancillary to, or closely related to, the pre-existing activities), the Court has to balance the landowner’s interest against the community interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g., the addition of a rock crusher in a residential neighbourhood is likely to be more disruptive than the addition of a fax machine) and the new or aggravated neighbourhood effects (e.g., the addition of a rock crusher in a residential neighbourhood is likely to be more disruptive than the addition of a fax machine). The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right. This approach does not rob the landowner of an entitlement. By definition, the limitation applies only to added, altered or modified activities.
(5) Neighbourhood effects, unless obvious, should be established by evidence if they are to be relied upon.
(6) The resulting characterization of the acquired right (or legal non-conforming use) should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities. The degree of this flexibility may vary with the type of use…
(7) While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court’s decision in the objective facts. The outcome of the characterization analysis should not turn on personal value judgments… [Emphases in original]
Discussion/Analysis
[43] I apply the relevant Saint-Romuald factors to the circumstances of this case. The Appellant‘s current and proposed “use” is the continued construction of a residential building that occupies a lot coverage area, 10% larger than is permitted under applicable the bylaw in the R1B (3)-153 zone. This bylaw only permits single family dwellings. However, the Appellant is not presumptively prohibited from using the property as a two-family dwelling because he enjoys this legal non-conforming use protection.
[44] The Appellant has demolished the previous structure and is constructing a two-unit dwelling on the property. However, I find that the “length, breadth and width” of the construction is of such scale and magnitude that the completed building goes beyond the “mere intensification of the pre-existing activity.”
[45] Material filed on this motion shows that the Appellant intends to construct an entirely new two-family unit dwelling. The new property, as currently constructed, completely and exceedingly dwarfs all other nearby homes. It is obvious that the 10% increase in coverage area is an extraordinary intensification of “use”.
[46] Therefore, although the Appellant intends to continue to use the property as a two-family dwelling, the proposed changes go beyond mere intensification and constitute a difference in kind, in terms of the property’s effect on the neighbourhood and its character.
[47] The Appellant’s proposed “use” represents an extraordinary intensification of “use”. The degree of intensification of the “use” creates a use of a different kind. This difference is one of “length, breadth and size”. The continuation of such an intensification of “use” shall result in the loss of the legal non-conforming use protection. A zoning variation is required for lawful construction to continue.
Issue 5: Do the options available to the Appellant fall under the authority of the CBO?
[48] None of the options available to the Appellant to bring the property into compliance fall under the authority of the CBO. Specifically, the Appellant seeks zoning variations, which is the jurisdiction of Brampton’s Committee of Adjustments. On appeal, the Appeal Court can only grant relief that falls within the authority of the CBO: Building Code Act, section 25(4).
[49] I agree with the Respondent that, despite the legal non-conforming use protection available to the Appellant’s property, the Appellant is nevertheless required to seek and obtain permission from the COA for zoning variations.
Committee of Adjustment (COA)
[50] Under the legal non-conforming use doctrine, the use of a property is protected where the use exited before the zoning by-law prohibiting it was enacted. However, this protection is not unfettered. Despite a legal non-conforming use status, Section 44 and 45 of the Planning Act prescribe circumstances when the property owner must apply to the COA for a zoning variation. These are when the property owner seeks to:
- Enlarge or extend structures that are legal non-conforming.
- Change a legal non-conforming use to another use not permitted in the By-law
[51] In Foster v. Toronto (City) Committee of Adjustment, 33 O.M.B.R. 280, 1996 CarswellOnt 5837, the Ontario Municipal Board, described factors that a CAO must consider when an applicant seeks zoning variances for properties with legal non-conforming uses. With respect to Section 45 (2) (a) of the Planning Act specifically, Member Melling writes the following:
[4] ……. s. 45(2) (a) (i) provides special relief for what are loosely referred to as "non-conforming uses" (this phrase is not actually found in the legislation). That provision is also less onerous upon the party seeking relief than is s. 45(1), which requires compliance with a well-known, four-part test. …
Section 45(2) (a) (i)
41 The words of s. 45(2) (a) (i) do not provide the guidance to the board that s. 45(1) does by prescribing the four-part test. There are no tests in s. 45(2) (a) (i), which merely confers jurisdiction to grant permission to enlarge or extend a building or structure. Such permission may only be granted, however, for continuing uses which predate the applicable zoning by-law.
42 In the absence of the sort of direction provided by s. 45(1), board jurisprudence has generally applied good planning principles in deciding whether permission should be granted under s. 45(2) (a) (i). That analysis has involved consideration of questions similar to those posed by the third and fourth parts of the s. 45(1) test: is the proposal desirable for the appropriate development of the subject property? Is its impact upon surrounding uses unacceptably adverse?
[52] The intensification of the use at the scale proposed by Appellant, constitutes an enlargement of the legal non-conforming use for the property. Therefore, the Appellant must make an application to the municipal Committee of Adjustments for zoning variations, pursuant to ss. 44 and 45 of the Planning Act. The Appellant has been provided with the option to do so, in accordance with the Order of Barnes J dated September 30, 2016. The power to grant zoning variations falls within the authority of the COA. It does not fall within the authority of the CBO.
Issue 5: The Appellant’s claim that the court conclude that the property is governed by a different zoning by law.
[53] Section 34(10) of the Planning Act grants a municipality the authority to pass a by – law to permit the enlargement or expansion of a legal non-conforming use. This by law cannot apply to structures that were not in existence when the zoning by law prohibiting the use was enacted. Only a municipal council has the power to enact such a by law. The CBO does not have this authority. Therefore, the Appellant cannot request the CBO to grant him any remedies that are properly at the discretion of municipal council.
[54] The Appellant’s further submits that this Court should conclude that the by-law applicable to the property is the City bylaw for Duplex (two family dwellings) – R2B (1) instead of the current by law permitting single family dwellings – R1B (3).
[55] The power to enact and amend by-laws falls under the authority of City Council and by statute, the COA has the authority to permit minor zoning variances. The CBO is not authorised pass or amend by-laws or permit zoning variations. This Court, on an appeal from the CBO’s decision, cannot order City Council to amend its bylaws or order the COA to grant the Appellant zoning variations.
CONCLUSION
[56] This appeal is res judicata and therefore dismissed. Even if it is not res judicata it is also dismissed on its merits.
Barnes, J.
DATE: September 09, 2016 AMENDED DATE: April 3, 2017
SCHEDULE A
Planning Act
R.S.O. 1990, CHAPTER P. 13
34(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 (1) 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.
SCHEDULE B
Building Code Act
R.S.O. 1992, CHAPTER 23
Powers of Judge
25(4) On an appeal, a judge may affirm or rescind the order or decision and take any other action that the judge considers the chief building official, registered code agency or inspector ought to take in accordance with this Act and the regulations and, for those purposes, the judge may substitute his or her opinion for that of the official, agency or inspector. 2002, c. 9, s. 40 (3).
SCHEDULE C
Planning Act
R.S.O. 1990, CHAPTER P. 13
Committee of adjustment
- (1) If a municipality has passed a by-law under section 34 or a predecessor of such section, the council of the municipality may by by-law constitute and appoint a committee of adjustment for the municipality composed of such persons, not fewer than three, as the council considers advisable.
Powers of committee
- (1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained.
Other powers
(2) In addition to its powers under subsection (1), the committee, upon any such application,
(a) where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit,
(i) the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed, or a use permitted under subclause (ii) continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed, or
(ii) the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which it was used on the day the by-law was passed or is more compatible with the uses permitted by the by-law than the purpose for which it was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee; or
(b) where the uses of land, buildings or structures permitted in the by-law are defined in general terms, may permit the use of any land, building or structure for any purpose that, in the opinion of the committee, conforms with the uses permitted in the by-law.
SCHEDULE D
Planning Act
R.S.O. 1990, CHAPTER P. 13
By-law may be amended
34(10) Despite any other provision of this section, any by-law passed under this section or a predecessor of this section may be amended so as to permit the extension or enlargement of any land, building or structure used for any purpose prohibited by the by-law if such land, building or structure continues to be used in the same manner and for the same purpose as it was used on the day such by-law was passed. R.S.O. 1990, c. P.13, s. 34 (10).
COURT FILE NO.: CV-13-1084-00 ORIGINAL DATE: 20160909 AMENDED DATE: 20170403
SUPERIOR COURT OF JUSTICE – ONTARIO RE: Ahmed Elbasiouni v. The Chief Building Official (CBO) The Corporation Of The City of Brampton BEFORE: Barnes, J. COUNSEL: Ahmed Elbasiouni, Self-Represented, Appellant Charles A. Painter, counsel for the Respondents
ENDORSEMENT Barnes, J.