Court File and Parties
COURT FILE NO.: 16-1561 DATE: 20170510
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
The Corporation of the Town of New Tecumseth, Applicant – and – Norman Dallard, Respondent
COUNSEL: Colleen E. Butler, Counsel for the Applicant Kevin Kemp, Counsel for the Respondent
HEARD: April 27, 2017
Reasons for Decision
BOSWELL J.
[1] Selling ice cream has always looked appealing to me. It looks like one of those jobs, like flower delivery or greeting card writing, that generally makes people happy.
[2] But looks can, as we all know, be misleading. Norman Dallard runs an ice cream shop. Not everyone is happy. The Town of New Tecumseth wants to shut him down for what they see as infractions of their zoning by-laws.
[3] Mr. Dallard says he has done his best to be compliant and that, in any event, the Town is unfairly targeting him and being unreasonable in their demands.
[4] The following reasons explain why I am satisfied that zoning infractions have been made out, but why a less drastic remedy than a full injunction is appropriate.
[5] I begin with some background information.
What’s the Scoop
[6] The Town of New Tecumseth includes, principally, the three communities of Alliston, Beeton and Tottenham. The dispute in this instance arises in the heart of Alliston.
[7] Victoria Street is Alliston’s main thoroughfare. It dissects the community on an east-west axis. Outside of the community’s limits, it is known as Highway 89. Within those limits it is the center of the downtown core; home to numerous businesses, shops, restaurants, a high school, and personal residences.
[8] Mr. Dallard owns a residence on the corner of Victoria Street and Downey Avenue, on the eastern side of Alliston. He is several blocks east of the main downtown area. His residence fronts onto Downey Avenue, which runs north-south. He has a large side lot on the north side of his property running up to and abutting Victoria Street.
[9] In the area of Victoria Street and Downey Avenue there are a number of home-based, small businesses. Mr. Dallard’s business is one of them.
[10] Mr. Dallard had a garage on the north side of his property. He converted the garage to an ice cream shop. He knocked out a large entranceway in the north side of the garage wall. Over the entranceway is a large banner sign advertising the name of the business, “What’s the Scoop Ice Cream Parlour”. There is another modest-sized, free-standing, double-pole sign on the side yard advertising Kawartha Lakes Ice Cream, with an arrow pointing south down Downey Avenue.
[11] There is a modest-sized paving stone patio just outside the entranceway to the parlour. The patio extends into the backyard of the Dallard residence where, during open-season, there is some patio furniture apparently available for patrons to sit at to enjoy their ice cream. There is a large wooden pentagonal picnic table on the north lawn, also apparently available for patrons to sit at.
[12] The north side lot had a large deciduous tree of some sort that has been cut back to essentially a large stump. It has numerous Canadian flags affixed to it.
The Zoning By-Law
[13] Land use in New Tecumseth is regulated by Zoning By-law 2014-126 (the “By-law”).
[14] Mr. Dallard’s property is zoned Urban Residential 1 (UR1) under Schedule “A” to the By-law.
[15] Section 6.2 of the By-law permits the following uses within a UR1 zone:
(a) Accessory Use and Building; (b) Bed and Breakfast facilities; and, (c) Single, detached dwelling.
[16] Section 4.10 of the By-law permits a home-based business as an accessory use of a residential property in a UR1 zone, provided the following conditions are met:
(a) The home occupation is clearly subordinate to the residential use; (b) No external evidence of the home occupation, including that of a parking area not associated with the principal use, except for a lawful sign, which would indicate that any part of the building is being used for any purpose other than for residential purposes; (c) No open storage of materials, equipment or goods associated with the home occupation shall be permitted; (d) No home occupation shall occupy more than 25% of the total floor area of the dwelling unit, up to a maximum of 50 m²; (e) A home occupation shall be contained entirely within the dwelling; (f) Only goods and merchandise produced on the premises, or goods and merchandise associated with a service conducted on the premises shall be offered or exposed for sale; (g) No mechanical or other equipment shall be used or kept except such as is customarily employed in a dwelling unit for recreational hobbies, domestic or household purposes; (h) The home occupation shall be conducted only by members of the household residing on the premises and one (1) additional person not residing on the premise;
The Approval Process
[17] Mr. Dallard initially approached the Town’s Planning Department in September 2014 inquiring about the feasibility of converting his garage into an ice cream parlour. His plan was motivated by a desire to help his step-daughter fund her university expenses.
[18] Andy Warzin – an Intermediate Planner with the Town – advised Mr. Dallard that a seasonal ice cream parlour could be permitted within the scope of the By-law provided s. 4.10 was complied with.
[19] Mr. Dallard proceeded to submit an application for a building permit in relation to the garage renovations on April 8, 2015. While the application was being considered by the Town, Mr. Dallard went ahead with the construction without the permit.
[20] In the meantime, as part of the Town’s consideration of the building permit application, Mr. Warzin sought information from Mr. Dallard as to how he proposed to operate the ice cream parlour within the provisions of s. 4.10 of the By-law. Mr. Dallard emailed the Town’s Building Department on May 6, 2015 indicating how he intended to comply with the By-law. Part of his plan included a few Muskoka chairs outside the parlour to be used by patrons.
[21] Ultimately Mr. Warzin, on behalf of the Planning Department, approved the business for zoning compliance on May 26, 2015. The approval was subject to the business being operated within the provisions of s. 4.10 of the By-law. The request for Muskoka chairs was not approved, given the requirement that there be no external evidence of the home business operation.
[22] The business was subsequently opened in June 2015.
Compliance Issues
[23] By-law enforcement in the Town of New Tecumseth is complaint-based. In other words, save perhaps in the case of parking infractions, by-laws are only enforced if and when a complaint about non-compliance is registered with the Town.
[24] On June 22, 2015 the Town received a complaint regarding the parking of cars on Downey Avenue in connection with the operation of the ice cream parlour. Two enforcement officers were assigned to the file: Mike Coe and Malcolm McRae. The concerns about parking spread into a more fulsome investigation of general compliance with the By-law.
[25] Violations noted by the investigators over the ice cream season of 2015 include:
(a) Sign violations. Mr. Dallard has, as I indicated, a large banner sign above the entrance doors to the shop. He has a two-post, fixed sign on the lawn. He has also used a portable A-frame, “sandwich board” sign on his lawn. He has an LED “Open” sign in one window of the parlour and a “Kawartha Lakes” sign in another window. Mr. Dallard had no permit for any of the signs during the summer of 2015. He applied for a permit under the applicable signage by-law in the summer of 2015, after his signs were already in place. He was turned down. A similar application was approved in April 2016 in relation to the banner sign and fixed-post sign, but none of the others; (b) The presence of patio tables and chairs, Muskoka chairs, and the pentagonal picnic table, where patrons sit and eat their ice cream. These are, in the Town’s view, external evidence of a business; and, (c) Multiple Canadian flags affixed to the tree stump on the north side lawn of the premises.
[26] Mr. Dallard attended meetings with Town officials on June 29, 2015 and July 17, 2015 where By-law violations were discussed. He was instructed to remove all external evidence of the business. He did not do so. On July 6, 2015 he received a notice from the Town that he had until July 8 to remove all patio chairs and tables and all signs until he had obtained the proper permits. He did not do so.
[27] Mr. Dallard was subsequently charged with failing to comply with the Town’s zoning by-law and sign by-law. He pled guilty to one count of carrying on a business contrary to the Town’s zoning by-law.
[28] In January 2016, Mr. Dallard filed a minor variance application with the Town’s Committee of Adjustments. He sought approval to permit external evidence of a home occupation by way of a patio area outside the ice cream parlour. His application was denied. He did not appeal the result.
[29] Mr. Dallard nevertheless constructed a patio on the north-east portion of the property, just east of the doors to the ice cream parlour. The patio is partially fenced and is essentially in the rear yard of the residence. Nothing prevents patrons from accessing the area and using patio furniture situated there. Indeed, it would appear that patrons do use that area. The area is visible from both Victoria Street and Downey Avenue.
[30] Violations noted by the Town’s investigators during the 2016 season include:
(a) The expanded use of the patio, as noted; (b) The continued use of the Muskoka chairs and pentagonal table; (c) Two “Open” signs in the windows, one being an LED sign, as well as the Kawartha Lakes sign in one window; (d) Multiple employees working at different times; and, (e) Numerous Canadian flags on the tree stump.
[31] On July 8, 2016 the Town served Mr. Dallard with notice of non-compliance and ordered him to comply with the By-law within 5 days. He did not do so.
[32] A second compliance letter was delivered on July 18, 2016. Again, no changes were effected by Mr. Dallard.
[33] Ultimately further charges were laid under the Provincial Offences Act for non-compliance with the By-law. Those charges remain outstanding.
[34] Notably, no parking violations have ever been identified or documented, despite what I would characterize as a rather thorough and time-consuming investigation over the past two years.
The Parties’ Positions
[35] The Town’s position is straightforward. They submit that they have treated Mr. Dallard in good faith – approving his application for a home-based business, while at all times being clear to him about the conditions under which such a business could operate.
[36] The Town asserts that Mr. Dallard has flaunted the conditions under which his approval was granted. He has, amongst other things, made the operation of the ice cream parlour the predominant use of the property; posted signs without proper approval; created obvious external evidence of a business through signage and patio furniture; and created traffic concerns due a lack of inadequate parking. He has refused to bring the operation of the business into compliance with the By-law despite numerous demands.
[37] They argue that Mr. Dallard is incorrigible, given the following:
(a) The fact that he proceeded with construction of the ice cream parlour before his building permit was granted; (b) The fact that he built, or at least expanded, his patio despite being denied approval to do so by the Committee of Adjustments; and, (c) His refusal to comply with the Town’s reasonable demands.
[38] As a result of his intransigence, the Town argues that the only feasible remedy to ensure By-law compliance is to enjoin the operation of the business altogether.
[39] Mr. Dallard does not accept that he is in breach of the By-law. But the main thrust of his position focuses on the bona fides – or the alleged lack thereof – of the Town.
[40] He asserts that the Town is unfairly targeting him for enforcement when there are numerous other home-based businesses in the area who appear to be infringing the By-law in similar ways, without issue.
[41] He theorizes that certain members of Town council are influencing the investigation and enforcement of the By-law against him because the councilors are aligned with the owner of another ice cream shop located in downtown Alliston.
[42] His position, essentially, is that the court ought not to grant the Town any relief because their actions are discriminatory, not motivated for valid reasons, and unfair.
Discussion
[43] I will begin my analysis of the issues between the parties with the following observation. A municipality has a broad discretion in determining by-law enforcement matters. It is constrained only by the obligations to act reasonably and in good faith. See Foley v. Shamess, 2008 ONCA 588; Donnell v. Joseph (c.o.b. WJ Moving & Storage), 2012 ONCA 240, [2012] O.J. No. 1643. With that general comment in mind I will address the following issues in turn:
(a) Has the Town acted unreasonably or in bad faith? (b) Has the Town established By-law infractions? (c) If so, what remedy is appropriate?
The Conduct of the Town
[44] To be frank, on the evidentiary record before the court I am unable to conclude that the Town has acted unreasonably or in bad faith.
[45] The suggestion that one or more councilors have influenced Town officials because of a close relationship with another ice cream vendor does not rise above speculation in my view. Moreover, I do not have a broad enough evidentiary record to support a finding that the Town has unreasonably targeted Mr. Dallard, when assessed against any actions they have taken with respect to other possible By-law offenders. I simply do not know enough about what other complaints may have been made in relation to other properties and what, if any, enforcement steps have been taken.
[46] I concede that there are some peculiar aspects to this case. For instance,
(a) I find it unusual that the Town would approve an ice cream parlour in this residential location, then raise concerns about parking. It is also puzzling that they continue to assert that parking is a problematic issue in the face of their own evidence to the contrary; (b) It is also perplexing that the Town expresses such significant concern about external signs of a business when they have approved the installation and use of a large banner sign advertising the ice cream parlour, and a fixed, two-post sign doing the same on the side lawn of the residence. In light of these obvious signs of a business operation, I am left to wonder about the real significance of the patio furniture and the “Open” signs.
[47] Having said that, on the record before me, I am satisfied that the Town officials have acted reasonably and in good faith in their dealings with Mr. Dallard. In my view he was treated entirely reasonably in terms of the initial application process, particularly in view of the fact that he proceeded to renovate his garage without a building permit. He was initially told that an ice cream parlour may be feasible, provided that the provisions of s. 4.10 of the By-law were complied with. He was given a copy of that section. He was told from the get-go that the patio furniture and/or Muskoka chairs could not be used.
[48] As time went on Mr. Dallard was given fair and reasonable notice of the Town’s concerns. He did not comply with them. It cannot be disputed that he breached the By-law in 2015 because he pled guilty in Provincial Offences Court to having done so. He continued his same offending behavior in 2016, leading me to conclude that whatever punishment was imposed by the justice of the peace in 2015, he willingly absorbed it as a cost of doing business.
The By-law Infractions
[49] I am satisfied that the Town has established breaches to s. 4.10 of the By-law. In particular:
(a) There is external evidence of the operation of the business, beyond the two signs approved by the Town; (b) The business is not contained entirely within the dwelling; and (c) The business has not been operated only by members of the household residing on the premises plus one additional person not residing on the premises.
[50] I am not satisfied that any traffic or parking violations have been made out.
[51] I am also not satisfied that the home business has become the predominant use of the property. The Town’s planner suggested that the residence had become subordinate to the ice cream parlour based on some mathematical calculation of the area of the parlour and the patio. I cannot agree with his conclusions. First, the ice cream parlour is only open for about 4 months of the year and even then only for part of each day. Second, the use of the patio is only sporadic. Third, I infer that the balance of the home – the residence apart from the garage – is used 24 hours a day, 7 days a week, 365 days a year as a personal residence. I am simply not persuaded that the business comes anywhere even close to being the predominant use of the property.
[52] Of the zoning infractions that have been made out, the principal cause for concern is the presence of external signs of a business: the patio; the Muskoka chairs; the pentagonal picnic table; the “Open” signs; the “Kawartha Lakes” sign; and the Canadian flags affixed to the tree stump.
[53] Some of these external signs of an operational business are more concerning than others. But in my view all are infractions of s. 4.10, other than the Canadian flags. The flags are not specific to the business and, in my view, as a private property owner Mr. Dallard is entitled to demonstrate his patriotism by displaying those flags.
[54] Apart from the flags, I find that Mr. Dallard is knowingly in breach of s. 4.10 of the By-law. I do not mean to suggest that his knowledge of the breach is an essential element that must be established by the Town. I refer to his knowledge as a link back to the fairness issue he raised. He was aware when he sought approval for this business, that he had to comply with s. 4.10. Victoria and Downey is not a commercial area. He could have chosen to operate in a commercial zone and had a great deal more freedom to market and expand his business. But his choice was to accept the restrictions applicable in a UR1 zone. He must comply with the restrictions even if they are an impediment to business growth.
The Remedy
[55] There is no dispute between the parties that the court has jurisdiction to enjoin the conduct of Mr. Dallard, whether in whole or in part.
[56] I intend to impose injunction relief today, but to otherwise keep the application alive, to ensure compliance. The applicable test for interlocutory injunctive relief is as set out by the Supreme Court in RJR MacDonald Inc. v. Canada (Attorney-General), [1994] 1 SCR 311. The applicant for injunctive relief must establish:
(a) There is a serious issue to be tried; (b) It will suffer irreparable harm if an injunction is not granted; and (c) The balance of convenience favours granting the injunction.
[57] The “serious issue” threshold is not particularly high. Certainly, given my findings on the issue of breach, one could not say that the Town’s case is frivolous. It passes the first hurdle.
[58] With respect to irreparable harm, it was settled by the Supreme Court in RJR MacDonald that where public authorities are engaged in enforcement of prima facie validly enacted legislation, the onus of demonstrating irreparable harm is less than where the applicant is a private citizen. See also City of Ottawa v. Barrymore’s Inc., 2002 ONSC 5565. Irreparable harm is generally assumed where the court is satisfied that the public authority (in this case the Town) is charged with the duty of promoting the public interest and the By-law contravened was enacted pursuant to that responsibility. I am so satisfied in this case. The second hurdle is passed.
[59] Finally, in cases involving the breach of public interest legislation – or in this case a zoning by-law – the balance of convenience will almost always favour the public authority. In this instance, Mr. Dallard opened his business with the express understanding of the limitations associated with it. There is no challenge in this case to the validity of the By-law. Compliance with it is, in my view, simple and not onerous. I find that the balance of convenience favours the granting of injunctive relief. The third and final hurdle is passed.
[60] The Town wants me to essentially shut down Mr. Dallard’s business at its present location. They say that it has outgrown the limits of a home-based business. My sense is that the Town may in fact regret approving the business in the first place.
[61] Having said that, the business was approved, and it appears to be a viable business. In my view the By-law infractions are relatively minor and easily resolved. They do not call for the ultimate, extinction level, remedy sought by the Town. They do, however, demand compliance.
[62] In the result, I order Mr. Dallard to do the following:
(1) Forthwith bring the operation of What’s the Scoop into compliance with the Town’s Zoning By-law, specifically s. 4.10 thereof. Without limiting the generality of the foregoing, he is to:
(a) Remove all signage save for the two signs specifically approved by the Town; (b) Remove all patio furniture accessible by patrons of the ice cream parlour including, again without limitation, any Muskoka chairs, any patio chairs and tables; and the pentagonal picnic table; (c) Fence off, or otherwise barricade, the entry into the expanded patio area at the rear of his yard, to the east of the entry doors into the parlour; and, (d) Ensure that, with the exception of one employee, all employees are residents of 5 Downey Avenue;
(2) Pay the Town’s costs associated with this application fixed in the sum of $7,500 within 60 days.
[63] This is an application that was brought as a result of Mr. Dallard’s refusal to comply with the By-law. The Town has been largely successful. They sought $10,000 in costs. I have awarded a little less than what was sought given that they were not wholly successful on the application and because they are, to some limited extent at least, the authors of their own misfortune in this case. In my view, $7,500 is a fair, reasonable and proportionate sum for costs in the circumstances of this application.
[64] The application is otherwise adjourned sine die, returnable on 14 days’ notice in the event of further compliance issues.