Court File and Parties

COURT FILE NO.: CV-16-6623 DATE: 2017/05/29

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE MUNICIPALITY OF WEST NIPISSING Applicant Michael M. Miller, for the Applicant

- and -

PIERRE OLIVIER-NORMAND LAFOND and MAURICE POISSON Respondents Frank M. Falconi, for the Respondents

HEARD: May 15, 2017 ellies j.

REASONS FOR DECISION

OVERVIEW

[1] The Municipality of West Nipissing (“West Nipissing”) applies under s. 440 of the Municipal Act, 2001, S.O. 2001, c. 25 for an injunction restraining the respondents, Pierre Lafond and Maurice Poisson, from operating an automobile repair shop at 567 Dutrisac Road (“567”), in Sturgeon Falls.

[2] The central issue is whether Mr. Lafond was operating the shop at the time the present by-law prohibiting such an operation came into effect. If so, a second issue arises as to whether he has continuously operated the shop subsequent to the enactment of the by-law.

[3] For the following reasons, I find that the respondents have failed to establish that Mr. Lafond was operating an automobile repair shop at 567 at the time the present by-law was enacted. I also find that they have failed to establish that the shop operated continuously afterwards.

[4] West Nipissing is entitled, therefore, to the injunction it seeks.

BACKGROUND

[5] Most of the facts in this matter are not in dispute. What is in dispute are the conclusions to be drawn from those facts.

[6] Mr. Lafond purchased the property at 567 along with another person on September 5, 2008. In November 2010, the property was transferred into his name alone.

[7] At the request of Mr. Lafond, West Nipissing amended zoning by-law 86-4 in 2009 to allow him to establish and operate a towing business out of a garage he had constructed on the property. Following the enactment of the amending by-law (2009/16), the permitted uses at 567 included use as a “home industry”. Under s. 2.54 of by-law 86-4, a home industry expressly included an “auto repair shop”, providing that certain other conditions were met. [1]

[8] In 2013, a dispute arose between West Nipissing and Mr. Lafond after it was discovered that Mr. Lafond had erected a large “cover-all” structure on a vacant lot he owns next to 567 without obtaining a building permit. West Nipissing was concerned that the towing business no longer conformed to the definition of a home industry in by-law 86-4. The dispute was resolved when Mr. Lafond agreed to move the towing business to property he purchased elsewhere within West Nipissing. The towing business, Lafond’s Towing and Recovery Ltd., was moved in or about the month of November 2015.

[9] On July 8, 2014, West Nipissing enacted a new zoning by-law, by-law 2014-45. Unlike by-law 86-4, by-law 2014-45 expressly excluded “the repairing of motor vehicles” as a home industry. For the sake of these reasons, I will refer to the business of repairing motor vehicles as the operation of an auto repair shop.

[10] On July 22, 2016, West Nipissing received a complaint that Mr. Lafond was operating an auto repair shop at 567 in contravention of by-law 2014-45. Subsequent investigation revealed that an auto repair shop was indeed being operated at 567, under the name “Moe’s Auto Repairs”. Mr. Lafond alleges that he owns the business and that he has one employee, the respondent, Mr. Poisson.

[11] There is no dispute between the parties that the business presently being operated at 567 involves the repairing of motor vehicles and would otherwise contravene the provisions of by-law 2014-45 unless it is a legal non-conforming use in the sense of being an auto repair shop that was in existence before by-law 2014-45 was enacted and has operated continuously since.

ISSUES

[12] Three issues arise in this application:

(1) Who has the onus of proving a legal non-conforming use, and to what standard? (2) Was there an auto repair shop operating at 567 at the time by-law 2014-45 was enacted? (3) If so, has the auto repair shop operated continuously since?

ANALYSIS

Who has the onus?

[13] Section 34(9) of the Planning Act, R.S.O. 1990, c. P.13 allows the use of property to continue notwithstanding a change in zoning providing that the use was lawful prior to the enactment of the prohibiting by-law. It reads:

(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.

[14] The respondents submit that they have no onus “to establish the existence of a non-conforming use”. As I understand their argument, they submit that West Nipissing has the onus of proving that no auto repair shop was being operated at 567 prior to the passage of by-law 2014-45 and that it has not been operating continuously since then. I disagree.

[15] The respondents rely on the decision of the High Court in Township of Emily v. Johnson, 37 O.R. (2d) 623 in support of their submission. In my view, Emily does not stand for the proposition that a municipality seeking an injunction bears the burden of disproving a legal non-conforming use. Instead, it stands for the common sense proposition that a municipality must do more than merely file a by-law with the court. At p. 630, Smith J. wrote:

I would have thought that when a municipal authority is seeking by way of an action for an injunction to prevent an owner from enjoying the use of his property, it must satisfy the Court that it has an overriding right to do so. It will not suffice that it simply file a by-law with the Court. On the whole case, it has the basic onus of proving its entitlement to relief. My brother, Steele J. said as much in City of Toronto v. San Joaquin Investments Ltd. et al (1978), 18 O.R. (2d) 730 at 739, 83 D.L.R. (3d) 584 [aff’d, 26 O.R. (2d) 775, 106 D.L.R. (3d) 546, 11 M.P.L.R. 83].

[16] In the case of San Joaquin Investments, to which Smith J. referred, the court held that the onus is on the party against whom an injunction is sought to prove a legal non-conforming use. At p. 739 of the decision, Steele J. wrote:

The basic onus is upon the plaintiff to prove his case, particularly so when the relief sought is the extraordinary remedy of an injunction.

There is an onus upon a defendant to prove that he has an exemption to a by-law which proof must go not only to the use of the lands of the time of the amendment to the by-law but also to its continued use until the time of the issuance of the writ. Bearing these principles in mind I must consider the conflicting evidence that is before me.

[17] As I read San Joaquin Investments, the onus is on the municipality to prove that the use to which the property is presently being put contravenes the current by-law. Once that onus has been met, the onus shifts to the party against whom the injunction is sought. This was the ruling in Toronto (City) v. Gallos, 2008 ONCA 617 [In Chambers], 51 M.P.L.R. (4th) 157. In Gallos, Simmons J.A. wrote, at paras. 62-63:

As the justice of the peace observed, the applicant bears the onus of proving that he is entitled to legal non-conforming use status for the size of his restaurant: see s. 47(3) of the Provincial Offences Act; Toronto (City) v. San Joaquin Investments Ltd. (1978), 18 O.R. (2d) 730 (Ont. H.C.). The applicant does not dispute this proposition.

Accordingly, once the City led evidence that the applicant's restaurant exceeded 165 square metres of non-residential gross floor area as defined in By-law 1996-0332, the applicant bore the onus of proving that he was entitled to a legal non-conforming use.

[18] There is no dispute in this case that the present use of the property at 567 contravenes the governing by-law. Therefore, the onus of proving a legal non-conforming use is on the respondents. However, the respondents also argue that any burden they may have is only an evidential burden, not a persuasive one. They rely on the following further comments of Smith J. in Emily concerning the decision in San Joaquin Investments, which followed the comments set out above:

It is true that [Steele J.] then proceeded to impose an onus on the defendant. I can only assume that such an onus is more in the nature of a burden to adduce evidence. Saunders J. in the Town of Richmond Hill v. Miller Paving Ltd. (1978), 22 O.R. (2d) 779, 93 D.L.R. (3d) 145, said at p. 782 O.R.:

It has been said that any doubt as to prior use should be resolved in favour of the owner…

[19] The respondents also rely on similar comments made by Russell J. in Paradise (Town) v. Generator Exchange (1987) Ltd., 85 Nfld & P.E.I.R. 248, at para. 23.

[20] With respect, Smith J.’s assumption that the responding party need only adduce some evidence was incorrect.

[21] In Dysart (Municipality) v. Reeve, 136 O.A.C. 292, the defendants had been convicted of violating a zoning by-law. The issue was whether a number of camping lots were too close to neighbouring residential lots. The defendants alleged that the camping lots were a legal non-conforming use. In overturning the conviction and ordering a new trial, Laskin J.A. stated, at para. 29:

Nonetheless, [the justice of the peace’s] findings of guilt cannot stand because she applied the wrong standard of proof. She correctly held that the defendants bore the onus to establish a non-conforming use. However, she held that the defendants must do so on the criminal standard, that is they must prove a lawful non-conforming use beyond a reasonable doubt. She wrote:

The defence relies on numerous cases including the case of Central Jewish Institute v. Toronto which deals with a legal non-conforming use. In order to accept this argument, the Court would have to accept that the evidence presented by the defence has shown beyond a reasonable doubt that they fall within the requirements of a legal non-conforming use and based on the evidence before the Court the defence has not met the requirement of showing a continuous use.

This was a fundamental error. The defendants need only prove a legal non-conforming use on a balance of probabilities. See Toronto (City) v. San Joaquin Investments Ltd. (1978), 18 O.R. (2d) 730 at 739 (Ont. H.C.); aff'd on other grounds (1979), 26 O.R. (2d) 775 (Ont. Div. Ct.); leave to appeal to S.C.C. refused (1980), 26 O.R. (2d) 775 (note) (Ont. Div. Ct.); and Sudbury (Regional Municipality) v. Canapini Brothers Ltd. (November 17, 1990), Doc. Sudbury 216/89 (Ont. Gen. Div.).

[22] In a subsequent decision of this court, Howden J. wrote in Rotstein v. Oro-Medonte (Township), 34 M.P.L.R. (3d) 266, at para. 35:

To establish lawful status, Section 34(9) requires, proof to a civil standard of:

i) lawful use of any land, building or structure at the time of enactment of the relevant zoning restriction, and

ii) its continuance thereafter.

I do not understand that the authorities to which I was directed state otherwise. Toronto (City) v. Sam Joaquin Investments Ltd. (1978), 18 O.R. (2d) 730 at 739; aff'd, 26 O.R. (2d) 775; and Dysart (Mun.) v. Reeve (2000), 14 MPLR (3d) 256 at 263 (Ont. C.A.). Rogers, Canadian Law of Planning and Zoning, pp.210.25-.26. It is for the party alleging s. 34(9) protection to establish both elements to a civil standard of proof.

[23] Clearly, the onus on the respondents goes beyond an obligation merely to introduce evidence and requires them to prove on a balance of probabilities that the use at the time the prohibiting by-law came into effect conformed to the previous permitting by-law and was continuous to the time of the application.

Was 567 being used as an auto repair shop at the time by-law 2014-45 was enacted?

[24] The respondents submit that Moe’s Auto Repairs is just a variant of an auto repair shop that Mr. Lafond was operating at the time by-law 2014-45 was enacted on July 8, 2014. Mr. Lafond deposes that he operated both a towing business and an auto repair shop at 567, beginning in October 2009. He says that when he moved the towing business in 2015, he left the auto repair shop where it was. His evidence is that, prior to July 8, 2014, he performed auto repairs at 567 and employed one employee (Louis Lafond) on a full-time basis and another employee (Sean Turpin) on a part-time basis, in conformity with by-law 86-4.

[25] Mr. Lafond deposes that in February 2016, he began to employ Mr. Poisson on a commission basis and that the business has operated on that basis since then.

[26] I do not accept Mr. Lafond’s conclusion that he was operating an auto repair shop at 567 prior to July 8, 2014. Instead, I have concluded that he was performing occasional repairs to vehicles as an incidental activity to towing. In reaching this conclusion, I rely on the evidence set out below.

Business Name

[27] Throughout the entire period from 2009 until July 8, 2014, the business being operated at 567 was known as “Lafond’s Towing and Recovery”. Nothing in that name identifies the business as an auto repair shop.

Advertising

[28] During his cross-examination on February 15, 2017, Mr. Lafond testified that he never advertised Lafond’s Towing and Recovery as an auto repair shop. He testified that the auto business “wasn’t the mainstream of our business” (p. 59, q. 287)

Signage

[29] Section 60 of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A, requires that a supplier who works on or repairs vehicles post the prescribed signs. Ontario Regulation 17/05 sets out the information that those signs must display. No such signs were ever posted at Lafond’s Towing and Recovery. Indeed, Mr. Lafond testified during his cross-examination on February 15, 2017, that he was unaware of his duties under the governing legislation (p. 57, q. 274).

Licensed Mechanics

[30] Lafond’s Towing and Recovery employed no licensed mechanics prior to hiring Mr. Poisson in February, 2016. Mr. Lafond testified during cross-examination on December 9, 2016, that the two employees working for him prior to July 8, 2014, worked only on tow trucks.

Repairs to Lafond’s Own Vehicles

[31] In March or June 2015, Lafond’s Towing and Recovery was inspected by an enforcement officer with Ontario College of Trades (“OCOT”). The inspection report prepared with respect to that visit, a copy of which was produced by Mr. Lafond, contains the following excerpt:

Mr. Lafond explained that he periodically performs regular maintenance including greasing of his trucks, but that there is no compulsory trade work performed in the course of his business operations. Mr. Lafond takes his trucks to a licenced mechanic for repair and maintenance as needed.

[32] During his cross-examination on December 9, 2016, Mr. Lafond testified that OCOT was concerned about his drivers, none of whom was licensed, doing work that only a licensed mechanic was permitted to do (p. 42, q. 288).

[33] Mr. Lafond appended a number of photographs to an affidavit he swore on January 31, 2017. These photographs are described in his affidavit as “photographs of trucks being repaired at 567… on April 11, 2012 and November 4, 2012”. With one exception, the trucks being repaired belonged to Lafond’s Towing and Recovery. The exception relates to a grey tractor trailer, which one photo shows was towed to Lafond’s Towing and Recovery by one of its vehicles. Whereas the other photographs clearly show repairs being undertaken to the Lafond vehicles, the photograph depicting the grey tractor trailer alone does not. In any event, these photographs do nothing more than show that repairs were performed at Lafond’s Towing and Recovery either on its own vehicles or incidentally as part of its towing business.

Insurance

[34] As part of the discovery process, Mr. Lafond produced insurance policies for the years 2012, 2014 and 2016. The policies for 2012 and 2014 identify the insured business as “Towing Company – Impound and Freight Broker”. The 2014 policy identifies the insured business as “Motor Carrier – Hauling Goods of Others”. None of the policies for these years describe the business as one involving auto repairs.

[35] Even in February 2016, the month in which Mr. Poisson is alleged to have begun to work as an employee of Mr. Lafond’s, the policy refers to the nature of the business as “Ice Recovery Operations”.

[36] It was not until October or November 2016 that the first insurance policy produced with respect to “Moe’s Auto Repairs” described the business as “Auto Repair Garage”.

Workplace Safety

[37] Mr. Lafond produced three Workplace Safety & Insurance Board Premium Remittance Forms which were filed in connection with Lafond’s Towing and Recovery in 2011. All three of those forms described the insured business as “Towing Services”. Again, no reference was made in the forms to the operation of an auto repair shop.

Income Tax Returns

[38] Mr. Lafond produced his individual income tax returns for the years 2008, 2010 and 2012. These tax returns all describe the nature of Mr. Lafond’s business income as “Towing and Recovering”. He also produced the corporate tax returns for Lafond’s Towing and Recovery for the tax years ending 2013, 2014 and 2015. These tax returns all describe the nature of the business as “Motor Vehicle Towing”. All of these corporate tax returns indicate that 100% of the business’ income is from “Trucking and Towing”.

Zoning Amendment Application

[39] In April 2014, Mr. Lafond completed a zoning amendment application. Although it is not clear from the materials, I assume that this document was completed as part of an effort by Mr. Lafond to resolve the concerns that arose in 2013 as to whether his business complied with by-law 86-4. In the application, he sought to rezone 567 from residential density (R1) to industrial. In s. 6.5 of the application, in response to a question as to whether the property had ever been used for commercial or industrial purposes, the following appears:

Being used for a towing company since 2009.

[40] Mr. Lafond said nothing in the application with respect to the operation of an auto repair shop on the property.

Invoices

[41] Mr. Lafond was requested to produce invoices for auto repair work performed at 567. He was only able to produce 12 invoices with respect to repairs performed prior to February 2016. With only two exceptions, all of these invoices indicate that vehicles were towed from one location to another (usually to 567, often at the request of a police service). The two exceptions relate to flat tires. It appears from both invoices that, rather than towing a vehicle that had merely suffered a flat tire, the tire was repaired at the location of the disabled vehicle.

[42] The services reflected in the invoices ranged from fixing the flat tires referred to above to repairing alternators and damaged oil pans. All of the repairs appear to have been incidental to the towing of the vehicles referred to in the invoices.

Admission

[43] All of the evidence to which I have referred leads to the conclusion that the auto repairs performed at 567 prior to the towing business being moved were only incidental to that business. Mr. Lafond admitted this during his cross-examination on December 9, 2016. At that time, he testified, beginning at p. 39, q. 268:

Q. What kind of mechanical work were you doing at Five Six Seven (567)?

A. We would fix all of my trucks, depending if it’s warranty work, and we would do minor repairs for someone on vehicles that would be stranded on the highway to help them get along.

Q. So if you towed somebody in -- because you’d be called for the towing job I presume.

A. Yes.

Q. Okay. So you would tow them in, and if they needed a battery or if they needed a new hose or something to get them on their way, that’s what you’d do for them; something like that?

A. Yeah, if nobody could fix them, yes.

Q. You mean if they couldn’t get fixed on the highway?

A. No, but there’s a couple of local garages. If they couldn’t see them and -- I could fix them up, then --.

Q. So if the garage down the street wasn’t open, or in town, you’d see what you could do for them?

A. Yes.

[44] In order for the present use of the property at 567 to be a legal non-conforming use, it must be the same or substantially the same as the conforming use was at the time the prohibiting by-law came into effect. In The Corporation of the Township of Uxbridge v. Talbot, 2014 ONSC 1276, 21 M.P.L.R. (5th) 248, Healey J. summarized the approach to be taken by the court when considering the nature of the use of property before and after the passage of a prohibiting by-law. At paras. 52-53, she wrote:

In considering the legal non-conforming use exemption, the court is to look at “[…] the essential purpose for which the property is being used to determine if the change of activities is beyond the scope of that purpose”: Watts v. Benvenuti, para. 35, aff’d. If a subsequent owner merely expands a pre-existing use or engages in a different activity which is within the generic description of the pre-existing use, the owners (sic) protection will not be lost: Glenelg (Township) v. Davis, (1992) CarswellOnt 487 (Ont. C.A.), at para. 13.

The factors that the court should look at in determining whether a party has proven legal non-conforming use were outlined in Saint-Romuald (Ville) v. Olivier, 2001 SCC 57, at para. 39, and paraphrased by this Court as follows:

a. First characterize the purpose for which the premises were used prior to the new by-law restrictions. Use is a function of the activities actually carried on at the site;

b. If the current use is merely an intensification of the pre-existing activity, the protection will not be lost. When the intensification goes beyond a matter of degree and constitutes, in terms of community impact, a difference in kind, the protection may be lost;

c. To the extent activities are added, altered or modified within the scope of the original use, the court has to balance the landowner’s interest against that of the community;

d. Neighbourhood effects should not be assumed but must be established by evidence;

e. The characterization of the acquired right should not be so narrow as to rob the land owner of some flexibility in the reasonable evolution of prior activities;

f. The court is to look at the facts objectively, not subjectively with personal value judgments, when characterizing the acquired right and changes to the original purpose.

[45] In my view, the use to which the property in this case is presently being put goes beyond being merely an intensification of the use to which the property was being put prior to the passage of by-law 2014-45 and constitutes a substantially different use. The auto repairs that were undertaken by Lafond’s Towing and Recovery were incidental to its towing operation and not part of the business of an auto repair shop. In contrast, the business now being operated at 567 is a dedicated auto repair shop. Among other things, a licensed mechanic is now employed there, the name has been changed to reflect the nature of the business, a lift and other equipment necessary to the repair of motor vehicles has been added, and invoices are now being regularly issued for repairs to motor vehicles other than as an adjunct to being towed.

[46] My conclusion is in conformity with the cases to which I have been referred by counsel.

[47] In the Paradise decision referred to above, the business at issue was an auto repair business which also sold automotive equipment. Occasionally, it sold used cars. An issue arose as to whether the property could be used as a used car lot as a legal non-conforming use. Russell J. held that the occasional sale of a used vehicle did not constitute the business of selling used cars (para. 24)

[48] In Beresford (Town) v. Brunswick Rent A Car Ltd. (1996), 178 N.B.R. (2d) 233 (Q.B.T.D.), aff’d (1997) N.B.R. (2d) 318 (N.B.C.A.), the municipality sought to enjoin the defendant from operating an automobile graveyard in violation of the municipality’s zoning by-law. The defendant was in the business of selling and renting motor vehicles. The evidence indicated that, prior to the passage of the by-law in question, the defendant kept between 30 and 40 scrapped vehicles behind its property for the purpose of obtaining spare parts. At the time of the application, the number of vehicles had grown to between 200 and 300 and included selling the bodies of vehicles to third parties for profit. McIntyre J. held that the storage of 20 to 30 vehicles on the premises was incidental to the business of selling and renting used trucks and cars. For that reason, the court found that the defendant was not in the business of operating an automobile graveyard prior to the passage of the by-law and, therefore, the non-conforming use was illegal.

[49] In my view, a similar result should be reached in this case.

Has the auto repair shop operated continuously since the enactment of by-law 2014-45?

[50] Even if Mr. Lafond was operating an auto repair shop at 567 at the time by-law 2014-45 came into force, I would still grant the application. The respondents have failed to prove that any auto repair shop operated at 567 between the date that the towing business was moved in November 2015 and February 2016.

[51] After Lafond’s Towing and Recovery moved to Toulouse Crescent, an inspection of 567 was undertaken by a West Nipissing by-law enforcement officer on November 3, 2015. That inspection revealed no indication of an auto repair shop operating there on that date. None of the photos or invoices produced by Mr. Lafond show any auto repair work being undertaken at 567 between November 2015 and February 2016. The employees that Mr. Lafond indicates were employed by him prior to February 2016 were all employed in connection with the towing business, according to his evidence. That business was moved as of November 2015.

[52] Mr. Lafond’s affidavits contain no evidence that an auto repair shop operated at 567 during this period of time. In his affidavit sworn November 3, 2016, Mr. Lafond deposed, at para. 11, as follows:

I carry on auto repairs on this property.

[53] This is a statement as to what was occurring at the time Mr. Lafond swore his affidavit, not as to what occurred between November 2015 and February 2016.

[54] In his affidavit sworn January 31, 2017, Mr. Lafond deposed as follows, at paras. 6-8:

I operated a towing business and auto repair shop at 567 Dutrisac Road in the Municipality of West Nipissing since October 2009, provided I did not employ more than two persons on a full time basis therein. I did not employ more than two employees at 567 Dutrisac Road between October 2009 until July 2014.

I constructed a garage consisting of 5200 square feet at 7 Toulouse Crescent in the Municipality of West Nipissing and relocated the towing operation to 7 Toulouse Crescent.

I kept the auto repair shop at 567 Dutrisac Road and have only one employee, namely, Maurice Poisson.

[55] By Mr. Lafond’s own evidence, Mr. Poisson was not hired until February, 2016 (see November 3, 2016, affidavit, at para. 4).

[56] At para. 14 of his January 31, 2017, affidavit, Mr. Lafond also deposed:

I prepared a list which contains details of auto repairs which I continued (sic) to perform at 567 Dutrisac Road. Attached hereto as Exhibit “E” is a list containing repairs which predates and postdated the amended by-law. [Emphasis added.]

[57] This paragraph does not state that Lafond’s Towing and Recovery continued to perform auto repairs at 567 after the business moved to Toulouse Crescent. Rather, all it says is that it continued to perform auto repairs after July 8, 2014. Most of the items on the list are marked with two asterisks. The list indicates that the repairs marked in this way were performed “under Lafond’s towing”. As I have mentioned, Lafond’s towing was moved in or about November 2015. During his cross-examination on February 15, 2017, Mr. Lafond clarified that the items on Exhibit “E” were either completed at Lafond’s towing prior to 2014 on vehicles belonging to Lafond or the business, or performed at Moe’s Auto Repairs from 2016 onward (transcript, p. 65, q. 307 to p. 69, q. 323).

[58] Finally, during his cross-examination on December 9, 2016, Mr. Lafond confirmed that, although he reached an agreement with Mr. Poisson to operate an auto repair shop at 567 in November 2015, they did not begin to operate the business until February 2016 (p. 64, q. 408 to pa. 65, q. 411).

CONCLUSION

[59] Based on the evidence to which I have referred, the auto repairs that were undertaken at 567 were incidental to the towing business that was operated there until November 2015, when the towing business was moved. Mr. Lafond operated a towing business at 567, not an auto repair shop. Therefore, the previous use of the property was substantially different than the use to which it is presently being put.

[60] As well, there is no evidence of any auto repairs being undertaken at 567 between the date the towing business moved to Toulouse Crescent and the date that Moe’s Auto Repairs began operating in February 2016.

[61] As a result, the auto repair shop presently operating at 567 is not a legal non-conforming use.

[62] For these reasons, the application must be granted.

[63] If the parties are unable to reach an agreement with respect to the issue of costs, written submissions, limited to five typewritten pages exclusive of attachments, may be made as follows:

(1) by West Nipissing, within 20 days of the release of these reasons;

(2) by the respondents, within 10 days of the date of the receipt of West Nipissing’s submissions; and

(3) by way of reply by West Nipissing, within 10 days of the receipt of the respondents’ submissions.

Ellies J. Released: May 29, 2017

COURT FILE NO.: CV-16-6623 DATE: 2017/05/29 ONTARIO SUPERIOR COURT OF JUSTICE THE MUNICIPALITY OF WEST NIPISSING Applicant – and – PIERRE OLIVIER-NORMAND LAFOND and MAURICE POISSON Respondents REASONS FOR DECISION Ellies J. Released: May 29, 2017

[1] A towing business is not expressly referred to in s. 2.54. However, the section defines a home industry as meaning “a gainful occupation, including …” Obviously, the parties interpreted the section as permitting a towing business.