Court File and Parties
CITATION: Armour v. 2293398 Ontario Inc et al, 2017 ONSC 6623
COURT FILE NO.: CV-12-058
DATE: 20171103
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Municipal Corporation of the Township of Armour, and Paul Schaefer Chief Building Official, Applicants
AND:
2293398 Ontario Inc., 2539943 Ontario Inc. c.o.b. as Canadian Addiction Recovery Network, Linda Maggiacomo, Dylan Maggiacomo and Shannon Roser, Respondents
BEFORE: E.J. Koke
COUNSEL: Michael Miller, Counsel, for the Applicants
Iain T. Donnell and Jonathan Friedman, Counsel for the Respondents
HEARD: October 31, 2017
Endorsement: Motion for Interlocutory Injunction
Background Facts
The applicants seek an interlocutory injunction restraining the respondents from operating an addiction recovery centre on lands in the Township of Armour. The applicants submit that the property in question is not zoned for such a use.
The lands are municipally described as 2159 Pickerel Lake and Jack Lake Road, Burk’s Falls, Ontario, and legally described on Schedule “A” attached hereto.
The original application was commenced in November, 2012. At that time the property was owned by 2293398 Ontario Inc., (“229”) which was operating an addiction treatment centre on the property. John Haines was the sole shareholder of the corporation.
In addition to the applicant’s position that 229 was not in compliance with the municipality’s zoning by-law, the applicant also alleged that 229 had not obtained a Change of Use Permit from the Chief Building Official. Such a permit was required as the level of occupancy had changed.
Also in November, 2012 the original respondent, 229, filed two applications under the Planning Act seeking to amend the Township’s Zoning By-Law and Official Plan in an effort to bring the addiction recovery use into conformity with the municipality’s zoning by–law.
The court application was adjourned in order to permit 229 to proceed with its re-zoning application and Official Plan amendment application. The application was denied by the Township, and 229 then proceeded to appeal the decision to the Ontario Municipal Board.
The appeal to the Ontario Municipal Board lost any urgency when 229 ceased making any use of the property in approximately February, 2016, at which time it transferred its business operation to South Simcoe County.
In May, 2016 the owner of the property appeared before municipal council and advised that in the future the property would be used as a wellness centre and accordingly he would be withdrawing his appeal to the OMB.
Mr. Martyn Payge, a fire prevention officer for the town re-attended at the property on August 23, 2016, at which time he met Linda Maggiacomo, who identified herself as the new property owner. Shannon Roser, who identified herself as the Facility Manager, was also in attendance. They advised that Dylan Maggiacomo, the son of Linda Maggiacomo, would be running the business. They made it clear that the business would not be operated as an Addiction Recovery Centre but rather as a wellness centre.
On October 26, 2016, Mr. Payge received a letter from an organization described as the Canadian Addiction Recovery Network (“CARN”), advising of its intention to operate an addiction recovery retreat on the property.
Mr. Payge re-attended at the property on October 28, 2016 with Paul Schaefer, the Town’s chief building official. Mr. Payge provided Linda and Dylan Maggiacomo and Shannon Roser with a copy of a Vulnerable Occupancy Check Sheet, outlining the Fire Department’s requirements for occupancy by vulnerable individuals. Mr. Payge pointed out that he had been informed that the intended use of the building was a spa and massage retreat, but he was now looking at rooms with hospital beds set up along with an infirmary in the building. Ms. Maggiacomo confirmed that they had decided to run an addiction recovery business in the building.
The Chief Building Official issued an Order to Remedy an Unsafe Building in November 25, 2016 and directed that the owners of the property cease use of the building until the required permit had been issued.
A corporate search indicated that 2539943 Ontario Inc.(“253”) was carrying on business as the Canadian Addiction Recovery Network. The head office of the corporation was the subject lands and the first director was listed as Dylan Maggiacomo.
The Legislative Authority for Bringing the Application
Section 440 of the Municipal Act, 2001 provides that, where a by-law is contravened, a municipality may seek to have such contravention restrained in the Superior Court of Justice.
Section 38 of the Building Code Act, 1992 provides that the Chief Building Official may apply to the Superior Court of Justice for enforcement of orders issued under the Building Code.
The Legal Test for granting an interlocutory Injunction
- In RJR MacDonald Inc. v. Canada (A.G.), 1994 117 (SCC), [1994] 1 S.C.R. 311 (SCC) the Supreme Court of Canada confirmed the three part test to be applied to applications for interlocutory injunctions as including:
a) Demonstrating that there was a serious issue to be tried;
b) That the applicant will suffer irreparable harm if the relief is not granted, and
c) An assessment of the balance of inconvenience
- With respect to the three requirements set out above, public authorities, such as a municipality or the Chief Building Official, must only show there is a serious issue to be tried and establish a strong prima facie case that there is a breach of the by law, and need not demonstrate irreparable harm or that the balance of convenience favours them…see Municipality of Metropolitan Toronto v. N.B. Theatrical Agencies Inc. (1984), 1984 2092 (ON SC), 24 MPLR 241.
The Positions of the Parties
The respondents submit that CARN does not operate a medicated detoxification centre but rather operates a wellness section whereby clients are housed during the initial intake and following few days only. Nurses monitor clients while in the wellness section only to ensure that the clients remain healthy while coming down from any mind-altering substances which they may have ingested prior to attending the facility.
They argue that the use of the property is in compliance with the Township of Armour Zoning By-Law because the by-laws permit the land to be used as a “Lodge” and /or possibly a “Resort.”
“Resort” is defined in paragraph 2.162 of the zoning by-law as meaning:
“a tourist commercial use that operates throughout all or part of the year and that has facilities for serving meals and furnishing equipment, supplies of services to persons in connection with recreational purposes.”
- “Lodge” is defined in paragraph 2.106 of the by-law as meaning:
“an establishment catering to the vacationing public by providing meals and sleeping accommodations with at least five guest rooms or cabins, but shall not include any establishment otherwise defined or classified herein”
- The respondents argue that the use of the property falls within the definition of Lodge and is therefore a permitted use because:
a) CARN has more than 5 guest rooms;
b) The accomodations facilities are not housekeeping units, so all meals are prepared in the central kitchen and served in the main dining room
- It is the position of the applicant municipality that an addiction treatment centre falls more appropriately within the definition of Institutional zoning, and the property in question is not zoned for institutional uses. “Institutional” uses are defined in the by-law as follows:
a) The use of land, building or structures for religious , charitable, educational, health or welfare purposes, and
b) Includes churches, places of worship, non-profit community institutions, public or private schools, homes for the aged, retirement homes and nursery schools.
[emphasis added]
Analysis
In my view, the applicant has met the test as set out in RJR v. Macdonald, supra and is entitled to an interlocutory injunction, restraining the responding from continuing the present use of the property as an addiction recovery centre. I have come to this decision for the following reasons.
Firstly, there is ample evidence that the main purpose of the centre is to provide addiction recovery services…it is a place where people go to get healthy. In his October 26, 2016 to Mr. Payge, Mr. Maggiacomo begins the letter as follows:
As per our earlier discussions during your visit today to the property we advise at this time that the subject property will be operating as an addiction recovery retreat.
The property will have a maximum of 40 program clients in total however the average will be 15-20 at any given time all program clients will be fully ambulatory. The number of staff will be approximately 25 and possibly more if needed. Include in the number of staff will be 3-4 security guards, which will run 24/7, 5-6 nurses also running 24/7, 7 therapists/counselors to start, 2 maintenance, 2 housekeeping and 3-4 management.
The main building will hold 12 beds total 10 in the infirmary wing and 2 in the apartment over the kitchen, Individuals within the infirmary wing will be cognitively impaired and will fall under the vulnerable sector within the fire plan…
A weekly schedule as of February 01, 2017 was included as an exhibit at the hearing. The schedule provides that “morning medications” are provided from 8:15 -9:00 a.m. There is a notation that “clinical” is provided at 10:00 a.m. Mid-day medications are then administered at 12:30 – 1:00pm.
The respondent argues that CARN has now decided that it will employ a holistic approach to treatment, and will not be dispensing medications to assist the residents with the detoxification process. Also, it will not be employing any in house doctors. I do not see how such a change to the operation assists the respondents. Clearly, the overall intent and purpose of the facility is that of an addiction recovery centre. It is focussed on the health and welfare of persons dealing with substance abuse. The definition of “Institutional” used in the by-law includes the use of the property and the buildings for “health or welfare purposes”, and as such the addiction recovery operation requires Institutional zoning. The land in question is not zoned Institutional.
In my view, a finding that the use falls within the Institutional zoning is consistent with the modern principle of statutory interpretation which was developed by Elmer Driedger in the 1st Edition of Construction of Statutes. This approach has been approved by the Supreme Court of Canada in numerous cases including Rizzo and Rizzo Shoes Limited (1998) 1998 837 (SCC), 1 S.C.R. 27 at par. 4.and is as follows:
Today there is only principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
I agree with the applicant that in the ordinary sense of the meaning of the term “addiction recovery centre”, such a centre is clearly compatible with the institutional use permitted in the Institutional zone.
Furthermore, and in relation to the scheme of the zoning by-law and the intention of the municipality, I note that the Official Plan of the Township sets out that within the “Waterfront Community” designation of the Official Plan, the predominant uses of waterfront lands such as the lands owned by the respondent, are uses which are consistent with single detached dwellings and detached seasonal dwelling units, or uses consistent with recreational purposes and tourist establishments. An institutional use such as the use of the property as an addiction recovery centre, would not fit within the intention of the municipality’s official plan.
Secondly, the definition of “Lodge” requires that the establishment caters “to the vacationing public”. The definition of “Resort” refers to a “tourist commercial use” and the supply of services “in connection with recreational purposes”. Quite clearly, the purpose of the centre is not to cater to the “vacationing public”, nor is it designed to provide services in connection with recreational purposes. It is a highly structured facility, with security staff, staff nurses, and an 11pm curfew. The following notation appears at the bottom of the weekly schedule:
Attendance is expected for all schedule program activities. Approval for non-attendance for medical or clinical reasons should be obtained prior to any activities. Please Note: Client visits, outings, gym, pool, and massage may be contingent on program participation.
- The evidence is clear that any recreational activities the centre provides are merely incidental to the main activity of providing addiction recovery services.
Conclusion
The applicant’s motion for an interlocutory injunction restraining the respondents, their officers, directors, agents, servants or invitees from occupying and operating an addiction recovery centre on the lands municipally described as 2159 Pickerel Lake and Jack Lake Road, Burk’s Falls, Ontario and legally described on Schedule “A” attached, is granted.
The injunction is to take effect 15 days from the date this decision is released. This 15 day time period is designed to provide the centre with a reasonable opportunity and time period to wind down its operations.
Costs
- If the parties cannot agree on costs, they have 10 days to file written submissions in relation thereto. Submissions should be no more than 5 pages in length. Following receipt of each other’s submissions, they have 10 days to reply.
E.J. Koke SCJ
Date: November 3, 2017
Schedule “A”
Firstly:
Parcel 11669, SEC SS; Broken Lot 30, Concession 10, Armour, Except Plan PSR1956 & Except Part 32, PSR2044; the said lands are bounded by a strip of land one chain in perpendicular width along the shore of Pickerel Lake; Armour, being all of the lands in PIN 52147-0115 (LT)
Secondly
[1] Part Lot 29, Concession 10, Armour as in RO218060; Armour, being all of the land in PIN 52147-0477