COURT FILE NO.: 215/17
DATE: 2018/06/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAVE PICTON BAY
Applicant
– and –
THE CORPORATION OF PRINCE EDWARD COUNTY and 1213427 ONTARIO CORPORATION o/a PICTON TERMINALS
Respondents
Eric K. Gillespie, for the Applicant
David W. DeMille/ Samantha Foster, for the Respondent, The Corporation of Prince Edward County
Tony E. Flemming, for the Respondent, Picton Terminals
HEARD in Belleville: April 16, 2018
tausendfreund, J.
reasons
Overview
[1] This is an Application under Rule 14.05(3)(d) of the Rules of Civil Procedure for the interpretation of a municipal zoning By-law of the Respondent, The Corporation of Prince Edward County (“the County”). The property in question (the “property”) is a deep port facility for lake freighters. It is used by the owner, the Respondent 1213427 Ontario Corporation o/a Picton Terminals (“Picton Terminals”), for trans-shipment purposes by lake freighters to and from the property.
[2] The Applicant (“Picton Bay”) is a not-for-profit corporation representing County ratepayers. Picton Bay states that this trans-shipment operation contravenes the applicable zoning By-law. Picton Bay Terminals and the County oppose that interpretation. They state that it is a legal non-conforming use.
Facts
The Property
[3] The property is described as Lot 125, 130-131 RCP 28 Hallowell and Pt Lot 11, Con. 1 SW Green Point: Sophiasburgh, Pt 1, 47R-2991. It is municipally known as 62 White Chapel Road, Prince Edward County.
[4] The property is a 25 hectare (61.7 acre) parcel of land on White Chapel Road with about 1,200 metres of shoreline on Picton Bay in Lake Ontario. It is relatively flat, except for a steep elevation drop along the shoreline. The town of Picton is less than three kilometres south along Highway 49.
[5] Properties along White Chapel Road have a mix of rural-type uses, including several rural residential properties, small-scale agricultural operations and a small commercial artisan facility. A large cement plant is located about 650 metres northeast of the site.
Historical Use of the Property
[6] In the early 1950’s, Marmoraton Mining Co. Limited, a subsidiary of Bethlehem Steel Corporation, purchased land in the Marmora area and established an open-pit mine for the extraction of iron ore. Bethlehem Steel then maintained a railway from Marmora to the property, a distance of about 80 kilometres, to transport the iron ore extracted from the pit. In addition, Bethlehem Steel constructed a port facility on the property, complete with docks and conveyor equipment, to transfer iron ore to lake freighters for shipment to destinations in the United States. The port facility was constructed to allow rail cars to dump the iron ore directly into a tunnel and onto a conveyor belt for direct loading into docked lake freighters.
[7] The shipment of iron ore from Marmora started in 1955 and continued until 1978 when the mine site closed. However, the storage and trans-shipment of iron ore from the property continued until 1984, when the property was sold to 429185 Ontario Ltd. The new owner then used the property for storage and trans-shipment of coal, gypsum and salt. That use continued until at least 1989.
[8] Canada Steam Ship Lines’ letter of December 7, 2017, summarizes its role in transporting commodities through this port, as follows:
Canada Steam Ship Lines has had the ability to service Picton Terminals since the 1980’s when contracted by shippers of bulk commodities. It has been servicing the port of Picton for many years, carrying most notably salt and aggregates, amongst many other types of cargo.
[9] The documents of Algoma Central Corporation, a shipping company, state that between 1994 and 1999, it made several shipments of salt to the property in each of those years. In 1994, 1995 and 1997, road salt was delivered by trucks from the property to the City of Kingston.
[10] Bills of lading from Windsor Salt confirm continued use of the property for trans-shipment of salt from 1999 up to and including 2017. The salt was shipped into the port and trucked to local users at an approximate rate of 80,000 - 120,000 metric tonnes per year.
[11] 429185 Ontario Ltd. sold the property in 1997 to 1213427 Ontario Corporation. On November 14, 2014, the shares of this company were transferred to ABNA Investments Ltd. 1213427 Ontario Corporation has continued, to the present, to operate the port facility. It carries on business as Picton Terminals.
[12] Picton Terminals now uses the property as an in-land deep marine port for shipping and receiving dry bulk cargo such as road salt, aggregates, farming products, steel products, biomass, recycled scrap steel, wine barrels and other various bulk products.
[13] The equipment installed in the 1950’s is still present today. Included is the following equipment:
i) Three conveyors: a 1,000-foot recovery tunnel and conveyor, a 150-foot transfer conveyor and a 120-foot ship loading conveyor;
ii) A 1,000-foot rail trestle above the recovery tunnel. The once existing rail system was removed in 1996;
iii) An office building; and
iv) A pump house and shore well to service the property with drinking water.
[14] The following equipment was installed in 1993:
i) Large asphalt and salt storage pad;
ii) Two storm water management ponds; and
iii) Truck scales.
[15] The following equipment has been added to the property since 2014:
i) One crushing plant to repurpose excavated rock aggregate from the port development;
ii) Five loaders, five excavators and two rock trucks;
iii) A materials handler, a rock grinder, a tug and one water truck;
iv) Additional ship loading and stock piling conveyors, new dock access, a shipping road, and port building materials.
Zoning
[16] The present Municipality of Prince Edward County was amalgamated on January 1, 1998. Prior to that date, the property was located primarily in the former Township of Hallowell (“Hallowell”), while the easterly 25% of the property was located in the former Township of Sophiasburgh (“Sophiasburgh”). The property historically was treated as one parcel of land.
[17] The initial zoning By-law for Hallowell was By-law 672, passed in 1975. It was quite basic and generally permitted existing uses.
[18] In 1977, Hallowell replaced its initial zoning By-law with By-law 709. It designated the property “MX-1”, as a “Special Exception Zone”. MX-1 provided that the subject property may be used for no purpose other than “an existing ore storage and a trans-shipment operation”.
[19] Also in 1977, Sophiasburgh zoned the easterly 25% of the property as industrial (“M2”). The permitted uses were manufacturing, industrial warehousing, cartage, truck terminals, lumber yards, sawmills, construction yards, concrete manufacturing and salvage yards.
[20] In 1988, Hallowell passed By-law 983, which replaced By-law 709. In s. 18.3(a) of By-law 983, Hallowell continued the special MX zone, which it termed the “Extractive Industrial MX-1” zone. This section provides that lands designated as MX-1 shall be used for no purpose other than an “existing ore storage and trans-shipment facility”. By 1988 there was no longer an iron ore storage use on the site and there had not been since 1978, but the port facilities had remained in place and continued to be used for trans-shipment purposes.
[21] I note that if Hallowell had intended to eliminate the trans-shipment use, it could simply have removed s. 18.3(a) from its zoning By-law 983. It did not. It thereby permitted the continued use of the property for trans-shipment purposes, although the use of the property for storage of iron ore had ceased some 10 years earlier.
[22] By-law 983 also provided, in s. 4.1, that where a lot may be used for a certain purpose, “that purpose shall include any accessory use”. “Accessory use” was defined as “a use that is incidental, subordinate and exclusively devoted to a main use of the same plot”. As noted by the County’s Land Use Planner, an “accessory use” for a trans-shipment operation at a port facility would include outside bulk storage.
[23] In 1993, the County adopted its Official Plan (“OP”), which designated the property as “industrial”. The permitted uses in an industrial designation included a truck or transportation terminal. Part II, para. 2.8.4 of the OP states that it is important that the integrity of major transportation corridors and facilities which move goods, services and people, such as Picton’s deep water port, should be protected and promoted. In addition, Part III, para. 2.4.5 of the OP provides that the land near the deep water port and adjacent to the Essroc cement plant shall be maintained for industrial/commercial uses to take advantage of the proximity of the port facilities.
[24] In 2006, the County passed By-law 1816. This was its first comprehensive zoning By-law as an amalgamated municipality. By-law 1816 dealt with the bulk of the property as “Extractive Industrial”. This permits pits and quarries, the crushing, screening and washing of aggregates, asphalt or concrete batching plants, aggregate processing plants and weigh side pits, and quarries. That part of the property located in the former Township of Sophiasburgh was zoned “Rural 1” (“RU1”) in By-law 1816. Neither zone explicitly permits a trans-shipment use.
Present State of the Property
[25] The report of Kevin Shipley of March 23, 2018 addresses the present state of the property. Mr. Shipley is an environmental engineer retained by Picton Terminals. A summary of his unchallenged report, which I accept, is as follows:
• He was first retained by Picton Terminals in 2014 to conduct an inspection of the property and surrounding area. In particular, he was to assess potential off-site road salt impact on the adjacent property. He observed impacts on a neighbouring property, typically caused by high salt concentrations in surface and ground water. He concluded that these impacts of high salt concentrations in the surface and ground water had occurred prior to November 2014, when the present owner acquired the property.
• He was informed and believed it to be true that the storm water management system, then in place in 2014, had been installed in 1993. In any event, aerial photographs from 2005 confirm that this storm water management system had been in place at least as of 2005.
• This inadequate storm water management system remained in place until November 2017, when construction of a new storm water management system started, with the approval of the Ministry of the Environment and Climate Change (“MOECC”).
• To improve the storm management system, in May 2016 Picton Terminals had submitted to the MOECC an application for a Storm Water Management Works Environmental Compliance Approval.
• By August 2016, Picton Terminals had installed a new storm water management pond and berm.
• On September 15, 2017, after discussion with the MOECC, Picton Terminals applied for an Environment Compliance Approval.
• An interim action plan developed by Picton Terminals addresses measures specific to salt storage areas. It includes the following:
▪ Installation of plastic tarps for delivered salt product;
▪ Salt piles to remain covered with only the working face exposed;
▪ Four storm water management ponds and a serpentine swale are to be constructed to receive and slow the flow of water to an exfiltration zone of 2,500 square metres constructed in limestone bedrock. It is intended to accept all collected storm water from the salt storage area and immediately adjacent areas and is designed to have the storm water runoff infiltrate into the bedrock. The bottom of this exfiltration zone is expected to be 7-10 metres below the existing ground surface and to be sloped from north to south, away from adjacent properties. It is expected that the collected water will infiltrate into the fractured limestone, mix with groundwater and migrate through the limestone aquifer, ultimately entering into Picton Bay as diluted ground water discharge. This groundwater discharge is expected to diffuse slowly into Picton Bay over a much wider area and over a longer period of time than previous discharge. The expected result is a minimal effect on water quality.
▪ Along the northeast property line, a berm 3-4 metres high and 20 metres wide is to be constructed to absorb and deflect possible surface water from crossing into adjacent lands.
• The new storm water management system was 90% installed as of March 23, 2018, the date of the Shipley report.
• Water sampling has been undertaken and has been found to be below the federal aquatic-life threshold of chloride levels, as outlined in the Canadian Water Quality Guidelines for the Protection of Aquatic Life. Recorded chloride concentrations were below the average typically found in Lake Ontario.
• Picton Terminals plans to construct two covered storage structures for bulk salt trans-shipped to the site. These covered storage units are expected to be constructed by excavating bedrock to a depth of approximately 23 metres. Picton Terminals plans to complete the construction of these two units by 2021. The purpose for constructing these units is to prevent any salt stored at the site from mixing with storm or ground water.
Analysis
[26] The 2006 By-law 1816, passed by the County, replaced the Hallowell By-law 983. It zoned the site as “extractive industrial”. However, there is no reference to the permissive “ore storage and trans-shipment operation” that was previously in By-law 983. The fact that County Council did not include in By-law 1816 a reference to a permissible use of this property, beyond zoning it as “extractive industrial”, is difficult to understand in the face of the then existing OP of the County, which it designated a permitted use of the site as a truck or transportation terminal. In addition, the OP states that it is important that “the integrity of major transportation corridors and facilities which move goods, services and people such as the Picton Deep Water Port should be protected and promoted”.
[27] All parties in this Application agree that the site does not conform to the County’s current zoning By-law. The issue is whether it is a legal non-conforming use.
[28] Subsection 34(9)(a) of the Planning Act, R.S.O. 1990, c P.13, states that:
No [zoning by-law] applies 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.
Although the term “legal non-conforming use” does not appear in the Planning Act, it is generally accepted to describe uses that are not permitted under current zoning, but are permitted by virtue of s. 34(9)(a) of the Planning Act. In fact, the County’s zoning By-law 1816 has a provision, s. 4.20.1, that mirrors s. 34(9)(a) of the Planning Act.
Interpretation of the Word “and”
[29] The parties disagree as to the meaning of the word “and” in the 1988 By-law 983, which provides that lands designated as MX-1 shall be used for no purpose other than an “existing ore storage and trans-shipment operation”.
Position of the Applicant
[30] The Applicant relies on the opinion of Anthony Usher, a registered professional planner whom the Applicant retained. In his report of October 17, 2017, at paras. 28 and 29, Mr. Usher stated:
[T]he permitted operation was to consist of both ore storage and trans-shipment … [I]n this context, in my opinion, the “and” should be interpreted as particularly prescriptive and directive. [Mr. Usher does not state why that should be so.] … [T]he two components cannot be grammatically separated; there is no such thing as “an ore storage” [again, Mr. Usher does not state why that is so.] … so the permitted use could only be interpreted as an (existing) operation that consists of both ore storage and trans-shipment. The permission was not absolutely clear as to whether it was only ore that could be trans-shipped; however, in my opinion, given the descriptive and directive interpretation that should generally be applied to this particular permission, I believe the intent was that only ore should be trans-shipped, consistent with the historic use of the port…
Ore was not defined in the Hallowell By-law, and is not usually defined in zoning By-laws. Nor is “ore” defined in any Ontario statute or Regulation.
[31] The Applicant’s position is that for the ore storage and trans-shipment operation to be permitted as a non-conforming use under the 1988 Hallowell By-law, it must include both “ore storage” and “trans-shipment”. An operation consisting of only one of either element of “ore storage” or “trans-shipment” is not permissible. The Applicant states that “and” in this context should be read with a conjunctive interpretation.
Position of the Respondents
[32] Paul Walsh, the County’s Land Use Planner, addressed this issue in his Affidavit of December 11, 2017:
[13] Council chose to zone the subject lands MX-1 which was a Special Exception Zone. … which provided that the lands designated as MX-1 shall be used for no purpose other than an “existing ore storage and trans-shipment operation”. … [I]t would appear that adding this designation recognized the existing use of the subject lands which by that time had been in place for over 20 years. The MX-1 use permitted two uses, one being ore storage and one being trans-shipment from the port facilities which had been constructed.
[16] On November 15, 1988, Hallowell passed By-law 983 which replaced By-law 709. … In s. 18.3(a), Council continued the special MX zone … it provides that lands designated as MX-1 shall be used for no purpose other than an “existing ore storage and trans-shipment facility.” Once again, the MX-1 zone provides for two uses, one being the ore storage use and the other being the trans-shipment facility. However, at this point Council must have known that there was no longer an existing ore storage on the site and there had not been for nearly 10 years. The port facilities, however, remained in place and could still be used for trans-shipment purposes.
[17] [I]f Council had intended to eliminate the trans-shipment use, it could have simply removed section 18.3(a) from the zoning By-law in 1988. In my view, by continuing to permit trans-shipment in the zoning for the subject lands, Council intended to permit the continued use of the subject lands for trans-shipment purposes, even though the pre-existing ore storage use had long since ceased.
[18] I find support for this interpretation in the provisions of The Official Plan for Prince Edward County. The Official Plan was adopted by County Council on November 25, 1993 and is an indication of the long-term planning view that was in place in the Municipality at the time…
[19] …Part II, paragraph 2.8.4 of The Official Plan states that it is important that the integrity of major transportation corridors and facilities which move goods, services and people such as, among other facilities, Picton’s deep water port, should be protected and promoted … [I]n addition, Part III, paragraph 2.4.5 provides that the land near the deep water port at and adjacent to Essroc shall be maintained for industrial/commercial uses to take advantage of the proximity of the port facilities. Clearly, the provisions of the Official Plan, which is still in effect and which is the primary planning document for the Municipality provides that the use of the Subject Land as a deep water port facility is not only to be recognized, but protected and promoted, as it is an important asset that should be retained.
Analysis
[33] In R. v. Yadegari, 2011 ONCA 287, at para. 62, the court addressed the interpretation of the word “and”: “The term ‘and’ can be interpreted as joint or as joint and several, depending on the context” (emphasis added).
[34] Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada, 2014) speaks to the interpretation of the word “and”. At §4.97 it cites the following from Reed Dickerson, Materials on Legal Drafting (St. Paul, Minnesota: West Publishing Co., 1981), at pp. 250-51:
[I]t is not always clear whether the writer intends the inclusive “or” (A or B or both) or the exclusive “or” (A or B, but not both).… [I]t is not always clear whether the writer intends the several “and” (A and B, jointly or severely) or the joint “and” (A and B jointly, but not severely). ... “and” may be understood conjunctively or disjunctively, depending on the context. [Emphasis in original.]
At §4.98 in Sullivan, it states that “in legislation … ‘and’ tends to be used jointly and severally” (emphasis added).
[35] I find that the word “and” in the phrase “existing ore storage and trans-shipment operation” in the Hallowell MX-1 By-law 709 and its 1988 successor By-Law 983 is to be interpreted to have a disjunctive “joint and several” meaning. I do so for these reasons:
a) The Hallowell By-law 983 provides in s. 4.1 that where a lot may be used for a purpose, that purpose shall include any accessory use. “Accessory use” is defined in the By-law as a use that is incidental, subordinate and exclusively devoted to a main use on the same lot. An accessory use for a trans-shipment operation at a port facility would reasonably include outside bulk storage.
b) When Hallowell passed By-law 983 in 1988, iron ore from Marmora had ceased to be delivered to the site for about 10 years. The port facilities remained in place and continued to be used for trans-shipment purposes.
c) If Council had intended to eliminate the trans-shipment use when it passed By-law 983 in 1988, it could have removed the applicable permissive section, s. 18.3(a), from the zoning By-law. It did not.
d) The Official Plan for the County mentions the deep water port and states that it should be protected and promoted. A zoning By-law may be interpreted with reference to the policies set out in the Official Plan, which was assumed to express the intent of Council: The Law of Canadian Municipal Corporations, 2nd ed. (Toronto: Thomson Reuters, 2017). The interpretation of zoning By-laws requires the recognition of their inter-relationship with an Official Plan: Rotstein v. Oro-Medonte (Township) (2002), 34 M.P.L.R. (3d) 266 (Ont. S.C.), at para. 22, citing Aon Inc. v. Peterborough (City) (1999), 1 M.P.L.R. (3d) 225 (Ont. Gen. Div.).
e) As noted above, the preferred interpretation of the word “and” in legislation, such as By-law 983, is a joint and several use.
[36] Even if I were incorrect in my interpretation of the word “and” in By-law 983, I have regard to the definition of the word “ore”. Its Oxford Dictionary definition would include material such as salt, as a “valuable mineral which may be extracted profitably”.
Is the Present Use Consistent with the Historic Use?
[37] The Applicant’s position is that the present use of the property it is not consistent with its historical use.
[38] The Applicant states that the Respondents have not provided sufficient evidence to find that, from the date of the last shipment of iron ore from Marmora in 1978 to the date of the passing of By-law 1816 by the County in 2006, the site was actually being used for the permitted operation of ore storage and for trans-shipment purposes.
[39] Were that to be the finding of fact, the Applicant relies on Feather v. Bradford West Gwillimbury (Town), 2010 ONCA 440 (“Feather”). In that case, the Respondent had applied for a building permit to raise and renovate a sunken cottage, which was denied on the ground that the proposed work did not comply with the town’s zoning By-law and, as the cottage had been abandoned, it was no longer permitted as a legal non-conforming use. The cottage had begun to sink in 1980 but was inhabited until 1991. From 1994 to 2004, use of the cottage structure for the purpose for which it had been built had been wholly discontinued. In 2004 and 2005 the property was rented to tenants who docked a houseboat to the roof of the sunken cottage. The court held that use of the cottage roof as a deck did not constitute use of the cottage for the purpose for which the building was designed as required by the By-law. Intention by the subsequent owner after 1994 to raise the cottage out of the mud and water and to renovate it was insufficient to preserve the legal non-conforming use. The Court stated at para. 32:
To establish a legal nonconforming use s. 34(9) of the Planning Act provides that the respondent must establish both an intention to use and the continuation of the actual use so far as possible in the circumstances.
[40] I briefly return to the findings of fact I already made on this issue. I do so by adopting parts of paras. 15 and 17 of the County’s Factum, as facts which I accept:
a) Following the discontinuation of the shipment of iron ore to the site from Marmora in 1978, there is evidence that salt, coal and gypsum were shipped to the facility until at least 1989.
b) Bulk goods, including salt and aggregate, were shipped by Canada Steam Ship Lines to the subject lands during the 1980’s. From 1993 to the present time, salt was shipped into the port on the site and then distributed to local users at an approximate rate of between 80,000 to 120,000 metric tonnes each year.
c) From 1994 to 1999, Algoma Central shipped salt to the port.
d) From 1999 to 2006, sodium chloride shipments were made to these facilities.
e) From 2006 to 2017, trans-shipments of salt, coal and other commodities such as farm products, steel products, recycled scrap steel, biomass and wine barrels were shipped through these port facilities.
[41] The finding by the Court of Appeal in Feather is to be factually distinguished. I accept the position of the Respondents that the evidence establishes both the intent and the continuation of the use of the property for ore storage and for trans-shipment purposes from 1978 to at least 2006.
2006 to the Present
[42] As stated above, the County zoning By-law 1816 of 2006 zoned the property “extractive industrial”. The permissive use of an “ore storage and trans-shipment operation” included in the 1977 and 1988 Hallowell By-laws was absent from By-law 1816.
[43] I repeat the reference to s. 34(9)(a) of the Planning Act, which states that no zoning By-law applies 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 and that use continues.
[44] The Applicant relies on Universal Terminals Ltd. v. Township of Matilda (1986), 1986 CanLII 2674 (ON SC), 54 O.R. (2d) 745 (Div. Ct.) (“Matilda”), a decision of the Ontario Divisional Court. A brief review of the facts is in order.
[45] Universal Terminals Ltd. (“Universal”) was carrying on business as a terminal operator in Matilda Township and elsewhere. It unloaded ship loads of commodities in bulk at a dock on the St. Lawrence River. It then stored and distributed those commodities to industries, commercial establishments and residences in Eastern Ontario. These commodities included oil, coal and salt. From 1959 to July 1980, Universal had handled only liquid petroleum products at its terminal in Matilda Township. Before July 2, 1980, Universal could lawfully have dealt in products other than liquid petroleum at the Matilda terminal, as these lands were zoned “Industrial”, which permitted such use. On July 2, 1980, Matilda Township passed a new zoning By-law which prohibited open storage of salt. As of the day of the passing of this By-law, Universal was not storing salt on these lands, nor had it ever done so. The issue before the Court was whether the current receipt, storage and distribution of salt by Universal was a legal non-conforming use. Matilda Township conceded that Universal could have lawfully engaged in the open storage of salt post July 2, 1980 should it have chosen to do so prior to July 2, 1980. However, as Universal had not done so, it lost that right as of July 2, 1980.
[46] The Court in Matilda factually distinguished the “general use” concept upheld in R. v. Cappy, 1952 CanLII 280 (ON CA), [1952] O.W.N. 481 (C.A.) (“Cappy”), a decision of the Ontario Court of Appeal. The Court in Matilda held that the use to which the Matilda terminal had been and was being put to on the day the By-law was passed was not a general one. Accordingly, it rejected the submission that Universal was entitled to continue to store the salt as a legal non-conforming use.
[47] I now turn to the facts in Cappy. The property in question in Cappy was known as Oakwood Stadium in the former York Township. Oakwood Securities Limited was incorporated in 1925. The purposes and objects of the company were to carry on generally the business of furnishing amusement to the public, including performances of all kinds. The company then proceeded to carry on its business on the lands known as Oakwood Stadium in the Township of York. It used the stadium for motorcycle and automobile races, dog races, rodeo carnivals and other events. In 1948, the Township of York passed a zoning By-law stating that any land or building may not be used for purposes other than for residential use. The permissive use which the By-law detailed did not include the activities that occurred at Oakwood Stadium. In 1951, the Respondent owners were convicted of contravening this Township of York zoning By-law, based on the use of stock car races in Oakwood Stadium. Laidlaw J.A. for the majority stated:
[24] [I]n the present case both the land and structures comprised in Oakwood Stadium were used for the same purpose and the use commenced many years before the by-law was passed. There can be no doubt that the use of the whole property was for the purpose prohibited by the by-law.
[25] The cardinal question for consideration is whether or not the use for that purpose was discontinued before the day of the passing of the by-law. That question can only be answered after considering and determining the purpose for which the property was used. In my opinion that purpose was a general one. It comprehended the use of the stadium for public amusement and entertainment and for public exhibitions and performances of all kinds. … [T]he purpose for which the property was used at all times before and after the passing of the by-law was the general one … and the use for that purpose was not at any time discontinued. Therefore, I hold that the by-law was not applicable to the land, building or structure known as Oakwood Stadium.… [Emphasis added.]
[48] Essentially, the Court in Cappy held that where the property is used for a “general” purpose on the date of the passing of the intercepting By-law, any activity that is considered an element or subset of the greater “general” set will likely constitute a legal non-conforming use pursuant to s. 34(9) of the Planning Act.
[49] In Matilda, in contrast, the Court held that where property is used for only one specific purpose on the date the interfering By-law is passed, any use subsequent to the passing of the interfering By-law that is different in substance than that which had occurred on the date the interfering By-law was passed cannot be considered a legal non-conforming use under s. 34(9) of the Planning Act.
[50] The Applicant asserts that the facts in this Application are analogous to those of Matilda. It states that I should find the use of the site by Picton Terminals—of storing and trans-shipping road salt and other products shipped to or from the property—should not be permitted as a legal non-conforming use. For the following reasons, I disagree:
a) As already stated above, the word “and” in these facts is to be read as denoting a “joint and several” interpretation. The 1977 and 1988 Hallowell By-laws 709 and 983 detail the permissible use for the site as ore storage and trans-shipment operation, meaning together or one or the other;
b) By-law 983 includes outside bulk storage as an “accessory use” to trans-shipment at a port facility. That accessory use is not limited to ore storage;
c) As the word “ore” is not defined in either of By-law 709 or 983, I refer to and rely upon the Oxford Dictionary definition of that word: “Naturally occurring solid material from which metal or other valuable minerals may be extracted profitably”. This refers a variety of products, including salt; and
d) As the trans-shipment operation in By-laws 709 and 983 was named as a permissible use without attached limitation, the permitted trans-shipment use was, for that reason, not limited to ore.
[51] For these reasons, I distinguish Matilda and find that it does not apply to the facts in this Application.
[52] For reasons noted, I find that at the time of the passing of By-law 1816 in 2006, the use of the property was a general use, similar to the facts in Cappy. The general use was the trans-shipment of commodities.
Application of Saint-Romuald (City) v. Olivier
[53] The use of the property changed over the years after 1978, from the historic use of train delivery of iron ore to its subsequent trans-shipment by freighters to sites on the American side of Lake Ontario. The SCC in Saint-Romuald (City) v. Olivier, 2001 SCC 57, set out a framework for the analysis of whether activities that are added, altered or modified fit within the protection of a pre-existing use.
[54] The facts in Saint-Romuald are these:
Since 1990 the owners had operated a bar with country and western entertainment. The zoning by-law had initially permitted that type of a bar on that site. In 1991, the municipality passed a new zoning by-law that prohibited this type of entertainment in the zone where the bar was located. The use became an “acquired right” or, in other words, a legal non-conforming use, after the passing of the restriction in this by-law. The use continued. In 1994, the owner changed the entertainment in the bar from country and western to shows involving nude dancers.
[55] An issue facing the SCC in Saint-Romuald was whether the change from a country and western bar to an adult entertainment bar featuring nude dancers was a replacement of one non-conforming use by another, resulting in the loss of the acquired rights. In articulating its task, the SCC stated at para. 34:
… The Court’s objective is to maintain a fair balance between the individual landowner’s interest and the community’s interest. The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about a change in the type of use, as mentioned above, or if (ii) the addition of new activities or the modification of old activities … is seen by the Court as too remote from the 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 the municipality, the local authorities, or the neighbours, as compared with what went before. The factors are balanced against one another.
[56] The SCC further explained the limitations on the owners’ acquired rights, or legal non-conforming use, at para. 39:
It is first necessary to characterize the purpose of the pre-existing use.… The purpose for which the premises were used … is a function of the activities actually carried on at the site prior to the new by-law restrictions.
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.
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 activities to be protected under the non-conforming use. …
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.… 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.
Neighbourhood effects, unless obvious, should not be assumed but should be established by evidence if they are to be relied upon.
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. …
[T]he 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.… [Emphasis in original.]
[57] The majority of the SCC held that the change in entertainment by the bar owner did not constitute the illegal replacement of the original non-conforming use with a different, and therefore unprotected, non-conforming use.
[58] I now turn to the application of the Saint-Romuald principles to the present facts.
[59] I find on the evidence that the property has been used for trans-shipment purposes from the 1950’s to the present. The general historic use has not changed. Initially it was iron ore, then salt, and it now includes aggregates, farming and steel products, biomass, scrap steel and barrels. The common denominator remains bulk products.
[60] While the trans-shipment infrastructure from the 1950’s remains, it has been upgraded and enlarged as noted above. Although the post 2006 trans-shipment operation appears to be an intensification of the pre-existing activity, in my view the change of scale or intensity of that activity is not a fundamental change in the nature of the use, but a reasonable expansion of the earlier activities and which, for that reason, will remain entitled to protection under the non-conforming use.
[61] Neighbourhood effects based on the increase in the variety of bulk materials should not be assumed, but be established, if they are to be relied upon.
[62] R. Donald Maracle, Chief of the Mohawks of the Bay of Quinte, claims in his Affidavit that the current use of the property would have significant community impact, such as on fisheries, increased road traffic through the Mohawk Territory, noise affecting wildlife, and impact on Mohawk cultural resources. However, the Chief’s Affidavit is based only on speculation and is not supported by evidence or studies of any kind. As my decision should be based on objective facts, I have not further considered the Chief’s Affidavit.
[63] As to the impact the trans-shipment operation might have on neighbouring properties and the water of Picton Bay, I refer to the above-mentioned Shipley Report and note that this is an issue in the domain of the MOECC, which has and continues to monitor these issues.
The Current Use of the RU1 Zone
[64] The RU1 zone is the part of the property formerly in Sophiasburgh. It was initially zoned as industrial (M2) in 1977. In 2006 and now part of the County, it was zoned “Rural 1” (RU1).
[65] The Applicant states that the owner of the property is constructing berms, undertaking site grading and landscaping activities, and excavating pits, all contrary to the RU1 Zone By-law. The Applicant asserts that this activity requires a licence under the Aggregate Resources Act, R.S.O. 1990, c. A.8, and that no such licence has been sought.
[66] Michael Keene, a professional planner retained by the owner of the property, stated in his Affidavit of December 11, 2017 that the activity on this part of the property is not construction of excavation pits, but permissible landscaping activities for which no licence is required.
[67] He further states that storm water management ponds are in the course of being constructed, pursuant to an order of the MOECC, to address the issue of salt runoff at the site. I note that such ponds are permitted in any zone by s. 4.23.2 (iv) of By-law 1816 of 2006.
[68] The parties agree that the former M2 Zone has accommodated at least some industrial uses. These include industrial vehicle storage and access that conformed to the then applicable zoning.
[69] To the extent that portable industrial equipment is stored and aggregate material stockpiled, it post-dated 2006 and is not permitted under the current By-law. It must be removed.
Decision
[70] At the time the County enacted its present zoning By-law 1816 in 2006, the use of the portion of the property zoned in 1988 as MX-1 under Hallowell By-law 983, for the use of no purpose other than the existing ore storage and trans-shipment operation, became and remains a legal non-conforming use for trans-shipment of bulk commodities.
[71] That part of the property, formerly in Sophiasburgh and zoned Industrial M2 in 1977, may continue to be used as a non-conforming use for access by and storage of industrial vehicles. The remaining part of the former Sophiasburgh property may continue to accommodate uses as permitted by the current RU1 zoning.
[72] Costs would normally follow the cause. If within 45 days the parties are unable to resolve costs, I would request short written submissions on the subject.
Tausendfreund, J.
Released: June 18, 2018
Save Picton Bay v. The Corporation of Prince Edward County, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAVE PICTON BAY
Applicant
– and –
THE CORPORATION OF PRINCE EDWARD COUNTY and 1213427 ONTARIO CORPORATION o/a PICTON TERMINALS
Respondents
REASONS FOR JUDGMENT
Tausendfreund, J
Released: June 18, 2018