COURT FILE NO.: 127/17 DATE: 20180816
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE CORPORATION OF THE TOWN OF GRAND VALLEY – and – PAUL KENNETH WALKER and ANGELA JONES
BEFORE: Tzimas J.
COUNSEL: David Germain, for the Applicant Colleen Butler, for the Respondent
HEARD: May 7, 2018 at Orangeville
E N D O R S E M E N T
INTRODUCTION
1Paul Kenneth Walker is 63 years old. Since 1979, he has been earning his livelihood by operating a trucking business, “Paul Walker Trucking” from his home, located in the Town of Grand Valley and formerly the Township of East Luther. He loads and hauls gravel in the summer and road salt in the winter. Together with his son, who joined the operation several years ago, Mr. Walker leaves his premises at 5 a.m. and returns after 8 p.m. or so. He maintains and parks his trucks at his home premises.
2Until 2012, the lands surrounding Mr. Walker’s premises were farmlands. The focus of the Township and later the Town was on agriculture and farming. In 2012, with the approval of a subdivision and the construction of luxurious homes immediately across from Mr. Walker’s very modest premises, the agricultural character in the area began to change. More dramatically, complaints by the new residents about the business stand to displace Mr. Walker from his community.
3The Town of Grand Valley has brought an Application for declarations that Mr. Walker’s business, “Paul Walker Trucking”, (the trucking business), contravenes Grand Valley’s Comprehensive By-Law 2009-10, (the Current By-law), and that it never conformed with the Township’s Former By-law 1275, (the Former By-law). As a result, it seeks a statutory injunction and ancillary orders to prohibit Mr. Walker and his wife, Angela Jones, from continuing to use their premises for their business. Although Grand Valley prides itself publicly on being a welcoming agricultural community, looking to welcome new families to the area, through this application it is effectively telling Mr. Walker that if he wishes to continue to pursue his livelihood of 38 years, his only option is to move his business elsewhere. In its submissions, the Town went as far as to suggest that Mr. Walker stood to benefit from the sale of his premises and that shutting down his business would not amount to exceptional circumstances or cause him any irreparable harm.
4Briefly, Grand Valley’s Application engages the consideration of a number of issues. Mr. Walker concedes that the business does not conform with the Current By-law. However, he disputes the Town’s position that his business never conformed with the Former By-law. Instead, he contends that over the years he responded to the Township’s concerns and understood that those substantial responses were satisfactory.
5The specific questions for the court’s consideration are the following: a) Did Mr. Walker’s trucking business conform with the Former By-law on the date when the Current By-law was introduced and has it continued to conform with it since then? b) Do the doctrines of laches or promissory estoppel offer a defence to the Respondents? and c) Should the court exercise its discretion and dismiss Grand Valley’s request for a permanent injunction?
6For the reasons that follow, I have concluded that the conformity of “Paul Walker Trucking” with Former By-law 1275 is a triable issue. The evidence before the court is insufficient and conflicting as between the parties to permit a finding on the conformity, or not, of Mr. Walker’s trucking business. Although the onus rests with Mr. Walker and Mrs. Jones to satisfy the court on a balance of probabilities that the trucking business conformed with Former By-law 1275, in the face of conflicting evidence from the Town, it is impossible to make a finding without the benefit of a trial.
7The availability of the doctrines of laches and issue estoppel also requires a trial. A fuller evidentiary record may offer an explanation as to why Mr. Walker was permitted to operate a business for 38 years and why he would incur very substantial expenses over the years to allegedly remain in conformity with the Former By-law if those various measures are now being described by the Town as insufficient for compliance and if the business was never compliant. Whether Mr. Walker was able to operate for so many years because of an officially induced error, because of the Township’s indifference or because of other exigencies and competing demands is an open question and impossible to determine on the evidence before the court. What is before the court are isolated and specific complaints by the Township, immediate remedial responses by Mr. Walker, and then years of silence by the Township and the Town.
8The Town’s current argument that it must be free to manage its limited resources and choose when and how to enforce particular by-laws is true in law for any government. However, in this instance, there is no evidence whatsoever to support a finding that “Paul Walker Trucking” was permitted to operate for over 38 years because of the Township’s and then the Town’s competing pressures and priorities. Although the Township did warn the Respondents that it would seek to commence enforcement proceedings against the Respondents, this occurred 18 years ago. More importantly, the Township did not follow through with its warning. For their part, the Respondents said they always addressed the Township’s concerns, but they did not produce any affirmative communication concerning their compliance from the Township or the Town.
9Absent a fuller evidentiary record to explain the Township’s years of inaction, its overall conduct is more suggestive of acquiescence than the management of competing priorities. Such suspicion is amplified by the reality that the Town’s enforcement proceedings followed the pressures that surfaced from the new subdivision development and dubious complaints from an unidentified new resident. The coincidence is troubling and underscores the need for a trial.
10Given the triable issues, I decline to exercise my jurisdiction to issue a permanent injunction. This is not a situation where the Respondents are in a clear and deliberate breach of the Former By-law to warrant a statutory injunction. There is also no evidence of any irreparable harm to the Town if the trucking business continues to operate until the trial. The same cannot be said for the Respondents, who stand to lose their livelihood. For somebody who is 63 years old and has been working in his business for over 38 years, the balance of convenience favours the continuation of his trucking business over its cessation until there can be a full determination of the triable issues.
Accordingly, Grand Valley’s Application is dismissed with costs to Mr. Walker. In addition, I direct the trial of the following issues: the conformity of Mr. Walker’s business with Former By-law 1275 on the date that the Current By-law came into effect as well as its continued conformity and the availability of the doctrines of laches and promissory estoppel as a defence, as more particularly described below. My detailed analysis follows below.
BACKGROUND
i. The Properties and the By-law History
11The properties that are the subject of this application are owned collectively by the Respondents. They were originally located in the rural Township of East Luther, (the Township), just outside of Grand Valley. The Township was a very small rural community, where the principal activities of the residents was focused on agriculture and farming.
12Specifically, Mr. Walker purchased Part 1, Lot 29, Concession 3, Grand Valley, Ontario on April 30, 1979. This was, and remains, the Respondents’ principal residence. The Respondents purchased the adjoining property to the east located at Part 2, Lot 29, Concession 3, Grand Valley, Ontario, on October 19, 2000. Title to Property #2 was registered in Mrs. Jones’ name so that Property #1 and Property #2 would not merge in title. The Respondents purchased Lot 30, Concession 3 Grand Valley, Ontario on December 23, 2002. Property #3 is located immediately to the east of Property #2 and is registered in Mr. Walker’s name.
13Property #1 and Property #2 each have a single detached residence. Property #3 is vacant land. The Respondents live in the house on Property #1 and their son, Bryan Walker, lives in the house on Property #2.
14The three properties are zoned “Rural Residential” in accordance with the Former By-law and designated as rural in the Township’s 1975 Official Plan. A “home occupation” was a permitted use in the zone Rural Residential and was defined in section 2.39 as follows:
Home Occupation: means a gainful occupation conducted entirely within a dwelling house or an accessory building by members of the family residing therein, provided that:
a) there is no external display or advertising other than a sign erected in accordance with any by-law of the Corporation regulating signs;
b) there is no external storage of goods or materials;
c) such home occupation is clearly secondary to the main residential use and does not change the residential character of the dwelling house or unit nor create or become a nuisance in particular in regard to noise, traffic or parking;
d) not more than 25 per cent of the floor area used for the home occupation use.
15The Township’s 1975 Official Plan set out land use policies for rural uses emphasizing that the main object of rural uses is to prevent the urbanization of the area in order to maintain the open country. Non-farm uses were permitted as long as they did not interfere with the agricultural operations in the community:
As is the case in many farming communities there is a need to provide for limited non-farm uses in both the rural and hamlet areas of the Township. In recognition of this Township officials want to develop policies which will protect the farming community from the establishment of conflicting land uses. I also recognized limited non-farm development in areas which cannot be economically cultivated could be an asset. Therefore, the Township Officials want to develop policies to fill this need while guarding against new residents expecting urban type services to be made available . [emphasis added].
16In 2003, when the Township was in the process of updating its Official Plan and Zoning By-law, the Respondents sought to have their properties legalized by including an exception in the draft new By-law to permit the parking of commercial trucks on the properties. Even though the first draft of the proposed By-law included the requested exception, the eventual and now Current By-law left it out. The Respondents did not appeal the Current By-law to the Ontario Municipal Board. The Respondents contended that this would have been too expensive for them to pursue.
17In 2006, the Township adopted a New Official Plan and the Minister of Municipal Affairs and Housing approved it in 2009. The new Plan expanded the urban boundary of the Township to include the Respondents’ Properties as well as the adjacent lands. In February 2009, the former By-law was repealed and replaced with the Township’s new Comprehensive Zoning By-law 2009-10, (“the Current By-law”).
18Section 3.10.1 of the Current Zoning By-law permits the use of a non-conforming existing lot, building or structure to continue if such use was lawfully used for such purpose prior to the effective date of the Current Zoning By-law. Section 3.10.5 permits the use of a building or structure if the building was approved by the Chief Building Official and the building continues to be used for the purpose for which it was erected.
19In 2012 the Township changed its name to the Town of Grand Valley.
ii. The Respondents’ Operations
20Mr. Walker started to operate “Paul Walker Trucking” from his home in 1979. The business has operated continuously since then. In the summer months, Mr. Walker and his son Bryan haul gravel. In the winter months they haul road salt. The trucks and trailers are parked and maintained on Property #1 and #2. The loading, unloading, and the hauling takes place off of the premises. For the past 38 years, Mr. Walker has been starting his truck around 5 a.m. and has been returning home after 8 p.m. To get going, he must run his truck for 5-10 minutes in the warmer months and 20 minutes in the colder months before he can drive away.
21In 1986, Mr. Walker applied for a building permit for the construction of a 32’ x 60’ ft. workshop on Property #1. The purpose of the workshop was to have a facility where for Mr. Walker to service his trucks. The Township issued a building permit for the workshop without any reservation, condition or concern over its size or its use.
iii. The Complaints
22Twenty years into the operation of the business the Township notified Mr. Walker that Property #1 did not meet the minimum lot size requirements for a home occupation in a Rural Residential Zone. As a result of that concern, the Respondents acquired Property #2 and Property #3. These purchases, to the Respondents’ understanding, satisfied the Township’s concerns.
23In this Application, the Town submitted that it disagreed with the Respondents’ understanding. It advanced evidence of isolated communications from the Township to the Respondents advising them that they had to apply to bring their properties in compliance with the Former By-law, failing which the Township would pursue enforcement proceedings. These communications occurred in the fall of 2001 following the purchase of Properties #2 and #3 by the Respondents. According to the Town, the Respondents wrote to the Township solicitor and advised that they were not willing to post a security deposit with the Township pending negotiations of a site plan agreement. The Township did not pursue any enforcement proceedings.
24In 2000, the Township notified the Respondents that they had too many gravel trucks parked on their properties. The Respondents reduced the number of trucks from 13 to approximately 5 trucks. During this period, and more particularly, starting in December 2000, and for a two-year period, Mrs. Jones was elected to the Township Council. There was no evidence to suggest that she was involved in any decision-making regarding the Respondents’ actions or any enforcement measures.
25In 2010, the Town’s planner wrote to the Respondents and pointed out that they were using the properties for a commercial trucking business and asked them to rectify the situation. No enforcement proceedings were actually pursued.
iv. The Subdivision
26In 2010, the Town approved a subdivision to be built on agricultural farmlands immediately behind the Respondents’ properties. On June 22, 2010, Mrs. Jones attended a public meeting concerning the subdivision and raised the concern that the trucking business would become an issue for the anticipated abutting neighbours. She asked the Town to require the developer to install a berm and / or trees along the rear of the Respondent properties so as to provide a buffer between the trucking business and the subdivision. She also asked that a warning concerning the trucking business be included in the final approval of the subdivision.
27The final approval for the development did not include any of Mrs. Jones’ requested terms. It did however include a warning to potential buyers about existing farm uses in the area. The developer eventually installed a 9-foot fence along the rear property yard of Property #1 and Property #2.
28In 2016 and 2017, the Town received certain complaints about the respondents’ trucking operations from one unidentified complainant. The complaints raised concerns over the number of trucks on the respondent properties, the fact that there were upwards of seven trucks undergoing maintenance for a span of almost twelve hours and that one of the trucks was left running at 3:30 a.m. for over 25 minutes. The unnamed complainant also reported that the running trucks and the diesel fumes were a regular occurrence.
POSITION OF THE PARTIES
29The parties agreed that the Respondents’ trucking business contravenes the Town’s current Zoning By-law 2009-10. The issues in dispute concern the conformity of the business with the Former By-law, the availability of the doctrines of laches or promissory estoppel as a defence to the Town’s request for a permanent injunction, and the existence of exceptional circumstances, that could enable the court to decline the relief sought.
i. The Applicants
30The Town submitted that the Respondents’ trucking business never complied with the Former By-Law and could therefore never satisfy the requirements of section 34(9)(a) of the Planning Act, R.S.O. 1990, c. P.13. The Town explained that the trucking business failed to satisfy the requirements of a home occupation because it included indoor and outdoor activities, those activities extended to more than 50 per cent of the floor area, the business became the dominant activity on the properties, as opposed to being secondary to the main residential use, and the trucks parked on the premises exceeded the three-quarter ton capacity threshold permitted by another section of Former By-law 1275. The Town submitted that on that latter basis alone, the court could conclude that the trucking business never conformed to the Former By-law and proceed to issue the requested relief.
31The Town disagreed with the Respondents’ position that the Town’s failure to bring enforcement proceedings over a period of 18 years created or contributed to exceptional circumstances. It submitted that the Township, and subsequently the Town, has the discretion over whether and when to prosecute a by-law breach and that the Court ought not to interfere or draw any conclusions over the absence of any enforcement or prosecution of the noted by-law breaches.
32In light of the noted by-law breaches, the Town submitted that it was entitled to a statutory injunction. It argued that as a public authority, the Town is presumed to be acting in the best interests of the public and that a breach of the law raises the presumption of irreparable harm to the public interest. The Town agreed that for the Court to deny the injunction, the Respondents would have to demonstrate exceptional circumstances. In this instance, the Town dismissed the Respondents’ alleged exceptional circumstances as unfounded. Specifically, it disputed the financial hardship that the Respondents alleged they would suffer. The Town highlighted the availability of suitable premises at the Wellington North Property where the Respondents’ other son lived and disputed their concern that they would interfere with their son’s own business activities. In any event, the Town suggested that even if the Respondents had to sell their properties and move elsewhere, they would likely benefit from the increased real estate value of their properties.
ii. The Respondents
33The Respondents’ overriding position rested on the submission that after 38 years in business, they should not be forced to move to make way for the expanding urban development. They submitted that their business conformed with the Former By-law and the 1975 Official Plan, which had as its overriding objective the promotion and support of an agricultural community. They said that throughout the 38 years, on the limited times when the Township raised concerns, they responded appropriately and understood that the Township accepted their actions as responsive to its particular concerns. They expressly submitted that the only reason the Town pursued this Application was to yield to the demands of a private developer of the adjacent subdivision. They resented the Town’s position that they should have spent money, which they did not have, to appeal the Township’s past decisions on the New Official Plan to the Ontario Municipal Board.
34Specifically with respect to the conformity of the trucking business with the Former By-law, the Respondents submitted that throughout the 38 years, the business offered a gainful occupation to the members of the Respondents’ family who lived on the subject properties. Its administration work was conducted inside the dwellings, the maintenance of the trucks occurred in the accessory structure, and there was no external advertising signs.
35In response to the 2016 observations recorded by the By-law enforcement officer about outdoor storage and debris, the Respondents said that the inspections were stale-dated, that the observations only reflected a particular point in time, that the allegedly offending items had since been removed, and that in any event, those items were neither connected to or required for the trucking business. The Respondents also disputed the Town’s contention that the parking of the trucks on the properties amounted to storage. They relied on Forbes v. The Town of Caledon, 2009 ONSC 9465 to submit that “storage” implied a degree of permanence, to be contrasted to “parking” which was temporary by nature.
36On the subject of the number of trucks parked on their premises, the Respondents relied on a general provision in the Former By-law that did not place any limits to the Respondents’ ability to park commercial vehicles. They also referred to the Town’s 1975 Official Plan for the proposition that the by-laws had to be interpreted harmoniously and in conformity with the 1975 Official Plan. Having regard for the fact that their properties were designated rural in the Township’s Official Plan and subject to land use policies that promoted farming and non-farming uses, the Respondents submitted that their trucking business complemented the farming community.
37Finally, the Respondents submitted that the Township’s and the Town’s delay in its pursuit of any enforcement proceedings led them to believe that their actions were satisfactory to the Township and that their continued operations conformed to the Former By-law. In support of that contention, the Respondents highlighted their continued operation of the business since 1979, the approval of the construction of a steel 32’ x 60’ ft. workshop in 1986, their purchase of the two adjacent lots as a direct response to the Township’s lot size requirements, and the reduction of their trucks from 13 to 5, also in response to the Township’s concerns.
38The Respondents agreed that the doctrine of laches and promissory estoppel could not be applied to override a law such as a zoning by-law or prevent the application of an express legislative provision. But having regard for Immeubles Jacques Robitaille Inc. v. Quebec (City), 2014 SCC 34 and Forbes v. Caledon (Town), 2009 ONSC 9465, they submitted that they could rely laches and promissory estoppel to defend their conduct and support their conclusion that the business conformed with the requirements of the Former By-law.
39Regarding the remedies sought by the Town, the Respondents cautioned against the issuing of an injunction. Although they did not dispute the Town’s broad discretionary powers over the enforcement of its by-laws, they argued that the exercise of that discretion had to be reasonable, in good faith, and ought not be left to the whims or dictates of property owners or developers. In this instance, to allow the Town’s application would effectively be to yield to the dictates of a private developer over the interests of the longstanding residents, who would have no option but to leave altogether. In the Respondents’ view, given their predicament and the prospect of being forced out of their community of 38 years, the Town’s conduct compromised the public interest and could therefore not amount to good faith conduct.
40With respect to the existence of exceptional circumstances that could serve to bar the issuing of an injunction, the Respondent submitted that those rested with their 38 years in business, the failures by the Township and the Town to protect them with the appropriate inclusion of an exception in the Current By-Law and a warning to the developer, the Respondents’ inability to overcome the financial hardship of having to stop their very modest business, or alternatively the obligation to move to another town.
ANALYSIS
41In the original Application, the first issue related to the Respondents’ compliance with the Current By-law. Given the Respondents’ concession that the trucking business does not comply with the Current Zoning By-Law, that there are three questions for the court’s consideration: the conformity of the trucking business with the requirements of the Former By-law, the availability of the doctrines of laches or promissory estoppel, and the court’s discretion to refuse the issuing of the requested injunction.
i. Is the operation of the Respondents’ trucking business on the subject properties consistent with the requirements of the Former Zoning By-law such that it may continue to operate as a legal non-conforming use?
42In my review of the evidence, the determination of this issue requires a trial because the parties’ evidence was contradictory and incomplete. I begin by noting that Respondents must establish on a balance of probabilities that their use of their properties was lawful on the day that the Current By-Law came into force. They must also establish that the properties continue to be used for that purpose and continue to conform to the Former By-law. For the trucking business to be found to conform with Former By-law 1275 and section 2.39 in particular, in addition to offering gainful employment and to being conducted entirely within a dwelling house or an accessory building by members of the family residing there, it must be able to demonstrate that:
a) It does not have any external display or advertising other than a sign erected in accordance with any by-law of the Corporation regulating signs;
b) It does not have any external storage of goods or materials;
c) The home occupation is clearly secondary to the main residential use and it does not change the residential character of the dwelling house or unit nor create or become a nuisance in particular in regard to noise, traffic or parking; and
d) It does not use for than 25 per cent of the floor area.
43The Town did not raise any concerns with advertising or with the fact that “Paul Walker Trucking” is a gainful occupation conducted by the Respondents and members of their family residing at the subject premises. The conflicting evidence relates to the outdoor storage and debris, the extent of any activity indoors and outdoors, and the characterization of the business as secondary to the main residential use.
44In my review of the evidence, I am satisfied that the trucking business is secondary to the main residential use. The presence of the trucks, the sea containers and other debris, however unattractive they may be, especially when they are contrasted to the recent construction of luxurious homes, cannot, in and of themselves operate to convert the trucking business into a primary or dominant use of the premises. As the requirements suggest, the use of the property is what is key. The Respondents live on the subject properties. They come and go from those premises. Mr. Walker and his son leave at 5 a.m. in the morning and do not return before 8 p.m. They load and haul gravel in the summer months and road salt in the winter months but those activities occur off-site. Apart from the parking of the trucks and trailers on Property #1 and #2 outdoors, the trucks are maintained in the workshop that was constructed with the Town’s approval in 1986. The associated administrative work that takes place indoors. Finally, even the Town representative admitted in cross-examination that the business had not altered the residential character of the premises and had not taken on a commercial character.
45The issue of the storage and outdoor debris, their connection to the business, and their impact on the extent of the floor coverage lies at the heart of the conflicting evidence and requires greater scrutiny. The Respondents submitted that these items were not related to the trucking business and that the Former By-law did not prohibit the use of sea containers. But they did not offer any explanation as to why the items were on the premises or for what they were used. The Town assumed that the offending items were connected to the trucking business but it too conceded that the sea containers were permitted uses or that they represented a “grey zone”.
46The disagreement between the parties over the purpose of the outdoor storage brought into focus the crux of the problem with the business’s characterization as a home occupation. If the outdoor storage and the debris is connected to the business, then there may be a basis for the conclusion that part of the business occurs outdoors. It may also exceed the 25 per cent floor coverage. If the outdoor storage and debris is connected to the Respondents’’ residential activities, they may contravene other by-laws and regulations but those concerns are not before the court and in any event, they could not operate to undermine the conformity of the trucking business. As between these two options, neither party offered sufficient evidence to enable me to make a finding, one way or the other, hence the need for a trial.
47The clarification of such evidence will be crucial to the determination of the state of the business and its compliance, (or not), as of the date the Current By-law came into force, as well as its continuing operation and compliance. Although the parties staked out their respective positions on the business’s conformity, with the Town arguing that the business never conformed and the Respondents saying it always conformed, the recognition by both parties that the business’s conformity came up periodically and that the Respondents took various measures suggests a difficulty that is far more nuanced and far from absolute. Having regard for the requirements of Section 34(9)(a) of the Planning Act before a use can be found to be legally non-conforming, the critical points in time in this case concern the state of the business on the date the Current By-law came into force and its continuing character thereafter. The parties offered no specific evidence for these points in time.
48In other words, there was no specific evidence about the business from 2009 when the Current By-law came into force. How many trucks were operated then? Was there outdoor storage that was connected to the business? What was the floor coverage? How and when did the characteristics change? If the business conformed in 2009, did it cease to conform at some point after 2009? Is the real problem conformity or is it that the new neighbours see the Respondents’ continued presence as an eye sore to their luxurious homes? The onus rests with the Respondents to satisfy the court on a balance of probabilities that whatever the changes and fluctuations on the ground, the business conformed in 2009 and has continued to conform to the requirements of the Former By-law.
49The variation in the number of vehicles parked on the premises feeds into the consideration in the business’s conformity. The Respondents’ contention that the definition of “home occupation” did not impose any limits on the number of vehicles on the residential premises is neither a complete nor a satisfactory response. If some of the vehicles were used for storage and others as alternates to the primary trucks, the fluctuating numbers may also shed light on the issue of the business’s continued conformity and possible interruptions, their characterization could impact both the assessment of the indoor / outdoor activities of the business and therefore the associated floor coverage, as alleged by the Town. Here too, the evidence was inconclusive and contradictory making it difficult to make a finding.
50On the issue of the weight of the trucks and the Town’s submission that this alone could settle the issue of the Respondents’ conformity with Former By-law 1275, I disagree. The ¾ ton capacity threshold referenced in section 3.19(g) of Former By-law 1275 does not appear to have anything to do with the definition of a home occupation. The requirements of a home occupation, as set out in section 2.39 of Former By-law 1275 represent a complete code. They do not impose any limits on the parking of vehicles, their numbers or their weight. To the extent that section 3.19(g) conflicts with the definition of a home occupation, it cannot be the case that the parking requirements could reach into that definition to undermine and prevent the operation of an otherwise compliant business. If that were the case, the parking limits would impact the use of even the lightest farm vehicles, which typically exceed the ¾ ton threshold. For lands that are zoned rural residential and where the 1975 Official Plan permitted non-farm uses for lands that were not economically viable as agricultural lands, it makes no sense that the parking limits could effectively prevent the operation of non-farm businesses that would otherwise be permitted.
51In reaching this conclusion I take significant comfort in the fact that at no time did either the Township of East Luther or later the Town of Grand Valley raise any objections over the weight of any of the Respondents’ vehicles. The Application is the first time that this particular concern has been raised. The weight of the trucks is not something that can be concealed. If there were such a concern, and if the Township had available to it such an obvious breach, one would have expected the issue to have come up very early on as something very obvious and easy to pursue. The unequivocal evidence before the court was that the weight of the trucks was never a concern for the Township.
52Having regard then for all of the noted concerns, a trial of this particular issue, with a fuller evidentiary record ought to allow the trier to consider the precise features of the business operation and therefore to determine whether the trucking business conformed with the requirements of Former By-law 1275, on the date when the Current By-law came into force, as well as thereafter.
a) Do the Doctrines of Laches or Promissory Estoppel Apply?
53The evidentiary record on the interactions and understandings between the Respondents and the Township and the Town is woefully inadequate to be able to make any findings on this issue. The undeniable fact is that Mr. Walker has been operating his business for over 38 years. On the limited evidentiary record before the court, Mr. Walker’s attempts and actual steps at compliance are clear. From the Town’s perspective, apart from the Township’s sporadic warnings of non-compliance and the threat of enforcement proceedings, there was no other action by the Town. This evidence, limited as it is raises a number of questions. If Mr. Walker’s trucking business were never compliant, why would the Township put him through the expense of purchasing lots 2 and 3 to enlarge his operating space? What were the particular exchanges and understandings on this issue, as reflected both within the Township’s internal deliberations and then in its exchanges with the Respondent?
54Similarly, when the Township raised concerns about the 13 trucks, what was the full discussion and exchange on the subject? Were there concerns over the storage containers on the premises? Were there concerns over the weight of any of the trucks? Did somebody say to the Respondents that a reduction of the trucks from 13 to 5 would satisfy the Township? Were there any officially induced errors? Since on the evidentiary record before the court there were no express communications confirming the Respondents’ compliance, were there any other communications or understandings, besides the Township’s inaction on enforcement, that caused the Respondents to believe that they complied with the requirements of a home occupation?
55Similar questions arise from the permit for a 32’ x 60’ workshop that was requested and issued in 1986. The Town’s allegation that in his request for a building permit, Mr. Walker actively concealed its purpose or that he acted in bad faith is without an evidentiary foundation. The Town did not produce any documents on this particular issue. Mr. Walker produced a copy of his application for a permit that clearly stated that he wanted to build a 32’ x 60’ workshop. Although the application made no reference or offered any explanation concerning the use or purpose of such a workshop, I am inclined to accept Mr. Walker’s evidence that he explained to the building inspector that he wanted it to service commercial trucks. I find it very surprising that given its substantial size, the person approving the permit would not question its purpose.
56I am further inclined to conclude that in a small place such as the Township of East Luther, people would have known of Mr. Walker’s operations and he may not have had to go into much detail. Moreover, I find it highly unlikely that a building inspector or his designate would limit their review of the permit request to a paper review of the application and would not make other inquiries, especially if there were concerns over the conformity of Mr. Walker’s business.
57The production of the full file on this project, if it exists, ought to shed some light into the thinking behind the approval. In the absence of such evidence, it strikes me that Mr. Walker ought to be able to rely on the issuing of the permit as one indicator that at least early on, the Township did not have any concerns over his compliance with the applicable by-laws, be that the home occupation or the parking of vehicles in excess of a ¾ ton capacity. Such a finding could impact the application or availability of laches and / or promissory estoppel as a defence for the Respondents.
b) Should the court exercise its discretion and not grant the injunction?
58In light of my finding that the Respondents’ conformity and the reliance on laches and promissory estoppel are triable issues, irreparable harm and the balance of convenience are relevant considerations and favour the rejection of the requested injunction and the ancillary remedies.
59The Town did not lead any evidence of irreparable harm were the injunction to be denied. Admittedly, it focused its submissions on the irreparable harm to the public interest, on the assumption that the court would find a breach such that if the breach were permitted to continue, that would cause irreparable harm to public interest. The Town anchored that position on the presumption that a public authority acts the best interests of the public.
60Although the Town was correct in its articulation of the presumption, it is only a presumption. A public authority must act reasonably and in good faith. The manner of enforcement ought not to be left to the whims or dictates of property owners or developers, see Foley v. Shamess, 2008 ONCA 588, at para. 29.
61On this point, the Town’s motives are squarely in issue and require a trial before there is any further pronouncement on the motivations behind its conduct. Given Mrs. Jones attempts to include an exception for the outdoor storage of commercial vehicles at the Respondents’ properties when the amalgamated Township of East Luther Grand Valley started the process of re-drafting the new Zoning By-law and Official Plan, and then the requests that the Subdivision Agreement include a purchaser’s warning concerning the existence of the trucking business, why didn’t the Township, and later the Town accede to those requests? Why would there appear to be a discrimination between the farm properties in the immediate area and the Respondents when it came to the notification of the Developer? What is the full evidentiary record behind the ultimate decisions? After all, the Respondents were longstanding residents of the community operating a business and pursuing their livelihood for 38 years. The deletion of the proposed exclusion from the original draft of the new Zoning By-law and then the exclusion of any reference to the trucking business in the Subdivision Agreement, when references to other faming properties were included, raises all the more concerns over the Town’s good faith.
62Although the evidence is insufficient to make a finding of bad faith, the absence of a comprehensive evidentiary record on these particular concerns puts the Town’s contention that they are entitled to enforce by-laws when and as they wish into question. The concern is amplified very significantly given the lack of any enforcement for 38 years and then the timing of the enforcement proceedings relative to the construction of the luxurious homes in the new subdivision.
63In the same vein, there can be little doubt that the balance of convenience favours the Respondents. I accept the Respondents’ evidence that an injunction would effectively force them to shut down the operation. I also accept their evidence that a move to their other son’s premises in Arthur is not possible or that at the very least it would cause them significant hardship. In this regard, I find it exceptionally troubling that a Town would find it in the public interest to push longstanding residents out of the area and in the direction of other communities in order to further the pursuit of competing objectives and interests.
CONCLUSION
64In light of my findings, the Town’s application is dismissed with costs to the Respondents. Instead, I direct a trial on the following issues: a) Did “Paul’s Trucking Business” conform with Former By-law 1275 on the date that the Current By-law came into force and if so, has it continued to conform? and b) Can the Respondents rely on the doctrines of laches and promissory estoppel to defend their continued operation of the business?
65With respect to costs, I strongly encourage the parties to come to an agreement. If they are unable to do so, then the Respondents shall make their submissions by August 31 and the Town shall respond by September 10, 2018. Submissions are to be limited to 4 pages, in 12 pt, and double-spaced. Parties shall also include their respective Bill of Costs.
Tzimas J.
DATE: August 16, 2018