ONSC 3657
COURT FILE NO.: CV-17-0534
DATE: 2018-06-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CORPORATION OF THE TOWNSHIP OF SHCREIBER
C. Bryson, for the Applicant
Applicant
- and -
GIROLAMO FIGLIOMENI, HIS EXECUTORS, HEIRS, SUCCESSORS OR ASSIGNS, COSIMO G. FIGLIOMENI, HIS EXECUTORS, HEIRS, SUCCESSORS OR ASSIGNS, VINCENZO SPEZIALE, HIS EXECUTORS, HEIRS, SUCCESSORS OR ASSIGNS, and PETER SPEZIALE, HIS EXECUTORS, HEIRS, SUCCESSORS OR ASSIGNS
R. Habjan, for the Respondent
Respondents
HEARD: April 24, 2018, at Thunder Bay, Ontario
Mr. Justice Patrick Smith
Reasons For Judgment
[1] The Respondents are currently and were at all material times the owners of a waterfront property (the “Property”) situated on picturesque Walker Lake in the Township of Schreiber in Northern Ontario. The Respondents have placed multiple recreational trailers on the Property.
[2] The Plaintiff Corporation of the Township of Schreiber (“Schreiber”) alleges that the Respondents’ use of the recreational trailers for residential seasonal purposes violates Schreiber Zoning By-law requirements. Schreiber brings this application under ss. 14.05(3)(d) and (g) of the Rules of Civil Procedure requesting a declaration and permanent injunctive relief due to the alleged by-law infractions.
Agreed Facts
[3] Both parties agree to the following facts stated at paras. 4-18 of the Applicant’s Factum.
[4] The Respondents have owned the Property on Walker Lake within Schreiber since 1979. The Property was vacant from that time until the Respondents began to use it for permanent residential seasonal purposes in 2004 and 2006. In 2004, the Respondent Cosimo Figliomeni was the first to commence utilization of a recreational trailer for residential seasonal purposes. Two other Respondents followed suit in 2006. They have since occupied the recreational trailers on the Property during the summer months and stored them there during the winter months. Prior to that time, the Property was vacant.
[5] The Property, which was within the Seasonal Cottage Zone of By-law 88-20 at commencement of its permanent residential seasonal use, has held up to five (5) recreational trailers, plus multiple vehicles and seasonal recreational infrastructure from time to time since 2006 and including the summer of 2017.
[6] The Respondents claim they are not in breach of the current Schreiber Zoning By-law 20-2014 by virtue of a legal non-conforming use, established in 2004 and/or 2006 when Schreiber Zoning By-law 88-20 was in place. Specifically, they claim their permanent residential seasonal use of the Property commenced by their placement and use of the trailers in 2004 and 2006, and that such use is legal due to the definitions of “Trailer, House” and “Vehicle” in that By-law. They argue that the multiple familial recreational trailers on the Property come within those definitions and that the definitions give them a main permitted use within the Seasonal Cottage Zone, despite the requirements of By-law 88-20 for a cottage or detached dwelling as the permitted main use on the Property in that zone and the allowance of trailers as a main permitted use only in the Mobile Home, Residential Home Park and Highway Commercial Zones of the By-law.
[7] The Respondents agree that their use of multiple recreational trailers for permanent residential seasonal use of the Property is a matter of long-standing dispute with Schreiber and that Schreiber attempted to legalize their temporary use of the trailers on the Property in 2006 via By-law 33-2006. That By-law provided access to a licence for legalized use of the recreational trailers upon the Property for six (6) months, upon the condition that the Respondents made application for construction of a cottage or other detached dwelling or applied for a Zoning By-law amendment to permit the continued use of multiple recreational trailers on the Property for residential seasonal use.
[8] The Respondents decided to not apply for a licence pursuant to By-law 33-2006 to allow for legal use of the recreational trailers while they engaged in constructing a cottage or dwelling, or to make an application for a Zoning By-law amendment to legalize the Respondents’ use of the multiple recreational trailers for permanent residential seasonal purposes on the Property.
[9] In 2014, Schreiber passed its current Zoning By-law 20-2014. The zoning of the Property changed from Seasonal Cottage to Residential Seasonal. The main permitted use of the Property however remains a cottage or detached dwelling, for permanent residential seasonal use, with existing permits for ancillary accessory uses including a guest sleeping cabin, a boathouse, a pump house and a sauna. The By-law 20-2014 definitions of “Cottage”, “Guest Sleeping Cabin”, “Dwelling” and “Trailer” demonstrate that a recreational trailer is not included within the meaning of the main permitted use of a cottage. As in By-law 88-20, the Highway Commercial Zone under By-law 20-2014 permits the occupancy of recreational trailers for residential seasonal use.
[10] The Respondents decided to not apply for a licence pursuant to By-law 33-2006, to construct a cottage or dwelling or to apply for an amendment to By-law 33-2006, to construct a cottage or dwelling or to apply for an amendment to By-law 20-2014 to allow for their use of multiple familial recreational trailers for permanent residential seasonal purposes on the Property.
[11] In 2016, Schreiber passed By-law 9-2016, which would legalize the Respondents’ use of up to five (5) recreational trailers for residential seasonal use of the Property for one (1) year as a temporary authorized use, on the condition that the Respondents applied to re-zone the Property to permit their continued use of multiple familial recreational trailers on the Property for permanent residential seasonal purposes.
[12] The Respondents decided to not apply for a licence pursuant to By-law 33-2006 or for an amendment to By-law 20-2014, to allow for continued use of their multiple recreational trailers on the Property while they sought to construct a cottage or dwelling or to apply for a Zoning By-law amendment to allow for the continued use of multiple familial recreational trailers on the Property for permanent residential seasonal purposes.
[13] On March 23, 2017, Schreiber issued correspondence to the Respondents demanding that they remove the unauthorized recreational trailers from the Property by May 26, 2017. The Respondents subsequently met with Township Council on May 23, 2017, during which they were again invited to apply for a Zoning By-law amendment to permit the continued use of their multiple familial recreational trailers on the Property or to otherwise legalize their use of the Property through construction of a cottage or detached dwelling.
[14] The Respondents then provided the Applicant with a draft application for site specific zoning of the Property as Highway Commercial, which would permit the multiple recreational trailers for residential seasonal use on the Property if successful. Schreiber informed the Respondents that the draft Zoning By-law amendment application would not likely meet the binding requirements of Schreiber’s Official Plan and that the proposal would also require an amendment to that planning instrument to be successful. The Respondents did not thereafter submit an application for a By-law 20-2014 and Official Plan amendment.
[15] Schreiber issued further correspondence to the Respondents on August 10, 2017, requiring the Respondents to remove the recreational trailers from the Property by September 18, 2017 for failure to comply with Zoning By-law 20-2014.
[16] The Respondents did not proceed to seek compliance with By-law 20-2014 by construction of a cottage or dwelling or by applying for a Zoning By-law amendment to allow for the legal use of multiple familial recreational trailers on the Property for permanent residential seasonal purposes. The Respondents also refused to remove the recreational trailers from the Property.
[17] The Respondents failed to seek Zoning By-law compliance by construction of a cottage or dwelling or to apply for a Zoning By-law and Official Plan amendment to allow for the legal use of multiple familial recreational trailers on the Property for permanent residential seasonal purposes. They also continued to refuse to remove the recreational trailers from the Property.
[18] Since 2004 and 2006, the Respondents have used multiple familial recreational trailers on the Property for permanent residential seasonal use without attempting to comply with Schreiber Zoning By-law 88-20 or its replacement Zoning By-law 20-2014, despite the many efforts of the Township to facilitate temporary continuing use of the recreational trailers pending their achieving compliance with the By-laws through construction of a cottage or detached dwelling or a Zoning By-law amendment that would permit the main use of multiple familial recreational trailers on the Property.
Positions of the Parties
The Position of Schreiber
[19] The Applicant argues that an accessory use cannot be the only use of a property subject to a zoning by-law. An accessory use must be incidental or ancillary to the property’s main permitted use.
[20] By-law 88-20 defines “Accessory” as: “A use, separate building, or structure, normally incidental, subordinate, exclusively devoted to and located on the same lot as the principal use, building or structure but no including a building or structure used for human habitation except where specifically permitted.”
[21] The Applicant states that the Seasonal Cottage Zone under By-law 88-20 only permitted “Cottages” as the primary use of the relevant portion of the Property in 2004 and 2006.
[22] The Rural Zone set out in By-law 88-20 permitted only the following primary uses of the relevant portion of the Property in 2004 and 2006: “(a) Detached Dwellings (b) Group Homes (c) Forestry (d) Mining (e) Pits and Quarries (f) Agriculture (g) Wildlife Management (h) Waste Disposal Sites (i) Cemeteries”.
[23] Schreiber contends that By-law 88-20 and the definitions of “Trailer” and “Vehicle” do not convey a permitted main use of any property in any zone under the By-law, but only inform the stated permitted primary uses in any zone under the By-law.
[24] Only the Highway Commercial Zone under By-law 88-20 permitted the main use of multiple recreation trailers for residential habitation.
[25] The Applicant notes that the Property is wholly within the new Residential Seasonal Zone established by By-Law 20-2014. The main permitted uses of properties within this Zone only include one cottage and one guest sleeping cabin. Permitted accessory uses include boathouses, pump houses and saunas or other buildings and structures accessory to the permitted main uses.
[26] A “Cottage” is defined under By-Law 20-2014 as: “a detached building used as an occasional and seasonal residential dwelling for recreation, rest and relaxation by one household, but not occupied continuously or as a principal residence or as a year-round permanent dwelling.” A “Guest Sleeping Cabin” is defined as: “a separate building of not more than 23 square metres (250 square feet) in floor area and not more than 4.5 metres (15 feet) in height which contains no kitchen but may contain a bathroom and which is not to be used for year-round human habitation.”
[27] The Applicant states that only the Highway Commercial Zone under By-law 20-2014 permits recreational and seasonal trailer camps as a main permitted use of within properties, with specific regulations for trailer sites.
[28] The Applicant argues that Schreiber Zoning By-law 20-2014 does not provide the Respondents with a permitted main use of multiple familial recreational trailers. The Applicant states that the main use of the Property for permanent multiple recreational trailers for residential seasonal use was not permitted pursuant to Schreiber Zoning By-law 88-20.
[29] The Applicant also notes that the Temporary Use Zoning By-law 9-2016, which was passed for the benefit of the Respondents, expired on March 7, 2017, and no longer provides the Respondents with a main permitted use of up to five (5) recreational trailers on the Property.
Injunctive Relief
[30] The Applicant made the following arguments concerning its request for injunctive relief.
[31] Section 440 of the Municipal Act, 2001 permits this Application to restrain the Respondents’ continuing violation of the current Schreiber Zoning By-law 20-2014.
[32] When a municipality applies to the court for such injunctive relief, it is not in the position of an individual applicant but represents the public interest which interest outweighs the interest of a private person: City of Toronto v. Polai, 1969 339 (ON CA), [1970] 1 OR 483.
[33] A municipality need not obtain a conviction for violation of the by-law to obtain relief under what is now s. 440 of the Act: Ottawa (City) v. Barrymore’s Inc., [2002] O.J. No. 3871, at paras. 41-49.
[34] A municipality also need not show irreparable harm or that an injunction is favoured in a balance of convenience in the same manner as a private person seeking injunctive relief, but only a clear violation of the by-law, which is presumed to be against the public interest for sufficiency of both the requirements of irreparable harm and the balance of convenience: Ottawa (City) v. Barrymore’s Inc., supra, at paras. 65-71; Regional Municipality of York v. DiBlasi, 2014 ONSC 3259, at paras. 62-64.
[35] These principles apply equally to interlocutory and permanent municipal injunction requests made pursuant to s. 440 of the Act, and the effect of the relief upon the Respondents is irrelevant: Township of Uxbridge v. Corbar Holdings Inc. et al., 2012 ONSC 3527, at paras. 41-42; Suprun v. Bryla, 2007 56089 (ONSC), at paras. 66-74.
[36] Where a clear breach of a municipal zoning by-law is shown, the Respondents must demonstrate “there are exceptional circumstances to justify the exercise of the Court’s residual discretion to not grant the injunction”. Clear demonstration of by-law invalidity or bad faith by a council may suffice to bar injunctive relief in such circumstances but the onus belongs to the Respondents and is high. Mere prejudice to intended use of a property does not suffice: Allied Properties v. 1064249 Ontario Inc., 2016 ONSC 6665, at paras. 3-7; Township (Stone Mills) v. Rebel Scrap Metal, 2012 ONSC 5052, at paras. 10-12, 34-35.
[37] The Applicant states that the Respondents have neither asserted nor demonstrated any exceptional circumstances that should bar the injunctive relief requested.
[38] The Respondents have been provided multiple opportunities to achieve temporary legal use of the Property for purposes of building a cottage or applying for a Zoning By-law and any necessary Official Plan amendment to legalize their use of multiple familial recreational trailers on the Property for permanent residential seasonal use. The Respondents have refused to date to comply with the Schreiber Zoning By-laws by any method, despite the mechanisms provided by Schreiber in good faith.
[39] Schreiber argues that it has no other mechanism to enforce the Respondents’ compliance with its current Zoning By-law 20-2014 than the declaratory and injunctive relief it seeks from this Court.
[40] Schreiber requests the following relief:
a) a declaration that the Respondents are using the Property in violation of Schreiber Zoning By-law 20-2014;
b) an order for a permanent injunction against the Respondents requiring them forthwith to remove the recreational trailers from the Property and to forgo any continued use of the property in a similar manner;
c) costs of this proceeding, plus applicable taxes; and
d) such further and other relief as this Honourable Court may deem just.
The Position of the Respondents
[41] The Respondents’ main argument is that the definition of the term “Cottage” was absent from By-law 88-20, and that there is no express prohibition of placement of vehicles that would include the Respondents’ recreational trailers contained in By-law 88-20.
[42] The Respondents note that the interpretation of a statute must follow the principle set out by the Supreme Court of Canada:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of parliament.
It is clear that the Applicant may exercise only those powers expressly conferred by statute or fairly implied by the expressed power in the statute: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at p. 883.
[43] The Respondents note that the power of prohibition of trailers is specifically authorised by the Municipal Act, 2001 at s. 164 for the time period of January 1, 2001 to December 31, 2006 and at s. 164 from January 1, 2007 to date. The sections are substantially similar. The sections state that a local municipality has the discretion to expressly prohibit trailers in that municipality.
[44] The Respondents argue that the Applicant failed to exercise the express discretionary power to prohibit the recreational trailers from being on the Property in By-law 88-20 and no such prohibition was in place when the Respondents commenced use of the recreational trailers on the Property.
[45] The Respondents state that the Applicant’s first exercise of the express discretionary power of prohibition of the recreational trailers was by enactment of By-law 20-2014.
[46] The Respondents submit that the Applicant, as a statutory body, “may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the expressed power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the corporation”: Makuch, Stanley M., Canadian Municipal and Planning Law (Toronto: Carswell, 1983), at p. 115; R. v. Sharma, 1993 165 (SCC), [1993] 1 S.C.R. 650, at p. 668.
[47] The Respondents request the following relief:
a) A Declaration that the Respondents’ use of recreational trailers on the Property is permitted;
b) The costs of this proceeding, plus applicable taxes; and
c) Such further and other relief as this Honourable Court may deem just.
Issues
[48] The issues in this case are as follows:
- Did the Respondents enjoy a permitted main use of the multiple recreational trailers for permanent residential seasonal use on the Property via the definitions in Schreiber’s former Zoning By-law 88-20?
a. If so, should the doctrine of “acquired rights” apply to exclude the Respondents from zoning requirements implemented subsequent to the Respondents’ commencement of recreational trailers for permanent residential seasonal use on the Property?
b. If not, should the requested injunctive relief be issued in the circumstances?
Law
Schreiber Zoning By-laws
[49] The relevant portions of Schreiber Zoning By-law 88-20 are as follows:
Section 2
DEFINITIONS
2.2 ACCESSORY
A use, separate building, or structure, normally incidental, subordinate, exclusively devoted to and located on the same lot as the principal use, building or structure but not including a building or structure used for human habitation except where specifically permitted.
2.72 TRAILER, HOUSE
Any vehicle so constructed that it is suitable for being attached to a motor vehicle for the purpose of being drawn or propelled by the motor vehicle and capable of being used for the living, sleeping and/or eating accommodation of persons notwithstanding that such vehicle is jacked up or that its running gear is removed.
2.74 VEHICLE
A motor vehicle, a farm implement, a mobile home, a motor home, a snowmobile, a trailer or house trailer.
SECTION 5
USE ZONES
5.3 MOBILE HOME (RH) – ZONE
5.3.1 Permitted Uses
The following are permitted uses in the RH Zone:
a) Mobile Homes
5.4 RESIDENTIAL MOBILE HOME PARK ZONE – RP
5.4.1 Permitted Uses
The following are permitted uses in the RP, Residential Mobile Home Park zone:
a) Mobile Home Parks
5.6 SEASONAL COTTAGE ZONE – SC
5.6.1 Permitted Uses
The following are permitted uses in the Seasonal Cottage – SC Zone:
a) Cottages
5.8 HIGHWAY COMMERCIAL ZONE - HC
5.8.1 Permitted Uses
The following are permitted uses in the HC, Highway Commercial Zone:
s) Trailer Parks
[50] The relevant portions of Schreiber Zoning By-law 20-2014 are as follows:
SECTION 2: DEFINITIONS
2.47 “Cottage” means a detached building used as an occasional and seasonal residential dwelling for recreation, rest or relaxation by one household, but not occupied continuously or as a principal residence or as a year-round permanent dwelling.
2.56 “Dwelling” means a separate building or factory built double-wide home containing one or more dwelling units.
2.84 “Guest Sleeping Cabin” means a separate building of not more than 23 square metres (250 square feet) in floor area and not more than 4.5 metres (15 feet) in height which contains no kitchen but may contain a bathroom and which is not to be used for year-round human habitation.
2.191 “Trailer” means any vehicle, excluding a mobile home or park model home, so constructed that it is suitable for being attached to a motor vehicle for the purpose of being drawn or propelled by the motor vehicle, notwithstanding that such vehicle is jacked-up or that its running gear is removed, but not including any vehicles unless it is used or intended for the living, sleeping or eating accommodation of persons therein; and shall be deemed to include a tent; and shall not be occupied continuously or as a principal residence.
SECTION 8: RESIDENTIAL SEASONAL SR ZONE
8.1 “Permitted Uses”
(a) One cottage and one guest sleeping cabin (see also Definition Section 2.84 and Section 9.4) on one lot and used on a seasonal basis without any year round municipally owned road access and uses, buildings and structures accessory thereto, including boathouses, pump houses and saunas.
SECTION 12: HIGHWAY COMMERCIAL HC ZONE
12.1 “Permitted Uses”
(a) Commercial Uses
Recreational uses
Seasonal camp, trailer camp or camping establishment
Municipal Act, 2001
[51] The Applicant cited s. 440 of the Municipal Act, 2001, which reads as follows:
Power to restrain
440 If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board. 2006, c. 32, Sched. A, s. 184.
[52] The Respondents cited s. 164 of the Municipal Act, 2001, which reads as follows:
Trailers
164 (1) Without limiting sections 9, 10 and 11, a local municipality may prohibit or licence trailers located in the municipality. 2006, c. 32, Sched. A, s. 82.
Restriction
(2) If a municipality licenses trailers in the municipality, no licence fee shall be charged in respect of a trailer assessed under the Assessment Act. 2006, c. 32, Sched. A, s. 82.
Analysis and Discussion
[53] The seasonal Cottage Zone referred to in By-law 88-20 permits “Cottages” as the primary use of the property in 2004 and 2006.
[54] The Rural Zone in By-law 88-20 lists what uses are permitted for the relevant portion of the property in 2004 and 2006: “(a) detached dwellings (b) group homes (c) forestry (d) mining (e) pits and quarries (f) agriculture (g) wildlife management (h) waste disposal sites (i) cemeteries.”
[55] I agree with the position of the Applicant that the definitions in By-law 88-20 of “Trailer” and “Vehicle” do not convey a permitted main use to any property in any zone but are intended to only inform the stated permitted primary uses in any zone under the By-law.
[56] I find that Schreiber Zoning By-law 88-20 did not permit the use of the Respondents’ property for permanent multiple recreational trailers for residential season use.
[57] I do not accept the argument of the Respondents that By-law 33-2006, which permits the licensing of temporary trailer use within several zones under By-law 88-20, assists them. The Respondents did not apply for or receive a temporary trailer licence as required by By-law 33-2006.
[58] The Respondents’ property is located entirely within the new Residential Seasonal Zone that was established with the passing of By-law 20-2014. This Zone permits one cottage and one sleeping cabin. Permitted accessory uses include boathouses, pump houses and saunas including other buildings and structures that are accessory to the main use.
[59] The definition of the word “Cottage” and/or the word “Guest Sleeping Cabin” contained in By-law 20-2014 do not and are not intended to include temporary seasonal trailers.
[60] Only the Highway Commercial Zone in By-law 20-22014 permits recreational and seasonal trailers as a main permitted use and includes specific regulations for trailer sites.
[61] I find that Schreiber Zoning By-law 20-2014 does not grant or provide the Respondents with a main permitted use of multiple family recreational trailers.
[62] It is also noteworthy that Temporary Use Zoning By-law 9-2016, which had been passed to benefit and assist the Respondents, expired on March 7, 2017 and no longer provides the Respondents with a main permitted use of up to five recreational trailers on their property.
[63] I reject the argument that the Respondents had acquired an “accessory” use of their property under former By-law 88-20. An accessory use must be incidental or ancillary to the property’s main permitted use. By-law 88-20 expressly permits only “Cottages” as the primary use of the relevant portions of the property in 2004 and 2006. Clearly, the By-law does not allow permanent multiple recreational trailers for the residential season.
Disposition
[64] I am satisfied that the Respondents have clearly breached By-law 88-20 from 2004 to 2006 and By-law 20-2014 from its inception.
[65] Where there is a clear breach of a municipal zoning by-law the Respondents have the onus of demonstrating that there are exceptional circumstances to justify the exercise of the Court’s discretion to not grant an injunction. The Respondents have failed to show that any exceptional circumstances exist.
[66] Section 440 of the Municipal Act, 2001 grants statutory authority to the municipality to restrain the Respondents continuing violation of the current Zoning By-law 20-22014.
[67] For an injunction to issue the municipality need only show a clear violation of a By-law which is presumed to be against the public interest which satisfies the usual requirements of both irreparable harm and the balance of convenience: Ottawa (City) v. Barrymore’s Inc., supra.
[68] The fact that the Respondents will suffer prejudice from having their use of their property restricted is not sufficient to satisfy the onus that is upon them.
[69] For the above reasons the following orders shall issue:
A Declaration that the Respondents use of the property in question violates Schreiber Zoning By-law 20-2014;
An Order for a permanent injunction against the Respondents requiring them to forthwith remove all recreational trailers from the property and to forgo any continued or similar use of the property;
An Oder that the Respondents pay the costs of these proceeding.
Costs
[70] Should the parties not be able to reach an agreement with respect to the issue of costs, they may file written submissions no longer than five pages in length within 30 days of the release of these reasons.
“original signed by” The Hon. Mr. Justice Patrick Smith
Released: June 12, 2018
ONSC 3657
COURT FILE NO.: CV-17-0534
DATE: 2018-06-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
THE CORPORATION OF THE TOWNSHIP OF SHCREIBER
Applicant
– and –
GIROLAMO FIGLIOMENI, HIS EXECUTORS, HEIRS, SUCCESSORS OR ASSIGNS, COSIMO G. FIGLIOMENI, HIS EXECUTORS, HEIRS, SUCCESSORS OR ASSIGNS, VINCENZO SPEZIALE, HIS EXECUTORS, HEIRS, SUCCESSORS OR ASSIGNS, and PETER SPEZIALE, HIS EXECUTORS, HEIRS, SUCCESSORS OR ASSIGNS
Respondents
REASONS FOR JUDGMENT
Patrick Smith J.
Released: June 12, 2018
/sab