Court File and Parties

COURT FILE NO.: CV-18-597239 DATE: 2020-10-23

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 2185863 ONTARIO LIMITED, Applicant AND: CITY OF TORONTO, Respondent

BEFORE: Paul B. Schabas J.

COUNSEL: Alan Dryer and Orly Kahane-Rapport for the Applicant Georgia Tanner for the Respondent

HEARD: September 29, 2020

reasons for judgment

Introduction

[1] The Applicant owns a commercial property on Eglinton Avenue West, a busy thoroughfare in Toronto. On the roof of the property is a large billboard. The City takes the position that the sign was constructed without a proper permit and contravenes the Toronto Municipal Code, c. 694-5, and must be removed. The applicant objects, asserting that a sign was lawfully erected at that location in 1959 and that it “subsequently acquired and maintained legal non-conforming use status” such that the sign may remain and continue to be used.

[2] For the reasons that follow, I dismiss the application. Although a sign was lawfully installed pursuant to a City permit in 1959, that sign was removed and a new and different sign was constructed sometime between 1978 and 1983, and no permit was obtained for it. In 2010, Chapter 694 of the Toronto Municipal Code came into effect prohibiting rooftop signs. As the applicants’ sign had been erected illegally, the concept of legal non-conforming use does not apply. Furthermore, alterations were made to the sign in 2013 without a required permit. The Notice of Violation requiring the sign’s removal is therefore valid.

Background

[3] In 1959, the City issued a permit allowing a large billboard sign (14’6” tall) to be erected on the roofs of 379 and 381 Eglinton Avenue West in Toronto. A large two panel V-shaped sign, with each panel on angles to the street, was constructed.

[4] Sometime between 1978 and 1983, the V-shaped sign was removed and a new flat 2-sided billboard sign (10’ x 20’) was erected on the roof of 381 Eglinton Avenue West only. No permits were obtained for the removal of the old sign and construction of the new one between 1978 and 1983.

[5] Although it only came to light through a freedom of information request during this litigation, it appears that a complaint was made to the City in 1980 about construction involving the sign, and a City inspector noted that he called the complainant and said that no permit was required as it was a replacement of a permitted sign. None of this was known to the applicant, which is a corporate entity of the Fine family who have occupied the property at 381 Eglinton Avenue West as tenants and subsequently as owners, since 1976, including operating a dry-cleaning business there for many years.

[6] The signs have been leased continuously since at least 1976 to media companies that have maintained the signs and placed advertising on them.

[7] The applicant and its predecessors have earned income from the lease of the sign. They have also paid taxes on the sign to the City for many years.

[8] City staff also inspected the property in 2008 to deal with a request for a variance regarding other signs on the property at street level and would have been aware of the rooftop sign on the two-storey building.

[9] On August 22, 2013, the City received notice that panels had been removed by the former, or outgoing, lessee of the sign. At around the same time, a Transfer of Sign Ownership Form indicating a change of responsibility for the sign was filed with the City Building Department pursuant to its Sign By-law in 2013, advising that the applicant had signed a new lease with a different media company.

[10] Subsequent investigations by the City show that alterations have been made to the existing sign over the years. This included the addition of a sign face and a change to the catwalk and lighting between 1992 and 2009. In 2013-2014, the panels were removed and replaced, as was the metal frame for the sign board facing west. No permits were obtained for these alterations.

[11] On April 6, 2017, a Sign Building Code Examiner from the City inspected the rooftop sign and determined that no permit had ever been issued for it. A Notice of Violation was issued stating that the sign did not have a valid City of Toronto sign permit. It cited Chapter 694-5 of the Toronto Municipal Code and stated that “[t]he act of removing and re-installing sign faces requires a permit. No permit was applied for nor issued in respect of such act. The sign is not lawful.” As Chapter 694 now prohibits third party roof signs, the violation could not be rectified and the Notice required that the sign be removed within 15 days.

[12] At the time the Notice of Violation was issued the City was unaware that a permit had been issued in 1959. After the 1959 permit came to light the City’s position did not change as the original sign had been replaced between 1978 and 1983 without a permit and, more recently, other alterations had been made to the sign without seeking a permit.

Issues

[13] The issue in this application is whether the Notice of Violation issued on April 6, 2017 is valid. This involves consideration of

(1) whether the sign was lawful as of April 6, 2010 when the Toronto Municipal Code came into effect;

(2) whether the concept of legal non-conforming use applies;

(3) whether the applicant breached the By-law when it made alterations to the sign without a permit in 2013; and

(4) whether the City is estopped from enforcing its sign By-law in these circumstances.

The City Sign By-law

[14] The City of Toronto Municipal Code Chapter 694, entitled Signs, was enacted by Toronto City Council in February 2010 and came into effect on April 6, 2010. The City also enacted at that time Chapter 771 - Taxation, Third Party Sign Tax which imposed a tax on all third party signs in the City. This was part of a City initiative to address illegal signage and to create a consistent set of sign regulations for the City which had been amalgamated with other municipalities in 1998.

[15] Chapter 694 provides, among other things, as follows:

§ 694-1. Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

ROOF SIGN - A sign located entirely on or above the roof of a building or located entirely on the top of or above the parapet wall of a building.

§ 694-5. Permits.

A. No person shall erect, display, modify, or restore or cause to be erected, displayed, modified or restored any sign within the City without first obtaining a sign permit from the Chief Building Official pursuant to this chapter

§ 694-15. Prohibited signs.

A. Anything not expressly permitted by this chapter is prohibited.

B. The following are expressly prohibited:

(1) A sign erected on a tree or a fence;

(2) A roof sign, except a first party roof sign included in a Signage Master Plan consisting solely of first party signs, or a roof sign located in the Dundas Square Special Sign District;[Amended 2013-07-19 by By-law 1112-2013; 2016-07-15 by By-law 767-2016]

§ 694-28. Enforcement.

A. The Chief Building Official may issue a Notice of Violation, that shall require the sign to be brought into compliance with this chapter within 14 days, to any person who:

(1) Has erected, displayed, modified or restored or has caused to be erected, displayed, modified or restored a sign without first having obtained a sign permit to do so; or

(2) Having obtained a sign permit, has erected, displayed, modified or restored or has caused to be erected, displayed, modified or restored a sign contrary to the sign permit issued.

B. Where a Notice of Violation has been issued under Subsection A and the sign has not been brought into compliance with this chapter within 14 days, the Chief Building Official may remove or cause the sign or any part thereof to be removed or may take any action necessary to prevent the sign copy from being displayed, and the City may recover the costs incurred by action or by adding the costs to the tax roll for the property on which the sign was located and collecting them in the same manner as property taxes.

[16] Despite Chapter 694, s. 110 of the City of Toronto Act, 2006, S.O. 206, c. 11, Sched A, specifies that a City by-law respecting signs “does not apply to an advertising device that was lawfully erected or displayed on the day the by-law comes into force if the advertising device is not substantially altered, and the maintenance and repair of the advertising device or a change in the message or contents displayed is deemed not in itself to constitute a substantial alteration.” [emphasis added]

[17] Accordingly, in order to set aside the Notice of Violation the applicants must demonstrate that the current sign was “lawfully erected” as of April 6, 2010 and that the sign has not been “substantially altered.” They have failed to satisfy either concern.

[18] First, the only permit issued for a sign at the location dates from 1959 and is for a sign that was taken down and replaced sometime between 1978 and 1983. City By-law 9868, c. 31, which was enacted in 1923 and under which the permit had been issued in 1959, continued to apply to the property until at least 1989. Section 3(2) stated that “the erection or installation of any sign or advertising device located wholly or partly upon private property, shall not be commenced until a permit therefor has been obtained from the Inspector of Buildings.”

[19] In addition, between 1978 and 1983, when the current sign was constructed, Metropolitan Toronto By-law 118, enacted in 1954, was applicable to roads such as Eglinton Avenue West, which fell under the jurisdiction of Metropolitan Toronto (rather than the former City of Toronto at the time). It required that a permit be obtained prior to the erection or alteration of a sign that projects over a metropolitan road. No permit was obtained from Metropolitan Toronto.

[20] Consequently, the sign in issue cannot be said to have been “lawfully erected” on April 6, 2010.

[21] Second, even accepting, which I do not, that the 1959 permit somehow still applied, an entirely new sign was erected subsequently, which would constitute a substantial alteration from what had been approved and s.110 of the City of Toronto Act, 2006, would not apply.

[22] Third, as I will come to, the sign has been substantially altered since 2010, without a permit, which also removes it from the exemption in s.110 of the City of Toronto Act, 2006.

Legal non-conforming use

[23] The applicant argues that no permit was required to replace the sign between 1978 and 1983 because it was protected as a legal non-conforming use. I do not agree. Although the By-law pursuant to which the original sign had been constructed in or after 1959 (By-law 9868) may not have included provisions for the alteration of a sign, the construction of a new sign, which is what happened, required a permit, and no permit was obtained.

[24] The concept of a legal non-conforming use addresses uses of land that were permitted at the time a by-law was enacted to allow uses to continue even though they may be in conflict with the new by-law. As the sign in place on April 6, 2010 was constructed without a permit, the sign was not legal when Chapter 694 was enacted and it cannot be considered a legal non-conforming use, assuming the concept of legal non-conforming use applies at all.

[25] I observe that the concept of legal non-conforming use applies only to zoning by-laws passed pursuant to s. 34(1) of the Planning Act. RSO 1990, c. P.13: City of Oshawa and 505191 Ontario Ltd. (1986), 1986 CanLII 2525 (ON CA), 54 O.R. (2d) 632 (C.A.). Chapter 694 is a sign by-law, not a zoning by-law. On this point I do not agree with counsel for the applicant that legal non-conforming provisions found in s. 390(6) of the 1950 version of the Municipal Act, R.S.O. 1950, c. 243 applied to somehow permit or make lawful the new construction between 1978 and 1983. As the City points out, the sign by-laws in issue in this case were not passed pursuant to s. 360 of the Municipal Act. In any event, while the first sign may have been lawful, the second sign was not.

[26] While the applicant’s counsel has made other arguments relating to the application of the Building Code Act, 1974, S.O. 19974, c. 74, and the intervening City by-laws (By-law 265-89, By-law 126-92 and the 1994 Toronto Municipal Code, c. 297), these arguments do not address the fundamental problem that the sign permitted in 1959 was torn down and the current sign was then constructed as a completely new sign without a permit which was required under s. 3(2) of By-law 9868 c. 31, and required by all subsequent by-laws. This distinguishes it from other cases relied on by the applicant such as Pattison Outdoor Advertising LP v. Toronto (City), 2012 ONCA 212, and 819630 Ontario Limited v. Toronto (City of), 2019 ONSC 1203.

[27] The applicant also seeks to rely on the1980 notation of a building inspector who appears to have told somebody, though not the applicant, that no permit was required at that time. However, this has nothing to do with non-conforming uses. The note indicates that the inspector took the view that no permit was required “as the sign erected on roof was simply a replacement or repair.” It is not known what the circumstances were on the date of the note, September 25, 1980, and what alterations were being made to the sign at that time or what the inspector observed. What we do know, however, is that sometime between 1978 and 1983 a completely new and different sign was erected, for which a permit was required, and was not obtained.

Alterations to the Sign – 2013-2014

[28] The sign underwent substantial changes between May 2013 and May 2014. This is well documented by a series of photographs showing the sign before and after the changes were made. The changes included removing and replacing the panels and changing the metal frame of the west-facing sign.

[29] The City considers the changes made in 2013-2014 to be substantial alterations that required a permit. This is a determination to be made by the City. It has the expertise to determine the line between minor or insignificant modifications and those which should require a permit for reasons of safety and other concerns related to the purpose of the By-law. Unless the City’s determination is unreasonable, the court should not interfere with it: 250 Bridgeland Realty Inc. v. Ontario (Minister of Transportation), 2019 ONSC 6053 (Div. Ct.) at para. 71.

[30] Here, the City has led evidence from a supervisor in the Sign By-law Unit supporting its position that the changes made in 2013 were substantial. Billboard signs of the type and size at issue in this case are complex structures which must be designed and constructed by engineers and/or architects. Building permits are required and changes require professional advice. In this case, the City’s evidence is that the new frame would have changed the structural and lateral loading on the supports for the sign. This supports the conclusion that the City’s position that the changes were substantial is reasonable.

The estoppel argument

[31] The applicant submits that the City is estopped from enforcing its By-law due to its conduct in representing that the erection of the new sign did not require a permit, and in its inaction, or acquiescence, to the sign’s presence since it was installed without a permit sometime between 1978 and 1983.

[32] There are several flaws in this argument.

[33] First, the City made no representation to the applicant that the construction of a new sign could proceed without a permit. The 1980 notation by an unknown building inspector that he responded to a complaint by saying no permit was required was not known to or relied upon by the applicant. It only came to light after the Notice of Violation was issued in 2017.

[34] Second, there has been no statement by the City that would constitute acquiescence by it, assuming the concept of acquiescence even applies, let alone a statement, or conduct, that caused any detrimental reliance by the applicant, which is an essential element of the doctrine of estoppel: Canadian Encyclopedic Digest, CED Estoppel, II.13(a). Although the property was inspected in 2008 when the applicant sought a variance for its retail signage, there is no evidence that the rooftop sign was discussed.

[35] Third, estoppel cannot generally be used to override a municipal by-law. The exception may be when there is a legal non-conforming use, or that a representation has been made to that effect, as in Forbes v. Caledon (Town), [2009] O.J. No. 928, 2009 CanLII 9465 (ONSC) at paras. 74-77, and was relied upon. But that is not this case. Here the City simply did not, until 2017, enforce its By-law regarding the applicant’s sign, but that does not mean it cannot do so now: Forbes at para. 75; York (Borough) v. City Carpentry Ltd, [1984] O.J. No. 270 at paras. 14-16; East York (Borough) v. Riggs (Ont. Dist. Ct.), [1988] O.J. No. 782.

[36] Fourth, the fact that the applicant paid tax for the sign does not assist its case. As Chapter 771-1.B of the Toronto Municipal Code states,

The issuance of an assessment, the payment of tax, or the acceptance of a payment of tax pursuant to this chapter shall not be used as or construed as an approval or permission for any matter not regulated by this chapter or as a substitute for any approval, permit or permission required by law including a permit issued pursuant to Section 8 of the Building Code Act, 1992, or a permit to erect or display a sign issued under the authority of the applicable sign by-law by the City of Toronto.

Conclusion

[37] In light of my findings above, the Notice of Violation is valid and the application is dismissed. Should the parties be unable to agree on costs, the respondent may provide me

with written submissions not exceeding 2 pages double-spaced, not including supporting materials, within 14 days of the release of these reasons, and the applicant may respond in similarly limited submissions 7 days after the receipt of the respondent’s submissions.

Paul B. Schabas J.

Date: October 23, 2020