COURT FILE NO.: CV-19-00629562-0000 DATE: 20210225 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE Planning Act, R.S.O. 1990, c. P.13

BETWEEN:

STEPHEN BRUCE FORBES Applicant

• and - THE CORPORATION OF THE TOWN OF CALEDON Respondent

Counsel: Bernie Romano, Saveria Romano and Jordan Nussbaum for the Applicant Melissa Winch, Raivo Uukkivi and Marisa Keating for the Respondent

HEARD: January 19, 2021

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In this déjà vu Application, the Applicant Stephen Bruce Forbes sues the Respondent the Corporation of the Town of Caledon for the following relief:

a. An Order declaring that Ontario Court of Appeal decision Forbes v. Caledon (Town) shall enure to the benefit of the transferees, lessees, invitees, or tenants with respect to the lands municipally described as 8576 Mayfield Road, Bolton, Ontario and legally described as Part I, Concession 6, in the Township of Albion, in the Town of Caledon, and that therefore, the following non-conforming uses will continue with respect to the Subject Property:

i. For the outdoor storage of vehicles, machinery, and equipment;

ii. For business operation;

iii. For the storage of heavy trucks;

iv. For such further and other uses as may be ancillary to the business use of the subject lands set out in paragraphs (i) to (iii) above.

b. An Order affirming that, pursuant to the Ontario Court of Appeal decision Forbes v. Caledon (Town), the Town of Caledon continues to be restrained from interfering with the said uses of the Subject Property by Mr. Forbes or his transferees, lessees, invitees or tenants;

c. A declaration that the legal non-conforming use of the Subject Property shall enure to the benefit of Mr. Forbes and his successors, assignees, and transferees in title;

d. An Order entitling the Applicant to register on title to the Subject Property: (a) the judgment of Price J. dated February 6, 2009 in Court File No. CV-07-03562; (b) the Endorsement of Gillese, Juriansz and LaForme JJ.A. of the Ontario Court of Appeal dated August 5, 2009; (c) and the judgment in this Application.

[2] For the following reasons, I make the following Order:

1. IT IS ORDERED AND DECLARED THAT the owners, transferees, lessees, invitees, or tenants of the lands municipally described as 8576 Mayfield Road, Bolton, Ontario and legally described as Part I, Concession 6, in the Township of Albion, in the Town of Caledon (the “subject lands”) are not prohibited from using the subject lands for the following uses so long as the uses continue:

(a) the outdoor storage of vehicles, machinery, and equipment, including the temporary storage and impounding of motor vehicles taken from a collision scene or otherwise towed or conveyed and awaiting repair or demolition, retrieval, or disposal;

(b) business operation;

(c) the storage of heavy trucks;

(d) such further and other uses as may be ancillary to the business use of the subject lands set out in (a) to (c) above.

2. IT IS FURTHER ORDERED AND ADJUDGED THAT the owners, transferees, lessees, invitees, or tenants of the subject lands have not been prohibited from using the subject lands for the aforesaid uses from February 6, 2009 to the date of this Order.

B. Legal Background

[3] The dispute in the immediate case is about the zoning law associated with legal non-conforming uses. Before turning to the facts, it is therefore helpful to begin these Reasons with a summary of the legal background.

[4] Pursuant to s. 34 (1) para. 1 of the Planning Act, a municipality may enact zoning by-laws that restrict a landowner’s use of land. Section 34 (1), paragraph 1 states:

34. (1) Zoning by-laws may be passed by the council of local municipalities:

Restricting use of land

1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting any defined highway or part of a highway.

[5] When a zoning by-law is changed, s. 34 (9) of the Planning Act provides for the continuation of uses that were lawfully established under the prior zoning by-law so long as and as long as the uses are a continuation of lawful pre-existing uses. Section 34 (9) states:

34 (9) No by-law passed under this section applies,

(a) 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 passing of the by-law, so long as it continues to be used for that purpose.

[6] The rationale of the legal non-conforming use doctrine rests on the principle that zoning by-laws should not deny landowners their right to use their property in the manner they did before new restrictions are introduced, and the question of whether new restrictions interfere with prior existing uses can only be determined on a case-by-case basis. Ottawa (City of) v. Capital Parking Inc..

[7] A legal non-conforming use is an existing land use that is not permitted under the current zoning by-law but is permitted to continue because it was lawful under the previous zoning. Ottawa (City of) v. Capital Parking Inc.. What is protected by the legal non-conforming use doctrine is the status quo and not a category of uses into which the existing use can metamorphize. Rotstein v. Oro-Medonte (Township), [2002] O.J. No. 4990 (S.C.J). For the use to be a lawful non-conforming use: (a) the property must have been in lawful use for a certain purpose at the date of the passing of the zoning; and, (b) the property must continue to be used for that purpose. Rock Solid Holdings Inc. v. Lakehead Rural Planning Board, 2017 ONSC 6564; Uxbridge (Town) v. Talbot, 2014 ONSC 1276; Feather v. Bradford West Gwillimbury (Town), 2010 ONCA 440; O'Sullivan Funeral Home Ltd. v. Sault Ste. Marie (City), [1961] O.R. 413 at para. 13 (H.C.J.). Whether the use has been interrupted or abandoned is a question of the facts of the particular case. Rock Solid Holdings Inc. v. Lakehead Rural Planning Board, 2017 ONSC 6564; Elbasiouni v. Brampton (City), 2016 ONSC 8216; O'Sullivan Funeral Home Ltd. v. Sault Ste. Marie (City), [1961] O.R. 413 at para. 13 (H.C.J.).

[8] The onus is upon the landowner relying on a legal non-conforming use to prove on a balance of probabilities that the use of the lands at the time of the enactment of the zoning by-law was a continuation of prior lawful use. Rock Solid Holdings Inc. v. Lakehead Rural Planning Board, 2017 ONSC 6564; The Municipality of West Nipissing v. Lafond, 2017 ONSC 3097; Elbasiouni v. Brampton (City), 2016 ONSC 8216; Rotstein v. Oro-Medonte (Township), [2002] O.J. No. 4990 (S.C.J); Emily v. Johnson (1981), 37 O.R. (2d) 623 (H.C.J.), affd (1981), [1983] O.J. No. 1462 (C.A.); City of Toronto v. San Joaquin Investments (1978), 18 O.R. (2d) 730 (H.C.J.), affd (1979) , 26 O.R. (2d) 775 (C.A.), leave to appeal to SCC refused, [1980] 1 S.C.R. xiii. To determine whether there is a legal non-conforming use of the lands, the examination is of the actual facts on the day of the passing of the by-law rather than a consideration of what use could or might have been made. Saint-Romuald (Ville) v. Olivier, 2001 SCC 57; Heutinck v. Oakland (Township) (1997), 42 M.P.L.R. (2d) 258 (C.A.); Re Universal Terminals Ltd. and Matilda (Township) (1986), 54 O.R. (2d) 745 (Div. Ct.). The claimant of a legal non-conforming use need not establish a fully developed use as long as the use was minimally established before the passage of the by-law. Saint-Romuald (Ville) v. Olivier, 2001 SCC 57; Centre for Rational Learning Inc. (c.o.b. Haydon Youth Services) v. Kearney (Town), [2001] O.J. No. 4434 (S.C.J.); Alfred and Plantagenet (Township) v. Peladeau (2000), 17 M.P.L.R. (3d) 237 (Ont. S.C.J.); R. v. Barry Humphreys Enterprises Ltd. (1977), 15 O.R. (2d) 548 (Div. Ct.); Whitchurch (Township) v. McGuffin, [1970] 2 O.R. 181 (H.C.J.), [1971] 2 O.R. 92n (C.A.); Central Jewish Institute v. Toronto (City), [1948] S.C.R. 101; Board of Trustees of Roman Catholic Separate Schools of Toronto v. City of Toronto, [1924] S.C.R. 368. Any doubt as to prior use should be resolved in favour of the owner. Centre for Rational Learning Inc. (c.o.b. Haydon Youth Services) v. Kearney (Town), [2001] O.J. No. 4434 (S.C.J.); Town of Richmond Hill v. Miller Paving Ltd. (1978), 22 O.R. (2d) 779 at p. 782 (H.C.J.).

[9] Under the doctrine of legal non-confirming uses, the zoned land may be continued to be used as it was used when a new by-law is passed. Under the doctrine of legal non-conforming uses, the precise pre-existing use cannot be intensified unless the intensification is not of such a degree as to create an altogether different use. Rock Solid Holdings Inc. v. Lakehead Rural Planning Board, 2017 ONSC 6564; Saint-Romuald (Ville) v. Olivier, 2001 SCC 57. The landowner overreaches the existing legal non-conforming permitted use if: (a) the scale or intensity of the use or modification of the use brings about a change of use; (b) the addition of new uses or modifications of old uses is remote from the existing uses; or (c) the new or modified uses can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours of the property. Rock Solid Holdings Inc. v. Lakehead Rural Planning Board, 2017 ONSC 6564; Saint-Romuald (Ville) v. Olivier, 2001 SCC 57.

[10] The introduction of a new activity is not necessarily the introduction of a new use and the use of a property must be examined collectively and not divided into parts. R. v. Nimak Investment Ltd., [1965] 1 O.R. 96 (H.C.J.), affd. , [1965] 2 O.R. 182 n. (C.A.); R. v. Rutherford’s Dairy Ltd., [1961] O.W.N. 146 (H.C.J), affd. [1961] O.W.N. 274; R. ex rel Skimminings v. Cappy, [1952] O.W.N. 146 (H.C.J), affd. , [1953] 1 D.L.R. 28 (C.A.); Toronto (City) v. Potts Pattern Works Ltd., [1943] O.W.N. 615 (H.C.J.). A legal non-conforming use has continued if there is an intention to continue the use and the actual use continues so far as possible in all the circumstances of the case. Haldimand-Norfolk (Regional Municipality) v. Fagundes (2000), 11 M.P.L.R. (3d) 1 (C.A.). Where an owner merely expands a pre-existing use or engages in a different activity which is within the generic description of the pre-existing use, the legal non-conforming use protection will not be lost. Uxbridge (Town) v. Talbot, 2014 ONSC 1276; Glenelg (Township) v. Davis, [1991] O.J. No. 76 (Gen. Div.), affd. , [1992] O.J. No. 1316 (C.A.).

[11] The benefit of a legal non-conforming use runs with the land which is to say that successors in title can lawfully continue to use the property in accordance with the legal non-conforming use doctrine. Re Hartley and Toronto (City) (1925), 56 O.L.R. 433 at para. 7 (C.A.). A legal non-conforming use runs with the land and not with the owner, and thus a legal non-conforming use may be continued from owner to successors. R. v. Fulton, [1968] 1 O.R. 342 at para. 13 (C.A.); R. ex rel Skimminings v. Cappy, [1952] O.W.N. 146 (H.C.J), affd. , [1953] 1 D.L.R. 28 (C.A.); Conception Bay South (Town) v. Jefford, (1998) N.J. No. 196 (Nfld. S.C.).

C. Overview

[12] The factual background to this déjà vu Application can be summarized by the following narrative:

a. The Forbes family owns a property in the Town of Caledon on Mayfield Road. For some time before 2009, the family used the property for its landscaping and construction business, which involved the outdoor storage of equipment, heavy equipment, trucks, and vehicles.

b. In 2009, prompted by difficulties in selling the Mayfield Road property, the Forbes family sued the Town. The litigation was about whether the uses being made of the property conformed with the zoning by-laws of the Town.

c. In a decision affirmed by the Court of Appeal, Justice Price by Order dated February 26, 2009 adjudged that the Forbes had the right to use the Mayfield Road property for the following purposes: (a) for the outdoor storage of vehicles, machinery, and equipment; (b) for business operation; (c) for the storage of heavy trucks; and (d) for such further and other uses as may be ancillary to the business use of the subject lands set out in (a) to (c).

d. The effect of Justice Price’s order was to recognize the uses being made of the Mayfield Road property as legal non-conforming uses in accordance with the Planning Act.

e. The Mayfield Road property is now owned by Stephen Bruce Forbes, the son of George and Doreen Forbes, and déjà vu, prompted again by difficulties in selling the Mayfield Road property, the dispute about the uses being made of the subject lands between the Forbes family and the Town has resumed.

f. In part to facilitate his efforts to sell the property with its legal non-conforming uses, Mr. Forbes seeks, in effect, an updating of the Order made by Justice Price in 2009.

g. Mr. Forbes submits that he is entitled to this Order because the status quo about the uses being made on the property has not changed since 2009 and he submits that the Town is, once again, interfering with his efforts to market the Mayfield Road property. He says that the Town is motivated to have the Mayfield Road property comply with the current industrial zoning for its location and it wishes to have the legal non-conforming uses disappear as discontinued.

h. Save for the matter of a Motor Vehicle Compound use that was introduced in 2015, the Town concedes that the status quo of uses of the property has continued since 2009. The Town submits that a Motor Vehicle Compound use is not outside storage, which is a legal non-conforming use, but rather it is parking, which the Town submits has already been found to be an unlawful non-conforming use for the Mayfield Road property.

[13] This déjà vu dispute is peculiar because to a large extent it is a dispute in the minds of litigants that do not trust one another and that do not listen or understand one another.

[14] Outside the minds of the litigants, in the physical world, the evidence establishes save for the matter of the Motor Vehicle Compound use that was introduced in 2015, there has been no change in the uses being made of the subject lands from 2009 to 2021, and in the physical world, there is no dispute and apart from the Motor Vehicle Compound use, the Town concedes that Mr. Forbes and his tenants have been permitted to use the subject lands as they have been using them before 2009 and to date.

[15] However, in the non-physical world, there is a dispute about the parties’ respective understanding of the law of non-conforming uses. The dispute is about what the disputants think that their opponent is thinking about what legal non-conforming uses can be made of the subject lands - in the future.

[16] The Town thinks that Mr. Forbes mistakenly thinks that he can sell the subject lands for uses that are not continuations of the lawful non-conforming uses recognized in Justice Price’s 2009 Order so long as the use involves some aspect of outdoor storage. Thus, the Town believes that Mr. Forbes thinks that he can use or sell the subject lands for a Commercial Parking Lot or for a Transportation Depot, which would be non-compliant uses for the zone in which the subject lands are found under the current zoning by-law.

[17] For his part, Mr. Forbes thinks that the Town mistakenly thinks that it can claw back what it lost in zoning control when in a decision affirmed by the Court of Appeal, Justice Price defined the lawful non-conforming uses being made of the subject lands in 2009. Thus, Mr. Forbes thinks that the Town is wrong in not confirming to prospective purchasers of the subject lands that the present use of the lands can lawfully be continued. Mr. Forbes thinks that the Town is breaching the injunction granted by Justice Price in 2009 and that the injunction should be reiterated in 2021.

[18] Alas, in this déjà vu dispute, both parties are mistaken in their own thinking and in their thinking about what their opponent is thinking about the future uses that can be made by purchasers of the subject lands. In the immediate case, both parties in different ways are mistaken about how the law associated with lawful non-conforming uses applies to the circumstances of the immediate case. In any event, the court does not make declarations about hypotheticals of what uses can or cannot be lawfully made of lands in the future.

[19] As I shall explain below, in the immediate case, Mr. Forbes is entitled to no more than the declarations as set out above. In the immediate case, there is no basis to enjoin the town or to, in effect, mandamus the Town to give assurances to Mr. Forbes’ prospective purchasers of the subject lands about what uses they may make of the subject lands in the future. In the immediate case, there is no reason to declare what is the settled law that legal non-conforming uses run with the land so long as the uses have been continued, and in the immediate case, whether the Orders of Justice Price, the Court of Appeal, and the Order on this Application are registerable is a matter to be determined by the officials of the Land Titles system under the Land Titles Act.

D. Evidentiary and Procedural Background

[20] On October 22, 2019, Mr. Forbes commenced this Application against the Town of Caledon.

[21] On November 4, 2019, the parties appeared in Civil Practice Court for scheduling of the Application. After hearing from the parties, Justice Archibald stated that the matter of whether the decision of the Court of Appeal would enure to the benefit of a successor in title of the Mayfield Road property was a matter for the Court of Appeal to determine.

[22] On December 20, 2019, the parties attended in Court of Appeal motions chambers and Justice Miller made the following endorsement:

1. Neither a single judge of this court nor a panel has the jurisdiction to order the remedy that is sought. The parties agree that the Superior Court of Justice is the proper forum to adjudicate Mr. Stephen Forbes’ rights with regard to the non-conforming use of the lands. It would be helpful to the resolution of the issues, if the Town were to provide to Mr. Forbes its position on whether the non-conforming use has continued uninterrupted from the 2009 decision of this Court until now, and whether the non-conforming use would necessarily be ended by a sale of the property.

2. The motion is dismissed for want of jurisdiction, without prejudice to Mr. Forbes’ continuing his application for declaratory relief in the Superior Court.

3. There is no order as to costs.

[23] The Application returned to the Superior Court of Justice, and Mr. Forbes supported the Application with the following evidence:

a. affidavits from Mr. Forbes dated November 19, 2019, February 7, 2020 and September 21, 2020 and the transcript of Mr. Forbes’ cross-examination dated July 17, 2008, in the 2007 Application brought by his parents;

b. an affidavit from Peter Newsome dated February 7, 2020 and the transcript of Mr. Newsome’s cross-examination dated December 13, 2008, in the 2007 Application brought by Mr. Forbes’ parents; and,

c. an affidavit from Ronald Harvie Lilly dated October 30, 2020.

[24] Mr. Newsome is a certified public accountant and Mr. Forbes’ accountant. Mr. Newsome deposed that Mr. Forbes had continuously used the Mayfield Road property for the same purposes after 2009 as before 2009. He deposed that the continued business uses included outside storage, parking of commercial trucks and equipment and other related business uses.

[25] Mr. Lilly is a licensed tow truck driver operating Git-R-Done Towing, who for five years had been using the Mayfield Road property as a storage facility for his tow trucks and towed vehicles for the Town of Caledon, the OPP, and insurance companies.

[26] The Town resisted the Application and relied on the following evidence:

a. the affidavit of Daniel Walton dated June 30, 2020;

b. the affidavits of Cindy Pillsworth dated July 6, 2020 and November 6, 2020; and,

c. the affidavit of Dain Watson dated November 6, 2020.

[27] Mr. Walton is a By-law enforcement officer. He was cross-examined on November 26, 2020.

[28] Ms. Pillsworth is the Zoning Administrator/Secretary-Treasurer of the Committee of Adjustment for the Town. She was cross-examined on November 26, 2020.

[29] Mr. Watson is the Coordinator of Regulatory Services at the Town of Caledon. He was cross-examined on November 26, 2020.

E. Facts

[30] Mr. Forbes is the owner of 8576 Mayfield Road, Bolton Ontario, legally described as Part I, Concession 6, in the Township of Albion in the Town of Caledon. He inherited the property on April 13, 2017, when his father George Ian Forbes passed away.

[31] Beginning in 1974, Mr. Forbes’ father and mother, George and Doreen Forbes, rented the Mayfield Road property, and in 1986, they purchased the property. The Forbes used the property for the outside storage of machinery and equipment including vehicles and heavy trucks for a construction, landscaping, and fencing business.

[32] In 1987, the Town of Caledon enacted By-law 87-250, a land use by-law designating the Mayfield Road property as within an agricultural zone.

[33] In 2005, the Town charged the Forbes with violating s. 67 of the Planning Act. The Town alleged that: (1) they had wrongfully permitted the outdoor storage of vehicles, machinery, and equipment; (2) they had wrongfully allowed a business operation; and (3) they had wrongfully permitted the storage of heavy trucks. After the Forbes defended the charges, the Town withdrew them, and the family continued to use the property as they had in the past.

[34] On April 18, 2006, the Town of Caledon enacted a new zoning by-law, Comprehensive Zoning By-law 2006-50, which came into force on October 19, 2006. The zoning by-law defines a “use” as “the purpose for which any portion of a lot, building or structure is designed, arranged, intended, occupied or maintained …”. The zoning by-law defines categories of uses. Outdoor storage was not a defined use category under the zoning by-law. With the enactment of the by-law the use being made by the Forbes of the Mayfield Road property became a legal non-conforming use in accordance with s. 34 (9) of the Planning Act.

[35] Under Comprehensive Zoning By-law 2006-50 the Mayfield Road property was in an MP or “Prestige Industrial” zone. Section 4.21.1 of By-law 2006-50 provides for legal non-conforming uses as follows:

4.21.1 Nothing in this By-law shall prevent the use of any lot, building or structure for any purpose prohibited by the By-law if such lot, building or structure was lawfully used for such purpose on the effective date of this By-law and for so long as it continues to be used for that purpose.

[36] In 2007, George and Doreen Forbes entered into an Agreement of Purchase and Sale to sell the Mayfield Road property, but they lost the sale when the Town refused to confirm that it consented to the continued use of the lands for outside storage or machinery and equipment and for commercial activities.

[37] In 2007, after the sale was not completed, the Forbes brought an Application for a declaration as to the lawfulness of their continued use of the lands and to enjoin the Town from interfering with the use.

[38] On the Application, in a decision released on February 26, 2009, Justice Price held that since October 17, 1988, the Forbes family had continuously used the Mayfield Road property for outside storage of equipment and vehicles. Forbes v. Caledon (Town), [2009] O.J. No. 928 (S.C.J.). Justice Price’s Order dated February 26, 2009, stated:

1. THIS COURT ORDERS AND ADJUDGES THAT the Applicants shall have the right to use the property municipally described as 8576 Mayfield Road, Bolton, Ontario and legally described as: Part Lot 1, Concession 6, in the Township of Caledon (“subject lands”) for the following purposes;

i. For the outdoor storage of vehicles, machinery, and equipment;

ii. For business operation;

iii For the storage of heavy trucks;

iv. For such further and other uses as may be ancillary to the business use of the subject lands set out in paragraphs (i) to (iii) above.

2 THIS COURT ORDERS AND ADJUDGES THAT The Corporation of the Town of Caledon is hereby restrained from interfering with the said uses of the subject lands by the Applicants or their lessees, invitees or tenants.

[39] The Town appealed, but on August 5, 2009, the Court of Appeal dismissed the appeal. Forbes v. Caledon (Town), 2009 ONCA 605.

[40] In respect of the uses that were being made of the Mayfield Road property in 2009, Justice Price made the following findings of fact:

a. The Mayfield Road property was used for the outside storage of equipment, vehicles and equipment from October 17, 1988 to February 6, 2009.

b. There is a difference between storage, which implies a degree of permanence, and parking, which is temporary, and the vehicles on Mayfield Road were being stored and not simply parked.

c. The vehicles on Mayfield Road were tractor trailers designed to transport goods during longer trips that require longer intervals between trips as distinct from passenger automobiles.

d. The Forbes were in the business and known to be in the business of renting space for storage of vehicles, machinery, and equipment.

e. The goods left at Mayfield Road were left for a week at a time along with the cranes and trucks needed to store or transport the goods.

f. The Forbes operated seeding and landscaping businesses that were seasonal in nature and that might reasonably affect the length of intervals between the use of the trucks associated with the businesses.

g. Mayfield Road was dedicated to commercial use as storage area to the extent that the Forbes found a market for such use or had need of it for storage in connection with their own business or seeding and landscaping.

h. While the use of the Mayfield Road property for storage of vehicles appears to have intensified, the use existed continuously along with the storage of other things such as machinery, equipment, or other goods which had lessened proportionately.

[41] Mr. Forbes deposed that after the Court of Appeal dismissed the appeal, he has continued to use the Mayfield Road property in the same manner as it was used in the past as found by Justice Price. Mr. Forbes deposed that there were ongoing commercial and business activities, including the parking of trucks, machinery, heavy industrial equipment, and outside storage. This evidence was confirmed by Mr. Newsome.

[42] The uses of the property were largely made by tenants and between 2010 and 2018. Mr. Forbes’ annual rental incomes ranged from a low of approximately $106,000 to a high of approximately $204,000. The average annual rental income was approximately $154,000.

[43] In 2015, the Town undertook a review and update of the zoning by-law, with the result that the Forbes Property is currently zoned Prestige Industrial (MP). This Prestige Industrial (MP) zoning permits many new uses as of right at the Forbes Property that were not permitted in 2009. It is undisputed that the zoning by-law does not permit outdoor storage at the Forbes Property, which is the legal non-conforming use recognized by Justice Price’s 2009 Order.

[44] Also, in 2015, the Mayfield Road property began to be used as a Motor Vehicle Compound, as defined in the current zoning by-law, as “a lot containing a building or portion of a lot containing a building, which premises are used for the temporary storage and impounding of motor vehicles taken from a collision scene or otherwise towed or conveyed and awaiting repair or demolition, retrieval or disposal.” The Mayfield Road property is not in a zone that would permit the use of a Motor Vehicle Compound. The parties differ on whether a Motor Vehicle Compound is a continuation of the legal non-conforming use or an illegal non-conforming use.

[45] Mr. Forbes deposed that in recent years on two occasions, he entered into two conditional agreements of purchase and sale to sell the Mayfield Road property. The agreements were conditional upon receiving approval from the Town of Caledon that the Town will permit the continued non-conforming use of the property. He said he lost the sales because the Town refused to provide confirmation to the purchasers of the continuation of the benefit of the legal non-conforming use.

[46] The evidence, however, is that the Town has never denied the existence of the 2009 Order. It responds to zoning inquiries about the Mayfield Road property by providing a copy of the court Order. It advises individuals to obtain independent legal advice about the interpretation of the Order.

[47] The Town offered to provide a legal non-conforming letter to Mr. Forbes, confirming that the use of the Mayfield Road property has continued as outdoor storage, including for the storage of heavy trucks, vehicles, machinery and equipment. The Town met with a potential purchaser to review its intended use of the Forbes Property, and the Town provided a potential purchaser with the Town’s opinion if the purchaser’s proposed use was permitted under the 2009 court Order.

F. The Dispute about the Legal Non-Conforming Uses

[48] As foreshadowed in the Overview above, the dispute between the parties is driven in part by the paranoic thinking of both parties. Mr. Forbes believes that the Town is intentionally being obstructive because it desires that the uses being made of the Mayfield Road property conform with the current zoning and it is anxious to have it established that some of the uses recognized by Justice Price’s Order have been discontinued. For its part, the Town believes that Mr. Forbes’ design is to have the Town permit an unlawful intensification of the legal non-conforming uses.

[49] Many of the problems of misunderstanding arising in the immediate case are problems of semantics and of the parties not understanding one another. In this regard, the Town seems insistent on ignoring that since save for possibly the matter of the Motor Vehicle Compound and the matter of the Commercial Parking Lot, there has been no intensification or change of use and the uses being made on the property have continued.

[50] The point to emphasize is that there has already been a finding by Justice Price and the Court of Appeal that the uses being made on the property - however they might be labelled - are lawful non-conforming uses that existed before the enactment of By-law 2006-50. The issue then becomes whether the current uses are a continuation of the legal non-conforming uses and save for the matter of the Motor Vehicle Compound, that is the situation at the Mayfield Road property. Justice Price and the Court of Appeal, of course, could not make a ruling about whether a use introduced in 2015 is a continuation of the legal non-conforming use.

[51] I shall, however, decide Mr. Forbes’ Application without speculating about the motives of the parties and simply in accordance with their respective legal rights.

[52] In this regard, the evidence establishes that with the possible exception of the matter of the Motor Vehicle Compound, the land use status quo has been maintained since Justice Price’s 2009 Order, and thus, Mr. Forbes largely succeeds in having Justice Price’s Order updated.

[53] Save for the matter of the Motor Vehicle Compound, the Town actually does not oppose an Order that updates Justice Price’s Order, and it offered to settle by a consent order to that effect. However, it wished to add a term of the updating Order that:

None of the above shall permit a Commercial Parking Lot as defined in Zoning by-law No. 2006-50 or any parking for hire of any commercial motor vehicles including heavy trucks or a Transportation Depot as defined in Zoning by-law No. 2006-50.

[54] The Town, however, is not entitled to this stipulation for two reasons.

[55] First, since the Town concedes that save for the matter of the Motor Vehicle Compound, the current uses of the land are a continuation of the uses of the land that were recognized under Justice Price’s Order in 2009, then if it happened that those uses were a Commercial Parking Lot as defined in Zoning By-law No. 2006-50 or were parking for hire of any commercial motor vehicles including heavy trucks or a Transportation Depot as defining in Zoning By-law No. 2006-50, then, nevertheless, they would still be legal non-conforming uses so long as Mr. Forbes has not unlawfully intensified the use, which cannot be the case because save for the matter of the Motor Vehicle Compound, the Town concedes that the current use being made of the property is a lawful non-conforming use.

[56] In the immediate Application, the Town concedes that the status quo has not changed save possibly with respect to the Motor Vehicle Compound. In other words, if Mr. Forbes was using the Mayfield Road property for a Commercial Parking Lot, for parking for hire of commercial motor vehicles, or for a Transport Depot as defined in Zoning By-law No. 2006-50, he would have the defence that the use was a continuation of a lawful non-conforming use as described in Justice Price’s Order.

[57] The purpose of the legal non-conforming uses doctrine is precisely to permit the continuation of uses that may be prohibited under Zoning By-law 2006-50, and thus in the circumstances of the immediate case, it would not be true to add a proviso to the Order that stipulated, for example, “none of the above shall permit a Commercial Parking Lot as defined in Zoning By-law No. 2006-50”.

[58] The second reason why the Town is not entitled to the requested proviso to the Court’s Order is that the Town has not proven that Mr. Forbes is using the Mayfield Road property for a Commercial Parking Lot, for parking for hire of commercial motor vehicles, or for a Transport Depot as defined in Zoning By-law No. 2006-50. Indeed, the evidence simply is that Mr. Forbes only made inquiries about these uses for his property. And as I have said, the evidence is that the status quo of the uses made of the Mayfield Road property have not changed since 2009 save possibly with respect to the Motor Vehicle Compound.

[59] This brings me to the matter of the Motor Vehicle Compound. The Town’s position is that parking is a new use that is not permitted by the 2009 Court Order. It submits that a Motor Vehicle Compound is a use aligned with parking and is not a use permitted on the Mayfield Road property because a Motor Vehicle Compound was not in existence at the property before the passage of the zoning by-law and a Motor Vehicle Compound is not a use found to exist at the time of the passing of the by-law.

[60] Mr. Forbes’ counterargument is that the so-called Motor Vehicle Compound is just another type of outside storage of vehicles, which is a permitted legal non-conforming use declared to exist under the Court’s 2009 Order.

[61] Put simply, I agree with Mr. Forbes’ argument. The evidence of what is occurring on the property, confirmed by aerial photographs, supports Mr. Forbes’ argument and it does not support the Town’s argument.

[62] The Town is incorrect in its interpretation of Justice Price’s Reasons for Decision. Justice Price was designating or describing the non-conforming use of the property, and he was not deciding that parking was not a permitted use on the property. Apart from a zoning designation, parking was an activity that was occurring on the property and certainly it was not a prohibited use made at the property. Justice Price designated the use of the property as outdoor storage because he recognized that the type of parking associated with outdoor storage was of a different duration than the parking associated with say a parking lot. Therefore, he concluded that he should designate the use of the property as for (a) the outdoor storage of vehicles, machinery, and equipment; (b) business operation; and (c) for the storage of heavy trucks.

[63] Pausing here in the discussion, an analogy is helpful in understanding the subtleties of determining what is a legal non-conforming use. Visualize: a garage use would involve the garage being used as indoor storage for tools, indoor parking for vehicles, or indoor storage for a summer vehicle that was not used in the winter. All that Justice Price decided in 2009 was that the combination of uses for the Mayfield Road property as a use was best described as for the outdoor storage of vehicles, machinery, and equipment, for business operations and for the storage of heavy trucks.

[64] Those being the legal non-conforming uses for the Mayfield Road property, the evidence establishes that a temporary storage and impounding of motor vehicles taken from a collision scene or otherwise towed or conveyed and awaiting repair or demolition, retrieval or disposal is a continuation of the existing non-conforming uses and neither a new use nor an intensification of the use being made of the property.

[65] Despite the Town’s witnesses’ arguments to the contrary, while a Motor Vehicle Compound on the Mayfield Road property would be a non-complaint use with the current zoning, it is a legal non-conforming use for the Mayfield Road property. I disagree that a Motor Vehicle Compound is more closely connected to a parking lot, but be that as it may, the real issue in the immediate case is whether the use being made on the property is a continuation of the uses found to be a legal non-conforming use and the evidence establishes that to be the situation.

[66] For these reasons, I grant the declarations found in paragraph 2 of these Reasons for Decision.

G. The Dispute About Whether Legal Non-Conforming Uses Run with the Land

[67] Mr. Forbes also seeks an Order declaring that the Ontario Court of Appeal’s decision in Forbes v. Caledon (Town), shall enure to the benefit of the transferees, lessees, invitees or tenants of the Mayfield Road property.

[68] The Town concedes that legal non-conforming uses, so long as they are continuous, run with the land. This is a settled legal principle, and no declaratory Order is necessary.

H. The Dispute About the Continuation of an Injunction against the Town

[69] Mr. Forbes seeks an Order affirming that, pursuant to the Ontario Court of Appeal decision Forbes v. Caledon (Town), the Town of Caledon continues to be restrained from interfering with the said uses of the Subject Property by Mr. Forbes or his transferees, lessees, invitees, or tenants.

[70] Mr. Forbes’ request is misconceived. Injunctions are a manifestation of a court of equity’s in personam jurisdiction, and assuming that Mr. Forbes stands in the shoes of his parents who were the Applicants in 2009, his rights would be to enforce that injunction by enforcement proceedings not by an Application for a continuation of the injunction or for a new injunction. In any event, as I shall explain momentarily, the Town has not contravened the 2009 injunction Order, so Mr. Forbes is not entitled to an injunction order.

[71] In the circumstances of the immediate case, there is no entitlement to an injunction. The Town has not interfered with the uses being made of his property. The Town is under no obligation to confirm to Mr. Forbes’ prospective purchasers that their intended uses of the property would be lawful or to facilitate Mr. Forbes’ efforts to market the Mayfield Road property.

[72] The evidence shows that the Town has appropriately responded to inquiries. The Town also offers a program or service where it will confirm the legal non-conforming uses for the property. Mr. Forbes has not availed himself of that service because of its expense and because he believes that he must resort to the Court in any event. That is entirely Mr. Forbes’ choice, but I find no fault in how the Town has responded in the immediate case including in its defence of Mr. Forbes’ Application.

[73] It appears that the Town does what municipalities typically do, which, at best, is to have its zoning department confirm that the current uses – not necessarily commensurate with the purchaser’s intended uses – may be lawfully continued. That appears to have been done in the immediate case, and, once again, the parties do not appear to be listening to what the other is communicating. In short, there is no need or basis to continue the existing injunction or to grant a new one against the municipality.

I. The Registration of the Court Orders

[74] Mr. Forbes seeks an Order entitling him to register on the title to the Mayfield Road property: (a) the judgment of Price. J. dated February 6, 2009 in Court File No. CV-07-03562; (b) the Endorsement of Gillese, Juriansz and LaForme, JJ.A. of the Ontario Court of Appeal dated August 5, 2009; and (c) and the judgment in this Application.

[75] The matter of what documents, court or otherwise, is a matter to be resolved, at least in the first instance, with the officials that manage the Land Titles Act, and, if the Court has the jurisdiction to order documents to be registered, of which I am far from certain, I would not exercise that jurisdiction pre-emptively. Mr. Forbes’ request is therefore refused without prejudice to it being renewed in a new Application.

J. Conclusion

[76] For the above reasons, I grant the declarations found in paragraph 2 of these Reasons for Decision.

[77] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Mr. Forbes’ submissions within twenty days from the release of these Reasons for Decision, followed by the Town’s submissions within a further twenty days.

Perell, J. Released: February 25, 2021