Court File and Parties

COURT FILE NO.: CV-18-00000066-0000 DATE: 2021-03-16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RANDY MAWHINEY, Applicant - AND - THE CORPORATION OF NORFOLK COUNTY and RICHARD MERCEY, Respondents

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: Sylvain R. Rouleau, Counsel for the Applicant, Randy Mawhiney Paula Boutis, Counsel for the Respondent, The Corporation of Norfolk County Brian Duxbury, Counsel for the Respondent, Richard Mercey

HEARD: January 29, 2021

Reasons for Decision

[1] Two competing applications require determination:

(i) In his Notice of Application, issued July 9, 2018, the applicant, Randy Mawhiney, seeks “A determination as to the question of what is referred to in the context of the Application as a “camping and recreational compound” as the status of a legal non-conforming use pursuant to the provisions in section 34(9) of the Planning Act, R.S.O. 1990, c.P.13; and

(ii) In his Notice of Counter-Application, dated September 18, 2019, the respondent, Richard Mercey, seeks “a declaration that the Applicant’s use of his property known municipally as 191 Hastings Drive and 195 Hastings Drive and comprising Lots 71 and 72, Registered Plan 251, South Walsingham, in the County of Norfolk, for a motor home or travel trailer is not a legal non-conforming use and was not a use of his property that was lawful pursuant to the provisions of Township of Norfolk By-law 1-NO 85 when the Applicant placed and continued to use his property for a motor home or travel trailer”.

[2] Norfolk County initially opposed the application of Mr. Mawhiney and served and filed responding material. On February 12, 2019, a motion was passed by County Council directing its solicitor to withdraw the response to that Application. The County takes no position on either application.

[3] As a result of that decision by County Council, Richard Mercey, served a motion to be added as a party respondent. That request was granted by Skarica J. by order on June 26, 2019.

Factual Background

[4] In 2009, Mr. Mawhiney and members of his family purchased Lots 68-75, Registered Plan 251, South Walsingham, Norfolk County. The property is known as 191 and 195 Hastings Drive in the area described as Long Point, adjacent to Lake Erie.

[5] Following acquisition of the property, certain alterations or improvements were made, including:

(a) grading and levelling the lots; (b) installing a driveway; (c) installing a cement pad for the recreational vehicle or trailer; (d) installing a boat launching ramp into the lake, and a dock with removable planking; (e) installing electrical connection; (f) installing a waterpoint to provide potable water; (g) installing additional shoreline protection; and (h) installing three change houses.

[6] Mr. Mawhiney describes the property as a “camping and recreational compound”. A fifth-wheel travel trailer is placed on the cement pad, located on Lots 71 and 72, in May and removed by Thanksgiving Day each year. The remaining lots are said to be used for recreational activities, such as volleyball and horseshoes. A boat is also on site during the period of occupancy.

[7] Richard Mercey and his partner purchased Lot 19, Registered Plan 251, in 2018 from Ellen Boyce, the property being known as 87 Hastings Drive. Ms. Boyce acquired the property in 2003 and has been involved in various zoning proceedings since. Located on this lot is a cottage, constructed many years ago and prior to any zoning by-law.

Zoning By-law

[8] The zoning by-law in place at the time Mr. Mawhiney acquired the property was By-law 1-NO 85 of the Township of Norfolk, in the then Regional Municipality of Haldimand-Norfolk. The zoning designation was “Hazard Land Zone (HL)”. Section 30 of this by-law provided:

SECTION 30: HAZARD LAND ZONE (HL)

In and HL Zone no land shall be used and no building or structure shall be used, altered or erected except in accordance with the following provisions:

30.1 Permitted Uses

(a) park, provided there are no buildings located thereon except buildings used for sanitary facilities, change houses for bathers and accessory maintenance and storage buildings (b) open pavilion.

[9] In 2014, Norfolk County enacted a new comprehensive zoning by-law for the entire municipality, By-law No. 1-Z-2014; however, it specifically carved out the Hastings Drive area for further study. Ms. Boyce, and others appealed to the Ontario Municipal Board.

[10] In 2016, Norfolk County enacted a further zoning by-law, By-law No. 47-Z-2016, that would have allowed placement of travel trailers on vacant lots. Ms. Boyce, and others, also appealed to the Ontario Municipal Board. On December 13, 2016, Norfolk County withdrew this by-law.

[11] The appeal of By-law No. 1-Z-2014 was heard by the Local Planning Appeal Tribunal, successor to the Ontario Municipal Board, in January 2018. On April 16, 2018, Tribunal Member Blair S. Taylor, released a decision. A draft by-law, presented on behalf of Ms. Boyce and other appellants, supported by Norfolk County and the Ministry of Municipal Affairs, was approved by the Tribunal. Mr. Mawhiney participated in that hearing, as did others, in opposition to the ultimate approved by-law.

[12] On June 12, 2018, Norfolk County, in compliance with the Tribunal Order, enacted By-law No. 38-Z-2018. This by-law now provides as follows:

4. Section 14.0 Special Provisions is modified by adding the following:

14.946 In lieu of the uses permitted in the HL Zone , only the following uses shall be permitted:

a) public park as defined for the purpose of this special provision as lands owned and/or operated by the County of Norfolk, Long Point Region Conservation Authority or other government agency provided there are no buildings or structures located thereon; b) day use, which is defined as being personal use and enjoyment of a vacant lot for a day, which may include launching boats.

The following uses shall be prohibited and are listed for the purposes of clarity and to avoid any confusion, and such prohibited uses are in addition to all other uses that are not permitted uses listed above:

a) tent and trailer park; b) recreational vehicles; c) overnight storage or overnight parking of trailers, tents and vehicles ; d) buildings or structures of any type including decks , change houses and sanitary facilities; and e) dock, pier or wharf.

Site alteration and new development shall not be permitted .

[13] The current by-law clearly prohibits the lands of Mr. Mawhiney being used as he has since 2009. However, the by-law does not affect, nor did the Tribunal’s decision, any existing legal non-conforming use.

[14] Having regard to section 30 of By-law 1-NO 85 are the following definitions:

4.57 “PARK” shall mean an area of land used for horticulture and outdoor recreational facilities but excludes a tent and trailer park as defined herein.

4.58 “PARK, TENT AND TRAILER” shall mean an area of land used for camping facilities or for the temporary parking of tent trailers, motor homes or truck campers.

4.52 “MOTOR HOME” shall mean a recreational vehicle either self propelled or designed to be towed by a motor vehicle, and capable of being used for the temporary living, sleeping or eating accommodation of persons, whether or not such vehicle is jacked up or has its running gear removed, but excludes a mobile home as defined herein.

[15] The term “open pavilion” is not defined in this by-law. The term “camping and recreational compound” is also not a defined term, nor is it a use specifically provided for, in this by-law.

Nature of the Lands

[16] The zoning designation of “Hazard Land Zone” is the most extreme and restrictive possible, recognizing the environmental nature of the lands. The history of this shoreline area on Lake Erie, including storms destroying cottages, erosion from high water and other matters is extensively reviewed by Ms. Bryce in her affidavit. For the purposes of this case, I need only refer to paras. 146-148 in Tribunal Member Taylor’s decision, where he said:

[146] The Tribunal finds the environmental/natural heritage evidence concerning the Subject Lands to be unchallenged and overwhelming.

[147] The Subject Lands are:

i. Within a dynamic beach hazard; ii. (the road access to the Subject Lands is itself within the dynamic beach hazard;) iii. Within or adjacent to a Provincially Significant Wetland; iv. Within or adjacent to a Provincially Significant Coastal Wetland; v. Within an Area of Natural and Scientific Interest; vi. Within an area of Endangered Species and Threatened Species; vii. Within the Lake Erie Floodplain; viii. Subject to flooding hazards; and ix. Subject to erosion hazards.

[148] Were draft plans of subdivision to be proposed for approval today for the Subject Lands, they would not be approved as being inconsistent with the provisions of the PPS which directs development away from such hazardous areas.

Mr. Mawhiney Was Charged

[17] As previously stated, the Tribunal decision was released on April 16, 2018, and By-law No. 38-Z-2018 was enacted on June 12, 2018. Mr. Mawhiney again placed his recreational trailer on his property at some point in the Spring of 2018.

[18] On September 9, 2018, Norfolk County, through its Municipal Law Enforcement Officer, caused Mr. Mawhiney to be charged under the Provincial Offences Act, R.S.O. 1990, c. P.33. The information alleged that Mr. Mawhiney:

on or about the 26th day of June, 2018, at 191, 193 Hastings Drive, Long Point … did commit the offence of

“Did being owner permit prohibited use mainly recreational vehicle in a hazard land zone”

contrary to Norfolk County Zoning By-law 1-Z-2014, section 14.946 Clause B.

[19] The matter was adjourned numerous times, until the last court appearance on November 6, 2019, when the charge was withdrawn. Mr. Cline, Q.C., as counsel for Mr. Mawhiney, has provided a copy of his memorandum dated October 18, 2019, to counsel for Norfolk County regarding the charge. Of particular interest was the argument of “officially induced error” having regard to comments or representations of politicians. It appears Mr. Cline’s submissions persuaded Norfolk County to withdraw the charge.

Principles of Law

(i) Legal Non-Conforming Use

[20] The concept of legal non-conforming use arises from section 34(9), Planning Act, R.S.O. 1990, c.P.13. It provides:

(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 the passing of the by-law, so long as it continues to be used for that purpose; or

(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8(1) of the Building Code Act, 1992, S.O. 1992, c. 23, prior to the day of the passing of the by-law, so long as the building or structure when erected is used for the purpose for which it is erected and provided the permit has not been revoked under subsection 8(10) of the Act.

[21] Legal non-conforming use was succinctly described by Doherty J.A. in Ottawa (City) v. Capital Parking Inc. (2002), 59 O.R. (3d) 327 (Ont. C.A.), at para. 30 as follows:

The legal non-conforming use doctrine rests on the principle that zoning by-laws which introduce new restrictions on the use of property should not deny landowners their right to use their property in the same manner they did prior to the introduction of those restrictions.

(ii) Onus of Proof

[22] The onus is on Mr. Mawhiney to establish the requirements for a legal non-conforming use. See: Town of Cobalt v. Township of Coleman, 2019 ONCA 134, at para. 21 citing Saint Romuald (City) v. Oliver, 2001 SCC 57, [2001] 2 S.C.R. 898 (S.C.C.)

(iii) Statutory Interpretation

[23] The interpretation of the zoning by-law is in issue in this case. The modern rule of statutory interpretation is set out in Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, at paras. 9-10 in the following manner:

9 As this Court has reiterated on numerous occasions, “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” (Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd e. 1983), at p. 87; see also Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (S.C.C.), at para. 26). This means that, as recognized in Rizzo & Rizzo Shoes “statutory interpretation cannot be founded on the wording of the legislation alone” (at para. 21).

10 Words that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation. The fact that a municipal by-law is in issue rather than a statute does not alter the approach to be followed in applying the modern principles of interpretation: P.-A. Cȏté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 24.

(iv) Estoppel

[24] Mr. Mawhiney also advances the argument based on estoppel, having regard to inquiries he made, representations on behalf of the municipality and the concept of “officially induced error”. In this regard, reference was made to Forbes v. Caledon (Town) (Ont. S.C.J.), at paras. 73-77, where Price J. said:

73 I agree with the Town’s position that its withdrawal of the charges they laid in 2005 does not give rise to a legal estopped that precludes it from asserting in the present proceeding that the non-conforming use is illegal. I do, however, consider it unfair for the Town, having ordered the Forbes to pave and fence the area in which they were engaged in the outdoor storage of vehicles, machinery and equipment, to take the position now that such use is illegal and must be abandoned altogether.

74 It appears to me that Forbes would reasonably have interpreted the Town’s order as a representation that it would acquiesce in the Forbes’ non-conforming use of the lands provided they made the changes that it would be unreasonable for the Town now, having caused the Forbes to rely on its implicit representation to their financial detriment, to be permitted to take the opposite position now. Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50 (S.C.C.).

75 The Town is correct that the doctrine of estoppel cannot be used to override the law, namely, the zoning that is in place. See Minister of National Revenue v. Stickel, [1972] F.C. 672 (Fed. T.D.); Ford Credit Canada Ltd. v. Deputy Minister of National Revenue (Customs & Excise), [1994] B.C.J. No. 3026 (B.C.S.C.). Estoppel can be advanced, however, as a defence to the Town’s position that the Forbes’ continued non-conforming use, which the Town previously implied that it would countenance provided the Forbes incurred the expense of fencing and paving the storage area, is now unlawful.

76 The Forbes advance the doctrine of estoppel based on the fact that they relied to their detriment on the Town’s implied representation that the actions required by the Order to Comply would bring them into compliance. They submit that the Town cannot now take the position that the use of the land is not, in fact, in compliance. The Forbes do not rely on estoppel to avoid a statutory obligation or to invalidate the by law but rather to support their argument that their use of the lands was a legal non-conforming use once they had complied with the Order. Based on my finding that the Order to Comply was an implied representation that the use would be a legal non-conforming use upon compliance and that the Forbes relied on that representation to their detriment, I agree that the Town is now estopped from claiming that the Forbes’ use of the lands is not a legal non-conforming use.

77 While estoppel is not generally applied to a municipal corporation, this is not an absolute rule. The doctrine can be applied in circumstances that do not disrespect or invalidate the zoning by-law in question. Aubrey v. Prince (Township) (2001), 52 O.R. (3d) 274 (Ont. S.C.J.); Kenora (Town) Hydro Electric Commission v. Vacationland Dairy Co-operative Ltd. (1992), 7 O.R. (3d) 385 (Ont. C.A.). In my opinion, the circumstances of this case allow for such an application. The Forbes’ argument is not analogous to that of the defendant in Toronto (City) v. Polai (1972), [1973] S.C.R. 38 (S.C.C.), who argued that the City was estopped from enforcing a by law because many other property owners were also violating it without prosecution. Nor is it analogous to the facts in Toronto (City) v. McIllroy, [1997] O.J. No. 5649 (Ont. Gen. Div.), where the defendant argued that the Court should hold the City to their earlier decision because the defendant had successfully deceived the City officials as to the real use of the land. Here, the Forbes complied with the lawful Order of the Town to their financial detriment in good faith and in reliance on the Town’s implied representation that this would constitute compliance with the by law.

Positions of the Parties

[25] Briefly stated, the positions of the parties are set out in the following manner.

(i) Mr. Mawhiney

(a) the seasonal use of the property for the purpose of camping and recreation, including the use of a recreational trailer, is a legal non-conforming use, pursuant to section 34(9), Planning Act, R.S.O. 1990, c.P.13; (b) this use was permitted under the by-law on the basis it was not the intent or effect of the by-law to prohibit a recreational trailer on the property; and (c) Norfolk County is estopped from asserting the non-conforming use is illegal by virtue of representations made to Mr. Mawhiney and the concept of “officially induced error”.

(ii) Mr. Mercey

(a) Mr. Mawhiney has not established his use of the property as legal non-conforming; (b) the by-law is clear and unambiguous, prohibiting all uses other than those expressly permitted; and (c) estoppel does not apply in the circumstances of this case.

(iii) Norfolk County

At the time of the hearing, Norfolk County took no position.

The Evidence

[26] The evidence, relevant to the issues, is set out in the following manner:

(i) Mr. Mawhiney

[27] In his four affidavits, Mr. Mawhiney asserts:

(a) the history of acquiring the lots and improvements as previously mentioned; (b) the improvements were approved by regulatory agencies, including the Ministry of Natural Resources and the Long Point Region Conservation Authority; (c) “Given my background, due diligence in the use of the property was also a paramount concern to me. I have a degree in forestry, I was employed by the Ministry of Natural Resources for a five-year term and I am a third class stationary engineer with 31 years in waste water treatment. Currently I am a member of the County’s environmental assessment board (NEAC)”; and (d) “In conversation with David Roe, a former employee of The Regional Municipality of Haldimand-Norfolk, I received advice as follows:

(i) he was an employee in the Planning Department of The Regional Municipality of Haldimand-Norfolk when By-law 1-NO 85 was passed; (ii) he was involved in drafting with others of the drafting of By-law 1-NO 85; and (iii) any issue as to whether By-law 1-NO 85 was to regulate the use and/or location of travel trailers was never discussed except where specifically noted in the by-law.

(ii) Dennis Travale

(a) Mr. Travale was the mayor of Norfolk County from December 2006 to December 2014; (b) in that time period Hastings Drive was a frequent topic of debate by Council and staff of Norfolk County, particularly regarding the specific location of the road allowance and land use issues; (c) “From the outset of my term in office I received, from property owners fronting on Hastings Drive, inquiries requesting clarification as to whether or not the parking or the placement of recreational vehicles and the use of same on a seasonal basis was permitted under the By-Law”; (d) “The Applicant was one of such ratepayers. Mr. Mawhiney had put in place, on his property, a boat launching ramp and dock used by his family and their visitors for outdoor recreational activities such as beach volleyball, badminton, frisbee toss, etc. Mr. Mawhiney advised me that he wanted to buy a fifth wheel travel trailer, place it on the property and make use of same in season on a sporadic basis. Mr. and Mrs. Mawhiney and their family operate a business on Long Point.”; and (e) “Given Mr. Mawhiney’s request, I determined to discuss the issue with Sr. Staff of the municipality. The general consensus of the Staff of the County that I interviewed, was that the passage of By-law 1-NO 85 did not apply to precluding the use of a fifth wheel tractor trailer on a seasonal basis or any other similar types of recreational vehicles on a seasonal basis so long as same remain mobile. I so advised Mr. Mawhiney”.

(iii) David Roe

(a) Mr. Roe was employed as an Agreement Administrator and Planner for the Regional Municipality of Haldimand-Norfolk in 1985 and, as such, was involved with other planning department staff and councillors relative to putting in place comprehensive by-laws for all areas of the municipality; (b) “I cannot recall any discussion at either planning staff level at any council meeting that I attended where there was any suggestion that travel trailers, RV’s, ATV’s or any other motorized vehicle was considered to be regulated by any By-laws …” including By-law 1-NO 85.

(iv) Ms. Boyce

(a) Her ownership of a cottage lot and history of the area, including the Tribunal decision, as previously mentioned; (b) The 2018 municipal election resulted in a shift in the makeup of County Council and its support of development on Hastings Drive, contrary to the Tribunal decision.

(v) Mr. Mercey

(a) His acquisition of the cottage lot from Ms. Boyce as previously mentioned. (b) Attached to his affidavit is a copy of a report presented by Mr. Roe, whose evidence at this hearing is summarized above, to Norfolk County Council on December 4, 2012; (c) Mr. Roe’s report indicates:

(i) At some point in time Mr. Roe left his employment at Norfolk County and established a private practice as a registered professional planner; (ii) He was retained by a number of landowners on Hastings Drive; (iii) His report concerns the “Proposed use of Vacant Lots located on Hastings Drive” saying:

I have been retained by a group of 14 property owners who own 18 properties located along Hastings Drive at Long Point. The properties in question are presently vacant and have limited use due to restrictions of the uses permitted by the present local zoning by-law. The owners would like to have the opportunity to use their properties to a fuller extent. What they propose is, to be able to use their lots on a seasonal basis, for overnight camping.

(iv) After reviewing the by-law, relevant policy statements and other matters, Mr. Roe went on to say:

Discussion

My clients are requesting that they be able to further the enjoyment of their property. They are proposing to use their property for what would be considered overnight camping as defined in the by-law as a “Park, Tent and Trailer”. The proposed extension of use would appear to be reasonable, in light of the number of existing marina campgrounds and the Long Point Provincial Park which offers similar seasonal camping elsewhere in Long Point.

The lots in question do have safe access onto a public road which is maintained by the County. This access is adequate to provide access for emergency vehicles if need be. The motor home will be limited to strictly seasonal use, with removal from the property after each season. The motor home must remain on their wheels and be licensed for use on public roads, to ensure that they can be readily moved from the property when required. The motor homes must be capable to providing a potable water supply and a system for collection of wastewater to be removed from the property, thus eliminating an environmental concern. There is no indication that the proposed use will have any impact on the environment. The proposed use is a reasonable use of an existing property without any negative impact on the environment.

Recommendation

It is recommended that the zoning on the lots identified in this report be amended to permit the use of motor homes on a seasonal basis for overnight camping as outline [sic] in this report.

(vi) Kevin Eby

(a) Mr. Eby is the President of Eby Growth Management Planning Services Ltd. He is a registered professional planner; (b) Mr. Eby was retained on behalf of Mr. Mercey to provide an opinion on the following matters:

(i) Did Comprehensive Zoning By-law 1-NO 85 for the Township of Norfolk permit the use of recreational vehicles and trailers on the lands that are the subject of the application before the Court? (ii) Was there any uncertainty or ambiguity in By-law 1-NO 85 as to the use of recreational vehicles and trailers on the subject lands? (iii) Did By-law 1-NO 85 specifically regulate the use of recreational vehicles and trailers generally throughout the lands to which it applied?;

(c) Mr. Eby provided an Acknowledgement of Expert’s Duty in the usual form; (d) After a review of various provisions and terms in the by-law, Mr. Eby concludes:

31. The principal use of the “camping and recreational compound” subject to this application – that being the use of a motor home for, among other things, seasonal overnight accommodations – was not permitted on the subject lands by By-law 1-NO 85.

32. Not only does By-law 1-NO 85 prohibit the use of a motor home on the subject lands, it does so within the context of a by-law that explicitly regulates where such uses were permitted. By-law 1-NO 85 provided both a zoning category where motor homes were permitted, and permitted the use of motor homes on a site specific basis in other zoning categories through the use of special provisions. Neither of these permissions relating to the use of motor homes applied to the subject lands.

33. There is no uncertainty or ambiguity in By-law 1-NO 85 relating to this matter.

[28] Counsel for Mr. Mawhiney objected to opinion evidence on the “ultimate issue”, relying on Niagara River Coalition v. Niagara-on-the-Lake (Town) 2010 ONCA 173, at paras. 40-45; and Ontario Federation of Anglers: Hunters v. Ontario (Ministry of Natural Resources) (Ont. S.C.J. – Div. Ct.), at paras. 27-33. Counsel for Mr. Mercey disagreed, relying on R. v. Lights, 2020 ONCA 128, at para. 43.

[29] A detailed analysis of ultimate issue evidence in this case is not required. To the extent Mr. Eby’s conclusion address the ultimate issue, such are not necessary in my analysis. His review of the terms and provisions is, to a limited extent, helpful. Quite frankly, nothing turns on this evidence in my decision.

(vii) Other Planning Evidence

[30] At the tribunal hearing previously referred to, four land use planners testified, one of whom was retained by an objector to the proposed by-law.

[31] An Agreed Statement of Fact was filed at the hearing, including the following:

5. Existing Norfolk Zoning By-law (1-NO-1985) – Does not permit trailers on Hastings Drive.

6. Status of legal non-conforming uses on Hastings Drive – Beyond the scope of the OMB hearing, would need to be addressed on a site by site basis.

Discussion and Analysis

A. Preliminary Matters

[32] Prior to addressing the merits of the application and counter-application, several preliminary matters need to be addressed.

(a) Political

[33] The underlying foundation for land use control provisions under the Planning Act, R.S.O. 1990, c.P.13 is that such are to be based on sound planning principles.

[34] Prior to enacting zoning by-laws, members of Council, other agencies and individuals are involved in a lengthy and extensive process. The nature of the lands must be determined. Input is sought from interested agencies, including provincial ministries and conservation authorities. The planning department is tasked with providing guidance and reports. The public is consulted. Ultimately, Council will enact a zoning by-law by exercising its powers in the best interests of the municipality and all of its residents.

[35] From time to time, as we see in this case, enactment, application, interpretation and enforcement, or lack of same, are influenced by members of Council for reasons inconsistent with their powers.

[36] No complaint has been raised with respect to the enactment of By-law 1-NO 85. But, events since raise concern.

[37] In 2009, Mayor Travale represented to Mr. Mawhiney a trailer could be placed on his property for seasonal use. As hereafter discussed, the mayor had no authority to provide such advice. By doing so, the purported controversy began on a lengthy and expensive journey.

[38] In or about 2012, Norfolk County commenced a review of its zoning by-laws in order to prepare a comprehensive by-law for the whole county. This is a normal occurrence as changes happen and by-laws need to reflect the current state of affairs. The municipal structure had also changed since 1985 and a comprehensive by-law became necessary.

[39] By-law No. 1-Z-2014 was enacted; however, it carved out Hastings Drive for further study. The appeal process commenced thereafter.

[40] There was a change in Council following the municipal election in the Fall of 2014. Issues were coming forward to Council pertaining to Hastings Drive. Council was aware of trailers being placed on vacant lots. Mayor Luke was questioning who had approved that activity, obviously unaware of his predecessor’s involvement.

[41] By-law No. 47-Z-2016 was then passed, permitting seasonal camping in a travel trailer for personal use on Hastings Drive. Another appeal followed. As the appeal process was heading towards a hearing, this by-law was repealed.

[42] The same Council was in place in 2018 when the appeals came before the Tribunal. Norfolk County supported the appellants, including Ms. Boyce and others. Its lawyer and planners participated in the hearing. The County consented to the draft order subsequently approved by the Tribunal. Council then enacted By-law No. 38-Z-2018 to comply with the Tribunal order.

[43] Subsequently, Mayor Luke reported receiving complaints about the trailers on Hastings Drive. At a Council meeting in July 2018, he raised the issue with respect to “… those nine trailers sitting on Hastings that should have been removed April the 17th”, being the day following the release of the Tribunal decision. On September 9, 2018, Mr. Mawhiney was charged.

[44] On July 9, 2018, Mr. Mahawiney commenced this proceeding by Notice of Application. Norfolk County responded in August 2018, opposing Mr. Mawhiney’s request.

[45] Another change in Council occurred as a result of the municipal election in the Fall of 2018. Mayor Luke was defeated, replaced by Mayor Chopp. Several new councillors were also elected. Ms. Boyce reports the election platforms of these new members of Council as supporting development on Hastings Drive.

[46] In February 2019, Council embarked on a position of supporting Mr. Mawhiney. The following chronology of events at Council was provided by Ms. Boyce, taken from Council minutes:

i) February 5, 2019 – At the Council in Committee Meeting, Mayor Chopp brought forward a Notice of Motion, “THAT Council Supports in principle that all Recreational Vehicle or trailer usages in place on Hastings Drive prior to the April 16, 2018 be upheld as legal non-conforming issues.”

ii) February 5, 2019 – Mayor Chopp then moved, “THAT the rules of order pertaining to the Notice of Motion and Motion process be waived to hear the February 5, 2019 Notice of Motion and Motion process be waived to hear the February 5, 2019 Notice of Motion respecting Recreational Vehicle or Trailer Usage on Hastings Drive at the February 12, 2019 Council meeting. Carried.

iii) February 12, 2019 – The Notice of Motion on the February 12, 2019 meeting agenda read, ‘THAT Council supports in principle that all Recreational Vehicle trailer usages in place on Hastings Drive prior to 1-Z-2014 coming into force and used continuously since that time be upheld as legal non-conforming uses.”

iv) February 12, 2019 – At this Council Meeting, before two deputations in support of this motion were presented, Council had a closed session with the County Solicitor. Subsequently, Mayor Chopp withdrew her motion and Ward 1 Councillor Masschaele put forward a new motion, ‘THAT Norfolk County Council direct the County Solicitor to withdraw the County’s response on the ongoing civil litigation on Hastings Drive; AND THAT Council relies upon the outcome decision of the court, which is expected to provide guidance on the issue of legal non-conforming. Carried.

[47] As a result of the motion passed by Council on February 12, 2019, the lawyer for Norfolk County withdrew from this case, remaining, in essence, only as an observer.

[48] As a result of Council’s decision, Mr. Mercey came forward with a motion, initially returnable on April 25, 2019, to be added as a party respondent. By order, dated June 26, 2019, his request was granted.

[49] Norfolk County Council, in my view, improperly abandoned the ratepayers and did not comply with its role to represent the public and consider the well-being and interests of the municipality. The Council minutes in February 2019 clearly demonstrate support for one group of ratepayers without consideration of all ratepayers. No reports were generated to support the change in position. No notice was given to the public.

[50] There is nothing improper in taking a new position, provided it is based on evidence and done in a transparent manner. Council is expected to defend its by-law and its position by participating in cases of this nature. Withdrawing from a case, when it was the only respondent, was not a legitimate use of Council’s powers.

[51] The decision to withdraw was political. It was not based on sound planning principles, given the absence of evidence to support Council’s new position. To now say the municipality does not oppose Mr. Mawhiney is improper.

(b) Evidence of Dennis Travale

[52] The affidavit of former Mayor Travale, with reference to events ten years prior in 2009, helps explain, perhaps, the genesis for the application herein. However, his evidence is not helpful for the following reasons:

(i) he does not disclose who he spoke to nor whether any of those persons were in the Planning Department, nor does he provide details of the interviews; and (ii) his reference to a “general consensus” is misleading in the absence of such disclosure and implies, at least, not all employees he spoke to agreed with what was then communicated to Mr. Mawhiney.

[53] As previously stated, Mayor Travale had no authority to provide planning or legal advice on behalf of the municipality. See: Vaughan (City) v. Ruffolo (Ont. S.C.J.), at paras. 11-12. The evidence, if any, should have been provided from a member of the Planning Department.

[54] Further, while Mr. Mawhiney may have relied on the advice of Mayor Travale, perhaps to his detriment, it is difficult to understand why he consulted the mayor only. Having regard to his background, education and employment in the public sector, Mr. Mawhiney’s reference to “due diligence” is not support by what he said. Surely, with his background, a due diligence inquiry would entail seeking advice from a qualified planner or lawyer. He did not do so.

(c) Evidence of David Roe

[55] On reading Mr. Roe’s affidavit, the impression is that his evidence is that only of a former planner with Norfolk County.

[56] Mr. Roe’s evidence is incomplete and also not helpful for the following reasons:

(i) he attaches copies of minutes from two meetings in April 1985 regarding the then proposed zoning by-law, but does not identify or refer to the many reports and other meetings that would have occurred; (ii) he says he “cannot recall any discussion at either planning staff level or any council meeting that I attended”, but the implication is he would not likely have been at every meeting and the comment is neither conclusive nor at the required evidentiary onus. “Cannot recall” does not mean it did not happen; and (iii) Mr. Roe did not disclose being retained by landowners, including Mr. Mawhiney, on Hastings Drive in 2012 to advocate for an amendment to permit motor homes on the vacant lots.

[57] This is clearly a conflict of interest and without full disclosure of all matters pertaining to the enactment of the by-law in 1985 renders Mr. Roe’s evidence meaningless.

[58] I am also troubled by Mr. Mawhiney’s evidence when he says “in a conversation with Mr. Roe … I received advice as follows … (c) any issue as to whether By-law 1-NO 85 was to regulate the use and/or location of travel trailers was never discussed except where specifically noted in the by-law”. But, that’s not the evidence of Mr. Roe, who only said “I cannot recall”.

B. Interpretation of By-law 1-NO 85

[59] For ease of reference, section 30 of this by-law is repeated:

SECTION 30: HAZARD LAND ZONE (HL)

In an HL Zone no land shall be used and no building or structure shall be used, altered or erected except in accordance with the following provisions:

30.1 Permitted Uses

(a) park, provided there are no buildings located thereon except buildings used for sanitary facilities, change houses for bathers and accessory maintenance and storage buildings (b) open pavilion.

[60] Two arguments are advanced in support of Mr. Mawhiney’s position of legal non-conforming use under section 34(9):

(a) By-law 1-No 85, in section 30, neither permitted nor prohibited the use; and (b) had a building permit been required, given Mr. Mawhiney’s diligence, it can be reasonably inferred a permit would have been granted.

Both submissions are rejected.

[61] The words used in section 30 of the by-law, in my view, are clear and unambiguous. Only two uses are permitted. It logically follows that all other uses are prohibited. A reading of the whole of the by-law supports that interpretation.

[62] The nature of the lands in Hastings Drive is also supportive. Simply put, this is one of the most sensitive environmental areas in Ontario. Common sense more than suggests no residential or recreational use, seasonal or otherwise, is permissible other than day use, save for any legal non-conforming uses.

[63] A building permit is not required as there is no structure. Regardless, approval for a building permit is dependant on compliance with applicable law. Permits are considered by the Chief Building Official, not council. If any inference is to be drawn, it is that a building permit would be denied given the provisions in section 30 of the by-law.

[64] The only remaining factor requiring consideration is the intent of Council in 1985. The evidence of Mayor Travale and Mr. Roe is rejected for the reasons previously stated. There is no other evidence.

[65] Other than the minutes of two meetings in 1985, as identified by Mr. Roe, no documents were provided in evidence regarding the process prior to enacting the by-law. Surely, some records remain available. There is also no evidence from the planning department or others with knowledge of events in 1985 and prior.

[66] Attempting to establish intent in 2019 by reference to incomplete recollection of events in 1985 does not meet the requisite standard of proof. The onus of establishing intent of Council to permit his use is on Mr. Mawhiney. He has failed to do so.

[67] I conclude the use established by Mr. Mawhiney is not legal non-conforming. It is neither a park or open pavilion, the only uses permitted in section 30.1. Use of a motor home, recreational vehicle or trailer may meet the definition for “park, tent and trailer”, however such is prohibited in the definition of park. Camping and recreational compound is not a use recognized in the by-law and it is not permissible to attempt to read in such a use subsequently.

C. Estoppel

[68] Mr. Mawhiney also claims statutory protection under section 34(a)(n) by reference to his diligent steps, advice from Mayor Travale and acknowledgement of Norfolk County of its “officially induced error”. Reference was made to Forbes, supra, in support of this position.

[69] The issue in Forbes was different. Mr. Forbes made improvements to the property as directed by a municipal order. Price J. concluded that order was an implied representation the use would be recognized as legal non-conforming.

[70] Estoppel only arises in exceptional circumstances. As Price J. said in Forbes, correctly in my view, withdrawal of a charge under the by-law does not give rise to estoppel, nor can estoppel be used as a means to override the zoning in place.

[71] Mr. Mawhiney made some inquiry in 2009 before placing the trailer on his vacant lot. He consulted the mayor. He did not seek advice from a qualified planner or lawyer. The mayor was not qualified to give planning or legal advice and had no authority to bind the municipality.

[72] The charge against Mr. Mawhiney was withdrawn. The officially induced error appears to result from the advice of Mayor Travale. But, as noted in Forbes, that does not give rise to the estoppel. More is required.

[73] Further, the decision to enforce a by-law, or not, is not conclusive. Prosecution is discretionary, although failure to enforce may result in other proceedings. The reluctance to enforce the by-law in 2009 and at present is reflective of the political climate. It cannot be used to override the zoning in place or to establish a legal non-conforming use.

Summary

[74] The evidence tendered does not support a finding the use of the property by Mr. Mawhiney as a camping and recreational compound is a legal non-conforming use. In my view, the evidence is overwhelming to the contrary.

[75] I have concluded the wording in section 30 of By-law 1-NO 85 is clear and unambiguous. Placing a travel trailer on the property is illegal and has been since 1985. The present by-law contains more detail “for the purposes of clarity and to avoid any confusion”. Those words are not needed but for the actions of certain landowners, including Mr. Mawhiney, in attempting to create a use and have it recognized and by some members of Council who chose to support that activity, contrary to the clear intent of the prior by-law as established by its language and a common sense consideration of the lands involved.

[76] In result, the application is dismissed and the counter-application is granted. Accordingly, an Order is granted declaring Mr. Mawhiney’s use of his property known municipally as 191 Hastings Drive and 195 Hastings Drive and comprising Lots 71 and 72, South Walsingham, in the County of Norfolk for a motorhome, travel trailer, recreational vehicle or recreational trailer is not a legal non-conforming use and was not a use of his property that was lawful pursuant to the provisions of the Township of Norfolk By-law 1-NO 85.

[77] If the parties cannot agree on the issue of costs, counsel are directed to exchange brief written submissions and deliver them to my chambers in Kitchener within 30 days of the release of this decision. If written submissions are not received within that time frame, the issue of costs will be considered resolved.

D.J. Gordon J.

Released: March 16, 2021