Court File and Parties
COURT FILE NO.: CV-19-00617323-0000 DATE: 2021-04-07
ONTARIO SUPERIOR COURT OF JUSTICE (Commercial List)
BETWEEN:
1884901 ALBERTA LTD. o/a PARK’N FLY Applicant
– and –
PARK2SKY INC., 2273865 ONTARIO INC., and FRANK BOSSO Respondents
COUNSEL: Jonathan S. Cheng, for the Applicant Ian J Perry for the Respondents
HEARD: March 10, 2021
BEFORE: Koehnen J.
Reasons for Judgment
Overview
[1] The applicants seek a permanent injunction restraining the respondents from using a property near Lester B. Pearson International Airport in Toronto as a parking lot because such a use violates the applicable zoning by-law.
[2] The respondents resist the injunction. They submit that the applicant has not made out a clear case for an injunction because the City of Toronto has consented to an order that allows the respondents to use the property as a parking lot.
[3] At the end of the hearing on March 10, 2021 I indicated that I would grant the injunction the applicant sought with reasons to follow. These are those reasons.
[4] The order to which the City consented did not permit the respondents to violate applicable zoning by-laws. It was merely an order in which the City agreed that the respondents did not require a licence if they operated the parking lot the manner described in the order. Whether the respondents require a licence to operate a business is a question separate and distinct from whether zoning by-laws permit the property to be used as a parking lot. The fact that the City’s licensing branch agrees that someone does not require a licence does not mean that the person is complying with zoning by-laws. The applicant has established a clear breach of the zoning by-law the only remedy for which is to enjoin the respondents from operating a parking lot on the property in the future.
Factual Background
[5] The Respondent Park2Sky Inc. operates a parking lot at 615 Dixon Rd. (the “Property”) near Lester B. Pearson International Airport in the city of Toronto. The respondent 2273865 Ontario Inc. (“227 Inc.”) is the owner of the land on which Park2Sky operates its parking lot. The respondent Frank Bosso is the sole director and officer of the two corporate respondents.
[6] The Applicant owns and operates three parking lots in the same municipal ward as the Property. The Applicant submits that the respondents are prohibited from operating a parking lot on the Property because doing so contravenes the City of Toronto zoning by-law number 569 – 2013 (“the Citywide By-Law”).
[7] The matter has had a somewhat long and tortuous history.
[8] The respondent 227 Inc. purchased the Property on February 28, 2011. At the time, the Property was governed by the City of Etobicoke Zoning Code which would have permitted the Property’s use as a parking lot.
[9] On May 9, 2013, the City the Citywide By-Law which, among other things, changed the zoning applicable to the Property so as to prohibit its use as a parking lot.
[10] The respondents did not begin operating a parking lot on the Property until sometime after June 2016.
[11] The time lag is significant. Section 34(9)(a) of the Planning Act,[^1] codifies the concept of a legal nonconforming use. It provides that no by-law passed under s. 34 prevents any land from being used for a purpose prohibited by the by-law if such land was lawfully used for such purpose on the day the by-law was passed. In other words, had the Property been used as a parking lot before May 9, 2013, the Citywide By-Law would not have restricted the use of the Property as a parking lot. The respondents, however, did not begin using the Property as a parking lot until three years after the Citywide By-Law was passed.
[12] The application first came before me for hearing on August 6, 2019 at which time the respondents sought an adjournment claiming that they had not been served. In my endorsement of August 6, 2019, I found that it appeared that the respondents had been evading service. The applicant had tried to try to serve the respondents on at least 15 occasions at various home and business addresses that the respondents had listed as places for service in publicly filed documents. I nevertheless granted the adjournment to allow the respondent the opportunity to file materials.
[13] The matter came before me a second time on December 2, 2019 at which time the respondents argued that I had no jurisdiction to proceed with the application because the respondents had filed an appeal against the Citywide By-Law with the Local Planning Appeal Tribunal. Both sides agreed that, if a valid appeal was pending, then the Property continued to be governed by the City of Etobicoke Zoning Code which permitted the operation of a parking lot on the Property.
[14] The applicant argued that the respondents had not filed a valid appeal. Although it struck me at the time that the respondents’ appeal of the by-law was invalid, I nevertheless found myself unable to grant the relief the applicant sought because any issues surrounding the validity of the appeal were reserved to the exclusive jurisdiction of the Local Planning Appeal Tribunal pursuant to section 11 (1) of the Local Planning Appeal Tribunal Act, 2017.[^2] As a result, I adjourned the Application sine die to allow the Applicant to bring the necessary proceeding before the LPAT.[^3]
[15] On January 7, 2021, the LPAT dismissed the respondents’ purported appeal. The applicant then brought the original application back on before me.
Law and Analysis
[16] Section 380 of the City of Toronto Act, 2006[^4] (“COTA”) provides that if a City of Toronto by-law is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the City or local board.
[17] The parties agree that the test for issuing a statutory injunction under s. 380 of the COTA is as follows:[^5]
a. The Applicant must establish that it is a taxpayer in the City of Toronto;
b. The Applicant must establish a clear breach of the by-law;
c. The burden then shifts to the Respondents to establish that there are “exceptional circumstances” such that the injunction should not issue; and
d. The court may issue the statutory injunction or exercise its residual discretion to decline to issue the injunction.
a. Applicant is a Taxpayer in the City of Toronto
[18] The parties agree that the applicant is a taxpayer in the City of Toronto.
b. Clear Breach of the By-Law
[19] If the Applicant can establish a clear breach of the by-law, a court will grant the statutory injunction. Irreparable harm and the balance of convenience do not need to be considered because a public authority is presumed to be acting in the best interests of the public when passing a by-law. A breach of the by-law is considered to be irreparable harm to the public interest. There is a public interest in ensuring that municipal by-laws are obeyed which is why taxpayers are permitted to seek injunction to restrain bylaw contraventions.[^6]
[20] The respondents retained a land use planner to provide an opinion on the application. His opinion indicates that the operation of the parking lot on the Property violated the Citywide bylaw and that the particular manner of operating the parking lot also violated the City of Etobicoke Zoning Code.
[21] The respondents submit that the applicant has not established a clear breach of the Citywide By-Law because: (i) the City consented to an order which the respondents say allows them to operate a parking lot; and (ii) the respondents submit they are not operating a parking lot but a “Vehicle Depot” which is a defined and permitted use under the Citywide By-Law.
i. The Consent Order
[22] On May 6, 2019, the respondent Park2Sky was convicted of operating a parking lot on the Property without a licence, was fined $9,000 and was ordered to shut down the parking lot.
[23] Park2Sky then applied to suspend the closure order. Park2Sky entered into discussions with the City of Toronto’s licensing office which ultimately agreed to a suspension order after Park2Sky made certain changes to the operation of the parking lot. This was ultimately memorialized in a suspension order issued on consent by Justice Sossin on July 11, 2019.
[24] The respondents submit that the suspension order permits them to continue operating a parking lot on the Property. I disagree.
[25] The suspension order and the events leading up to it relate solely to licensing requirements and have nothing to do with zoning requirements. Licensing and zoning requirements are separate and distinct requirements. Compliance with one does not equate to compliance with the other.
[26] The summons pursuant to which Park2Sky was convicted charged it with carrying on “the business, trade or occupation of operating a Commercial Parking Lot without having the necessary licence to do so contrary to Chapter 545 of the City of Toronto Municipal Code.” Chapter 545 of the City of Toronto Municipal Code contains licensing requirements for businesses and activities conducted within the city of Toronto.
[27] The order that required Park2Sky to shut down the parking lot also noted that Park2Sky was operating a Commercial Parking Lot without having the necessary licence.
[28] After being convicted, Park2Sky applied for a suspension order pursuant to s. 387 (1) of the COTA which provides that, where an owner is convicted of carrying on a business without a licence required by a by-law, the Superior Court of Justice may suspend any order to close the business “if the court is satisfied that the use to which the premises will be put will not contravene a licensing by-law under this Act.”
[29] One way to obtain a suspension order is to make changes to the nature of the business, if possible, so as to avoid the need for a licence. That is the route that Park2Sky followed. It began discussions with the city of Toronto’s licensing officials to determine whether there was a way of operating a parking lot without requiring licence. There was. The definition of “Commercial Parking Lot” in the Licensing Chapter of the Toronto Municipal Code, Chapter 545 is as follows:
COMMERCIAL PARKING LOT - Any location that demands compensation in relation to the use of a parking space, but does not include:
- Any parking space rented on a weekly, monthly or yearly basis for one person's exclusive use; [^7]
[30] The City’s licensing bureau then agreed to a suspension order provided Park2Sky only rented out parking spaces for a minimum of one week for one person’s exclusive use. Those terms were embodied in the consent suspension order that Justice Sossin granted on July 11, 2019.
[31] The parties to the suspension order were Park2Sky as applicant and “City of Toronto Municipal Licensing and Standards” as respondent.
[32] It is evident from the foregoing that the suspension order had nothing to do with zoning bylaws. Zoning officials were not involved in the discussions, licensing officials were. The suspension order does not exempt the respondents from any zoning bylaw, nor have the respondents pointed to any representation from the City to the effect that the respondents had complied with zoning bylaws. The question of licensing is completely separate from zoning. The fact that the respondents might have complied with a licensing bylaw does not mean that they have complied with a zoning bylaw. There are mechanisms to obtain exemptions from zoning bylaws. The respondents have not been successful in obtaining such an exemption.
[33] The parties have in fact always agreed that the Citywide Zoning By-Law prohibits use of the Property for parking. That is why the respondents launched their appeal to the Local Planning Appeal Tribunal in the first place. Indeed, the respondents’ own expert agreed that use of the Property as a parking lot violated the Citywide By-Law.
(ii) Vehicle Depot
[34] To avoid the fact that parking is a prohibited use under the Citywide By-Law, the respondents advanced a new argument on the hearing before me on March 10, 2021. They now submit that the proper classification of their use of the Property is that of a “Vehicle Depot” which is a permitted use under the Citywide By-Law.
[35] As defined by the Citywide By-Law, a Vehicle Depot means
“a premises used for the non-public storing of vehicles, excluding construction or agricultural vehicles. A vehicle depot may include dispatching, maintenance, service and fuelling areas for the stored vehicles that are ancillary to the vehicle depot”[^8]
[36] In my view, the respondents’ use of the Property as a parking lot does not fall within the definition of “ Vehicle Depot.” The critical distinction between a parking lot and a Vehicle Depot is the requirement in the definition of a Vehicle Depot that it be used for the “non-public” storing of vehicles. Thus, for example, a car rental or a taxi business that uses a property to store vehicles while they are not being used would be operating a Vehicle Depot because they would be operating the facility for a private purpose rather than a public purpose. A business that allows any member of the public to store a vehicle on a property is operating a parking lot for purposes of the zoning requirements under the Citywide By-Law.
c. Exceptional Circumstances and Residual Discretion
[37] The third and fourth factors to consider when deciding whether to issue a statutory injunction are whether there are exceptional circumstances such that the injunction should not issue and whether the court should exercise its residual discretion to decline the injunction. The two were raised together in argument as a result of which I will address both together here.
[38] The respondents suggest that the Vehicle Depot defence is a new issue that requires further analysis that is not in the record before me. They suggest they should be given an opportunity to provide further materials to address the issue.
[39] I do not think it would be appropriate to grant any further adjournment. As noted, the matter has languished for several years. The respondents have had ample opportunity to put their full case to the court. Their approach to the matter has been marked by delay. I can understand that from the respondents’ perspective. Delay is to their advantage. It would not, however, be appropriate to allow litigants to present their cases in piecemeal fashion. To allow someone to advance one defence, fail on it and then afford them an entirely new proceeding based on a different defence would mean never-ending litigation and do violence to the principle of judicial finality.
[40] The respondents could have filed whatever material they wanted to on the Vehicle Depot defence. They have provided no reason for failing to do so. In addition, they have not persuaded me that there is enough of an issue surrounding the Vehicle Depot defence to raise any concern about an injustice being done if they are not given an opportunity to develop that issue further.
[41] The respondents also underscore that the applicant operates three parking lots in the vicinity. They suggest that there is an injustice in allowing the applicant to continue to operate parking lots while the respondent is precluded from doing so.
[42] In the circumstances of this case, I am not persuaded that there is any injustice that should prompt the court to exercise its residual discretion to deny the injunction. The respondents have not suggested that the applicant’s operation of its parking lots violates the Citywide By-Law. My inference from the record is that the applicant was operating the parking lot before the Citywide By-Law was enacted as a result of which its business amounts to a legal nonconforming use. The notion of a legal nonconforming use is a long accepted concept under zoning by-laws. In certain circumstances, it protects people from the prejudice they might suffer as a result of a change in a zoning by-law to prohibit a use that was permitted when the property owner commenced its business. That, however, does not make it unjust to prohibit owners from starting a prohibited business after the by-law has been passed.
[43] The respondent further submits that the injunction should not issue because it is moot. The respondent says it has not been operating a parking lot on the Property since August, 2020.
[44] In my view, that does not make the application moot. In Borowski v. Canada (Attorney General)[^9] the Supreme Court of Canada explained the principle of mootness as follows:
The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.
I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.
[45] The key element in that description for the present purposes is that the issue involve a controversy “which affects or may affect” the rights of the parties. Here, the issue may still affect the rights of the parties even though the respondents say they have not operated a parking lot on the Property since August 2020. Moreover, as the Supreme Court noted, courts may still choose to address a “moot issue” if the circumstances warrant. In my view, the circumstances warrant the court addressing the issue even if it were “moot.”
[46] Canada, like most other countries has been suffering from a worldwide Covid - 19 pandemic since March 2020. This has resulted in a dramatic decline in air traffic which has no doubt led to a correspondingly dramatic decline in the use of off-site airport parking. The closure of the parking lot on the Property in August 2020 is probably attributable to the Covid - 19 pandemic rather than to any change in business strategy by the respondents. It appears that automobiles continue to be parked on the Property. The respondents say these are automobiles that have not been picked up yet because their owners are subject to travel ban as a result of the pandemic. The respondents have not, however, offered any undertaking to refrain from operating a parking lot on the Property in the future.
Disposition
[47] As a result of the foregoing, I allow the application and grant:
(a) A declaration that the operation of a public parking lot on the Property contravenes the Citywide By-law;
(b) A declaration that the operation of a public parking lot on the Property is not exempted from the application of the Citywide By-Law as a legal non-conforming use;
(c) A declaration that the use of the Property as a public parking lot contravenes the Former City of Etobicoke Zoning Code, adopted as By-law No. 11,737, with respect to the requirements for minimum front yard setback and landscaping, minimum side yard setback, the location for parking areas in relation to lot lines abutting a street, and minimum access driveway widths;
(d) An Order pursuant to s. 380 of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, that the Respondents are hereby restrained from operating a parking lot on the Property in contravention of Citywide By-Law and the `
(e) An Order authorizing and directing the Sheriff of the City of Toronto to attend at the Property to enforce the cessation of the parking lot use on the Property, including the removal of any vehicles parked on the Property.
[48] After the hearing I received additional correspondence from the parties with respect to paragraph 47(e) above. The respondents were concerned that the power of the Sheriff to remove vehicles would be abused at the insistence of the applicant and that would be unfair to the respondents’ customers to have their cars removed without notice. I think it is preferable that the order leave as little room for ambiguity about the future use of the property as possible and that the sheriff be empowered to remove the cars. I gave the respondents until March 26, 2021 to have the cars removed. I had the sense from the submissions during the hearing that there had already been communications between the respondents of the owners of the cars as a result of which it would not be inordinately difficult to make other arrangements for their retrieval or storage. If the respondents believe that any unfairness arises as a result of this provision, they can approach me to resolve any issues that arise.
[49] The applicant is entitled to its costs of the application. If the parties cannot agree on a timetable for the exchange of cost submissions I will fix a schedule.
Koehnen J.
Released: April 7, 2021
[^1]: R.S.O. 1990, c. P.13 [^2]: Local Planning Appeal Tribunal Act, 2017, S. O. 2017, c. 23 [^3]: Alberta Ltd. v. Park2Sky Inc. et al, 2020 ONSC 259. [^4]: City of Toronto Act, 2006, S.O. 206, c. 11, Sched. A, s. 380 [^5]: Allied Properties REIT v. 1064249 Ontario Inc., 2016 ONSC 6665 at para. 7 [^6]: Allied Properties REIT v. 1064249 Ontario Inc., 2016 ONSC 6665 at paras. 4, 6; Regional Municipality of York v. DiBlasi, 2014 ONSC 3259 at para. 62. [^7]: Toronto Municipal Licencing Code, Chapter 545, Licensing at p. 545-23 [^8]: Citywide By-Law, Chapter 800.50, Definitions, (890), “Vehicle Depot”. [^9]: 1989 CanLII 123 (SCC), [1989] 1 SCR 342