COURT FILE NO.: CV-19-00002405 & M8816/93
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: CV-19-00002405-0000
In the Matter of the Planning Act, R.S.O. 1990, c. P.13, and amendments thereto
BETWEEN:
Paul Cummins and Patrick Cummins, as The Estate Trustee of the Estate of Eugene Cummins, A Deceased
Applicants
– and –
The Corporation of the Town of Milton
Respondent
B. Romano and J. Nussbaum, for the Applicants
K. Stavrakos and M. Carlson, for the Respondent
Court File No.: M8816/93
AND BETWEEN:
The Corporation of the Town of Milton
Applicant/Moving Party
– and –
Eugene Cummins and E. Cummins & Sons Ltd.
Respondents on Application
- and -
Paul Cummins and Patrick Cummins, as The Estate Trustee of the Estate of Eugene Cummins, A Deceased
Respondents on Motion
K. Stavrakos and M. Carlson, for the Applicant/Moving Party
B. Romano and J. Nussbaum, for the Respondent
Heard on: June 23-25, 2021 and October 14-15, 2021
Conlan J.
REASONS FOR JUDGMENT
PART ONE – LEGAL NON-CONFORMING USE
I. Introduction
The Amended Application
[1] In their Amended Notice of Application dated May 20, 2021 (“Application”), the Applicants, Paul Cummins (“Paul”) and Patrick Cummins (“Patrick”), request, among other things, a declaration that they have the right to use their property (5193 Eighth Line, Milton – the “Property”) for these purposes:
i. outdoor storage of vehicles, machinery, and equipment;
ii. business operation;
iii. storage of heavy trucks and shipping containers;
iv. ancillary deposit of clean fill, topsoil, gravel, or asphalt to maintain parking areas and driveways in a specific area; and
v. such further and other uses as may be ancillary to those described above in clauses (i) through (iii).
[2] Paul and Patrick rely upon subsection 34(9) of the Planning Act, R.S.O. 1990, c. P.13, as amended, which, at paragraph (a) therein, provides that no by-law passed under section 34 (which deals with zoning) applies to prevent the use of any land for any purpose prohibited by the by-law if such land 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.
[3] In their Application, Paul and Patrick submit that “[a]t all material times, the use of the [Property] for the aforesaid purposes has been done openly, continuously and with the full knowledge of the [Town of Milton]”, beginning in or around 1984.
[4] Schedule “A” to the Application is a coloured diagram which sets out, labelled “LNCU” and framed with a blue border, the area of the Property that Paul and Patrick argue ought to be the subject of the legal non-confirming use.
The Issue
[5] I agree with Paul and Patrick that “the case boils down to whether or not there was a legal use of the [Property] in 1984, which has continued to today’s date” – paragraph 4 of their factum dated June 7, 2021.
The By-Law Relied Upon by the Applicants
[6] Paul and Patrick rely upon subsection 56(1)(i) of zoning by-law 1965-136. With respect to properties zoned agricultural, that section provided, as “permitted uses”, “the conduct of a trade or business, provided not more than 25% of the floor area is used for the purpose, no sign is displayed, no person outside members of the family residing on the premises is employed, no goods are stored on the premises and no shipping is done from them, and there is no public office or visiting of the premises by customers, clients, or salesman on business”.
[7] As submitted by the Applicants at paragraph 36 of their factum, “t]he Applicants’ position is that their conduct of a business in 1984 was perfectly legal and permitted by subsection 56(1)(i) of the governing bylaw 1965-136. The provisos do not apply and, in any event, are vague, uncertain and ambiguous. Portions are also unconstitutional”.
[8] Put another way, as stated at paragraph 57 of their factum, “[o]nce it is determined that By-law 1965-136 did not render that activity [what the Applicants were doing at the Property beginning in or around 1984] illegal, then the Applicants submit that they have an undisputed legal non-confirming right to continue to use the [Property] in the LNCU areas”.
The Burden and the Standard of Proof
[9] It is well-settled law that the applicant landowner, here Paul and Patrick Cummins, has the legal burden of establishing the requirements for a legal non-conforming use. Cobalt (Town) v. Coleman (Township), 2019 ONCA 134, at paragraph 21.
[10] The usual civil standard of proof, on a balance of probabilities, applies.
The Town of Milton’s Position
[11] As revealed in the factum filed on its behalf, particularly at paragraphs 51 through 74 therein, the Town of Milton submits the following:
i. the proper characterization of the use of the LNCU area is a contractors’ yard;
ii. the Property was not used as a contractors’ yard in the 1980s or the 1990s; and
iii. thus, the by-law relied upon by the Applicants, 1965-136, which applied to the Property only between May 15, 1984 and July 2, 1985, is of no assistance to Paul and Patrick.
The Proceeding Before Justice Carnwath in 1994
[12] Both sides spent considerable time in their written and oral presentations dealing with what transpired before Justice Carnwath in 1994.
[13] An application came before His Honour, with the Town of Milton as the applicant and Eugene Cummins (the late father of Paul and Patrick) and his company as the respondents. Both sides were represented by counsel. The Town of Milton had sought an injunction prohibiting future dumping on the Property and requiring the respondents to rehabilitate the lands. The allegation was that concrete, bricks, asphalt, excavation material, and fill had been dumped on the Property, for which the respondents had received tipping fees.
[14] Justice Carnwath, to say the least, was not impressed with the activities or the evidence of Eugene Cummins. His Honour’s Reasons for Judgment, delivered orally on April 22, 1994, illustrate that in spades. It was found that Eugene had, for many years, “openly, intentionally and flagrantly contravened the Town by-law” (page 14 of the transcript of the Reasons for Judgment).
[15] Justice Carnwath made a sweeping and severe Order. His Honour ordered that the respondents, and their agents and successors and assigns (which terms undoubtedly include Paul and Patrick), shall be restrained absolutely from placing or causing or permitting to be placed anywhere on the Property any material of any nature or kind whatsoever originating from outside the Property, without the express written consent of the Town of Milton and under its supervision (page 18 of the transcript of the Reasons for Judgment, and the “Judgment” itself).
The Consequences of the Order of Justice Carnwath and the Pressing Need to Amend the Order
[16] The said Order of His Honour, never overturned or varied in the nearly thirty years since it was made, if enforced to the letter, would of course mean that nobody could reasonably live at or conduct any business from the Property, forever. You simply cannot have a Property that is completely shut-out from any outside material of any kind.
[17] Thankfully, the Order has not been interpreted or enforced that way by the Town of Milton. Nor do I believe that Justice Carnwath intended that it be enforced that way.
[18] I must say, however, that it is in the best interests of the Cummins family and the Town of Milton to have the said Order amended. It has been a very long time since it was made. Eugene Cummins is long deceased. Whatever is going on at the Property today, unquestionably the circumstances have changed since the evidence was presented to Justice Carnwath.
[19] There is far too much distrust between the Cummins family and the Town of Milton to simply leave the Order to exist at it is but pledge to only enforce it in certain situations.
II. Decision
Short Conclusion
[20] Despite the very able arguments advanced by Mr. Romano on behalf of Paul and Patrick, the Application must be dismissed.
The Reason for the Conclusion
[21] It must be dismissed for this reason: assuming that the evidence establishes on balance that what the Applicants now want to use the Property for (see the declaratory relief that they are seeking in their Application) was in fact going on at the Property in or around 1984, as alleged, it matters not because that activity was not lawful under zoning by-law 1965-136, subsection 56(1)(i).
[22] Thus, subsection 34(9)(a) of the Planning Act does not assist the Applicants.
How Does this Court Get to that Reason for the Conclusion?
[23] Mr. Romano is absolutely correct that zoning by-law 1965-136 must be interpreted contextually, with any ambiguity resolved in favour of Paul and Patrick, and that the said by-law is susceptible to attack on the ground that it is void for vagueness or is otherwise unconstitutional.
[24] I take no issue with the discussion of the general legal principles contained at paragraphs 41 through 51 of the Applicants’ factum. In fact, the Town of Milton’s own authorities support those general principles:
i. Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62 (the contextual approach);
ii. R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606 (the doctrine of vagueness, generally); and
iii. Chenard & Bunn v. Barrie, 2016 ONSC 2120 (the doctrine of vagueness as applied to municipal by-laws, specifically).
[25] It is clear, however, that the provisos contained in subsection 56(1)(i) are conjunctive. Plainly, they are to be read together in that running afoul of any one of them means that the permitted use is no longer permitted.
[26] None of the experts took issue with the above statement. Paul and Patrick themselves do not take issue with the above statement.
[27] Further, assuming that all of the following provisos ought to be ignored by this Court because they are unenforceable for some reason – “no sign is displayed, no person outside members of the family residing on the premises is employed, no goods are stored on the premises and no shipping is done from them, and there is no public office or visiting of the premises by customers, clients, or salesman on business” – it would not matter if the first proviso is upheld, that is that “not more than 25% of the floor area is used for the purpose”.
[28] Again, none of the experts took issue with that statement, and the Applicants themselves do not challenge it.
[29] So, what does this Court make of the proviso that “not more than 25% of the floor area is used for the purpose”?
[30] In my opinion, the said proviso clearly and unequivocally applies to a dwelling, building, or structure that has a “floor”. An open area of land, without walls or a ceiling, does not have a floor. That is common sense. Nobody refers to a backyard patio, for example, as a “floor”.
[31] Further, the word “purpose”, as it relates to the maximum 25% of the floor area proviso, must be in reference to the conduct of the trade or business. There is no other reasonable way to interpret the plain wording.
[32] Thus, for instance, if the owner is running a flower shop out of the home, that flower shop is the business, and the space inside the home that the flower shop occupies cannot exceed 25% of the home’s total floor area.
[33] Or, arguably (although the Town of Milton’s expert, Mr. McDonald did not agree with this), for example, if the owner is running a honey store out of a barn adjacent to the home, that honey store is the business, and the space inside the barn (not the home) that the honey store occupies cannot exceed 25% of the barn’s (not the home’s) total floor area.
[34] Obviously, the outdoor storage of vehicles, machinery, and equipment, including heavy trucks and shipping containers, and the deposit of clean fill and other materials, is not compatible with the conduct of any trade or business where not more than 25% of the floor area is used for the conduct of that business.
[35] In fact, such a trade or business just not belong in the same discussion as a by-law provision that expressly refers to “floor” space.
[36] Such a trade or business has absolutely nothing to do with agriculture. Such a trade or business has absolutely nothing to do with a dwelling or other building or structure on the property. Put another way, such a trade or business cannot reasonably be referred to as a “home-based” business, an expression used by the Applicants’ own expert, Mr. Ramsay.
[37] A home-based business is not one that just happens to be situated on the same property that a home exists. If I park ten dump trucks out on my back acreage, for example, but I happen to write my dump truck invoices out at my kitchen table inside my home, and the kitchen table occupies 25% or less of the total floor area of my home, can I reasonably say that my business falls within the opening proviso of subsection 56(1)(i)? Respectfully, I think not.
[38] I agree entirely with Mr. McDonald when he states, at paragraph 52 of his report dated April 8, 2021, that “the trade or business must be contained within a relatively small portion [25% or less of the floor area] of the dwelling”, or, arguably (though he did not go this far), the other building or structure on the property.
[39] Whatever was going on at the Property in or around 1984 was definitely not contained within a relatively small portion of any dwelling or other building or structure.
[40] And, as Mr. Ramsay himself observes, and as he fairly acknowledged during his questioning by counsel for the Town of Milton, regardless of any distinction between primary use and accessory use, main use and incidental use, or whatever terms one wishes to employ, no goods may be stored on the premises.
[41] “Premises”, in my view, cannot be limited to the dwelling or the other building or structure; it can only reasonably refer to the property. Otherwise, using the example of the dump trucks parked in my acreage, I could fall within the subsection by relying on the fact that the trucks are not stored in my kitchen.
[42] The Applicants’ entire argument is grounded on the assertion that what they want to be able to do with the Property now, including but not limited to the storage of heavy machinery and equipment, was going on in or around 1984, and lawfully so. With respect, however, it could not possibly have been lawful under subsection 56(1)(i) because that clause prohibited the storage on the Property (“premises”) of such machinery and equipment (“goods”).
[43] Whatever this Court might think about the other provisos contained in subsection 56(1)(i), I fail to see anything vague or unconstitutional or otherwise unenforceable about the language regarding a maximum of 25% of the floor area and no goods being stored on the premises.
The Bottom Line
[44] I repeat, the Applicants do not rely upon anything other than subsection 56(1)(i) of zoning by-law 1965-136.
[45] I conclude, however, that the alleged uses made of the Property in or around 1984 and continuing uninterrupted to today, even if true, were not lawful under that subsection. They were not lawful because they had absolutely nothing to do with a home-based business that occupied no more than 25% of the floor area of the dwelling or even any other building or structure, and in fact they had absolutely nothing to do with a home-based business at all, and further they were not lawful because they involved, admittedly, the storage of goods on the Property that were related to the trade or business.
[46] Thus, as much as this Court may want to free the Cummins family from the constraints of the April 1994 Order, I cannot do so by twisting the contextual analysis of the by-law provision at issue to such a degree that I find some way to grant this legal non-confirming use Application.
[47] The Cummins’ Application is, therefore, dismissed.
[48] If the parties cannot resolve the issue of costs, I may be spoken to through an appointment made with the trial office in Halton. I would prefer to hear brief oral submissions, if necessary, via Zoom as opposed to receiving written submissions on costs.
PART TWO – CONTEMPT
[49] For the reasons that follow, the Town of Milton’s contempt motion is dismissed.
[50] I make the same direction as per the above, regarding costs.
The Motion
[51] The Town of Milton moves for, among other things, an Order that Paul and Patrick be found in civil contempt of Court for breaching the Order of Justice Carnwath referred to above in these reasons, under Part One.
The Law
[52] Carey v. Laiken, 2015 SCC 17, [2015] S.C.J. No. 17 is the leading authority. The Town of Milton must prove, beyond a reasonable doubt, that:
i. the Order states clearly and unequivocally what should and should not be done;
ii. Paul and Patrick Cummins had actual knowledge of the Order and its terms; and
iii. Paul and Patrick Cummins intentionally did something that the Order prohibits or intentionally failed to do something that the order compels (paragraphs 32-35).
[53] As Justice Cromwell observed in Carey, supra, the contempt power is discretionary, and that discretion may be exercised to decline to make a finding of contempt even where all of those three elements have been satisfied to the requisite standard of proof. That discretion recognizes that the enforcement power of a contempt finding is one of last resort. It is not to be exercised routinely or lightly (paragraphs 36-37).
[54] In fact, even in the context of a family law case where a parent has clearly violated a court order for child care, it is an error in law for the judge hearing a motion for civil contempt to not turn her mind to whether there is a reasonable alternative available such that the exercise of discretion to decline such a serious remedy could prevail. Chong v. Donnelly, 2019 ONCA 799.
The Law as Applied to Our Situation
[55] The Motion succeeds on all three necessary elements but not on the discretionary aspect of the analysis.
[56] The Order is about as clear as one could get. Don’t bring a thing onto the Property; that is the literal interpretation of it.
[57] Paul and Patrick were, they admit, fully aware of the Order and its terms.
[58] Paul and Patrick did intentionally, they admit, allow fill to be brought onto the Property on November 12, 2020, and that intentional act was in clear violation of the Order.
[59] Nonetheless, a finding of contempt is not appropriate here, in my opinion.
[60] First, I accept the evidence of the alleged contemnors, through Patrick, that they genuinely believed that the fill was being offered by the Town to residents, including them, as part of a municipal roads resurfacing project. Given that finding of fact, I am not comfortable employing the “hammer” of a contempt citation.
[61] Second, there is another reasonable alternative available in the circumstances. That is to invite the parties, encourage them in fact, to take steps to amend the Order in question, for the sake of everyone involved. I have already done so earlier in these reasons.
[62] Third and finally, any argument by the Town that there has to be some meaningful consequence to what occurred on November 12, 2020 can be addressed through the issue of costs. It may be that Paul and Patrick, presumptively entitled to some costs on the contempt motion, should be awarded either no costs or reduced costs because of the lengthy history of this Property being in violation of the law and the extent to which the Order was violated on November 12th.
PART THREE – CONCLUSION
[63] The Application by Paul and Patrick Cummins is dismissed. The Motion by the Town of Milton is dismissed.
[64] I thank all counsel for their excellent work on behalf of their respectful clients.
(“Original signed by”)
Conlan J.
Released: October 28, 2021
COURT FILE NO.: CV-19-00002405 & M8816/93
DATE: 20211028
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: CV-19-00002405
Paul Cummins and Patrick Cummins, as The Estate Trustee of the Estate of Eugene Cummins, A Deceased
Applicants
– and –
The Corporation of the Town of Milton
Respondent
AND BETWEEN: M8816/93
The Corporation of the Town of Milton
Applicant/Moving Party
– and –
Eugene Cummins and E. Cummins & Sons Ltd.
Respondents on Application
- and -
Paul Cummins and Patrick Cummins, as The Estate Trustee of the Estate of Eugene Cummins, A Deceased
Respondents on Motion
REASONS FOR JUDGMENT
Conlan J.
Released: October 28, 2021